Explore The NRA Universe Of Websites

APPEARS IN Legal & Legislation

Federal Court Finds Due Process Violation in NY County's Confiscated Gun Policy

Friday, August 28, 2015

Federal Court Finds Due Process Violation in NY County's Confiscated Gun Policy

This week, a federal court ruled that the Nassau County Sheriff’s Department could not rely on its “retention policy” to keep guns seized from a woman without providing her with a due process hearing. Panzella v. Nassau County, No. 13-cv-05640 (E.D. N.Y. Aug. 26, 2015). 

Christine Panzella’s ex-husband had obtained an ex parte order of protection against her in June of 2012. Such orders are authorized by the New York Family Court Act, and the statute authorizes the family court to include, in the order, a requirement that the person subject to the order surrender all firearms in his or her possession. The family court did not expressly order Ms. Panzella to surrender (or the police to confiscate) her firearms or otherwise invoke the surrender requirement, although the order did include a generic warning regarding the federal law (“It is a federal crime to . . . buy, possess or transfer a handgun, rifle, shotgun or other firearm while this Order remains in effect…”). As noted in the federal court decision, this disqualification applies to orders issued after actual notice is given to the affected person and after a hearing at which that person has an opportunity to participate, and would not apply to the ex parte order.

When police officers from Nassau County served the order on Ms. Panzella a few days later, they confiscated her guns. Although the ex-husband later received an extension of the protection order, he ultimately withdrew his petition, and the court terminated the proceedings and vacated the orders in March 2013. 

With these orders no longer in effect, Ms. Panzella made several requests that her two rifles and three shotguns be returned to her. The Nassau County police refused to do so based on a purported “legislative glitch” in which the family court, while authorized to order the confiscation of firearms, was not explicitly authorized to order their subsequent return when an order expired or was vacated. The police “retention policy” was not to restore firearms to their lawful owners unless and until the sheriff’s department was served with a court order directing that this be done. This policy not only places the burden of recovery on the owner whose property had been seized but requires costly and time-consuming litigation.

A previous lawsuit against Nassau County, Razzano v. Cnty. of Nassau, had already resulted in a finding that police officers violated a gun owner’s due process rights by failing to provide him with an adequate opportunity to recover rifles and shotguns, after these were confiscated based on a policy of doing so when the police believed a person to be dangerous. Subject to limited exceptions (when a gun is involved in a crime, for example), the police have to provide an owner with a prompt “post-deprivation” hearing. This has to take place before a neutral decision-maker, and the police have the burden of showing they are likely to succeed in any court action to maintain possession of the confiscated property. If the owner prevails at this hearing, the guns have to be returned.

Citing the Razanno decision, Ms. Panzella’s federal lawsuit against Nassau County claimed that the retention policy, and police refusal to hold a hearing once the orders were no longer in effect, violated her due process rights under the Fourteenth Amendment to United States Constitution. 

On August 26, the federal district court agreed. In ruling that Ms. Panzella should have been provided with a hearing, the court referred to the fact that other than the “unconvincing argument that a court order is required” for the return of the confiscated guns, the police failed to articulate “any basis for retaining” the firearms. The “legislative glitch” had no application because the family court orders did not actually mandate any surrender of guns, “let alone bar their return once the Extension Order expired.” In a footnote, the court similarly rejected the defendants’ indirect argument that they were not competent to determine whether to return confiscated guns, and noted that “the County’s police department makes these very determinations” in connection with pistol licensing decisions. Nassau County was directed to hold a due process hearing regarding the confiscated guns within 30 days.

IN THIS ARTICLE
New York Legal Gun Confiscation
TRENDING NOW
Justice Scalia Made Clear the Second Amendment and Heller Prohibit “Assault Weapon” Bans

News  

Second Amendment  

Gun Laws  

Friday, July 13, 2018

Justice Scalia Made Clear the Second Amendment and Heller Prohibit “Assault Weapon” Bans

On July 9, Sen. Chris Murphy (D-Conn.) offered the following ham-handed statement in an attempted attack on President Donald Trump’s U.S. Supreme Court nominee, D.C. Circuit Judge Brett Kavanaugh. Brett Kavanaugh is a true Second Amendment radical. ...

Delaware: Governor Signs Bill Legalizing Sunday Deer Hunting

Hunting  

Friday, July 13, 2018

Delaware: Governor Signs Bill Legalizing Sunday Deer Hunting

On July 11th, Governor John Carney signed Senate Bill 198 into law to expand hunting opportunities in Delaware by eliminating the prohibition against hunting for deer on Sundays and allowing for the harvesting of deer on Sundays ...

NRA Files Comments in Support of Trump Administration’s Export Reform Effort

News  

Friday, July 13, 2018

NRA Files Comments in Support of Trump Administration’s Export Reform Effort

On Monday, the public comment period closed on a pair of rulemakings that could finally free American gun owners and small businesses from being trapped in a minefield of federal regulations designed for exporters of ...

California DOJ Withdraws Proposed Regulations Expanding Application of “Assault Weapon” Definitions

Wednesday, July 11, 2018

California DOJ Withdraws Proposed Regulations Expanding Application of “Assault Weapon” Definitions

On Monday, the California Department of Justice, Bureau of Firearms (“CA DOJ”) officially withdrew the proposed regulations that would have expanded the improperly adopted “assault weapon” definitions, to apply in all circumstances. This withdrawal comes ...

Judge Brett Kavanaugh Has Earned NRA Members’ Support

News  

Second Amendment  

Friday, July 13, 2018

Judge Brett Kavanaugh Has Earned NRA Members’ Support

NRA members can feel confident throwing their enthusiastic support behind President Donald Trump’s nomination of Judge Brett Kavanaugh to the U.S. Supreme Court. Throughout his time on the bench, Judge Kavanaugh has demonstrated deep respect ...

California: MASSIVE Data Breach and Significant Registration Problems with CA DOJ’s “Assault Weapon” Registration System

Saturday, July 7, 2018

California: MASSIVE Data Breach and Significant Registration Problems with CA DOJ’s “Assault Weapon” Registration System

Following the closure of the “assault weapon” registration period, NRA and CRPA received complaints from hundreds of individuals who were unable to register their firearms as required because CA DOJ’s online application system was unable ...

Mission Impossible: California Court Upholds Microstamping Law

News  

Tuesday, July 3, 2018

Mission Impossible: California Court Upholds Microstamping Law

It is not surprising that gun control activists who harp endlessly about “common sense” gun restrictions and the need for ever more legislative reforms (here, here and here, for example) aren’t particularly interested in whether the various bans and ...

NRA Applauds Brett Kavanaugh's Nomination to the U.S. Supreme Court

News  

Monday, July 9, 2018

NRA Applauds Brett Kavanaugh's Nomination to the U.S. Supreme Court

Fairfax, Va. -The National Rifle Association (NRA) applauds the nomination of Judge Brett Kavanaugh to fill Justice Anthony Kennedy’s seat on the United States Supreme Court. 

Too Young or Too Old... To Own a Gun?

News  

Friday, July 6, 2018

Too Young or Too Old... To Own a Gun?

A common theme among anti-gun extremists is what we often refer to as the “Goldilocks” approach to limiting access to firearms by law-abiding citizens.  Rather than admit that the ultimate goal is to disarm all ...

Hawaii: Governor Signs Trigger Modification Ban Into Law

Friday, July 13, 2018

Hawaii: Governor Signs Trigger Modification Ban Into Law

On Monday, July 9th, Governor David Ige signed Senate Bill 2046, which makes it a crime to manufacture, import, sell, gift, lend, or possess certain trigger modifications. 

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.