Opinion
H17CR140057617S
08-01-2016
State of Connecticut v. Edwin Jacobsen
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Richard W. Dyer, J.
Edwin Jacobsen is the defendant in the above-entitled case. He was initially arrested by the Southington Police Department on February 9, 2014, and charged with Threatening First Degree (two counts), Disorderly Conduct, and Carrying a Firearm Under the Influence of Intoxicating Liquor or Drugs. (File H17-CR14-0057617-S). He has filed a Petition for Declaratory Judgment in this matter that relates to the disposition of firearms that were seized from him at the time of his arrest. For the sake of clarity, Mr. Jacobsen will be referred to throughout the remainder of this memorandum as the " Petitioner."
The Connecticut Department of Emergency Services and Public Protection (hereafter " DESPP") has been joined as a necessary party in this proceeding. DESPP is the state agency that currently has possession of the firearms that were seized from the Petitioner, and it is statutorily charged with their ultimate disposition. DESPP has filed a Motion for Summary Judgment asking the court to dismiss the Petition for Declaratory Judgment.
The following facts and procedural history are germane to the resolution of this matter.
The Southington Police allege that the petitioner threatened to shoot his wife and stepdaughter during a domestic dispute at the family home on February 9, 2014. It is alleged that the Petitioner was intoxicated and had a loaded pistol on his person when police arrived at the home. The police, acting pursuant to the provisions of C.G.S. § 46b-38, seized that weapon, and eight other firearms that were observed in an open safe in the home. Four of the firearms that were seized are classified under state law as assault weapons.
DESPP Memorandum in Support of Motion for Summary Judgment, Exhibit A.
C.G.S. § 46b-38 provides in relevant part:
See C.G.S.§ 53-202a.
At his arraignment on February 10, 2014, the court issued a family violence protective order to the Petitioner in accordance with C.G.S. § 46b-38c(e). That protective order has remained in effect through the present date, and it renders the Petitioner ineligible, under threat of felony prosecution, to possess any type of firearm.
Subsequently, on July 21, 2015, the Petitioner was arrested again and charged with Interfering With An Officer (File H17-CR15-0062003-S), and counts of Threatening Second Degree and Violation of a Protective Order (File H17-CR15-0062006-S). He was also charged with Operating a Motor Vehicle While Under the Influence of Liquor or Drugs on that date. (File H17-MV15-0239757). All of the Petitioner's criminal charges from 2014 and 2015 remain pending at this venue.
The court takes judicial notice here of the charges that were subsequently brought against the Petitioner on July 21, 2015, because they have a bearing on the procedural status of the present case, and the length of time it has been pending.
In an attempt to resolve his 2014 domestic violence charges, the Petitioner applied for the Family Violence Education Program, a court-ordered statutory diversionary program which is available to persons charged with such offenses. (See C.G.S. § 46b-38c(h)(1).) Court records of which the undersigned has taken judicial notice indicate that the Petitioner was granted admission to the Family Violence Education Program on April 3, 2014, for a period of 18 months, until December 3, 2015. If the Petitioner had completed this diversionary program successfully by attending all classes and avoiding new arrests for domestic violence crimes, he would have been entitled to a dismissal of his 2014 domestic violence charges on December 3, 2015.
However, the Petitioner was arrested for the additional domestic violence offenses, and other criminal and motor vehicle offenses referred to above, during July 2015. On December 3, 2015, the court admitted the Petitioner to the Alcohol Education Program, a court-ordered statutory diversionary program. The Petitioner applied for and received this program with respect to his July 21, 2015 arrest for Driving Under the Influence. The motor vehicle case was continued until August 30, 2016, in order to permit the Petitioner to complete the Alcohol Education Program and potentially earn a dismissal of his drunken driving charge on that date. Because of the Petitioner's subsequent domestic violence arrests, the 2014 domestic violence charges for which he had been granted the Family Violence Education Program were not dismissed on December 3, 2015. Instead, the State's Attorney and Petitioner's defense counsel agreed that all of the Petitioner's pending 2014 and 2015 criminal cases would be continued until August 30, 2016. Those cases were given a so-called " 5-50 marking, " a designation that exempts the cases for computer purposes from judicial branch time standards. There was an informal understanding between the State and the Petitioner that he would receive favorable dispositions in his pending cases if he had no new arrests during the intervening period between December 3, 2015, and August 30, 2016.
The undersigned's review of File H17-CR14-0057617-S, which relates to Petitioner's 2014 domestic violence charges, indicates that the court never formally removed the Petitioner from the Family Violence Education Program to which he was admitted on April 3, 2014. The court notes, however, that the Petitioner has now exceeded the two-year statutory time limit for completion of that program, as mandated in C.G.S. § 46b-38c(h)(2).
C.G.S. § 29-36k(b) requires DESPP to hold the firearms that are seized from individuals who are subject to protective orders for a period of up to one year, and to thereafter destroy them if the firearms have not been transferred to a federally licensed firearms dealer within that period of time. It is not disputed that the Petitioner has never transferred the weapons that were seized from him to a federally licensed firearms dealer.
C.G.S. § 29-36k(b) states in pertinent part:
C.G.S. § 29-36k(b) specifies that persons subject to protective or restraining orders must transfer the firearms seized from them by selling the weapons to the federally licensed firearms dealer. The court notes that had the Petitioner done so, he would have received financial compensation for the firearms that DESPP now seeks to destroy.
On February 11, 2015, DESPP notified the Petitioner that it had held his firearms for one year, and intended to destroy them in accordance with the provisions of § 29-36k(b) after 30 days, unless the Petitioner transferred the firearms to a federally licensed firearms dealer before then.
The firearms have not been destroyed. When the Petitioner filed his Motion for Declaratory Judgment, DESPP agreed to continue to hold the weapons until the court rendered a ruling on the motion.
On March 11, 2016, the Petitioner filed the Petition for Declaratory Judgment in conjunction with this criminal case. In the petition, he seeks a ruling by this court that the provisions of C.G.S. § 29-36k are unconstitutional as they are being applied to him in this case. Specifically, the petitioner asks the court to declare that a forced transfer or destruction of his firearms pursuant to § 29-36k(b) would violate (1) his right to bear arms under the Second Amendment to the United States Constitution and Article First, § 15, of the Connecticut Constitution; (2) his due process rights under the Fifth Amendment to the United States Constitution; and (3) his rights under Article First, § 7, of the Connecticut Constitution.
The Petitioner did not file the petition for declaratory judgment with respect to the cases that resulted from his arrest on July 21, 2015.
See C.G.S. § 52-29(a) (" The Superior Court in any action or proceeding may declare rights and other legal relations on request for such declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment").
As noted, DESPP was impleaded as a necessary party in this proceeding because it is the state agency statutorily mandated by C.G.S. § 29-36k to hold and ultimately dispose of the firearms that were seized from the Petitioner at the time of his arrest. DESPP and the State's Attorney are opposed to the Petition for Declaratory Judgment. DESPP has filed a Motion for Summary Judgment. In its Motion for Summary Judgment, DESPP asserts that § 29-36k is constitutional as it is being applied to the Petitioner. DESPP claims that it is entitled to judgment as a matter of law, and that there is no genuine issue of material fact in dispute.
DESPP filed its Motion for Summary Judgment pursuant to sections 17-56(a)(1) and 17-44 of the Connecticut Practice Book.
The undersigned heard the parties' oral argument on June 17, 2016. The court has also reviewed and considered the well-prepared memoranda that were submitted by counsel for the Petitioner and DESPP.
DISCUSSION
The first determination which this court must make is whether or not a genuine issue as to any material fact exists in this case. A material fact is " a fact that will make a difference in the result of a case." Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
" [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party." (Internal quotation marks omitted). Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). In seeking summary judgment, it is the movant who has the burden of showing the non-existence of any genuine issue as to all the material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " Once the moving party has met its burden, the opposing party must present the existence of some disputed factual issue." (Internal quotation marks omitted). Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
In his memorandum, and at oral argument, the Petitioner indicated that there was only one factual issue in dispute. He asserted that this was the issue of whether or not he consented to the taking of his firearms when he was arrested on February 9, 2014. In the memorandum which it submitted to the court, DESPP asserted that the Petitioner signed a " Firearms Surrender Log" on February 10, 2014 which indicated that he had voluntarily surrendered his firearms to the State Police. (See: DESPP's " Memorandum in Support of Defendant's Motion for Summary Judgment, " Exhibit B.) There is efficacy to the Petitioner's argument that the turnover of his guns was compulsory, and not consensual. It is undisputed that the police lawfully seized the Petitioner's firearms on the date of his arrest, and that a family violence protective order has now legally barred the Petitioner from possessing any type of firearm for more than two years. It is also undisputed that the Petitioner has not reclaimed the weapons, or transferred them to a federally licensed firearms dealer, since his arrest on February 9, 2014. The court finds that the Petitioner's consent, or lack of consent, with respect to the seizure of his firearms is not an issue of material fact. That is, it has no bearing under the circumstances on whether or not C.G.S. § 29-36k is unconstitutional as it is being applied to the Petitioner. The undersigned concludes that no disputed issue of material fact exists in this matter.
The court next addresses whether or not DESPP is entitled to summary judgment as a matter of law. In resolving this issue, the court focuses on the Petitioner's claim that the application of C.G.S. § 29-36k in this case results in an unconstitutional deprivation of his property and an unconstitutional violation of his rights to bear arms and to due process.
The Petitioner stated in his memorandum and at oral argument that his request for a declaratory judgment is based on an " as applied" rather than " facial" constitutional challenge to the statute.
" It is well-established that a validly enacted statute carries with it a strong presumption of constitutionality [and that] those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt. The court will indulge in every presumption in favor of the statute's constitutionality . . . Therefore, [w]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear." (Internal quotation marks omitted.) State v. McKenzie-Adams, 281 Conn. 486, 500, 915 A.2d 822 (2007).
The Second Amendment to the United States Constitution states: " A well-regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." The United States Supreme Court has held that the Second Amendment protects an individual's right to possess a firearm unconnected with service in a militia, and to use firearms for lawful purposes, such as self-defense with the home. District of Columbia v. Heller, 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). The Second Amendment is fully applicable to the states through the due process clause of the Fourteenth Amendment. McDonald v. Chicago, 561 U.S. 742, 778, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).
However, the right secured by the Second Amendment is not " unlimited, " and it does not confer " a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purposes." District of Columbia v. Heller, supra, 554 U.S. 626. As Justice Scalia wrote in the majority opinion in Heller : " Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion shall be taken to cast doubt on the long-standing prohibitions on possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions on the commercial sale of arms." Id., 626-27.
As noted in Heller, the Second Amendment safeguards " the right of law abiding, responsible citizens to use arms in defense of hearth and home." Id., 635. The Supreme Court also recognized in
Heller that legislatures may nonetheless enact presumptively lawful regulatory measures " to prevent the violence associated with firearms." Hope v. State, 163 Conn.App. 36, 41-42, 133 A.3d 519 (2016). " Heller has been aptly characterized as having adopted a two-pronged approach to Second Amendment challenges. First, the court asks whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment guarantee. If it does not [the] inquiry is complete. If it does [the court] evaluates the law under some form of means end scrutiny. If it fails, it is invalid." (Footnote omitted; internal quotation marks omitted.) State v. DeCiccio, 315 Conn. 79, 111, 105 A.3d 165 (2014).
In the present case, the Petitioner has been legally barred by a court-issued protective order from possessing any type of firearm for more than two years. The ongoing prohibition results directly from his arrests for domestic violence charges in 2014 and 2015, as well as the length of time his criminal cases have been pending in court. The Petitioner does not contest the constitutionality of C.G.S. § 46b-38, the statute which authorized the police to seize his firearms on the date of his first arrest, or of C.G.S. § 46b-38c(e), the law that authorized the court to impose the protective order upon him. The Petitioner's criminal charges are still unresolved.
Because the petitioner does not presently have the legal right to bear arms, and has been continuously prevented by a valid court order from doing so for more than two years, the court does not find that the proposed destruction of the guns by DESPP is unconstitutional. The proposed state action does not infringe on the defendant's right to bear arms, because he does not presently have that right. Hence, C.G.S. § 29-36k, as it is applied in this case to the Petitioner, does not impose a burden on conduct protected under our federal and state constitutions.
Furthermore, the undersigned finds that § 29-36k facilitates the orderly safekeeping and ultimate disposition of lethal weapons that are confiscated from alleged domestic violators, and are later destroyed by the state if they are not returned or transferred within a reasonable period of time. The statute advances significant public safety interests, and appears to fall within the sphere of permitted exceptions to the Second Amendment that were referred to in Heller .
The Petitioner further argues that C.G.S. § 29-36k is unconstitutional because if he transferred his firearms to a federally licensed firearms dealer, he would no longer have any ability to repurchase the guns in the future if his Second Amendments rights are restored. This is due to the statute that now bans the sale of assault weapons in Connecticut. The Petitioner correctly asserts that C.G.S. § 53-202b(a)(1) would prohibit the firearms dealer from selling or transferring the assault weapons back to him. The statute provides that anyone " who distributes, keeps for sale, or offers any assault weapon" is guilty of a Class C Felony.
With respect to this specific claim, the undersigned finds the decision in Hope v. State, supra, 163 Conn.App. 36, which dealt with another statute, to be instructive. In that case, the trial court found that the defendant posed a risk of imminent personal danger to himself or others and ordered him to surrender his firearms for one year pursuant to C.G.S. § 29-38c. Id., 37. The defendant claimed on appeal that § 29-38c violated the Second Amendment. Our Appellate Court held that the statute " does not implicate the second amendment as it does not restrict the right of law abiding, responsible citizens to use arms in defense of their homes." Id., 43. The court also found that § 29-38c " is an example of long-standing, presumptively lawful regulatory measures articulated in [ Heller ]." (Internal quotation marks omitted.) Id.
In the present case, although the operation of § § 29-36k(b) and 53-206(b)(1) may permanently prevent the Petitioner from regaining possession of his assault rifles after transferring them, his Second Amendment claim fails because the challenged portion of § 29-36k(b) does not interfere with a constitutionally guaranteed right that the Petitioner can presently exercise.
The Petitioner's " as applied" challenge to § 29-36k under the Connecticut Constitution is also unavailing. Article First, § 15, of our state constitution provides that " Every citizen has a right to bear arms in defense of himself and the state." In upholding the statute that bans assault weapons, our Supreme Court has likewise stated that Article First, § 15 " does not guarantee the right to possess any weapon of the individual's choosing for use in self-defense. We conclude that as long as our citizens have available to them some type of weapons that are adequate reasonably to vindicate the right to bear arms in self-defense, the state may proscribe the possession of other weapons without infringing on Article first, § 15." (Emphasis in original; footnote omitted.) Benjamin v. Bailey, 234 Conn. 455, 465-66, 662 A.2d 1226 (1995). Although Benjamin was decided before Heller and McDonald, the Petitioner did not attempt under the six-prong test set forth in State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), to establish that the Connecticut Constitution accords broader protections than the United States Constitution. This court declines to undertake that analysis sua sponte. See Greater New Haven Property Owners Ass'n v. New Haven, 288 Conn. 181, 196 n.9, 951 A.2d 551 (2008). As previously explained, although § 29-36k(b) may operate under the facts of this case to divest the petitioner of his assault weapons, it does not implicate constitutionally guaranteed conduct, and it does not preclude him in the future from acquiring other kinds of firearms that would be adequate to protect himself, should his right to possess firearms be restored.
Furthermore, the undersigned agrees with the argument advanced by DESPP, in its memorandum and at the hearing, that although § 29-36k(b) may result in the destruction of specific firearms owned by the Petitioner, it does not impinge on his general right to bear arms.
In Garcha v. Beacon, 351 F.Supp.2d 213 (S.D.N.Y. 2005), aff'd 232 Fed.Appx. 74 (2d Cir. 2007), a case that predated Heller and McDonald, the plaintiff alleged that his Second Amendment rights were violated when police seized his firearm incident to arrest and subsequently refused to return it. Id., 215. The firearm was ultimately destroyed pursuant to a court order. Id. The court held that the plaintiff's Second Amendment rights were not violated because " [a]t worst, the city converted a single arm belonging to the plaintiff by causing its destruction. This does not state any claim under the Second Amendment, since the plaintiff has not been prevented from 'bearing arms.' It is true that he cannot bear the weapon that was destroyed, because it no longer exists. But the 'right to bear arms' is not a right to hold a particular gun. Nothing in the plaintiff's pleadings or other papers suggest that any action taken by the defendants would prevent him from acquiring another weapon." Id., 217.
Since the Heller and McDonald cases were decided, federal district courts in the Second Circuit have adopted the reasoning of the Garcha decision in similar cases. See, e.g., Vaher v. Town of Orangetown, 916 F.Supp.2d 404, 430 (S.D.N.Y. 2013) (relying on Garcha in dismissing a Second Amendment claim because " there [was] no allegation that [the] defendant's action . . . affected [the] plaintiff's ability to retain or acquire other firearms or ammunition, and no law [was] cited that infringed on [the] plaintiff's right to obtain other firearms"); and Doutel v Norwalk United States District Court, Docket No. 3:11 CV01164 (VLB), (D.Conn. July 3, 2013) (where a plaintiff's ability to acquire other firearms has not been abridged, a Second Amendment violation has not occurred, even despite a seizure of plaintiff's particular firearm). (Emphasis in original.) See also: Walters v. Wolf, 660 F.3d 307, 318 (8th Cir. 2011) (the plaintiff failed to establish a Second Amendment violation as a matter of law where police seized a firearm pursuant to an arrest for a domestic dispute with the plaintiff's permission and where plaintiff could not regain possession of the firearm after disposition of criminal charges because city had destroyed it, since " defendants' policy and actions affected one of [the plaintiff's] firearms which had been lawfully seized" and " [t]he defendants did not prohibit [the plaintiff] from retaining or acquiring other firearms").
Since the prohibitions of C.G.S. § 53-202b(a)(1) apply only to assault weapons, § 29-36k(b) does not inhibit the Petitioner's ability to sell his other firearms to a licensed gun dealer while he is ineligible to receive them, and to subsequently repurchase them after his ineligibility ceases. As the foregoing cases suggest, neither the Second Amendment of the federal constitution nor Article First, § 15 of our state constitution accord the Petitioner the right to specific firearms. For this reason as well, the undersigned finds that § 29-36k does not intrude upon the Petitioner's constitutionally guaranteed rights.
The Petitioner also contends that the transfer and destruction of his firearms pursuant to § 29-36k(b) amounts to a governmental taking of his property, without due process of law, in violation of the Fifth Amendment to the United States Constitution. The Fifth Amendment provides that: " No person . . . shall be deprived of life, liberty, or property without due process of law."
Procedural due process claims may be asserted under either the Fifth or Fourteenth Amendments to the United States Constitution, and the analysis is substantially the same under both provisions. See: Zynger v. Dep't of Homeland Sec., 615 F.Supp.2d 50, 55 n.5 (E.D.N.Y. 2009), aff'd 370 Fed.Appx. 253, (2d Cir. 2010).
The Petitioner has not claimed that the initial seizure of his firearms violated due process. Instead, he argues that he has not been provided with any meaningful post-deprivation remedy because § 29-36k(b), read in conjunction with § 53-202b(a)(1), offers no mechanism or procedure for ever reclaiming his assault weapons.
" Procedural due process imposes constraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests within the Due Process Clause of the Fifth or Fourteenth Amendment." Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). " To plead a violation of procedural due process, a plaintiff must . . . allege that he was deprived of property without constitutionally adequate pre- or post-deprivation process . . . In order to do so, a plaintiff must first identify a property right, second show that the state has deprived him of that right, and third show that the deprivation was effected without due process." (Citation omitted; emphasis omitted; internal quotation marks omitted.) J.S. v. T'Kach, 714 F.3d 99, 105 (2d Cir. 2013). Thus, to prevail in a procedural due process claim, a plaintiff must establish, as a threshold matter, " that state action deprived him of a protected property interest." Spinelli v. New York, 579 F.3d 160, 168 (2d Cir. 2009).
" Property interests protected by [the due process clauses] may take many forms . . . To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity to vindicate those claims. Property interests, of course, are not created by the [c]onstitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." (Citation omitted; internal quotation marks omitted.) Greater New Haven Property Owner's Ass'n v. New Haven, supra, 198-99.
The Petitioner in the present case admits in Paragraph 14 of his Petition for Declaratory Judgment that he " is currently ineligible to possess any firearms pursuant to General Statutes § 53-217." Therefore, his procedural due process claim fails, because he is not currently entitled to possess any firearms, and cannot claim that there is a deprivation of a protected property interest.
Furthermore, assuming for the sake of argument that the Petitioner did have such an interest, he has not established that the procedures in this case were inadequate to satisfy due process requirements. " Procedural due process does not protect against all deprivations of constitutionally protected interests in life, liberty or property, only against deprivations without due process of law." (Citations omitted, internal quotation marks omitted.) Rivera-Powell v. New York City Board of Elections, 470 F.3d 458, 465 (2d Cir. 2006). Courts examining whether a constitutional due process violation has occurred must inquire about the nature of the process that exists, and whether or not it is constitutionally sufficient. Id.
Under the holding of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the undersigned is required to balance three factors in making this determination: " First the private interest that will be affected by the official action; second the risk of erroneous deprivation of such interest through the procedure used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government's interest including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail." Id.
The court has conducted that balancing test, and concludes that constitutionally adequate due process remedies were accorded to the Petitioner. Around the time of the seizure, the Petitioner was notified in writing by DESPP that the firearms would be destroyed after one year if he did not transfer them to a federally licensed gun dealer. (DESPP's Memorandum In Support of Defendant's Motion for Summary Judgment, Exhibit B.) Because of the statutory provisions of § 29-36k(b) that required the defendant to sell the firearms to such a dealer, the Petitioner had the opportunity to receive compensation for the assault weapons that could not thereafter be returned to him, as well as the opportunity to repurchase the other seized firearms at some future date if his legal eligibility to possess them was restored.
Additionally, the Petitioner appears to overlook in his arguments the due process rights which were and are available to him in the Superior Court in connection with his pending criminal cases. At his arraignment in February 2014, the petitioner had the right to address the court about the need for the issuance of the family violence protective order that removed his eligibility to possess firearms. The Petitioner also had the right then to request that the court conduct an evidentiary hearing about the protective order within a reasonable time after the arraignment. At such hearing, the State would have been required to prove the continued necessity for the protective order by a fair preponderance of the evidence. Also, the Petitioner would have had the right at the evidentiary hearing to present evidence to counter the state's case in support of the criminal protective order, either by testifying himself, or through the testimony of other witness. See: State v. Fernando A., 294 Conn. 1, 30, 981 A.2d 427 (2009). A review of the court file indicates that the Petitioner did not request such a hearing.
Another procedural remedy was also available to the Petitioner in this criminal case, which is still pending after two years and five months. The Petitioner could have filed a motion for a speedy trial. If the State failed to meet its burden of proving the domestic violence charges beyond a reasonable doubt at trial, the Petitioner would have been acquitted, and entitled to the return of his firearms. As noted above, the Petitioner elected to follow a different procedural path in attempting to resolve his criminal cases.
Based on the foregoing, the court finds that the due process remedies available to the Petitioner in this case are constitutionally sufficient, and that there has been no violation of his due process rights under our state and federal constitutions.
The Petitioner also claims in his memorandum that the seized firearms should not be destroyed because the language in § 29-36k(b) which states that DESPP " shall cause" the weapons to be destroyed after one year lapses is only directory, and not mandatory. The court has considered this argument, but is not persuaded. Given the significant public safety concerns addressed by the statute, the court does not accept the proposition that our General Assembly intended to make the agency's obligation discretionary, or non-mandatory. Additionally, the issue of whether or not § 29-36k(b) creates a mandatory duty does not have a bearing on whether the statute is being constitutionally applied to the Petitioner.
ORDER
Because the undersigned finds that no genuine issues of material fact exist in this case, and that DESPP is entitled to judgment as a matter of law because the Petitioner has not demonstrated that the provisions of C.G.S. § 29-36k are unconstitutional as they are being applied to him, the Motion for Summary Judgment filed by DESPP is hereby GRANTED, and the Petition for Declaratory Judgment is hereby DISMISSED.
In his memorandum of law, the Petitioner refers to a possible prospective claim on his part of improper retaliation by the State under the First Amendment to the United States Constitution. His petition, however, did not plead this claim, and raises only Second and Fifth Amendment challenges to C.G.S. § 29-36k. " The allegations of a complaint limit the issues to be decided on the trial of a case and are calculated to prevent surprise to opposing parties . . . It is fundamental in our law that the right of a plaintiff is limited to the allegations of his complaint . . . The purpose of a complaint . . . is to limit the issues at trial, and . . . pleadings are calculated to prevent surprise . . . It is fundamental to our law that the right of a [party] to recover is limited to the allegations in his [pleading]." (Internal quotation marks omitted.) Stamford v. Ten Rugby Street, LLC, 164 Conn.App. 49, 74, 137 A.3d 781 (2016). The foregoing principles apply with equal force to petitions for declaratory judgment. Based on the foregoing, this court will not consider the First Amendment claim raised for the first time in the Petitioner's memorandum of law.
SO ORDERED.
Whenever a peace officer determines that a family violence crime has been committed, such officer may seize any firearm or electronic defense weapon, as defined in section 53a-3, or ammunition at the location where the crime is alleged to have been committed that is in the possession of any person arrested for the commission of such crime or suspected of its commission or that is in plain view. Not later than seven days after any such seizure, the law enforcement agency shall return such firearm, electronic defense weapon or ammunition in its original condition to the rightful owner thereof unless such person is ineligible to possess such firearm, electronic defense weapon or ammunition or unless otherwise ordered by the court.
Such person, or such person's legal representative, may, at any time up to one year after such delivery or surrender, transfer such pistols and revolvers in accordance with the provisions of section 29-33 to any person eligible to possess a pistol and revolver and transfer such other firearms and ammunition, in accordance with any applicable state and federal laws, to any person eligible to possess such other firearms and ammunition, provided any person subject to a restraining or protective order or a foreign order of protection, or such person's legal representative, may only transfer such pistol, revolver or other firearm or ammunition to a federally licensed firearms dealer pursuant to the sale of the pistol, revolver or other firearm to the federally licensed firearms dealer. Upon notification in writing by the transferee and such person, the Commissioner of Emergency Services and Public Protection shall, within, ten days, deliver such pistols and revolvers or other firearms or ammunition to the transferee. If, at the end of the year, such pistols or revolvers or other firearms or ammunition have not been so transferred, the commissioner shall cause them to be destroyed.