Tuesday, April 20, 2010

Sloth-like permit process for guns may violate Due Process Clause

Service at the gun counter was rotten. As rotten as asking a teenage worker at Stop And Shop to check in the back room to look for any more sale items. That's when teenage Johnnie goes on his lunch break, and you are standing in Aisle 7 waiting for assistance.

That's what it felt like for M. Peter Kuck, who went to the Connecticut Department of Public Safety to renew his gun permit. Kuck refused to provide documents to verify his citizenship, an insulting requirement in his view, so he appealed to Board of Firearms Permit Examiners. The problem for Kuck was that there was no sense of urgency at the Board, which takes forever to process the appeals. So long, in fact, that the Board may be violating the Due Process Clause.

The case is Kuck v. Danaher, decided on March 23. Kuck's permit appeal was not scheduled to be heard for 18 months. Under the Due Process Clause, "a delay amounts to a due process violation only where it renders the prescribed procedures meaningless in relation to the private interests at stake," the Court of Appeals tells us. While the courts will tolerate a relatively brief administrative delay that takes into account the bureaucratic workload, there are limits to the court's patience.

The courts resolve these disputes by weighing the citizen's property or liberty interest against the risk of erroneous deprivation of that interest as well as government's interest in maintaining these procedures. We call this the Matthews balancing test, named after a Supreme Court ruling from 1976. At this stage of the case (the district court dismissed Kuck's complaint without any pre-trial discovery), the Second Circuit (Parker, Straub and Livingston) says that the state may have violated Kuck's due process rights. While Kuck's right to gun ownership is not as pressing as the need for a vehicle to drive to work or any interference with his livelihood, Connecticut law does provide for the right to own a gun, "an interest that is highly valued by many of the state's citizens," Judge Parker writes. Kuck also convinces the Court of Appeals that DPS often denies these permits after non-trivial delays for bogus reasons, a factor that also tips the Matthews test in his favor. While the state has a compelling interest in making sure that guns don't wind up in the wrong hands, the state cannot dismiss this case simply by arguing "that public safety is important and appeals have gotten backed up." As the Court of Appeals concludes, "the State gives no account of how or why public safety requires unsuccessful applicants to wait a year-and-a-half for an appeal hearing."

1 comment:

peter kuck said...

Thank you. Some Documents of Interest. http://www.peterkuck.net/documents.html

Peter Kuck