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Thread: Draft Justification for Declarartory Ruling

  1. #1
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    I have begun to draft the argument section of a generic declaratory ruling on several firearm related topics.

    I took the liberty to read and copy sections from other requests made to administrative agencies, and will not publish or distribute the final document until it is reviewed by several others with legal minds.

    The draft requestcurrently contains 16 QUESTIONS and ARGUMENT TO SUPPORT THE NEED FOR RESOLUTION.

    But here is the draft. Any comments posted or received will be considered.


    PLEASE REMEMBER THAT THIS IS A DRAFT AND EVERYTHING COULD CHANGE AS TO THE FORM OF THE QUESTIONS AND ARGUMENTS MADE.


    DRAFT QUESTIONS BASED ON KNOWN INCIDENTS AND FACTS

    Petitioner(s) request a Declaratory Ruling on the following questions:

    [/b]

    QUESTION 1: What authority and legal effect, (if any), does a Declaratory Ruling issued by the Commissioner of Public Safety have on sworn members of local law enforcement, The Board of Firearms Permit Examiners or the Connecticut Police Officers Standards and Training Council or any government employee outside of the Commissioners Department?


    QUESTION 2: Are current holders of valid Permits to Carry Pistols and Revolvers required by law or regulation to submit additional Identifying documents beyond the currently issued valid Permit to Carry in order to renew their permit, and a valid current permit to carry positive Identification for renewal purposes?


    QUESTION 3: During the initial application process for a Permit to Carry Pistols and Revolvers or Eligibility Certificate, must an applicant supply upon demand, additional information beyond what is sufficiently, required and contained in the standard state application?


    QUESTION 4: In cases where individuals have more than one residence in the State of Connecticut, may an applicant chose the residence and jurisdiction to make application for a Temporary State Permit to Carry Pistols and Revolvers or Eligibility Certificate?


    QUESTION 5:Is itcurrently permissible under state law for individuals to carrying a pistol or revolver openly or concealed while in possession of a valid State Permit to Carry Pistols or Revolvers?

    QUESTION 6: Is service of a written revocation notification, (by in person hand delivery if necessary), mandatory if the revoking authority is NOT able to serve the notice of revocation by certified mail upon a person in possession of a Permit to Carry Pistols or Revolvers?

    QUESTION 7: Does current State Statutes or any regulation allow for confiscation of Valid Permits to Carry Pistols and Revolvers by State or Local Law Enforcement Agencies or employees during an incident or arrest for a non disqualifying crime or infraction.

    QUESTION 8: Is it legally permissible to carry exposed or concealed firearms in areas not prohibited by law or the owner of the location/property and if so, under what circumstances must a permit holder received notification from the owner that firearms are prohibited?

    QUESTION 9: Is a pro rated financial credit of permit fees paid or an extension of the Permit or Certificate expiration date mandated or in situations where the permit or certificate was confiscated or revoked illegally or without just cause?

    QUESTION 10: Does the current statutory age requirement of 21 to obtain a State of Connecticut Eligibility Certificate or receive ownership of a handgun violate any State or Federal constitutional rights of 18, 19, and 20 year old residents?

    QUESTION 11: Does the current statutory requirement to pay fees at the time of initial application or renewal of Eligibility Certificates hinder, restrict or deny the constitutional right to purchase, transport or possess handguns in a private residence?

    QUESTION 12: Must members of law enforcement apply for and possess a court issued At Risk Warrant prior to the non criminal seizure of firearms from an individual or residence?

    QUESTION 13: May a non felon legally possessionfirearms in his or her residence if the residence is co-occupied by a convicted felon if the weapons are secured and not accessible to the felon who co-habitates with the owner.

    QUESTION 14: Is carrying a holstered openly exposed firearm while in possession of a valid permit to do so an element of any Connecticut Breach of Peace or Disorderly Conduct statutes?

    QUESTION 15: Must an individual who is not the subject of an At Risk Warrant issued in accordance with the provisions of CGS 29-38c surrender or remove their personally owned firearms and give up any related constitutional rights, (Federal and/or State), if another member of their household is the subject of an active At Risk Warrant?
    [/b]
    QUESTION 16: [/b]Does an individual in possession of a valid Permit to Carry Pistols or Revolvers have a property right in the permit?


    DRAFT ARGUMENT IN FAVOR OF THE NEED FOR DECLARATORY RULINGS

    The 16 questions posed in this request are a result of documented inconsistent longstanding policies and practices on the part of the Connecticut Department of Public Safety, The Board of Firearms Permit Examiners and sworn members of law enforcement who have, by their actions, caused great social, emotional, legal and financial harm to citizens who have acted legally under their reading and understanding of the provisions of State law regarding firearms as currently written.


    The process of statutory interpretation by citizens who attempt to purchase possess or carry firearms in Connecticut should allow individuals to clearly understand their rights, privileges and obligations under the laws as currently written.

    Since at least August of 2007, the Commissioner of Public Safety and members of his Special License and Firearms Unit have refused to answer basic questions regarding firearms law, yet gone on to published several conflicting opinions and statements on the same topics causing great confusion and anxiety to those who possess firearms and permits to carry same.

    Evidence and testimony will show that members of law enforcement have used their interpretation of the law(s) to threaten law aiding citizens with arrest and the loss of their permits because of their individual or collective beliefs as members of law enforcement rather than the wording of the statutes.

    In June of 2008, the United States Supreme Court in the Heller decision, for the first time, finally removed all ambiguity on the topic of the Second Amendment by ruling the right to possess and bear arms is an individual right.

    There exists a very well documented record which clearly demonstrates on numerous occasions, members of Connecticut Law Enforcement agencies have acted arbitrarily and capriciously when interpreting and enforcing the firearms laws and regulations of Connecticut against law abiding citizens.

    If the language of a statute is plain and unambiguous, a citizen need look no further than the words themselves, because as citizens we should be able to assume that the plain language and intent of the legislature is clearly expressed in the statutes regarding firearms in Connecticut.

    In one topic submitted for clarification, the Commissioner of Public Safety has testified and presented written evidence of his opinion that there exists ambiguity in the laws regarding the manner in which a pistol or revolver must be carried by those in possession of a valid permit to do so.

    In another case, there exists documented proof that weapons were seized from a resident’s home without first applying for and receiving the needed court approval in the form of an “At Risk Warrant”. And a citizen who was not subject to the seizure warrant was forced to relocate his firearms to a location outside his home.

    Individuals in Connecticut are being subjected to unnecessary arrests, legal fees, revocations, loss of property and denial of due process to appeal bad decisions, simply because there are differing opinions on exactly what the law mandates or prohibits.

    It stands to reason that the meaning of a statute shall and should, (in the first instance), be ascertained from the text of the statute itself and its relationship to other statutes. Applying the plain meaning approach to several statutes regarding firearms in Connecticut, demonstrates and documents that the Department of Public Safety and local law enforcement have in place, policies and practices not supported by the language of the statutes referenced in this request and therefore are in conflict with the law(s) to the detriment of Connecticut citizens who purchase, possess and carry firearms legally.

    Although an agency’s or government employee’s interpretation of State Statutes and its own regulations appears to be entitled to some deference by courts, the interpretation of State Statutes and regulation is ultimately a question of law which must be decided by the courts when real world disagreements of interpretation exist in areas where no single agency has the authority to render a clear and concise binding declaratory ruling on interpretation and implementation of Connecticut firearm laws or regulations.

    There exists time tested unresolved problems and issues with current interpretation of firearm statutes and regulations on the part of law enforcement and citizens in Connecticut which if not addressed and resolved in a timely manner, will continue to subject innocent law abiding individuals to unwarranted and improper criminal and civil penalties.

    A state administrative agency or local law enforcement department’s ability to change the meaning and/or intent of the legislature is not without limits regardless of the circumstances or desired end result. Regardless of any good intentions no matter how justified they may be, without first receiving legislative approval of the desired changes in the form of new legislation any actions taken against private law abiding citizens outside the existing authority granted in the statutes is clearly illegal.

    The plain language of the Connecticut General Statutes as they pertain to firearms does not evidence any intent by its drafters to prohibit the open carrying of firearms by individuals in possession of valid permits to do so, yet members of law enforcement continue to hold the belief that openly carrying a holstered pistol or revolver may be used as an element of a criminal offence..

    The plain language of the Connecticut General Statutes as they pertain to the confiscation of Permits to Carry Pistols and Revolvers clearly omits any authority given to law enforcement to confiscate valid permits prior to an investigation and finding of just cause, and mandates a written notice of revocation to the permit holder by the Commissioner of Public Safety only after an investigation and finding of just cause.[/b]

    The plain language of the Connecticut General Statutes as they pertain to “AT RISK WARRANTS” clearly mandate and require that an “AT RISK WARRANT” be applied for, reviewed and issued prior to any seizure of firearms in non- criminal situations.

    The words printed on the Permit itself, clearly sets forth and offers clear and concise direction to the individual in possession of same. The permit is a “PERMIT TO CARRY PISTOLS AND REVOLVERS”. With no further information to clarify the permitted activity manner of carry.

    While Connecticut General Statutes expressly lists the areas and specific circumstances where a person may NOT carry a pistol or revolver, the same statutes fail to prohibit carrying the weapon under any specific circumstances beyond what is written and which the permit applies. It conspicuously does not (like other states across the country), list or mention the word concealed.

    Connecticut courts have repeatedly utilized the tenet of statutory construction known as expressio unius est exclusio alterius, translated as “the expression of one thing is the exclusion of another.” The doctrine of expressio unius est exclusio alterius is a rule of statutory construction that states that “where a form of conduct, the manner of its performance and operation, the persons and things to whom it refers are designated, there is an inference that all omissions should be understood as exclusions.”

    The Supreme Court’s jurisprudence on the nature of agency policy and practices and interpretation of statutes clearly applies.

    The Department of Public Safety and local law enforcement policies depart with longstanding wording of established State Statutes and practice, and will have harmful effects upon law abiding citizens and members of the public if not resolved promptly by declaratory ruling.

    The Policies and practices of Department of Public Safety and sworn members of local law enforcement limit an individual’s ability to exercise various rights and privileges granted by the legislature and imposes significant unknown requirements not mandated by law.









  2. #2
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    The real, crying shame here is that the questions have to be asked at all.

    Copies of the questions ought to be sent to each and every elected representative in state government.

  3. #3
    Regular Member Douglas in CT's Avatar
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    Excellent "DRAFT" ! :celebrate

    PM Sent.

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    Regular Member Lenny Benedetto's Avatar
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    Ed,

    This is very well written! Please let us know as soon as you have the final draft ready. I will get it out to the CCDL and start the letters and emails flowing.

    The Connecticut Citizens Defense League is a non-partisan, grassroots organization devoted to advocating rights affirmed by the Constitutions of the United States of America and the State of Connecticut. We are especially dedicated to protecting the unalienable right of all citizens to keep and bear arms, for the defense of both self and state, through public enlightenment and legislative action.
    Join Here: http://www.ccdl.us/membership

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    QUESTION 5:Is itcurrently permissible under state law for individuals to carrying a pistol or revolver openly or concealed while in possession of a valid State Permit to Carry Pistols or Revolvers?

    "to carrying"?

    Should be to carry or carrying. Correct?

    Don't want to see a question rejected because of someone saying they didn't understand the question due to a typo. I am sure that type of BS would happen.


  6. #6
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    Thanks for the correction

  7. #7
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    I don't have much to offer in this ongoing battle. I try to stay informed and take the time to read all pertinent information in full. I hope it wasn't seen as being petty in my mention of the correction of question 5 as posted earlier. I hope it was obvious I was trying to offer some help, however small. I know the piles of paper and information is overwhelming and the more eyes looking over the better.

    I offer any help I can to the cause and please feel free to ask me if any is needed.

    Keep up the good work!

  8. #8
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    Requests were made the last week of September, and this is,

    THE FIRST RESPONSE:

    October 1, 2009



    Mr. NAME REDACTED[/b]

    STREET REDACTED[/b]

    Wethersfield, CT 06109



    Re: Petition For Declaratory Rulings By An Administrative Agency



    Dear Mr. NAME REDACTED[/b]



    Please be advised that the Police Officer Standards and Training Council has no jurisdiction over any of the statutes that you have cited and/or inquired about.



    Sincerely,

    [/b]

    Signature REDACTED[/b]



    Thomas E. Flaherty

    Executive Director

    Police Officer Standards and TrainingCouncil



  9. #9
    Regular Member Lenny Benedetto's Avatar
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    Who else has it been sent to?
    The Connecticut Citizens Defense League is a non-partisan, grassroots organization devoted to advocating rights affirmed by the Constitutions of the United States of America and the State of Connecticut. We are especially dedicated to protecting the unalienable right of all citizens to keep and bear arms, for the defense of both self and state, through public enlightenment and legislative action.
    Join Here: http://www.ccdl.us/membership

  10. #10
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    The first request was dropped of to the following:

    Chief State's Attorney

    Commissioner of Public Safety

    Special License and Firearms Unit of DPS

    Board of Firearms Permit Examiners

    and

    POST who has responded.

    The response from POST did not come as asuprise.

    Our position is that only the Courts have jurisdiction and authority to to answer the 16 quesitons and compel compliance with any decsion rendered.

    Under the administrative proceedures statutes, the Attorney General and Governor do not have authority to render Declaratory Rulings, athough the AG could render OFFICAL LEGAL OPINIONS if asked by the Governora state agency or board.



  11. #11
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    I would assume copies were not sent to the 151 Representatives and 36 Senators. Some of their responses, if they respond,might be interesting, too.

  12. #12
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    I am under the assumption that after you receive word from all of these agencies that they don't or can't or won't make any decisions on these questions, or they simply refuse to reply, the steps toward getting a declaratory ruling will have to begin again? This should meet the requirements for having exhausted all avenues and contacted all of the correct agencies? Is that the plan of action going forward?

    It is maddening that it is so hard to get all of these agencies to simply state what the law says.

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