Wednesday, March 12, 2014

To: Gun Owners of Vermont: Re: H.735 Disposition and Fee for Storage of Unlawful Firearms
To: Gun Owners of Vermont
From: Cindy Ellen Hill, Esq.
Re: H. 735
Date: 2-20-2014

You have requested my comments and opinion on H.735, proposed amendment to 20 VSA Chapter 145 regarding Disposition and Fee for Storage of Unlawful Firearms.

They are as follows:
The proposed bill introduced as H.735, to the extent it addresses 20 VSA Chapter 145, would if adopted set into the stone of statute a program for the illegal seizure of private property. Such a seizure – effectively a forfeiture without due process – violates the Vermont and Federal Constitutions.

I honestly can’t see how this is not an unlawful seizure of private property without due process.

1. The presumption of ‘surrender’ is a back-door substantive change to Vermont law.

The proposed bill begins with the provision, “A person who is required to surrender firearms, ammunition, or other weapons by a court order issued under 15 VSA chapter 21… or any other provision of law consistent with 18 USC Section 922(g)(8) shall upon service of the order immediately surrender to a cooperating law enforcement agency or an approved federally licensed firearms dealer any firearms, ammunition or weapons in the person’s possession, custody or control.”

This sets this entire statute on the foundation of an illusion. It confuses and intertwines state and federal law, misconstrues the federal law requirements regarding firearms possession, and effectively creates a new substantive law in the guise of simple administrative efficiency.

Vermont’s domestic abuse statute, 15 VSA Chapter 21, nowhere requires the surrender of firearms, ammunitions or other weapons.

As a requirement of conditions of release for many Vermont criminal charges – domestic abuse AND many other crimes – many Vermont defendants are under order not to be in possession of ‘weapons.’ 
‘Weapons’ are not addressed by the referenced federal statute, which addresses only ‘firearms’ as that term is defined in federal law (which excludes, for example, black powder guns).

An order that the person should not be ‘in possession’ of a weapon is a far cry from an order of ‘surrender.’ In all my 27 years of criminal defense work, I don’t think I’ve seen an order of surrender of weapons more than two or three times, and those were occasions when the defendant indicated that they had no other place to put the weapons and would welcome the assistance of sheriffs in storing them. While I understand it has become slightly more common more recently as a condition of release, it is still far from the norm of Vermont Criminal Procedure.

A person who is ordered to not be in possession of weapons still holds an ownership interest in those weapons, be they firearms, black powder guns, knives or any other devices that the state might consider to be a weapon. For many Vermonters, those items may comprise a significant financial investment and one of few liquid assets available for conversion to cash to pay attorney’s fees or fines or to help support the household from which he or she has just been removed by a criminal or family court order.

The federal law referenced in this bill is 18 USC 922(g)(8). That portion of that statutes prohibits a person from possessing firearms :
(8) who is subject to a court order that - 
     (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; 
     (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and 
     (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or 
     (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury. …

The federal definition of ‘firearms’ does not include many items commonly referred to as guns, such as muzzleloading guns, and does not include other items that Vermont law might consider ‘weapons’ like bows and arrows, knives, wrist rockets or whatever.

This federal statute also does not have a ‘surrender’ provision. It prohibits certain classes of persons from possessing firearms, and makes it a federal crime to be in possession of such firearms while under such a prohibition. It is, however, up to the firearms owner to determine what option to utilize to dispossess themselves of the firearms. The owner can sell them, give them to a friend or relative, or arrange for private storage until such future date as they either are relieved from the prohibition (as is certainly usually the case for a temporary restraining order) or reach the point where they know their disqualification from firearms ownership is permanent, and opt to sell or transfer the firearms. 
Unless the individual is committing the crime of unlawful firearms possession, in which case the firearms may be seized, first as evidence and then under a strict federal forfeiture process, there is no order to surrender this private property to agents of the government.
2. This is a Taking of Private Property in Violation of Due Process.

Just in case anyone has forgotten, the Fourth Amendment to the US Constitution states:
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath, and particularly describing the place to be searched, and the places or things to be seized.

The relevant portion of the Fifth Amendment to the US Constitution states:
No person shall … be deprived of life, liberty or property without due process of law…

The Vermont Constitution, Part 1 Article IV, states:
Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries and wrongs which one may receive in person, property or character. …

And Vermont Constitution Part 1 Article XI states:
That the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure; and therefore warrants, without oath or affirmation first made, affording sufficient foundation for them, and whereby by any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their property, not particularly described, are contrary to that right, and ought not to be granted.

In short, the Vermont government and its agents cannot take Vermonters private property unless it’s evidence of a crime or has been the subject of appropriate due process, which requires, at a minimum, notice and opportunity for hearing.

Seizure of private property is a practice long used by governments, but under American Constitutional law seizure is only permissible when the property is evidence of a crime, or is subject to civil or criminal forfeiture statutes which embody Constitutionally acceptable due process.
Vermont immobilization and forfeiture statutes pertaining to motor vehicles used in DUIs for an illustrative contrast to the present bill.

Immobilization or forfeiture of a motor vehicle under 23 VSA Sections 1213a and 1213b may only occur upon conviction of the crimes of DUI 2 or DUI3. Thus the immobilization/forfeiture is reasonably related to punishment for a criminal conviction, and is restricted to the motor vehicle used in the DUI for which the person is convicted.

The present bill, by contrast, requires government seizure of private property in an array of criminal OR civil proceedings, and takes effect immediately upon commencement of those proceedings rather than at any criminal conviction, and implicates property which is in no way related to the crime charge in those cases where there are criminal charges (if the property was implicated in a charged crime, it would be seized as evidence – not ordered ‘surrendered’ to law enforcement agents).
Immobilization or forfeiture of a motor vehicle requires full due process which is wholly separate from the underlying criminal proceeding. 23 VSA Section 1213c requires extensive notice to all persons who might have an interest in the property – 3rd party lienholders, potentially innocent owners or users of the property, as well as the person charged with the crime. This is followed by a hearing which permits these interested parties to speak and assert claims such as innocent ownership or liens, and at which defenses such as economic hardship may be vetted. The ruling of such a hearing is subject to an appeals process.

The present bill, by contrast, contains no notice, no hearing, no notice and opportunity for hearing for innocent owners, third parties with interest, lien holders, or any other individuals. There is no appeals process. In short, there is absolutely no due process. Prior to a conviction – and even without any criminal charge, but in civil matters – the property is simply required to be ‘surrendered’ to agents of the government.

Vermont’s motor vehicle immobilization statutes most likely meet constitutional due process requirements. The seizure is related to a sanction for a criminal conviction, and there is significant, specified process for notice to all interested parties, hearing, presentation of defenses, and appeal.

This bill contains none of that.

3. Logistical Confusion

The bill as proposed lacks common sense and creates logistical confusion. Let us take an ordinary domestic assault situation (though my gender designation here is entirely arbitrary): Let us say there is a loud argument in an apartment, the police are called, a couple is fighting, and the woman has allegedly been struck by the man. The man is arrested and removed from the apartment by law enforcement officers. He’s perhaps held overnight and taken to court the next morning for arraignment. He’s ordered to have no contact with the woman and not to enter the apartment he had been sharing with her.

Assuming that the man owns firearms and that they are in the apartment he shared with the woman – he is no longer in possession, custody or control of any of them. So what exactly is it that he’s supposed to surrender, since the bill says he’s to surrender firearms and weapons that are in his possession, custody and control?

Does this bill give law enforcement officials the ability to search that apartment without a warrant?

Does it let an FFL – a private business owner who is legally an agent of the federal BATF – search the apartment? What happens when they find the WOMAN’S firearms – or pot, or child porn – upon such a warrantless search? How is the man supposed to surrender the firearms to law enforcement without returning to the apartment, which he is ordered not to do? What happens if the woman wants the guns in the house for self-protection, or for hunting, or to sell to make up for the man’s lost income?

Unless or until he’s allowed back in that house, he is not in possession, custody or control of the firearms – so why is the government seizing them, much less charging him for the privilege?

4. Restraint on Trade

If the object of this bill is to ensure Vermont citizen compliance with federal statute, then Vermont has no business determining which FFLs – federally licensed firearms dealers who are by law considered agents of the BATF for purposes of NICS administration – are approved to store firearms. To allow the Vermont State Police to cherry-pick their friends for what could be a lucrative state designation comprises a restraint on trade for all other federally licensed firearms dealers in the state.

As a practical matter, many people who find themselves temporarily prohibited from possessing firearms under federal law do call an FFL of their own selection and negotiate either storage or sale of their firearms. Putting this selection into the hands of the Vermont State Police to decide which FFLs are considered ‘law enforcement friendly’ as opposed to those who may be known to and trusted by the individuals whose property is being transferred is nothing short of an unlawful restraint of trade. If FFLs are to be designated as recipients for seized property under this bill then the individual should have his or her choice of any FFL in the state.


In short, this bill outlines a process to effect a seizure of private property, not in evidence for or associated with a crime, without warrant or due process, in violation of Vermont and Federal Constitutional provisions.

 As a life member of the NRA and the Vermont NRA referral attorney, a life member of the Franklin Sportsmen’s Club, member of the board of the Vermont Outdoor Guide Association, and so on, I am horrified to hear that a number of firearms organizations are apparently voicing support for this blatantly illegal seizure process, which is unprecedented in Vermont law.

Thank you for this opportunity to share my thoughts on this bill.

If you require any more specific information from me, or might require my testimony at the legislature, please let me know.

Very truly yours,
Cindy Ellen Hill, Esq.

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