Second Circuit Due Process Victory for Connecticut Carry Permit Holders

From Kuck v. Danaher, decided yesterday. [Note: Before commenting, please click on “continue reading” to read the rest of the opinion and the UPDATE at the end where I explain what I think likely happened here.]

[M. Peter] Kuck’s claims arise from his efforts to renew his permit to carry a firearm with the Connecticut Department of Public Safety (“DPS”). His principal claim is a procedural due process challenge alleging that DPS — in tandem with the Board of Firearms Permit Examiners (“the Board”) — has a practice of improperly denying permits, unnecessarily prolonging the appeals that follow, and then quietly resolving disputes at the last minute….

In March 2007, Kuck applied to DPS to renew his permit to carry a firearm. He was subsequently contacted by Defendant Albert J. Masek, an employee of DPS, who requested that Kuck provide a U.S. passport, birth certificate, or voter registration card in support of his renewal application. [Footnote: The background facts are taken from Kuck’s complaint, the allegations of which are assumed to be true for purposes of adjudicating Defendants-Appellees’ motion to dismiss.] In response, Kuck inquired into the basis for the request. He was told that, by statute, the State could not issue a firearm permit to any “alien illegally or unlawfully in the United States,” and therefore DPS was required to verify his citizenship. See Conn. Gen. Stat. §§ 29–28(b), 29–28(f), 29–29(d); cf. Conn. Const. art. I, § 15 (limiting the right to bear arms to “citizens”). Kuck objected to the requirement, arguing that he had submitted proof of citizenship when he first applied for a permit in 1982 and, over the subsequent 25 years, had never before been asked to provide such proof with a renewal application. He claimed then, as he does now, that the DPS requirement was arbitrary, designed to harass, and, in any event, not authorized by state law. Ultimately, he refused to provide the requested documents. As a result, DPS denied his renewal application.

Kuck then filed an appeal with the Board, seeking a hearing on whether his refusal to submit a U.S. passport or birth certificate provided “just and proper cause” for the denial of his application. However, his appeal hearing was not scheduled to occur for eighteen months, during which time he was deprived of a permit to carry a firearm. In October 2008, after this suit was filed, Kuck finally received his hearing. Shortly before the hearing, he provided a voter registration roll supporting his citizenship and residency status; as the result, his renewal application was granted….

Notably, at the time of his renewal application, Kuck was the Secretary of the [Board of Firearms Permit Examiners]. Members of the Board are appointed by the Governor and include individuals nominated by gun clubs in Connecticut. In 1998, Kuck was nominated by Ye Connecticut Gun Guild, Inc. to the seat on the Board reserved for its representative.

Kuck alleges that, since his appointment, the estimated waiting-period for a hearing has increased dramatically, and that the Board Chairman, Christopher Adams, opposed his efforts to speed up the appeals process. He contends that DPS and the Board have acted to burden gun-owners’ ability to obtain carry permits by improperly denying applications in the first instance and then subjecting applicants to unjustified and prolonged appeals….

Kuck’s main contention is that the eighteen-month period he waited to receive an appeal hearing before the Board was, in light of the liberty interest at stake, excessive and unwarranted, and thus violated due process. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547 (1985) (“At some point, a delay in the post-termination hearing would become a constitutional violation.”). Kuck further alleges that, as a matter of practice, DPS deliberately seeks to prolong the appeals process in order to unlawfully deprive citizens of pistol permits.

Appellees concede that Kuck possesses a liberty interest, created by the Connecticut Constitution, in his right to carry a firearm. See Conn. Const. art. I, § 15. They dispute, however, that the time required to resolve Kuck’s appeal violated due process. This waiting-period, they argue, is the product of a substantial caseload and the State’s acute interest in ensuring that firearms are borne only by those fit to carry them.

Our procedural due process analysis is controlled by the three-factor test prescribed in Mathews v. Eldridge, 424 U.S. 319, 335 (1976). This test requires that we balance: “(1) the private interest at stake; (2) the risk of an erroneous deprivation of that interest through the procedures used and the probable value (if any) of alternative procedures; (3) the government’s interest, including the possible burdens of alternative procedures.” …

Broadly speaking, a delay amounts to a due process violation only where it renders the prescribed procedures meaningless in relation to the private interest at stake…. We, as well as other circuits, have acknowledged that administrative determinations may require a non-trivial amount of time to complete, especially where caseloads are heavy…

With respect to the first Mathews factor, Kuck’s stake in the firearm license is a liberty interest tied to the right to bear arms recognized by state law. See Conn. Const. art. I, § 15. As noted, the defendants concede that Kuck possesses such an interest…. [T]his interest is not directly tied to Kuck’s economic livelihood, and thus lacks some of the same urgency identified by our opinion in [some past cases]. Nonetheless, the interest here remains substantial, protected as it is by the Connecticut Constitution and decisions of that state’s highest court..

While this right is clearly subject to state regulation — including licensing provisions such as those here — these procedures must comport with due process. Contrary to defendants’ suggestion, the state’s ability to regulate firearms does not extinguish the liberty interest at stake or eliminate the need to afford due process. In Connecticut, a permit to carry a firearm may only be revoked by the Commissioner of DPS “for cause,” or under certain statutorily enumerated circumstances requiring revocation. Conn. Gen. Stat. § 29–32(b), (c). Much the same, denial or revocation must be supported on appeal by “just and proper cause.” Conn. Gen. Stat. § 29-32b(b). By contrast to other states’ regulatory schemes, the Commissioner does not have unfettered discretion to revoke permits under state law. As a result, permit renewal applicants are entitled to basic due process protections, including a meaningful opportunity to be heard after a denial or revocation.

All in all, deprivation of a firearm permit may not represent the same day-to-day hardship occasioned by the seizure of a vehicle used for daily transportation, … or interference with a business-person’s livelihood …. Yet the Connecticut Constitution establishes a clear liberty interest in a permit to carry a firearm — an interest that is highly valued by many of the state’s citizens. See Conn. Const. art. I, § 15 (“Every citizen has a right to bear arms in defense of himself and the state.”). Though not overwhelming or absolute, we conclude that the private interest at stake remains significant….

The second Mathews factor — the risk of erroneous deprivation and the probable value of alternative procedures — requires a close analysis of Kuck’s complaint. Kuck, as we have seen, alleges that DPS frequently denies permit applications for bogus or frivolous reasons, thereby subjecting qualified applicants to a lengthy appeals process, only to grant the permit months or years later, just before the appeal hearing. In his case, Kuck claimed that DPS was not entitled under state law to require proof of citizenship with his 2007 renewal application, and that his permit should not have been denied for lack of such documentation. While this requirement appears eminently reasonable to us, it is not our province here to resolve the specific issue of state law on which Kuck based his appeal to the Board. The viability of Kuck’s due process claim does not turn on the merits of his initial challenge; rather, it concerns whether he received the process he was due. Thus, the focus of this second prong remains on (1) the overall risk of erroneous deprivation for permit applicants, and (2) the time-period required to correct such deprivations.

In support of his allegations, Kuck offers figures suggesting that the number of appeals “resolved” without a hearing is indeed far greater than those actually heard by the Board. See Am. Compl. PP 195-197 (alleging, for example, that 249 appeals were “resolved” in fiscal year 2006-07, while only 40 appeals came before the Board for a hearing). This data is consistent with his allegation that many permits are granted or reinstated shortly before the Board is due to hear the applicant’s appeal. At the motion to dismiss stage, we credit the inference that this large disparity represents a significant number of unfounded permit decisions by DPS. See Spagnola v. Chubb Corp., 574 F.3d 64, 67 (2d Cir.2009) (When reviewing a motion to dismiss, we accept “all well-pled factual allegations as true and draw all reasonable inferences in the plaintiff’s favor”). [Footnote: Kuck, we also recognize, is in an unusual position to describe the process by which appeals are resolved. Because he sits on the Board itself, his allegations have some additional plausibility at this early stage of the proceedings.] In addition, Kuck alleges that the resulting delay is far from trivial. According to the complaint, unsuccessful applicants must regularly wait fourteen to twenty months to receive an appeal hearing. Together, these allegations plausibly allege a state practice of delaying appeals, only to moot them at the very last minute, after the applicant has waited more than one year for a hearing. Because this practice appears to have affected a significant number of applicants, and the delay is considerable, the second Mathews factor weighs in favor of Kuck at this stage of the proceedings….

The third Mathews factor requires us to examine the strength of the state’s interest in the challenged procedures. Connecticut clearly has a strong and compelling interest in ensuring that firearm permits are not issued to those “lacking the essential character or temperament necessary to be entrusted with a weapon.” Yet the state’s legitimate interest in public safety does little to explain why it requires up to twenty months to address appeals. For the purposes of a due process analysis, the state must articulate some reason, tied to this interest, that justifies the lengthy period necessary to resolve these appeals.

Here, the state’s account is far from overwhelming: the defendants argue that the prolonged wait is simply a function of the Board’s caseload and backlog. Yet, on the pleadings, there is no indication that this time is required to gather evidence, perform additional investigation, or formally consider the appeal. Instead, the complaint suggests that the appeal sits gathering dust for nearly all of the interim period, awaiting the scheduled hearing date. Moreover, the amended complaint states that the Board held only 40 appeal hearings in fiscal year 2006-07 — or less than four appeals per month. Thus, the pleadings themselves do not support a clear case of routine administrative delay or overburdened bureaucracy. All in all, the State’s argument boils down to an assertion that public safety is important and appeals have gotten backed up. But the delay has little apparent connection to the public interest invoked by defendants. 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….

For the purposes of the present motion to dismiss, we find that Kuck has stated a procedural due process claim. Whether discovery will bear out his claim is a matter for the district court to determine on remand….

UPDATE: As I read the opinion, Kuck deliberately brought a test case. He thought the requirement that he keep showing proof of citizenship when his license is renewed — rather than just once when the license was initially granted — was improper, and he wanted to challenge that by asking for review. But he also wanted to challenge what he saw was a far too slow review process: Even if the repeated-proof-of-citizenship requirement was valid, he argued, the Board should have heard his argument more quickly than it did.

Thus, even if you think the repeated-proof-of-citizenship requirement is perfectly reasonable and authorized, that doesn’t change the analysis for Kuck’s procedural due process argument — his claim was that the procedure for making that determination was unconstitutionally slow. And this is the claim that the Second Circuit allowed to go forward (emphasis added): “In his case, Kuck claimed that DPS was not entitled under state law to require proof of citizenship with his 2007 renewal application, and that his permit should not have been denied for lack of such documentation. While this requirement appears eminently reasonable to us, it is not our province here to resolve the specific issue of state law on which Kuck based his appeal to the Board. The viability of Kuck’s due process claim does not turn on the merits of his initial challenge; rather, it concerns whether he received the process he was due. Thus, the focus of this second prong remains on (1) the overall risk of erroneous deprivation for permit applicants, and (2) the time-period required to correct such deprivations.”