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Nassau County Policy of Retaining Firearms is Unconstitutional

The issue here is "whether, after the orders expired, the Fourteenth Amendment required the Nassau County Sheriff’s Department to provide plaintiff with a hearing concerning the department’s continued retention of plaintiff’s longarms."

As is commonplace these days, a temporary order of protection is often issued against individuals when there are allegations (Art. 8 of NY Fam. Ct. Act) of violence or domestic abuse within the household. Sometimes these orders are issued ex parte. As part of these orders, the subject of the Order of Protection must give over any firearms he or she possesses. When the order expires, however, sometimes these firearms are not returned even though the subject of the order has every right to own and possess guns and weapons. That is what happened here and happens often in Nassau County, New York.

On or about June 22, 2012, Plaintiff (Ms. Panzella) had an order of protection issued against her without any hearing and without any opportunity for the Plaintiff to be heard. As part of that order, Plaintiff was not allowed to possess a handgun, rifle, shotgun or other firearm. Days later, four Nassau County Deputy Sherriff's served the order and confiscated her weapons. The Plaintiff was given a receipt but that receipt did not contain any instructions as to regain possession of her Property. On or about March 6, 2013, the petition for an order of protection was withdrawn. Following the dismissal of the order of protection, Plaintiff requested that her guns be returned to her. Defendants refused to do so without some sort of Court order. In fact, Nassau County has a policy of not returning the guns without an order directing their return yet no process is in place for the Plaintiff, or others similarly situated, to obtain their legally owned firearms. This lawsuit was brought.

Conclusion: "Plaintiff’s motion for summary judgment as to her Fourteenth Amendment due process claim concerning the Retention Policy is granted. The County must hold a due process hearing consistent with the criteria set forth in Razzano within 30 days of the date of this decision. Because plaintiff has prevailed on that claim, she is entitled to reasonable fees and costs as to that specific claim at the conclusion of this litigation. Plaintiff’s summary motion is denied in all other respects."

The Case is Panzella v. Nassau, Case 2:13-cv-05640-JMA-SIL (EDNY, Aug. 26, 2015).

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