The United States Court of Appeals for the Second Circuit has just affirmed the decision of Judge Azrack requiring prompt return of firearms after dismissal of an ex parte, Temporary or Expired Order of Protection. If the County of Nassau elects to continue to retain the firearms, they may do so only upon commencement of a civil forfeiture proceeding after the County has demonstrated a likelihood of success at a promptly held post deprivation hearing. The burden is on the County and not the gun owner at such hearing. See Panzella, 2015 WL 5607750 at *7; Razzano, 765 F. Supp. 2nd at 191.
For decades under the prior unconstitutional “no return” policy, lawful gun owners in Nassau County had to sue the Nassau County Police Department or Nassau County Sherriff’s Department to have their confiscated firearms returned. Firearms were being retained as a result of mistakes, discharged or withdrawn or expired Orders of Protection, or as in the case of Razzano, merely having his pistol license suspended.
“The situation led to an outrageous result, where even if successful in opposing a Family Court Order of Protection brought during a divorce proceeding, the result was the same; confiscation of all firearms without return,” said Robert J. LaReddola, Esq., the attorney who successfully defended the appeal for his client Christine Panzella. “An individual who could legally purchase a new firearm had to sue the County to have his or her property returned.” The situation was an assault on the property rights of those involved in the Family Court system. “This decision restores the rights of those affected.”
The decision only affects those who could purchase a firearm lawfully.
The decision ratifies the 2014 decision in Razzano v. County of Nassau in that it is now clear that the County must promptly return firearms upon expiration or dismissal of an order of protection or else promptly bring a forfeiture action against the individual.