A federal judge has ruled that the Nassau County Sheriff’s Department violated the rights of a woman who was the subject of an order of protection by retaining her firearms without a due process hearing.
Eastern District Judge Joan Azrack, writing in Panzella v. County of Nassau, 13-cv-5640, ordered the county on Wednesday to hold a hearing by Sept. 25 on returning plaintiff Christine Panzella’s two shotguns and two rifles, which the sheriff’s department had seized in 2012 after her ex-husband filed an order of protection against her.
According to court papers, Panzella’s firearms were taken by sheriff’s deputies while they were serving her with the order. One of the deputies gave Panzella a property receipt for the firearms and other items confiscated from her home, but the receipt did not contain instructions as to how or when she would be able to recover the items.
The order of protection contained a warning stating that, pursuant to 18 USC §§922(g)(8), 922(g)(9), 2261, 2261A and 2262, it would be a federal offense for Panzella to buy, transfer or possess a firearm while the order was in effect. Azrack noted in her decision that the language did not order Panzella to surrender firearms that she already possessed.
After Panzella’s ex-husband withdrew his petition to extend the order of protection in March 2013, Panzella requested several times to have her firearms returned. But the sheriff’s department refused to do so unless it received a court order directing their return, which is the department’s policy for firearms seized under orders of protection.
By insisting on a court order, the judge wrote, the defendants effectively required Panzella to file an Article 78 state law petition for the return of her firearms.
Panzella sued Nassau County, Sheriff Michael Sposato, his department and five deputies, alleging violations of her Second and Fourteenth amendment rights as well as state law claims for conversion and replevin.
Azrack wrote that longarms like shotguns and rifles pose a unique legal issue because, unlike other types of firearms, there is no license requirement in Nassau County for purchase or possession.
The judge granted Panzella’s motion for summary judgment on the due process claim, writing that the defendants provided no basis for retaining Panzella’s firearms and that, following the expiration of the order of protection, Panzella should have been afforded a hearing that was consistent with the principles established in Razzano v. County of Nassau, 765 F.Supp.2d 176, 180 (E.D.N.Y. 2011).
In Razzano, Eastern District Judge Arthur Spatt ruled that plaintiff Gabriel Razzano—whose firearms were seized by the Nassau County Police Department after he was deemed to be dangerous—was entitled to a prompt post-deprivation hearing and that there would be significant risk of erroneous deprivation if he were required to commence an Article 78 proceeding.
Spatt wrote that such a proceeding would likely take a substantial amount of time; that it would place an “onerous” burden on the person whose property was seized because they would be required to spend time and money on the proceeding; and that there was a “risk of wrongful deprivation in requiring a lengthy process to return property even where the person whose property was taken does not appear to have a strong case.”
“Although Razzano addressed factually distinct circumstances, the court finds Razzano persuasive and believes that its broader logic should apply here,” Azrack wrote.
As to Panzella’s Second Amendment claims, the defendants argued that they should be dismissed because the right to bear arms is not a right to “hold some particular gun” (See Vaher v. Town of Orangetown, N.Y., 916 F.Supp.2d 404, 429 [S.D.N.Y. 2013]). Panzella did not dispute the defendants’ argument but advanced a novel theory that the defendants’ retention of her firearms put a “chilling effect” on her Second Amendment rights and led her to believe that she could not possess any firearms.
Azrack granted the defendants’ motion for summary judgment and dismissed Panzella’s Second Amendment claims.
Robert La Reddola, a partner with La Reddola, Lester & Associates, and Michael Feinstein, an associate, represented Panzella. Attorneys from the firm had represented Razzano.
“A great deal of education is required on meeting constitutional standards for the return of property,” La Reddola said of Nassau County law enforcement officials in an interview.
Deputy County Attorney Ralph Reissman appeared for Nassau County. Carnell Foskey, the county attorney, said in an email that the county does not comment on pending litigation.
Azrack’s ruling in Panzella is the second time this month that an Eastern District judge has issued a ruling in a case involving the confiscation of firearms by Nassau County law enforcement officials.
In Weinstein v. Krumpter, 14-cv-7210, Spatt denied plaintiff Marc Weinstein’s motion for a preliminary injunction to halt the Nassau County Police Department’s practice of confiscating firearms when responding to domestic incidents, ruling that Weinstein would not be harmed if he lost his bid for an injunction but won the case on the merits (NYLJ, Aug. 25).