From Razzano v. County of Nassau (E.D.N.Y. decided yesterday), an interesting decision holding that the gun owner wins under the Due Process Clause, and might also win under the Fourth Amendment (if he amends his complaint to plead it properly).

There’s also a brief reference to the Second Amendment: “Moreover, the right to bear arms is enshrined in the Second Amendment of the United States Constitution, and although this right is by no means unlimited, ownership of guns by individuals legally entitled to those guns is a basic right. A prompt due process hearing is likely to limit the unfair curtailment of this right.” And there is also a possible First Amendment issue lurking in the background, given part of the apparent basis for the police department’s seizure of the guns, but that doesn’t seem to be being litigated here. In any case, here’s a long excerpt:

Between Razzano’s two visits to McCarthy’s office on March 19, 2007, Garden City police officers discovered that Razzano owned fifteen registered handguns. The Garden City police then also contacted the Nassau County Pistol License Section, which, the next day, Tuesday, March 20, 2007, assigned two Nassau County Police Officers — the individual defendants Officer (now Sergeant) Salvatore Mistretta and Sergeant William Lemieux — to investigate whether Razzano’s pistol license should be suspended and his handguns confiscated.

There was no one in the reception area when Razzano entered Representative McCarthy’s office, so he waved to a person in the back of the office and sat down. While Razzano had been away, a member of McCarthy’s staff had called the Garden City Police regarding his visit, and the Garden City Police contacted the Nassau County Police Department Special Investigations Squad. The Special Investigations Squad in turn dispatched an officer to Representative McCarthy’s office. So, shortly after Razzano sat down in the congresswoman’s office, he was met by Nassau County Detective Alfred Samaniego, a member of the Special Investigations Squad. Samaniego asked to see Razzano’s identification, and explained to Razzano that he was not one of McCarthy’s constituents. According to Samaniego, Razzano “became agitated and began to raise his voice” during this encounter. Razzano denies this. All parties do agree that shortly after Razzano arrived at the office, Samaniego asked Razzano to leave, and escorted him outside. The parties also agree that, as he left the office, Razzano saw Representative McCarthy at the elevator, at which point Razzano said words to the effect of “Ms. McCarthy, I’ve been trying to meet with you.” Razzano then left the office with no response from the congresswoman.

Whether Razzano was rude and threatening or not, he did leave McCarthy’s office, and at the recommendation of McCarthy’s staff members, he went directly to the Board of Elections to determine his correct Congressional district. The Board of Elections shortly thereafter issued a certificate to Razzano indicating that he was in fact registered to vote in McCarthy’s district. This was apparently an error, but Razzano had no reason to know this at the time. After making a brief stop elsewhere, Razzano returned to McCarthy’s office that same day, with both his certificate and a video recorder in hand.

Razzano visited McCarthy’s office for a seventh time on the morning of Monday, March 19, 2007, seeking to meet with Representative McCarthy on immigration issues. The parties disagree about the details of this visit, but neither disputes that shortly after Razzano arrived at McCarthy’s office, McCarthy’s staff members informed Razzano that he was not a member of McCarthy’s district and asked him to leave the office. According to the defendants, Razzano was rude, frightening, and threatening to the staff members when he came to the congresswoman’s office. Not surprisingly, Razzano denies this assertion.

Along with protesting for stricter enforcement of the immigration laws, Razzano has also repeatedly contacted local and federal legislators relating to immigration. One such legislator was United States Representative Carolyn McCarthy. In the six years leading up to the events precipitating this lawsuit, Razzano telephoned McCarthy’s office approximately one hundred times, and visited the office approximately six times.

The plaintiff Gabriel Razzano is a fifty-six year old resident of Freeport, New York, which is in Nassau County. He is a member of the Minuteman Civil Defense Corps, whose stated mission is to “see the borders and coastal boundaries of the United States secured against the unlawful and unauthorized entry of all individuals, contraband, and foreign military.” He describes himself as “active in my community of Freeport on the issue of illegal immigration,” and notes that he has received attention for “protest[ing] the construction of a hiring hall” in downtown Freeport.

Gabriel Razzano … asserts that the defendants, all associated with the Nassau County Police Department, violated his Fourteenth Amendment due process rights by failing to provide him with an adequate opportunity to recover rifles and shotguns that the defendants had confiscated from his residence….

Lemieux and Mistretta state that they began their investigation into Razzano’s fitness to possess handguns on the morning of March 20, 2007 by meeting with staff members of Representative McCarthy who had interacted with Razzano in the past. They then also spoke with Detective Samaniego, who told them that Razzano “seemed unstable” when he met him at McCarthy’s office the previous day. The officers next proceeded to Razzano’s residence. Finding that Razzano was not home, the officers decided to visit Razzano’s mother, who lives nearby. Razzano’s mother, who was home, greeted the officers and called Razzano, who agreed to meet Lemieux and Mistretta at his house within a short time.

Upon returning to Razzano’s residence, the officers took a photograph of the back door to Razzano’s minivan, from which hung a large rope tied into a noose. The photograph, which has been submitted to the Court, also shows that the vehicle had bumper stickers that read “Vote for Rope” and “got rope?”

The officers then entered the plaintiff’s home. Although the plaintiff’s motion papers suggest that he did not consent to Lemieux and Mistretta entering his home, the plaintiff’s complaint suggests the contrary. The defendants also uniformly testify that Razzano consented to their entering his house, and Razzano’s sworn testimony does not contradict this.

The parties also dispute what happened after the officers entered Razzano’s home. However, before describing that dispute, the Court pauses to note a critical fact in this case. Along with his fifteen registered handguns, Razzano also possessed nine rifles and shotguns, which, because of the length of their barrels, are referred to collectively as “longarms.” In Nassau County, there is no license requirement for the purchase or possession of longarms. Razzano kept these longarms in the same safe where he stored his handguns.

According to Razzano, once in his house, the officers instructed him that they were confiscating all of his guns, including his longarms. Razzano states that he quickly and peaceably complied with this demand, in spite of his assertion that the revocation of his pistol license only legally required that he surrender his handguns.

By contrast, the officers claim that after they entered Razzano’s residence, they spoke with Razzano for thirty minutes, during which time Razzano appeared “mentally unstable,” and “became angry, then sad, and then started to cry.” The officers also state that during this time they saw in Razzano’s home a book by David Duke entitled “Jewish Supremicism,” as well as a “four-page flyer from the anti-illegal immigration organization ‘Save-A-Patriot.Org.’” Taking all of this into consideration along with the information they had gathered from their investigation, the officers state that they then decided to confiscate Razzano’s handguns. When Razzano opened his safe to produce his handguns, the officers also saw Razzano’s longarms, and the officers determined at that point that they should confiscate these weapons as well.

Whatever actually happened in Razzano’s home, the parties agree that the officers confiscated all of the guns in Razzano’s possession, for which they issued receipts to him. Razzano was not arrested or charged with any crime. A little over a month later, on April 24, 2007, the Nassau County Police informed Razzano by letter that it was revoking his pistol license. Among the grounds stated for revoking the license were six police reports, which indicated that Razzano had participated in anti-illegal immigration protests. None of the six reports reflect any criminal activity by Razzano.

On May 2, 2007, the plaintiff, through an attorney, requested a hearing with the Nassau County Pistol License Bureau challenging the revocation of his pistol license. Under Nassau County law, persons whose pistol licenses are revoked are entitled to such a hearing, and in Razzano’s case, this hearing was scheduled for October 7, 2007. If a licensee prevails at this hearing, his handguns are returned. If not, his handguns remain in the possession of the Nassau County Police Department. However, before his hearing was held, Razzano commenced the present action and also requested that his hearing be adjourned during the pendency of this case. Although his pistol license thus remains suspended, Razzano does not challenge the revocation of his pistol license or the confiscation of his handguns in the present action.

While there is a set procedure for the return of seized handguns in Nassau County, there is no standard procedure for the return of seized longarms. Sergeant Mistretta, who now is the commanding officer of the Pistol Licensing Section, asserts that Nassau County would have returned both Razzano’s handguns and his longarms had he prevailed at his handgun license hearing. However, there is no written policy to this effect, and moreover, the plaintiff objects to this remedy on the grounds that he should not be forced to have his pistol license reinstated to have his longarms returned to him.

Thus, primarily as a challenge to the seizure and retention of his longarms, the plaintiff commenced the present action on September 24, 2007….

The thrust of the plaintiff’s complaint is that the due process clause of the Fourteenth Amendment requires that Nassau County provide a meaningful and timely post-deprivation hearing for the return of his longarms, and that Nassau County has failed to do so. As discussed below, the facts alleged in the plaintiff’s complaint also appear to state a Section 1983 Fourth Amendment claim for illegal search and seizure of these longarms, but the plaintiff did not actually assert this cause of action. As for the plaintiff’s pendant state law claims, these causes of action simply seek the return of his longarms….

[I]t appears that the plaintiff may well have a valid Fourth Amendment cause of action. Razzano’s basic contention in support of this claim is that the defendants improperly seized his longarms without a warrant or probable cause. The Court has some doubt about the plaintiff’s ability to predicate a Fourth Amendment claim on the warrant requirement, as the evidence at least suggests that the plaintiff consented to the Nassau County Police officers entering his home and viewing his longarms. Nevertheless, taking the evidence in the best light for the plaintiff, Razzano appears at present to have a triable claim at least predicated on the defendants’ lack of probable cause to seize his longarms. Indeed, the defendants do not even assert that probable cause existed to seize Razzano’s longarms, but rather state that “the police were not arresting plaintiff for any crime, and so did not need probable cause.” While there exist exceptions to the probable cause requirement for seizure of a person’s property, the Fourth Amendment’s probable cause protections do not cease to operate because the possessor of property is not being arrested. Indeed, such a conclusion would afford more constitutional protection to an accused criminal than to a person not accused of a crime.

The defendants also assert that the Nassau County Police Department’s general statutory power to “preserve the public peace, prevent crime, protect the rights of persons and property, and guard the public health” validates the seizure of the plaintiff’s longarms. While this power might provide a valid basis for the seizure of longarms from individuals in certain cases, it cannot supersede the Fourth Amendment of the United States Constitution, which requires either a showing of probable cause or a valid exception to this general rule.

Therefore, the Court grants the plaintiff twenty days from the date of this Order to amend his complaint to assert a Section 1983 Fourth Amendmentcause of action. Should the plaintiff elect to so amend his complaint, the Court will entertain a motion from the defendants for a limited re-opening of discovery to address the plaintiff’s new Fourth Amendment claim.

The plaintiff also asserts a Section 1983 Fourteenth Amendment due process cause of action against the defendants. Unlike the plaintiff’s putative Fourth Amendment claim, which addresses the legality of the defendants’ initial seizure of his longarms, this cause of action addresses only the legal process that the defendants afforded him after those longarms were confiscated. The Fourteenth Amendment cause of action is similarly distinct from the plaintiff’s state law causes of action. Those claims, for replevin and conversion, involve the plaintiff’s substantive superior title to his longarms. By contrast, the plaintiff’s Fourteenth Amendment claim asserts only that the plaintiff was not given a sufficient opportunity to challenge the defendants’ holding of his longarms.

Both the plaintiff and the defendant have moved for summary judgment on the plaintiff’s Fourteenth Amendment due process claim. Unlike the plaintiff’s putative Fourth Amendment claim, there are virtually no disputed facts with respect to this cause of action. Both parties agree that the defendants confiscated Razzano’s longarms, and that the Nassau County Police Department has a policy of doing so when they believe a person to be dangerous. They also agree that Razzano demanded the return of his guns, and was informed by the Nassau County Police Department that his longarms would be returned if he either (1) had his pistol license reinstated, or (2) presented a court order directing their return. It is the defendants’ contention that this provided Razzano with sufficient process to challenge the seizure of his longarms. Razzano asserts that it did not afford him sufficient due process….

[H]aving weighed the three Mathews v. Eldridge factors, the Court finds that persons whose longarms are seized by Nassau County are entitled to a prompt post-deprivation hearing, to be held as follows:

First, the post-deprivation hearing must be held before a neutral decision-maker.

Second, consistent with the Second Circuit’s rulings in the McClendon trio, the right to a prompt post-deprivation hearing only applies to seized longarms that are not (1) the fruit of a crime, (2) an instrument of crime, (3) evidence of a crime, (4) contraband, or (5) barred by court order from being possessed by the person from whom they were confiscated.

Third, at the hearing, Nassau County shall have the burden of showing that it is likely to succeed in court on a cause of action — presumably forfeiture or a cause of action seeking an order of protection, although the Court does not limit Nassau County to these theories — to maintain possession of the seized longarms.

Fourth, if the person deprived of longarms prevails at the hearing, the longarms must be returned, barring an order to the contrary from a court to whom that finding is appealed. If, by contrast, Nassau County prevails at the hearing, Nassau County must timely commence a proceeding by which it seeks to maintain possession of the longarms in question.

As Razzano was not offered this type of hearing, Nassau County violated hisFourteenth Amendment due process rights….