State Police challenged on phony regulations on "assault
weapons"
With funding from Coalition of
Connecticut Sportsmen, the challenge continues against the Connecticut Department of
Public Safety (DPS) over its latest "interpretation" of certain terms in the
statutory "assault weapons" ban. Attorney Ralph D. Sherman and Attorney Andrew
J. Buzzi Jr., Gunsafe chairman and vice chairman respectively, are representing the
interests of firearms owners and dealers. Two firearms owners and a licensed dealer have
lent their names to the appeal as parties affected by the regulatory actions of DPS.
The challenge first took the form of a lawsuit in Litchfield Superior Court. A judge
dismissed the lawsuit, saying that the court did not have jurisdiction until the
administrative appeal process had been tried. This means filing a formal petition directly
with the state agency, DPS, instead of appealing to the court.
Therefore on October 31, 2003, a petition was sent by courier to the commissioner of
DPS. Because DPS has never adopted regulations specifying a form or format for such a
petition, our petition was created as a letter to the commissioner.
Here is the text of the petition:
October 31, 2003
VIA FEDERAL EXPRESS
Arthur L. Spada
Commissioner
Department of Public Safety
1111 Country Club Road
P.O. Box 2794
Middletown, CT 06457-9294
Re: Regulations relevant to CGS §53-202a et
seq.
Dear Commissioner Spada:
I represent Daniel Patten Sr. of Norfolk, Lawrence DeLuca of Riverton, and Frank
D’Andrea of Stratford. Mr. Patten and Mr. DeLuca are firearms owners; Mr.
D’Andrea is a licensed retailer of firearms. On their behalf, and pursuant to
Connecticut General Statutes §4-174, I am writing to petition the Department of Public
Safety for repeal of certain regulations and the adoption of certain regulations.
I am requesting the repeal of certain regulations adopted by the Department that pertain
to Connecticut General Statutes §53-202a et seq. By “regulations” I am
referring to the Department’s written and unwritten policies regarding the meaning
and enforcement of §53-202a et seq. with respect to “Auto-Ordnance Thompson
type”; “Avtomat Kalashnikov AK-47 type”; and “MAC-10, MAC-11 and
MAC-11 Carbine type” firearms. Among the Department’s written regulations on
this subject are an undated flier with the heading “AK-47 ‘TYPES’” and
a form letter dated June 25, 2002, from CSP Lt. Robert Kiehm to “Connecticut Retail
Firearms Dealer.”
For your reference, I have attached a copy of the flier and of Lt. Kiehm’s letter.
I am requesting the repeal of these regulations because they were adopted by the
Department without following any of the procedures required by the Uniform Administrative
Procedures Act, especially Connecticut General Statutes §§4-168, 168b, 169, 170, and
172, which require public notice, public hearings, and legislative review.
I am further requesting that the Department adopt regulations relevant to Connecticut
General Statutes §53-202a et seq., with respect to “Auto-Ordnance Thompson
type”; “Avtomat Kalashnikov AK-47 type”; and “MAC-10, MAC-11 and
MAC-11 Carbine type” firearms, and that the Department adopt such regulations by
following the procedures required by the Uniform Administrative Procedures Act, especially
Connecticut General Statutes §§4-168, 168b, 169,
170, and 172, which require public notice, public hearings, and legislative review.
Of course you are aware that this issue was the subject of a recent action in Litchfield
Superior Court, Patten v. Spada, Docket No. CV-03-0090209-S. The action was dismissed by
the court for the plaintiffs’ alleged failure to exhaust administrative remedies -
that is, failure to file a petition pursuant to Connecticut General Statutes §4-174. I am
filing this petition in response to the court’s ruling. Because the Department has
failed to “prescribe by regulation the form for petitions,” as required by
Connecticut General Statutes §4-174, I am asking the Department to accept this letter as
a petition. This should be acceptable according to the August 1, 2003, affidavit of Atty.
Dawn Hellier that was filed in the court case. (For your reference, I have attached a copy
of that affidavit.)
Please note that Connecticut General Statutes §4-174 provides that within 30 days after
submission of a petition, the agency either shall deny the petition in writing stating its
reasons for the denials or shall initiate regulation-making proceedings in accordance with
§4-168.
Sincerely,
[Attorney] Ralph D. Sherman
Background
The "assault weapons" ban is contained in Connecticut General Statutes
§53-202a, which lists certain firearms by make and model. Three items in the list are not
specific, however; they are "Avtomat Kalashnikov AK-47 type," "MAC-10,
MAC-11 and MAC-11 Carbine type," and "Auto-Ordnance Thompson type."
For eight years, from the time the ban was made law, DPS informed dealers and gun
owners that if a firearm did not bear the legend, "AK-47," then it was not
banned. DPS made similar statements about the other two "types" banned by the
statute.
But in 2002, DPS changed its position and started issuing letters and fliers stating
that "AK-47 type" includes thousands of guns that were sold after the ban - with
DPS approval. According to one flier, an "AK-47 type" is any firearm that uses
the same ammunition, the same interchangeable parts, and the same operating system as an
AK-47.
This action by DPS suddenly turned thousands of previously "legal" guns into
"banned" guns that must be registered, surrendered, or made permanently
inoperable. Under Connecticut law, this action was equal to the adoption of
regulations—regulations that are illegal because they were adopted without following
any of the procedures required by state statutes.
