Town Violates a State Statute, Is there any recourse?

Factual Questions
1

I do not want this to become a debate on gun ownership or the carrying of firearms but I have a question regarding the ability of a town to ignore state statute regarding the issuance of a permit to carry pistols and revolvers.

This is in Connecticut, state statute 29-28a states in section b: “The local authority shall, not later than eight weeks after a sufficient application for a temporary state permit has been made, inform the applicant that such applicant’s request for a temporary state permit has been approved or denied.”

Further statute 29-29 section c states: "Upon receipt of the results of such national criminal history records check, the commissioner shall send a copy of the results of such national criminal history records check to the local authority, which shall inform the applicant and render a decision on the application within one week of the receipt of such results. "

My question is this, if a town refuses to follow the time frames listed does an applicant have any legal recourse? The state does have a system in place to review denials and they have stated they will also hear cases where an applicant is not given an answer in the time frame provided, however, this hearing board has a backlog of over a year and even if they hear your case the only thing they can do is order the town issue a permit.

I know if I violate a state statute action could and would be taken against me, either in the form of an arrest or a fine or possible revocation of a license (driver’s, pistol, whatever…)

What enforcement action can be taken against a town who violates state statute, it appears they may be “untouchable” and can do whatever they want, state statute be damned. In fact one local police department stated, “that’s an old statue, nobody follows that.” Sheer arrogance in my opinion, murder is an old statute too, does this mean I can kill people anytime I want?

I tried Googling for an answer but I could not find anything relevant, I am thinking this may be a civil rights violation as it does pertain to the purchase, posession and carrying of a firearm which has now been declared an individual right under the US Constitution.

I turn to you dopers for advice and opinions. “Shoot me” in the right direction…

2

I’ve heard that in some states applicants who’s papers are in limbo have sued in civil courts for relief. Don’t have any cites though.

I’d suggest posting your question on some gun related boards such as The High Road or AR15.com as it may be easier to obtain specific information there.

3

I was avoiding posting to those boards as they are of course very biased toward gun ownership and I am more interested in an intelligent legal opinion on the penalties a municipality can face for not following state statute. This can be applied to any type of permit or action a town must take according to state statute, if they fail to do what is mandated there must be some type of legal action that can be taken.

ETA: I should also state that I am already a permit holder and a firearm instructor, this is not affecting me personally but it is affecting applicants all over the state…

4

I can understand your reluctance, but you’d be asking folks who may have dealt with the same issue in your state. YMMV of course.

5

A general gun forum (like the High Road), as Gary points out, would probably have a higher number of people who have either dealt with this situation directly or worked with people who have. The High Road’s Admins and Mods are pretty sharp folks, who do a good job of keeping a lid on the opinionated and just plain wrong when it comes to things factual (like relevant laws and case history) in the various forums. Try the High Road Legal Forum.

6

You raise a specific instance of a larger question: What happens when a government agency lacks the resources (read budget) to accomplish its legally mandated mission to the satisfaction of its customers?

Folks can appeal & sue and all the rest, but what if all those avenues simply put your complaint at the back of another, even larger line of folks waiting to be heard?

The answer eventually is for folks to recognize that “starving the beast” is a faulty way to accomplish reform. Decide what & how much you want / can afford for gov’t to do, then provide the resources necessary for them to accomplish that in an efficient & customer-friendly way.
And as the OP’s situation points out, the more budgetarily dysfunctional the appeals process becomes, the easier it is for agencies to ignore rules & behave as they desire. In all, this is exactly a recipe for converting a pretty highly functional government system into something like they have in 3rd world countries.

7

I guess you could sue the local authority and get a writ of mandate. I don’t know how writs of mandate are enforced if violated.

Perhaps hold the local government or official in contempt via fines and/or imprisonment until compliance?

Perhaps judicial takeover of the local function through appointment of a receiver?

Perhaps the state can usurp the local authority through the state attorney general?

8

I’d like to add that it may not be as much a case of not enough budget to perform the work as it may be deliberate delays in the hope that an applicant may give up and go away. Having been raised on the East coast I seem to recall that many of the states are not too anxious to increase the numbers of concealed carry gun owners.

9

In answer to the specific legal question, “How do you force a government official to perform an act they are required by law to perform?” the answer is you go to the appropriate court (the one having jurisdiction over equity cases) and you seek a writ of mandamus (basically a court order directing the public official in question to perform his/her duties under penalty of contempt of court).

Connecticut may have its own procedural quirks. You should consult a local attorney.

10

Don’t know about your state specifically, but when Ohio passed its state laws preventing cities and towns from enacting their own laws that were stricter then the states laws, those towns and cities did indeed lose the lawsuits when they decided to ignore the state laws and ban firearms in certain places like public parks.

11

Right, because those state statutes that people typically violate have a criminal penalty attached to them. For example, the littering statute would be followed by something to the effect of “any person found violating this section shall be guilty of a misdemeanor, and upon conviction shall be fined not less that fifty nor more than a hundred dollars or imprisoned for not more than five days in the county jail, or both fined and imprisoned at the discretion of the court.”

The law spells out what happens if you violate it. They state laws against cities and towns typically have no penalties attached. As others have said, you must go to court and get the judiciary to order the officials through a Writ of Mandamus to follow the law.

12

A Writ of Mandamus is probably the action to take. From what I am reading though only the aggrieved party can petition a court for such an action. As we are talking about 160 issuing authorities in the state I am not sure how any one person can prove they have been denied rights by all the towns. I am thinking it might be possible to get such a Writ against the Attorney General who should be forcing the towns to follow the law.

For others who have questioned money to perform tasks, that’s not the case as the applicant pays all costs and fees associated with the application processing and background checks. It is as someone else posted simply their way of slowing the process to a crawl.

We have several towns in state who are on the ball and doing the right thing. Windsor, CT for example is processing and issuing in less than one week. While others are delaying for 3-6 months, way outside the time frames set by statute. Only recourse we know of is to file an appeal with our Board of Firearm Permit Examiners who schedules a hearing where the applicant and a representative from the town’s PD have to come in, state their sides and the Board then renders a decision. Problem is hearings before the board are being scheduled 11 months away…

13

Now I am confused. Are you trying to redress a problem you personally are having getting a license? If so, why would you feel the need to make a claim against all 160 issuing authorities? You need only seek mandamus against the single authority that is foot-dragging your permit.

And I suspect you probably wouldn’t even need to do that. A strongly worded letter to that authority (letting them know that unless they take action within x days you plan to seek a writ of mandamus) would probably do the trick. Particularly if you also let them know that if forced to sue you will seek to recover your attorneys’ fees.

So is it a personal problem you are having, or are you trying to figure out how to bring the whole state to task to make a 2nd Amendment point?

14

I took it from his OP that it was about him, personally, even if, on review, he never says that.

But his ETA in post #3 seriously implies it’s about the larger issue in general.

15

I am sorry if I was not clear, it is about the larger issue in general. The patchwork of issuing authorities in the state is all over the place on this. I am an instructor who teaches the course required in CT to apply for your permit so I am trying to help my students and all who wish to obtain a permit in CT to be treated equally by all towns in the state. As I stated some towns are following the law, so well in fact that it should be an embarrassment for the others who scoff at it.

That being said let’s take guns out of it. Let’s say we had a state statute that says the towns are in charge of issuing permits to hold a raffle, this permit could only be issued by the town in which the person requesting it resides, further this permit must be issued within 8 weeks of application unless the applicant has a criminal history. Now let’s say 85-90% of the towns ignore that statute and hold your raffle permit up for 3-6 months or more.

With the above example who would you complain to? Who in the state would have the power to “force” the town to follow the statute? As has been stated a Writ of Mandamus may be the solution but would one need to get one for each town? If so it looks like a person must have standing in each situation which obviously one resident of one town would not. This is why I am wondering if the AG in CT would be the person to go after for not making an effort to see that the towns are following the statutes as written.

16

A writ of mandamus can force the town to act.

A suit for damages under 42 USC § 1983 might be possible – not my area of law, but that statute gives a civil remedy when the government acts under color of law to deprive an individual of his civil rights.

A few successful civil suits would encourage other towns to modify their behavior.

17

You would almost certainly need to sue in each individual instance. The only thing that could prevent such a requirement would be if the State powers that be (Governor etc) heavily pushed, using various authority both legal and political, a policy that kept the towns in line.

In States where a governor wants to rein in recalcitrant towns he has various options, for example he can push for legislation that would allow him to withhold certain State funds if the municipality doesn’t adhere to certain laws, that will usually keep everyone in line.

That’s the answer to your “political” question, I say political because that’s the most realistic solution to this on a statewide level. And really if you’re looking for a way to control behavior of all of Connecticut’s towns, it truly would require some creative legislation or policy pushed at the State level. The reason no simple lawsuit could get you what you wanted is because whatever the ruling of the court, to force individual towns to comply with it you would still have to file individual suits, so it doesn’t materially change the issue if the towns are already not behaving in compliance with the law.

In addition to writs of mandamus against individual town officials, it should also be noted that unless otherwise specified in the State Constitution, municipalities have no real Federal constitutional protections and their very existence is dependent on the whim of the State itself. States can take over municipalities or even dissolve them in some instances.

18

That would be an uphill climb, would it not? I know that McDonald and Heller have made gun ownership an individual right, but they specifically stated in dicta that states can regulate concealed carry.

Doesn’t the fact that the state requires a license make the underlying activity NOT a civil right? Unless there was a racial factor, I can’t see why foot dragging on a license application would be a 1983 violation…

19

With regard to gun permits it has nothing to do with “starving the beast”. Pennsylvania, my state, simply runs a NICS check after considering other mitigating factors that you have to mention under pain of perjury on your application. Granted, Pennsylvania is a “shall issue” state, but the point is that it is simplicity itself to make the determination whether someone is eligible for a permit or not. It takes a single 5-minute phone call. Gun dealers do it right in front of you during a purchase transaction.

Connecticut is considered a “permissive may-issue” state, meaning that they are typically very free with approving permits even though they don’t have any legal obligation to issue one. I don’t know enough about Connecticut’s approval procedure to comment further, but as a rule of thumb if you can legally purchase a firearm you should qualify under objective criteria to get a permit since those criteria are the same. It’s when you get into the arbitrary criteria that non-permissive “may-issue” states use (like “need”) that delays or denials typically happen.

Were I in the position the OP presents I would work through my Congressman. They have staff that typically love to do this stuff, it’s what they exist for. Usually a simple call asking why the law isn’t being obeyed is enough to prompt some movement, and quickly at that.

20

You are close, we are a may issue state, the only thing that makes us may issue is the issuing authority is supposed to investigate the suitability of the applicant in addition to a criminal history check, barring any criminal diaqualifiers the issuing authority has to prove a person usuitable or issue a permit. If someone is denied on suitability they can appeal to the Board of Firearm Permit Examiners who usually rules for the applicant unless the town can really show the unsuitable factor.

Our problem is the issuing authorities are not following the statutes as intended. They tend to go way over the time frames allotted by statute. I was just informed this morning that one town (Milford) is now refusing to accept applications until April of 2012.

I like the idea of speaking with my legislator, not sure why I did not think of that first. Although my rep is an anti gun person my state senator is very pro 2nd ammendment and always willing to listen to his constituents, he will be getting a call from me next week after the Holiday weekend…

Thanks everyone for all your input on this!!!