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Kuck v. Danaher

March 23, 2010

M. PETER KUCK, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
v.
JOHN A. DANAHER III, COMMISSIONER, CT STATE DEPT. OF PUBLIC SAFETY, ALBERT J. MASEK, JR., COMMANDING OFFICER, CT STATEDEPT. OF PUBLIC SAFETY, DEFENDANTS-APPELLEES.



SYLLABUS BY THE COURT

Appellant challenged, on due process grounds, the firearm permit renewal procedures employed by the Connecticut Department of Public Safety and the Board of Firearms Permit Examiners. The United States District Court for the District of Connecticut (Bryant, J.) dismissed the complaint. See Fed. R. Civ. P. 12(b)(6). Affirmed in part, vacated and remanded in part.

The opinion of the court was delivered by: Barrington D. Parker, Circuit Judge

Argued: September 17, 2009

Before: STRAUB, B.D. PARKER, AND LIVINGSTON, Circuit Judges.

Plaintiff-Appellant M. Peter Kuck appeals from a judgment of the United States District Court for the District of Connecticut (Bryant, J.) dismissing his complaint. Kuck's claims arise from his efforts to renew his permit to carry a firearm with the Connecticut Department of Public Safety ("DPS"). His principal claim is a procedural due process challenge alleging that DPS -- in tandem with the Board of Firearms Permit Examiners ("the Board") -- has a practice of improperly denying permits, unnecessarily prolonging the appeals that follow, and then quietly resolving disputes at the last minute. In addition, Kuck claims that his firearm permit appeal was deliberately delayed by state officials in retaliation for his outspoken criticism of DPS and Board practices, in violation of his First Amendment rights.

Based, in part, on this Court's intervening decision in Spinelli v. City of New York, 579 F.3d 160 (2d Cir. 2009), we conclude that Kuck has stated a procedural due process claim. It remains to be seen, however, whether Kuck has named, or will be able to name, the appropriate defendants for this case to proceed.*fn1 While he attempted to amend his complaint to add additional defendants, that motion was denied as futile by the district court. We remand so that the district court may consider, in the first instance, whether any relief is available to Kuck or any putative class in light of the proposed amended complaint.

I. BACKGROUND

In March 2007, Kuck applied to DPS to renew his permit to carry a firearm. He was subsequently contacted by Defendant Albert J. Masek, an employee of DPS, who requested that Kuck provide a U.S. passport, birth certificate, or voter registration card in support of his renewal application.*fn2 See Compl. ¶ 36. In response, Kuck inquired into the basis for the request. He was told that, by statute, the State could not issue a firearm permit to any "alien illegally or unlawfully in the United States," and therefore DPS was required to verify his citizenship. See Conn. Gen. Stat. §§ 29-28(b), 29-28(f), 29-29(d); cf. Conn. Const. art. I, § 15 (limiting the right to bear arms to "citizens"). Kuck objected to the requirement, arguing that he had submitted proof of citizenship when he first applied for a permit in 1982 and, over the subsequent 25 years, had never before been asked to provide such proof with a renewal application. See Am. Compl. ¶¶ 36-37.*fn3 He claimed then, as he does now, that the DPS requirement was arbitrary, designed to harass, and, in any event, not authorized by state law. Ultimately, he refused to provide the requested documents. As a result, DPS denied his renewal application.

Kuck then filed an appeal with the Board, seeking a hearing on whether his refusal to submit a U.S. passport or birth certificate provided "just and proper cause" for the denial of his application. See Conn. Gen. Stat. § 29-32b(b). However, his appeal hearing was not scheduled to occur for eighteen months, during which time he was deprived of a permit to carry a firearm. In October 2008, after this suit was filed, Kuck finally received his hearing. Shortly before the hearing, he provided a voter registration roll supporting his citizenship and residency status; as the result, his renewal application was granted. Despite this resolution, he continues to seek damages from various state officials under 42 U.S.C. § 1983 for alleged violations of his due process and First Amendment rights.

Notably, at the time of his renewal application, Kuck was the Secretary of the Board. Members of the Board are appointed by the Governor and include individuals nominated by gun clubs in Connecticut. See Conn. Gen. Stat. § 29-32b(a). In 1998, Kuck was nominated by Ye Connecticut Gun Guild, Inc. to the seat on the Board reserved for its representative.

Kuck alleges that, since his appointment, the estimated waiting-period for a hearing has increased dramatically, and that the Board Chairman, Christopher Adams, opposed his efforts to speed up the appeals process. See Compl. ¶¶ 78-118. He contends that DPS and the Board have acted to burden gun-owners' ability to obtain carry permits by improperly denying applications in the first instance and then subjecting applicants to unjustified and prolonged appeals.

Kuck asserts three constitutional claims: (1) a violation of procedural due process, based on the allegedly arbitrary denial of his firearm permit and excessive delay in obtaining an appeal hearing; (2) a violation of substantive due process on the same grounds; and (3) a First Amendment retaliation claim, alleging that DPS, acting through one of its detectives, threatened and harassed Kuck after he criticized DPS and the appeals process. See Compl. ¶¶ 78-96. Kuck filed his suit as a putative class action, seeking to represent a class of individuals whose permits have been erroneously denied by DPS and have subsequently been subjected to a long-delayed appeal before the Board.

Defendants moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the complaint, contending that Kuck had failed to state claims upon which relief could be granted. The district court agreed and dismissed the suit, holding that the hearing delay was not so long as to make the availability of review "meaningless or nonexistent." See Kuck v. Danaher, No. 3:07-cv-1390, 2008 WL 2902032, at *3 (D. Conn. July 25, 2008). In light of this ...


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