I wanted to clarify a couple points regarding my comments on H.735, as I was concerned about some misunderstandings in members’ responses to it.
Possession versus Ownership: Federal Law
First, whenever a person receives a TRO, or a citation or arrest for a domestic misdemeanor case, or a citation or arrest for any felony whatsoever, he or she MUST immediately get rid of their guns. That is, under federal law at that point in time, it is a serious felony for that person to be in possession of firearms. The issue with H. 735 is not the fact that you have to ‘give up your guns’ – because you already do – it’s the manner in which that occurs.
Ownership and possession are two different things. For example, I can own a car and lease it to you – then YOU have the right of possession, I can’t just go drive it whenever I want. But I still own it.
The federal law is that you can’t be in POSSESSION of firearms – but you can still own them as long as they are not within your access or realm of control. They cannot be in your pocket, your house, your car, your workplace, or in any other place you regularly have access to. They can’t be in a gun safe you have the key or combination to. In all my writings on firearms law, and in all my advice to every client, I state that if you have been served with a TRO or are charged with a misdemeanor domestic or any felony, get rid of your guns IMMEDIATELY. Don’t wait, don’t ponder your options. If it’s going to take a while to remove the guns from yourself, then remove yourself from the guns and immediately designate someone else as your agent to deal with them.
But that doesn’t mean you can’t own them at a distance in the same way one might own stocks or an interest in real estate that is far away. Some of those rights of ownership other than possession would include the right to sell, gift or devise the property. H.735 deprives the owner of these ownership property rights, but your right of possession is already gone at that point.
To add a twist to this point, however, the federal statute ONLY refers to things which qualify as FIREARMS under federal law. H.735 purports to apply to a whole host of ‘weapons’ which don’t qualify as firearms under federal law. States can legally outlaw various ‘weapons’ (a lot of states outlaw Bowie knives, brass knuckles, saps etc.) and can preclude people on pre-trial release or parole from having such items. Where the items themselves are illegal, there is no problem with the government seizing them. But where the items themselves are not illegal, it’s a bit confusing as to why an FFL is going to be storing someone’s sword collection or nunchucks. It’s also unclear what exactly comprises a ‘weapon’ under Vermont law. Baseball bat? Hockey stick? Rope? Much like ‘burglarious tools’ can include screwdrivers, a ‘weapon’ is a weapon when it is an item used with intent to harm.
So I’m unclear here what exactly the scope is of items to be surrendered – and I don’t see what the pricing scheme is for non-firearms storage. I suspect that law enforcement officers will state that everyone knows what a ‘weapon’ is. If so, then let’s write it down so we are all clear on it.
Second, as to why this is important to gun owners, one issue is the money (for a lot of Vermonters, their firearms constitute a significant investment, and often one of few liquid assets). But another is the emotional and sentimental value of their firearms. A large number of firearms owners I know have their dad’s service pistol and their grandfather’s or great-grandfather’s shotguns. This proposed law allows no means for the firearms owner to arrange to get those family heirlooms into the possession of or into trust for their kids, grandkids or nieces and nephews.
Let us say a woman of limited means is served a domestic TRO during a pending divorce—an order which will be lifted eventually–and under H.735 her firearms are seized by this ‘surrender’ process. Since she now has to support a separate household and pay the costs of divorce, she doesn’t have the cash to redeem the guns after two years of divorce proceedings, all during which this storage fee has been mounting. Among those guns are her great-grandfather’s firearms from WWII and her police-officer grandfather’s pistol, which she was holding to give to her minor sons. Those guns will then be sold by the FFL and it’s unlikely given the cost of storage that she’ll even see a check. So for a domestic TRO relative to a divorce, probably a low point in this person’s life, she also gets officially punished by her government by the official state theft of her and her son’s inheritance. At the point the guns are sold, she’s no longer prohibited by law from having firearms, and there’s been no hearing, no chance to plead hardship, no ability to negotiate a resolution naming the kids the owners of the guns via an appropriate adult trustee – something I have often negotiated within ATF forfeiture proceedings.
(Since ATF forfeiture proceedings operate under the federal definition of ‘firearms’ I have also often been able to negotiate the return of all non-firearm accessories like optics, cases, straps, ammo boxes, etc. allowing the owner to sell the items to help support his or her family and pay bills pending legal action. These items are often worth a lot of money – but it is unclear how that would work under H.735 given that Vermont is not necessarily using the federal definition of ‘firearms’.)
Thirdly, since these guns go right from VSP to an FFL to sale, with no hearing, there is no opportunity for innocent third-party-owners or lienholders to make claims on the property – factors which are embodied in due-process procedures for forfeitures. It’s not uncommon for someone to give possession of a hunting rifle to another individual to try out during hunting season to see if he or she wants to buy it, or simply to loan a gun to a friend for any number of reasons. With no due process hearing before sale, no posting of the seizure in legal notices prior to sale, there is no opportunity for any innocent owner to assert their ownership rights. (The same applies to the firearms of other household members which might have been seized in the ‘surrender’ process.)
Primarily here I wanted to clarify that it is already law that a person served a TRO, or charged with a misdemeanor domestic or any felony, can not be in possession of a firearm. There are also additional disqualifications under federal law – 9 in total – and every individual involved in anay civil or criminal legal proceeding should seek individual, specific legal advice regarding whether he or she is disqualified by federal law from possessing a firearm.
Thank you for the opportunity to clarify.