Topic:
GUN CONTROL; PERMITS; PROBATE COURT; WEAPONS;
Location:
WEAPONS - GUN CONTROL;
Scope:
Connecticut laws/regulations;

OLR Research Report


November 16, 1998 98-R-1349

FROM: Veronica Rose, Principal Analyst

RE: Time Limits for Heirs to Surrender or Transfer Inherited Handguns

You asked if there is a time frame within which an heir must surrender a handgun he inherits to the Department of Public Safety (DPS). You also want to know if it is constitutional for the state to require the heir to surrender his handgun to DPS.

The issue you raise involves many legal technicalities. OLR does not give legal opinions and this memo should not be construed as such.

SUMMARY

We do not have a definitive answer to your first question because the:

1. law does not explicitly address the question;

2. House debated it but did not answer it, and the Senate did not address it;

3. court has not addressed it;

4. State Police have not prosecuted any cases involving it; and

5. probate court has not dealt with it.

By law, people, including heirs, must meet statutory eligibility criteria and present a permit or an eligibility certificate when receiving a handgun (CGS 29-36j). They must meet the same criteria when they possess handguns. Otherwise, they must surrender any handguns they possess to DPS or transfer them to an eligible party within two business days after becoming ineligible to possess handguns (CGS 29-36k). (They have one year to transfer any surrendered guns to an eligible party.)

If the heir is not barred from receiving or possessing handguns, he simply has to obtain a permit or certificate to receive a handgun he inherits. If he is permanently barred from receiving handguns, he cannot get the permit or certificate, and the gun cannot be transferred to him. While it is clear that the gun cannot be transferred to him, it is not clear that CGS 29-36k applies. On its face, the law applies to eligible owners who lose their eligibility. A court could conclude that it does not apply to people barred from receiving handguns.

Assuming the law does apply, it is not clear what specific event would trigger the surrender or transfer requirement (e.g., the gun owner's death, probate settlement, or disposition of assets). During the House debate, some of the bill's opponents asked whether it was the gun owner's death. The House debate did not resolve the issue.

The State Police say the situation requires police officers to use their discretion and act reasonably. Thus, while technically the heir's presence in a house with a gun may be construed as possession, a reasonable officer would weigh all the circumstances before acting. In practice, the State Police say that police officers have not been checking on a deceased's household to see if the deceased left a handgun that must be surrendered or transferred.

With regard to the constitutional question, the law, as discussed above, requires the surrender or transfer of a handgun in cases where the possessor would violate the law if he continued to possess the gun. The gun owner has a choice. He does not have to surrender the gun to DPS but may surrender it to any eligible person. And if he does surrender it to DPS, he has one year to reclaim it. Because this involves a transfer and not a taking, it does not appear to raise any constitutional issues.

THE LAW

By law, anyone (except law enforcement officers) receiving or purchasing a handgun must present a valid permit or eligibility certificate (CGS 29-36j). This is evidence that appropriate local or state officials have investigated him and, based on statutory criteria, deemed him eligible to receive and possess handguns. Anyone who does not meet the criteria cannot get these documents and cannot receive handguns. And when an eligible person no longer meets the criteria, he must surrender any handguns he possesses to DPS or transfer them to an eligible party within two business days after the event that makes him ineligible to possess handguns. (He has one year to transfer the surrendered guns to an eligible party; and DPS must destroy any surrendered guns that are not transferred within the year.) The law states that:

Not later than two business days after the occurrence of any event that makes a person ineligible to possess a pistol or revolver, such person shall transfer…all pistols and revolvers which he then possesses to any person eligible to possess a pistol or revolver or surrender them to the commissioner of public safety (CGS 29-36k).

People are ineligible if they:

1. were released from custody in the past 20 years after having been found not guilty of a crime by reason of mental disease or defect;

2. were confined by a court order to a mental hospital in the past 12 months;

3. know that they are the subject of a restraining or protective order, issued after notice and hearing opportunity, for using, threatening, or attempting to use force against someone;

4. are illegal aliens;

5. have been convicted of a felony or any of 11 serious misdemeanors (CGS 29-36k and 53a-217c).

If an heir is not barred from receiving or possessing handguns, he simply has to apply for a permit or certificate to receive the gun bequeathed to him. What is unclear is whether CGS 29-36k applies to an inheritance by an ineligible heir. The law assumes that an eligible person who possesses a handgun loses his eligibility to continue to possess handguns. It does not explicitly address a person barred from receiving handguns in the first place.

Assuming that the law does apply, it is not clear what event would trigger the requirement to surrender or transfer the gun. This could conceivably be when the (1) gun owner dies, (2) court orders disposition of the assets, or (3) executor disposes of the assets. The answer to your question will depend, at the very least, on how the courts construe the meaning of “possess” in this context.

The courts have recognized two types of possession--actual and constructive. A person has “actual possession” if he owns or has physical control over a thing. He has “constructive possession” if he “knowingly has the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons ....” (United States v. Burch, 313 F.2d 628, 629 (1963)).

From a legal standpoint, the heir does not own the gun until the probate court orders the disposition of the estate's assets. But, if the gun is in the heir's house, a court may consider him to have constructive possession of it. And possession of a firearm need only be constructive to establish the element of possession (United States v. Martin, 706 F.2d 263 (1983)).

At least one of the bill's opponents suggested during the house debate that the element of possession may be present when the gun owner dies. “I don't think you ought to turn the wife whose husband was the gun collector and dies into a felon if she didn't get rid of the guns in 48 hours… it strikes me as odd, you've got to get the paperwork in if it's left in your house before you attended the funeral …” (Representative Ward).

If this interpretation is correct, the heir may be required to dispose of a gun he does not legally own. We cannot say definitively how the courts would rule. If they concluded that the law is unclear on its face, they would in all likelihood examine the act's legislative history, which is sometimes used to determine legislative intent.

EXCERPTS FROM HOUSE DEBATE (July 6, 1994)

As the following excerpts show, the House debated the question but did not resolve the issues.

Rep. Prelli: It says no later than 48 hours after the occurrence of an event that makes a person ineligible to possess a pistol, such person shall transfer or give it to somebody or turn it in and I know you talked about this in detail earlier but I'm not sure we got a specific answer. When is the occurrence, when is the event when somebody dies who owns a pistol? Is it when the probate file is settled? Is it when the person dies? My guess … it's at the time of death and so it would give us 48 hours. Am I misinterpreting that?

Rep. Lawlor: If the executor of your estate takes that gun into his possession, he or she [is] not committing any type of crime or violation. If however, [he is] going to transfer it to somebody, whether the executor or the Probate court judge or whoever has got it in their possession, the widow or widower, or whomever, then they must verify that the person who is receiving it has either a permit or a certificate, just like any other buyer of a handgun, but just because someone passes away, it doesn't require any additional gun related paperwork to be completed by the executor or the surviving spouse or whomever, unless they're going to transfer it to somebody.

Rep Prelli: Thank you, Representative Lawlor. I guess I have a problem with that. How can somebody who is dead have possession, unless obviously it's buried with this person, how can they have possession of a firearm? Somebody else will have possession of that firearm and they couldn't possibly have possession or ownership of that firearm at that point. Through you, Mr. Speaker, can you answer that?

Rep. Lawlor: This legislation does not punish people for possession of a handgun unless they [are] convicted felon[s] or in one of the other categories. It punishes people who transfer it to other people who are not eligible to own it. So if someone dies, the gun is where it is. Someone picks up that gun, they're not breaking any law unless they themselves are convicted felons or one of the other categories …. So if you found a gun in your house and you took possession of it, you don't have to fill out any paperwork.

Rep Prelli: If then with that same scenario, if someone dies and in their will leaves that gun to their spouse…is that then considered a transfer, through you, Mr. Speaker?

Rep. Lawlor: Through you, Mr. Speaker that's an issue for the probate courts to decide. You know, I don't know. Maybe the gun was jointly owned. I mean if in fact the Probate Court is saying that--listing specific property and the executor is now going to transfer that property to someone else, whether it's the spouse or anyone else, yes, the executor is going to have to make sure that that person is eligible to own it, and I don't do a lot of trust and estate work, but personal property usually remains where it is and I don't think that item by item they're transferring the kitchen sink or the stove or the clock or the watch or anything like that item by item.

So I think if there's a formal transfer going on, a change of title, yes, but if the gun is not being moved in any way, if it's not specifically referred to in the estate, I don't think that anyone could ever make a case that paperwork was required.

THE STATE POLICE POSITION

The State Police informed us that they have not prosecuted any cases involving gun transfers to ineligible heirs. According to Detective Darren Edwards, police officers are not knocking on survivors' door to determine if they are eligible to receive handguns. Further, any reasonable officer who encounters any situation involving such transfers must use his discretion and weigh all the circumstances before acting.

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