Connecticut asks for ‘no-fly’ list to screen gun buyers
CT Mirror, December 11, 2015
By: Mark Pazniokas
Gov. Dannel P. Malloy jumped into a roiling national debate over gun control, civil liberties and terrorism Thursday by revealing he has asked the White House for access to the U.S. government’s “no-fly” list and other terrorism watch lists to screen firearms purchases in Connecticut. “I intend to sign a first-in-the-nation executive order, one that will result in banning the sale of guns to those on government watch lists," Malloy said in an early afternoon press conference.
The White House was publicly non-committal on whether it would share what has been a closely guarded and much criticized screening tool. Malloy said his request for access to the federal data was well-received, but was "going through channels." "I can’t speak to any specific conversations that Gov. Malloy may have had with somebody at the White House, but I certainly wouldn’t contradict what he’s said," said Obama's spokesman, Josh Earnest, according to a transcript of his daily briefing. "It’s not at all uncommon for White House officials to be engaged in conversations with state and local officials about advancing shared priorities. And we know that there are many local and state officials across the country who are quite concerned about the impact of gun violence in the communities that they govern."
Malloy, a second-term Democratic governor who has been closely allied with President Obama on immigration, gun control and other issues, made his announcement four days after the president urged Congress to pass a law barring gun sales to anyone on the "no-fly" list. “Congress should act to make sure no one on a no-fly list is able to buy a gun. What could possibly be the argument for allowing a terrorist suspect to buy a semi-automatic weapon? This is a matter of national security,” Obama said Sunday in an Oval Office speech. Malloy said Thursday he was ready to do what Congress refuses. “We will take action. Like all Americans, I’ve been horrified by the recent terrorist attacks in California and Paris," Malloy said. "This should be a wake-up call for all of us. This is a moment to seize here in America. And today I'm here to say that 'Connecticut, we are seizing this moment.' ”
Malloy's legal authority to use the list to block gun purchases was questioned by opponents of gun control, but also by some who applaud his intent, including the American Civil Liberties Union of Connecticut. The governor asserted he has the executive authority to add the watch lists to the criteria for denying gun permits, saying a governor has relatively broad powers over permits, so long as those denied have a right to administrative appeals. “We believe we have the power under executive order, because what we are denying is a permit, and there is a permit process, and there is an appeal in the permit process if you are denied," Malloy said in response to questions.
Connecticut already has some of the nation's strictest gun laws, including a system of background checks that was broadened after the gun deaths of 26 children and staff at Sandy Hook Elementary School in Newtown three years ago. Under current rules, Connecticut police must deny a permit necessary to purchase a firearm to those convicted of a felony or a specific list of misdemeanors, or those confined to a psychiatric hospital in the previous 12 months.
In addition, police also can apply a general standard of "suitability," which never has been defined in state law. Residents have the right to appeal denials to the state Board of Firearms Permit Examiners. The board's decisions can be appealed in Superior Court. Some praise, but questions about Malloy's authority Scott Wilson, president of the Connecticut Citizens Defense League, one of the state's largest gun owners' groups, said he was alarmed at Malloy's intended use of the lists to deny purchases and possibly seize guns. "Gov. Malloy is planning to take what is in our view unconstitutional executive action that would prohibit firearms purchases and seize firearms of individuals who have not been indicted or convicted for any crime," Wilson said. "While we are all concerned about terrorism, this approach is very un-American and shameful."
In cases where holders of firearms permits were found to be on a watch list, Malloy said he would favor revocation of the permit, which could force affected gun owners to sell or surrender their firearms. Connecticut's two Democratic members of the U.S. Senate, Richard Blumenthal and Chris Murphy, who each gave speeches in favor of gun control Thursday to mark the upcoming third anniversary of the Sandy Hook massacre, offered measured support to the governor. Blumenthal said Malloy’s effort was “as much symbolic” as anything else, saying “there are practical difficulties in implementing it.” But he added it was “very important to show a state is willing to do what Congress won’t.” Murphy said the governor’s plan “may be a hard lift,” but he also said, “I’m proud that the governor took the step.” U.S. Rep. Elizabeth H. Esty, D-5th District, who represents Newtown and co-sponsored a version of the bill sought by Obama, said, "We must close this loophole as a country so that terrorists cannot just walk into a gun store and use our laws against us.”
Malloy, who welcomed a family of Syrian refugees to New Haven after an Indiana resettlement agency was told by the state's governor they were unwelcome, said Congress is more concerned with tightly screened refugees than the prospect of suspected terrorists or sympathizers freely buying firearms. “Let me say this: The danger of having people on watch lists buying guns in our country is far greater than any of the risks they are talking about," Malloy said. Ron Pinciaro, the executive director of Connecticut Against Gun Violence, said he was proud of the governor. “The people of Connecticut are very fearful about their safety, particularly in light of the recent terrorist attacks in San Bernardino and Paris," he said. "Gov. Malloy is again taking a leadership position in his resolve to protect the people of Connecticut." Former Congresswoman Gabrielle Giffords and her husband, retired astronaut Mark Kelly, who co-founded Americans for Responsible Solutions after she was wounded in a mass shooting, said Malloy was acting to close a gap in current firearms screening. “But let’s remember that Gov. Malloy was forced to take this commonsense step because Congress has yet to take sufficient action to address the threat of active shooter terrorism," they said in a statement.
"Allowing suspected terrorists to walk into a firearms dealer, pass a background check, and walk out with a gun makes absolutely no sense." The American Civil Liberties Union of Connecticut issued a statement expressing its unease: “The ACLU of Connecticut has severe reservations about the reliability and constitutionality of government watch lists like the no-fly list. While we acknowledge that the governor’s intentions are admirable, the government’s watch-list system is notorious for including innocent people, and the ACLU was in court this week fighting to fix the inadequate process for people wrongly blacklisted on the no-fly list to clear their names.”
Richard S. Kay, a professor of constitutional law at the University of Connecticut, saw no authority for the governor to dictate adding someone's presence on a watch list as one of the enumerated factors in state law that require the denial of a gun permit. He also questioned whether the governor's executive powers allow him to dictate how the authorities interpret general suitability to own a gun. "He can, of course, advise the relevant authorities – the local officials or the commissioner of public safety or the Board of Firearms Examiners to take the fact of presence on the no-fly list into account in making permit decisions," Kay said. "But he can’t require them to deny permits to anyone on the list." Kay said he actually supported what the governor intends as a matter of good public policy, but he questioned whether it can be done without legislation. Four Republican legislators called Malloy's order misguided and without legal authority.
“No individual, the governor himself included, has the right unilaterally to deny due process to the people,” said Rep. Robert C. Sampson, R-Wolcott. “The use of a secret list obscurely compiled to decide whose rights will be respected runs against good sense and our national principles." He was joined by Sen. Joe Markley of Southington and Reps. Doug Dubitsky of Chaplin and Mike France of Ledyard. “They’re called ‘watch lists’ for a reason: they do not pretend to justify action, but attentiveness,” Markley said. U.S. Sen. Marco Rubio of Florida was among the Republican presidential candidates to immediately push back at Obama, calling the list an imperfect tool whose targets have no due-process rights.
The government has been vague about what lands someone on the list and equally vague about how one can get off the list. New Jersey has a law on the books New Jersey Gov. Chris Christie, who frequently campaigned against Malloy's re-election in 2014 while chairman of the Republican Governors Association, said last week he did "not have a huge problem" with banning gun sales to those on the list. He signed a law in 2013 barring anyone on a terrorist watch list from obtaining a firearms identification card. It was unclear the extent to which New Jersey obtained access to the list.