IN RE: Robert Zordan Firearms Safety Hearing
MEMORANDUM OF DECISION RE MOTION FOR RECONSIDERATION
On December 27, 2012, officers from the Farmington and Torrington Police Departments entered the residence of Robert Zordan and seized sixteen firearms. The weapons were taken to the property room of the Farmington Police Department. On December 28, a warrant pursuant General Statutes § 29–38c(a), a so-called risk warrant, was sought and obtained. The warrant was served on the property department of the Farmington Police Department on December 28, and a copy was provided to Robert Zordan on January 1, 2013. On January 3, 2013, the court clerk sent notice to the defendant notifying him that a court hearing regarding the seizure of the firearms would be held on January 15, 2013 pursuant to General Statutes § 29–38c(d). The court initially denied Zordan's attorney's oral motion to dismiss and held a hearing on the matter.
The highly credible evidence disclosed that Shawn Gibbons was a co-worker of Robert Zordan who, at the time, was a Project Manager at Connecticut Spring and Stamping Corporation in Farmington, Ct. On the morning of December 27, 2012, Gibbons was at a production meeting at work during which time the vice president of manufacturing was directing comments toward Mr. Zordan. He was criticizing the performance of the tool division department. Zordan appeared upset at the comments made during the meeting. Gibbons called Zordan after the meeting and asked him if he was alright. Zordan replied that he was not alright. Shortly thereafter, Zordan came to Gibbons' office, and he spoke about what had transpired at the production meeting. Zordan made comments against three specific men. He then said that he was going to come back with a .40 caliber and “take these motherfuckers out.” Then he walked out, poked his head back in Gibbons' office and said “[T]ell me who you want gone and I'll leave you alone.”
Knowing that Zordan possessed firearms, Gibbons was concerned. After returning home from work and speaking with his wife, he called his division director and told him about Zordan's statements. The Farmington Police were called. Farmington enlisted the assistance of the Torrington Police. The guns were removed from Zordan's residence that evening. Zordan was cooperative with the police. Zordan was then taken to a hospital where he was presumably evaluated. He was released. He was arrested and charged with the crime of threatening.
Sergeant Sean Bailey of the Farmington Police Department prepared the arrest warrant. He was told by Zordan's attorney that Zordan would turn himself in on January 2, 2013. Since Bailey would not be in on that date, he prepared ahead of time the paperwork on which he indicated that Zordan was given a copy of the risk warrant on January 2, 2013. In fact, Zordan turned himself at the Farmington Police Department on January 1, 2013. Thereafter, the clerk sent notice that the hearing was to be held on January 15, fourteen days after Zordan was given the copy of the risk warrant, and thirteen days after the date Sgt. Bailey had indicated he was given the copy.
Prior to issuing a decision on this matter, the court received the motion for reconsideration which challenges the jurisdiction of the court on the grounds that the execution of the warrant took place more than 14 days prior to the hearing date. For reasons set forth below, the court agrees with the respondent's claim that it lacks jurisdiction.
“Jurisdiction is the authority to hear and determine a cause; it is, in essence, the power to adjudicate the action ․ If a court lacks jurisdiction over an action, it lacks the power to act with respect to that action.” United States Ex Rel. Rudick v. Laird, 412 F.2d 16, 20 (2nd Cir.1969). The respondent challenges the subject matter jurisdiction of this court, that is the authority of this court to hear and decide this matter because the hearing was not held within the time period prescribed by the statute. The state argues that the respondent has been charged with threatening and, pursuant to that charge, the guns are being kept as evidence. However, the fact that the guns are being kept as evidence does not bestow jurisdiction on this court when the weapons in question were seized pursuant to § 29–38c.
In State v. Reddy, 135 Conn.App. 65, 72 (2012), our appellate court concluded that § 29–38c(d) contains a mandatory requirement that a hearing be held within fourteen days of the execution of the risk warrant. The court pointed out that “[s]ection 29–38c(d) provides in relevant part: ‘Not later than fourteen days after the execution of a warrant under this section, the court for the geographical area where the person named in the warrant resides shall hold a hearing to determine whether the seized firearms should be returned to the person named in the warrant or should continue to be held by the state ․’ “ (Emphasis added.) Id., 72–73. “The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience ․ If it is a matter of substance, the statutory provision is mandatory ․ If, however, the ․ provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory ․ Definitive words, such as must or shall, ordinarily express legislative mandates of nondirectory nature ․ As we recently noted, the word shall creates a mandatory duty when it is juxtaposed with [a] substantive action verb.” (Citations omitted; internal quotation marks omitted.) State v. Reddy, supra, at 65, 72.
In general, a search warrant is executed when a search is conducted and the property which is the subject of the warrant is seized. In this case where the weapons were seized prior to the issuance of the warrant in accordance with C.G.S. section 29–38c, the warrant was executed when it was served on the officer in charge of the property room of the Farmington Police Department on December 28, 2012. The latest date on which a hearing could have been held to satisfy the statutory requirements was January 11, 2013.
The hearing was not held within the time period mandated by C.G.S. section 29–38. Unless they are being withheld from the Respondent for any other legally valid reason, his weapons must be returned to him.
BY THE COURT,
Gallagher, Elizabeth A., J.