Richard August: Kilmartin Speaks On Guns

Wednesday, June 12, 2013


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Recently I had the opportunity to interview Attorney General Peter F. Kilmartin for the State of the State access cable TV talk show. The topic was gun control legislation. Also on the set was the chief of the North Kingstown Police Department, Thomas J. Mulligan.

Four of the nine gun control bills announced in April were introduced at the request of the attorney general. This was the result of months of “work sessions” by legislators and members of the governor’s and AG’s staff as well the state police, Rhode Island Chiefs of Police Association and mental health agencies.

Firearms owners and gun dealers were not represented in these work sessions which were not subject to the Open Meetings Act and therefore closed to the public. According to AG Kilmartin there was no point in having gun owners represented because “the National Rifle Association is opposed to any new gun laws” and “there is no sense negotiating with parties who take that position”.

The most controversial of the bills sponsored by the attorney general is one (H5993) that would make his office the sole authority for issuing conceal carry weapons (“CCW”) permits. At present there is a two-track system that provides that municipal licensing authorities –generally the police chief- with authority under RIGL 11-47-11 to issue a CCW. This law says the police chief “shall issue” a CCW to properly screened individuals who have a need to carry a handgun. Having a CCW allegedly allows the holder to not wait the seven day waiting period before picking up a firearm although I haven’t found that provision in the general laws.

For all practical purposes there really isn’t any difference between the “shall issue” included in RIGL 11-47-11 and the “may issue” in RIGL 11-47-18. The former provides that the licensing authority shall issue after determining that the applicant “is a suitable person to be so licensed”. The latter says the attorney general may issue a CCW “upon proper showing of need”. In other words, both issuing authorities have complete discretion over who gets a CCW in Rhode Island.

Both the attorney general and Chief Mulligan refused to disclose the criteria they use to determine who gets a CCW. To do so, they said, would mean everyone who applies for a CCW would cite on their application the reasons deemed acceptable to the issuer.

Chief Mulligan stated that he had denied an applicant who said he wanted a CCW to avoid the 7-day waiting period to purchase a firearm. “If I as a police officer have to wait 7 days to pick up a firearm so should anyone else”, said the chief. However, RIGL 11-47-35.2(c) exempts full-time law enforcement officers from the waiting period for rifle and shotgun purchases.

One of the arguments made by AG Kilmartin is that a single authority is needed in order to track the CCWs in effect statewide. This, he says, cannot be done under the two-track system currently in the law. However, 11-47-11 requires that a three part form designed by the attorney general must be used for CCW licenses. The law says the original goes to the applicant and most issuers file a copy and many, if not all, send the third copy to the AG.

When I asked Kilmartin why the third copy could not be used to enter into a state-wide database by his office he replied the law is silent of the disposition of the two copies of the application. Chief Mulligan supported this comment although in an earlier interview he told me that his office files the second copy and sends the third to the AG’s office.

Simply clarifying in 11-47-11 where the two copies of the application are to be filed would seem to be a simpler solution than eliminating the authority of police chiefs to issue CCWs. This would allow the AG’s office to maintain a state-wide database.

I think the real issue is that many –perhaps a majority of- chiefs of police are worried about being sued if someone to whom they have issued a CCW commits a nefarious act with a firearm. This notwithstanding that the laws clearly state that “Any member of the licensing authority, its agents, servants and employees shall be immune from suit in any action, civil or criminal, based upon any official act or decision, performed or made in good faith in issuing a license or permit…”. However, everyone knows there is a plethora of tort lawyers in Rhode Island willing to sue anybody for anything hoping to collect their 33% plus expenses of any settlement –in or out of court.

I asked the AG about a statement in his letter of May 1st to House Judiciary Committee Chairwoman Edith Ajello that there is an appeals process in place for those who are denied a CCW. He replied that there was nothing formal or written but the denied applicant could request a meeting with him to discuss why he or she was turned down. Chief Mulligan said almost the same thing.

Asking the denying authority why you were turned down doesn’t seem like much of an appeals process. In Connecticut (which the Rhode Island anti-gun lobby seems to be trying to emulate) a person denied a CCW at the local or state level can appeal to a three-member committee to which the denying authority must “show cause” why the applicant was turned down.

I asked the AG about the bill filed in February by Rep. Linda Finn (H5573) that would require gun owners to register every firearm with their police department and pay a $100 fee per weapon. I said that Stephen Brown, executive director of the ACLU, had testified that the organization was concerned with the constitutionality of any law that would impose a fee, tax or penalty on the exercise of a constitutional right. 

During the rollout of the nine-bill package of firearms legislation the president of the Rhode Island Chiefs of Police Association said that banning assault weapons and high capacity magazines was needed because “the police are outgunned”. I observed that police officers in the state are equipped with semi-automatic handguns with several high capacity magazines, a 12 gauge shotgun within easy reach in their car and an AR-15 style rifle with several 30-round magazines in the trunk and asked Chief Mulligan how police officers are “outgunned”. He responded, “I guess it’s about the availability of the magazines.”

Neither the chief nor the AG could cite any statistics about the number of assault weapons seized by police or whether firearms-related charges are pursued in cases where they are found.
I met the attorney general at a ceremony the day following the taping of the interview. AG Kilmartin said I was the toughest interviewer he ever faced. I took that as a compliment and we agreed we would do it again sometime.

This interview can be seen here.


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