Gun Storage Presents Problem For Vermont Law Enforcement

Mar 21, 2016

Sgt. Jason Covey sits at a conference table in the Middlebury Police Department offices. Displayed out in front of him are three guns. Each one has a little tag attached by a string, looped around the trigger like a price tag, with information about how the department acquired the gun.

"This we've had since 2005," Covey explains, lifting a pistol from the table. "It was a firearm used in a violent crime in Middlebury."

Putting the first gun down, he picks up another.

"This one we've had since 2000 and it's a firearm that the serial number was purposely defaced and cannot be restored and that gun can legally never be released. So the only thing that can be done with it is stored forever or destroyed."

These are a couple of guns the department would rather not have. But there are plenty of others that the department would like to be rid of too.

"Off the top of my head, 17 that could be destroyed today," Covey says with a sigh.

These guns have to be stored appropriately, tagged, sometimes kept in climate controlled areas and preserved in the same shape as when the department acquired them. But they serve no evidentiary purpose.

"They take up a significant amount of space in an already packed evidence room that holds evidence and property from all our cases," according to Covey. "That is a storage issue."

Why can't the department just destroy these guns? Covey says it's complicated.

"I'm not aware of a specific rule that says we cannot," he explains. "But the difficulties in doing so would be complying with all ... Alcohol Tobacco and Firearms regulations, and having the appropriate means to completely destroy the weapon."

That would require breaking them apart, maybe chipping the wood parts and torch-cutting or melt down the metal bits, rendering them totally unusable, even for parts.

So, instead, the guns pile up in the department's evidence room. 

Sometimes they're guns that were used in crimes or suicides, or they were found and turned in. The Middlebury department even has some firearms that were handed over in a gun buyback program sponsored by the local Unitarian church a few years ago. Whatever route the department acquired these guns through, Middlebury chief Thomas Hanley says they can't seem to get rid of them.

[Destroying the guns] would require breaking them apart, maybe chipping the wood parts and torch-cutting or melt down the metal bits, rendering them totally unusable, even for parts. So, instead, the guns pile up in the department's evidence room.

"When it comes to other kinds property, there is a mechanism and statute to dispose of those kinds of things," Hanley explains. "Auction them off; they can go to charities; there's a route for that. Guns are different. There's no route for that. And they subsequently stay here."

Actually, there is a route for that, sort of. Guns that are no longer needed for evidentiary purposes and can't be returned are supposed to go to the state. At that point, there are two avenues they can take. Guns that are unsafe or unlawful for public use should go to the Department of Public Safety to be destroyed. The department's commissioner, Keith Flynn, offers some examples of what kinds of guns those might be.

"'Unsafe' would be obviously a gun that has a broken trigger mechanism has broken safety, is unsafe to fire because of the barrel or the rifling or something of that nature," said Flynn.

The guns that are unlawful to possess in Vermont would be something like a machine gun. 

"You can't have any gun which is designed to shoot automatically more than one shot without manually reloading, you know, without a single function of the trigger," says Flynn.

The Department of Public Safety can use those guns for forensic science purposes, like testing ballistics, or it can destroy them.

But some guns are legal to possess in Vermont and are still functionally safe. These guns are supposed to go to the state treasurer. Under Vermont statute, the treasurer's office is required to take in all of these guns and is supposed to figure out what to do with them — including selling them.

"We want to understand the liability issues and the cost issues, and the cost-benefit of the various options that are available to us before we take any next steps and I think that's a prudent use of tax dollars." — State Treasurer Beth Pearce

But the treasurer's office has said no; it's not taking in any guns. Treasurer Beth Pearce says it's not a question of gun policy; the office isn't taking a position on that.

"That's not our role," she is at pains to point out. "But we want to understand the liability issues and the cost issues, and the cost-benefit of the various options that are available to us before we take any next steps and I think that's a prudent use of tax dollars."

By liability and cost-benefit, Pearce means, how is the treasurer's staff supposed to know if a gun is safe when it arrives in their possession? Who certifies the safety of the gun? Who determines how much a gun is supposed to be sold for? Can the state sell those guns at a loss or is it required to make a profit? And where are the guns supposed to be stored before they're sold? On liability, what happens after a gun is sold? If it malfunctions or is used in a future criminal act, could the state be held liable? And does the state of Vermont really want to be in the business of selling guns?

These are all questions Pearce says she wants answered before she initiates state gun auctions or sales.

"It's a real issue," says Pearce, "and we need to address it and my understanding is the administration is taking a serious look at it and I appreciate that."

Pearce says she's raised these concerns with the Shumlin administration and with the Department of Public Safety. She says meetings have happened and memos have been sent back and forth and the ball is now in the Commissioner of Public Safety's court.

But the message from the Department of Public Safety is a little bit different. Commissioner Keith Flynn says the backlog and the storage issues are originating at the state treasurer's office because that office isn't following the statute and taking in the guns it's legally supposed to accept.

"You know, it does sort of create a wall that's making it difficult for us to get over," he admits. "And where we aren't able to get rid of them and where they aren't willing to accept the weapons as the statute calls for, it creates a storage problem for us and that storage problem will continue to compound as time moves on."

"It does sort of create a wall that's making it difficult for us to get over ... Where we aren't able to get rid of them and where they aren't willing to accept the weapons as the statute calls for, it creates a storage problem for us and that storage problem will continue to compound as time moves on." — Department Of Public Safety Commissioner Keith Flynn

With each state official pointing the finger at the other, it's difficult to tell who needs to make the next move. Talk to the Treasurer and she says the Department of Public Safety and the Shumlin Administration need to make the next move. But talk to Public Safety Commissioner Flynn and he says it's the Treasurer who needs to be taking action.

"Again the issue that we have is that we have to abide by the requisites of the statute," says Flynn. "And many of these questions really relate back to what the treasurer wants to do with them. So even though we have these weapons. I can't unilaterally decide what the outcome of these weapons will be. By statute, it clearly has to go to the state treasurer and it's her decision whether they're going to be donated to a state agency, a nonprofit, fish and wildlife, or whatever choice she's going to make on them or through public sale."

But pushed on the question of whether or not the commissioner's department is destroying guns that it already has the ability by law to destroy, Flynn equivocates.

"I don't know ... I can't tell you, specifically, what number of those we have addressed. So I really can't answer that question as to how many we have done, but I know we've been very aware of the statute and if we have any that fall into those categories where they are either unsafe or their possession is unlawful per se, we would be following what the statute directs on that."

Meanwhile, Treasurer Pearce repeats that she's raised her concerns through the proper channels and is still awaiting answers.

"I'd like to see court orders be issued when a case is disposed of instructing us what to do with them and authorizing us to dispose of them. We don't have that right now, so they stay in limbo." — Middlebury Police Chief Thomas Hanley

All of this leaves municipal police departments and the state police barracks around the state with a growing storage issue they can't resolve. 

In Middlebury, Chief Thomas Hanley says he'd happily bypass the state altogether if there was a way his department could take action.

"I'd like to see court orders be issued when a case is disposed of instructing us what to do with them and authorizing us to dispose of them," says Hanley. "We don't have that right now, so they stay in limbo. And as for other guns that come into programs, a mechanism somehow that we could destroy the guns, either short-circuit it and find a contractor that can melt them down or whatever they have to do with them and take them off our hands. And that doesn't exist right now."

For now, those 17 guns at the Middlebury Police Department that could be destroyed will remain in the evidence room, tagged and carefully stored, waiting to be destroyed.