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Edward Peruta
10-11-2011, 7:09 AM
To all:

Greetings from the East Coast.

I don't post much on Calguns.net, but feel that this is a significant case that needs to be supported by all who care about Second Amendment issues.

The NEXT case regarding firearms OUTSIDE the home.

Here are some links for those interested in the facts:

Fact page with documents regarding the Goldberg case: http://www.ctgunrights.com/00.Webpages/Goldberg.v.Glastonbury%20SDCOA/Goldberg.v.Glastonbury.htm

Transcript of the hearing and decsion that led to the Goldberg appeal: http://www.ctgunrights.com/00.Docs/09.17.10%20Goldberg%20Trans.pdf

Second Circuit Brief in Goldberg v. Glastonbury: http://www.ctgunrights.com/0.2nd.Circuit/10-4215-cv_Goldberg_2dCirBrief_032111.pdf

The Second Circuit Decision in Goldberg: http://www.ctgunrights.com/00.Goldberg.Kuck.Decisions/Goldberg%20Decsion%202nd%20Circuit%20send%20back%2 0on%20merits%20in%20complaint.pdf

The Second Circuit Decsion in Kuck: http://www.ctgunrights.com/00.Goldberg.Kuck.Decisions/Kuck%20Decsion%202nd%20Circuit%20in%20part%20Proc. %20Due%20Process.pdf

Audio of Second Circuit arguments: http://www.ctgunrights.com/06.Audio/Compete%20Second%20Circuit%20Audio%20in%20Kuck%20a nd%20Goldberg.mp3


While everyone discusses and lists the current Second Amendment cases across the country everyone has missed the fact that the NEXT case to be heard by a Federal Circuit Court of Appeals will be heard on November 21st at the Second Circuit Court of Appeals in New York.

It's the first case scheduled to be heard on the courts docket for the 21st.

Even here on Calguns, you will NOT find any information on the Goldberg v. Glastonbury case.

http://wiki.calgunsfoundation.org/index.php/Litigation_Past_and_Present

The case has significant issues not the least of which is the right to carry a firearm OUTSIDE the home together with whether or not lawful carry permits members of law enforcement to conduct a TERRY STOP and arrest law abiding citizens simply because they are upset with seeing a firearm that is being carried OPENLY or CONCEALED in a lawful manner.

Regardless of the politics involved in Second Amendment issues and court cases, the entire country should pay attention to this case along with another case known as Kuck v. Danaher which is a combination of two cases.

The NRA Legal Defense Fund has offered to contribute $10,000.00 to the James Goldberg v. Glastonbury case which will be argued at the Second Circuit on November 21st.

The initial Second Circuit panel of Straub, Parker and Livingston asked some very interesting questions and made some very interesting comments in the first appeal.

Yes, this is NOT the first time the Second Circuit has addressed the issues in these cases.

Unlike the recent Maryland case which was not taken up by the Supreme Court, James Goldberg legally possessed the firearm he was carrying, and was in possession of a VALID Connecticut Permit to Carry Pistols and Revolvers at the time he was arrested, (on June 21, 2007), for Breach of Peace. The criminal charges were nolled and dismissed in late July of 2007.

Connecticut is known as The Constitution State and states very clearly as follows:

Article 1st SEC. 15. Every citizen has a right to bear arms in defense of himself and the state.

YOU’LL NOTE THAT THE KEEP IS NOT EVEN MENTIONED!!!

It might also be noted that James was not an advocate for OPEN CARRY at the time of his arrest.

The exposure of his firearm was inadvertent and seen by one Laura Smith, the manager of a Chili’s restaurant who is also a Connecticut Permit holder who should have known the law.

Connecticut State Statutes allows hand guns to be carried OPENLY or CONCEALED while in possession of a VALID permit to do so.

Kuck v. Danaher, another cases NOT listed:

M. Peter Kuck is currently a member of the Connecticut Board of Firearms Permit Examiners which hears appeals of denials and revocations regarding Permits to Carry Pistols and Revolvers.

Peter Kuck filed against the Department of Public Safety over renewal requirements and challenged the backlog and time it took to get a hearing.

James F. Goldberg was a mature 29 year old son of a retired Wethersfield Police officer who was known to the local issuing authority, (Chief James Cetran), since his birth. Goldberg went though the NRA training and the required background check to received his Permit to Carry Pistols and Revolvers.

The local issuing authority is a very close friend and supports James Goldberg and the issues in this case.

James filed first against the Town of Glastonbury after being arrested while lawfully carrying his pistol with a VALID Permit to Carry.

This case is similar to the Maryland Case except for the fact that James Goldberg had a permit to carry his firearm outside his home.

James followed up with a case against the Connecticut Department of Public Safety with several counts including :

1. The initial revocation of his 5 year permit without conducting the required investigation.

2. The taking of a newly minted permit issued by Chief Cetran during the period his initial permit was revoked. The second permit revocation was based on information that had been dismissed and erased.

Alan Gottlieb from the Second Amendment Foundation when approached in Long Island tried to convince Attorney Rachel M. Baird NOT TO ARGUE the Kuck and Goldberg cases at the Second Circuit in the fall of 2009.

Attorney Rachel M. Baird successfully argued both of the Kuck and Goldberg cases at the Second Circuit and won remand to the District Court which has now issued a favorable decsion on a motion to dismiss that also has significant Second Amendment issues. (Kuck v. Danaher)

Judge Vanessa Bryant sitting in Hartford combined both the Kuck and Goldberg v. Danaher cases (now known as Kuck v. Danaher), and rendered the decision you can find online.

Attorney Rachel M. Baird has been handling these cases alone along with several other firearm related cases in Connecticut WITH LIMITED SUPPORT AND FUNDING.

Soooo, given the location of the chess pieces on the Second Amendment Chess board, Goldberg and Attorney Rachel M. Baird get the next move.

Whether it's the NRA, Second Amendment Foundation or The Calguns foundation, more support should be offered to Attorney Rachel Baird's firearm cases in Connecticut.

Ed Peruta
edperuta@ctgunrights.com

Ubermcoupe
10-11-2011, 7:45 AM
Greetings to a fellow east-coaster. :)

Thanks for the post Mr. Peruta, looks like I have some legitimate reading material during my breaks. Hopefully we can translate a favorable won in the 2nd circuit to CA.

Tier One Arms
10-11-2011, 8:18 AM
Thanks for the info, I have some reading to do.

Barabas
10-11-2011, 11:18 AM
Thanks for the links, Ed. Interesting reading.

dantodd
10-11-2011, 11:28 AM
So, this is a case that was remanded over a year ago. Do you have a link to the district's opinion which is being appealed? Was Kuck able to name a proper defendant? Is the City/State appealing or did he lose in District again? Are these related or consolidated or completely separate cases? What was the district result of Goldberg?

Too many pieces of the story are missing.

SilverBulletZ06
10-11-2011, 11:31 AM
This is why I can't read any more fiction books, too many court cases to familiarize myself with.

wash
10-11-2011, 11:42 AM
So Ed's pushing another case?

I hope it doesn't turn out the same as last time.

Crom
10-11-2011, 11:51 AM
Ed, thanks for the post. I will read the Goldberg documents again. Wasn't there more than one Goldberg case going on at the same time? Wasn't one of them in state court and not federal court?

I want to point out to you that Kuck v. Danaher is indeed listed in the litigaion wiki (http://wiki.calgunsfoundation.org/index.php/Litigation_Past_and_Present) under Past Cases and Settled Law I added it a long time ago when you first alerted me to the case. I agree it sets a good precedent. :)

Thanks for the update.

Edward Peruta
10-11-2011, 12:43 PM
I am uploading Judge Bryant's order.

This order was issued after the court combined the cases of Kuck and Goldberg into what is now Kuck v. Danaher.

James Goldberg has a seperate Federal Action against the Town of Glastonbury, CT.

Most information and updates will be posted on the Opencarry website in the Connecticut Section of the message board.

Edward Peruta
10-11-2011, 12:46 PM
So, this is a case that was remanded over a year ago. Do you have a link to the district's opinion which is being appealed? Was Kuck able to name a proper defendant? Is the City/State appealing or did he lose in District again? Are these related or consolidated or completely separate cases? What was the district result of Goldberg?

Too many pieces of the story are missing.

Both Kuck and Goldberg won both of their appeals at the Second Circuit in 2009.

The complaints were amended.

The state made motions to dismiss.

The main points survived the motion to dismiss.

A new amended complaint is being drafted as I type this post.

Edward Peruta
10-11-2011, 12:55 PM
So Ed's pushing another case?

I hope it doesn't turn out the same as last time.

I was involved with the Kuck and Goldberg cases long before I filed the Federal Case in San Diego and was well prepared for what occurred in the San Diego Sheriff's Department.

I am currently involved with several Second Amendment cases here in CT and have no second thoughts about my involvement.

Doutel v. Norwalk and Burgess v. Wallingford are two of the cases that have very significant issues.

Attorney Rachel Baird is extremely knowledgeable in Second Amendment issues here in CT.

Mulay El Raisuli
10-12-2011, 6:50 AM
I was involved with the Kuck and Goldberg cases long before I filed the Federal Case in San Diego and was well prepared for what occurred in the San Diego Sheriff's Department.

I am currently involved with several Second Amendment cases here in CT and have no second thoughts about my involvement.

Doutel v. Norwalk and Burgess v. Wallingford are two of the cases that have very significant issues.

Attorney Rachel Baird is extremely knowledgeable in Second Amendment issues here in CT.


And here's hoping that you do keep pushing.


The Raisuli

Gray Peterson
10-12-2011, 9:36 AM
To all:

Greetings from the East Coast.

I don't post much on Calguns.net, but feel that this is a significant case that needs to be supported by all who care about Second Amendment issues.

The NEXT case regarding firearms OUTSIDE the home.

While everyone discusses and lists the current Second Amendment cases across the country everyone has missed the fact that the NEXT case to be heard by a Federal Circuit Court of Appeals will be heard on November 21st at the Second Circuit Court of Appeals in New York.
.....
Soooo, given the location of the chess pieces on the Second Amendment Chess board, Goldberg and Attorney Rachel M. Baird get the next move.



That is incorrect. The next case to be heard by a Federal Circuit Court of Appeals is Peterson v. Kilroy, in the United States Court of Appeals for the Tenth Circuit in Denver. It is scheduled for November 17th at 9AM in Denver, Colorado. See the argument calendar here (http://www.ca10.uscourts.gov/downloadcalendar.php?fileid=102) for Peterson v. Garcia, who is being temporarily replaced by Ashley Kilroy and will be replaced by Alex Martinez as of 11/1/2011 (thus the Denver Sheriff of the Week reference).

Though originally primarily a right to travel case with 2A thrown in, the state's intervention status and them turning it into primarily a discussion about whether or not the right to bear means outside of the home, turned it into a nearly pure 2A case. Goldberg's case, as far as I've read, is primarily a 4th amendment case with 2A put in and involving a police contact (though not a DV contact or anything involving specific criminality). My contact with the federal courts involves me applying for a license and being denied, turning it into a purely civil matter.

So, the next move is actually mine and Attorney John Monroe's. Not that I'm downing Goldberg's case or Baird's abilities, but if you're going to make an expansive claim that that Goldberg is the NEXT case to be argued, you can expect a reaction when you're wrong. Just sayin.....

nicki
10-12-2011, 10:20 AM
So we now have two 2nd amendment cases in two different circuits with 2 quality plantiffs being heard within days of each other.:D

And of course we have the carry cases here in California that have rulings affirming that we have a right of open carry which the state of California just banned?

Nicki

Purple K
10-12-2011, 7:12 PM
All these cases, so little reading time.

Tango-Alpha
10-13-2011, 9:16 AM
Gray, I wish you my very best wishes for a successful ruling in your favor. I have to say, there are those who talk about fighting for their rights and there are those who put it in action and nobody can claim that you're afraid to fight for what you believe in. I'm glad that you're taking up this fight and seeing it all the way through. I'm sure many others here will agree, we respect, appreciate and admire what you've done and continue to do as the war wages on.

That is incorrect. The next case to be heard by a Federal Circuit Court of Appeals is Peterson v. Kilroy, in the United States Court of Appeals for the Tenth Circuit in Denver. It is scheduled for November 17th at 9AM in Denver, Colorado. See the argument calendar here (http://www.ca10.uscourts.gov/downloadcalendar.php?fileid=102) for Peterson v. Garcia, who is being temporarily replaced by Ashley Kilroy and will be replaced by Alex Martinez as of 11/1/2011 (thus the Denver Sheriff of the Week reference).

Though originally primarily a right to travel case with 2A thrown in, the state's intervention status and them turning it into primarily a discussion about whether or not the right to bear means outside of the home, turned it into a nearly pure 2A case. Goldberg's case, as far as I've read, is primarily a 4th amendment case with 2A put in and involving a police contact (though not a DV contact or anything involving specific criminality). My contact with the federal courts involves me applying for a license and being denied, turning it into a purely civil matter.

So, the next move is actually mine and Attorney John Monroe's. Not that I'm downing Goldberg's case or Baird's abilities, but if you're going to make an expansive claim that that Goldberg is the NEXT case to be argued, you can expect a reaction when you're wrong. Just sayin.....

Gray Peterson
10-13-2011, 9:59 AM
Gray, I wish you my very best wishes for a successful ruling in your favor. I have to say, there are those who talk about fighting for their rights and there are those who put it in action and nobody can claim that you're afraid to fight for what you believe in. I'm glad that you're taking up this fight and seeing it all the way through. I'm sure many others here will agree, we respect, appreciate and admire what you've done and continue to do as the war wages on.

Thanks.

Paladin
11-17-2011, 6:44 PM
To all:

Greetings from the East Coast.

<snip>

While everyone discusses and lists the current Second Amendment cases across the country everyone has missed the fact that the NEXT case to be heard by a Federal Circuit Court of Appeals will be heard on November 21st at the Second Circuit Court of Appeals in New York.

It's the first case scheduled to be heard on the courts docket for the 21st.

<snip>

Ed Peruta
edperuta@ctgunrights.com

Thought I'd give this a bump since Gray's case was today and Goldberg is coming up on the 21st (Monday).

Paladin
11-21-2011, 5:13 PM
Any word on how this case, Goldberg, went today?

Edward Peruta
11-23-2011, 2:30 AM
The audio file was ordered and paid for at the court and may be in the mail today or Monday. When it's received it will be posted up on the Connecticut Section of Open carry.

Attorney Rachel Baird made an excellent presentation and responded well and the Judges asked good questions and made some very positive statements. I believe that the orals went extremely well.

Only time will tell.

gunsmith
11-23-2011, 12:48 PM
Gray, I wish you my very best wishes for a successful ruling in your favor. I have to say, there are those who talk about fighting for their rights and there are those who put it in action and nobody can claim that you're afraid to fight for what you believe in. I'm glad that you're taking up this fight and seeing it all the way through. I'm sure many others here will agree, we respect, appreciate and admire what you've done and continue to do as the war wages on.

Gray for President!

Gray Peterson
11-23-2011, 12:51 PM
Gray for President!

Don't scare me like that. Not eligible due to age, and I generally dislike politics.

Gray Peterson
11-23-2011, 12:53 PM
The audio file was ordered and paid for at the court and may be in the mail today or Monday. When it's received it will be posted up on the Connecticut Section of Open carry.

Attorney Rachel Baird made an excellent presentation and responded well and the Judges asked good questions and made some very positive statements. I believe that the orals went extremely well.

Only time will tell.

looking forward to hearing it.

wash
11-23-2011, 1:46 PM
Don't scare me like that. Not eligible due to age, and I generally dislike politics.
Grey for Attorney General?

doginmirror
11-23-2011, 3:40 PM
Grey for Attorney General?

^^^^ this his platform would be i understand the constitution

Jason P
11-23-2011, 5:45 PM
^^^^ this his platform would be i understand the constitution

Understanding the constitution is not required or probably desired when seeking appointment for AG.

http://www.politifake.org/image/political/1004/us-attorney-general-eric-holder-eric-holder-communist-anti-s-political-poster-1271612425.jpg (http://www.politifake.org/eric-holder-communist-anti-second-ammendment-gun-grabber-politics-2092.html)

Gray Peterson
11-24-2011, 1:52 PM
Grey for Attorney General?

:gura: would be a better choice, given his experience as an CA State AAG.

dantodd
11-24-2011, 5:56 PM
:gura: would be a better choice, given his experience as an CA State AAG.

Sorry Gray, we can't spare Alan right now.

Rossi357
11-24-2011, 8:25 PM
His Highness needs to stay where he is till he buys Hawaii.

southernsnowshoe
11-24-2011, 10:58 PM
I was involved with the Kuck and Goldberg cases long before I filed the Federal Case in San Diego and was well prepared for what occurred in the San Diego Sheriff's Department.

I am currently involved with several Second Amendment cases here in CT and have no second thoughts about my involvement.

Doutel v. Norwalk and Burgess v. Wallingford are two of the cases that have very significant issues.

Attorney Rachel Baird is extremely knowledgeable in Second Amendment issues here in CT.


I for one am grateful to you Mr. Peruta, for your stand against the S.D. sheriffs office.

Edward Peruta
11-30-2011, 4:36 AM
Attorney Rachel M. Baird argued the Goldberg v. Glastonbury case before and a three judge panel, (Winter, Newman and Katzman), at the Second Circuit Court of Appeals in New York on November 21, 2011.

Here is the link:

http://www.ctgunrights.com/0.2nd.Cir...11.21.2011.wmv

Each side was given 10 minutes to state their case and additional time was provided each side.

In preparation Attorney Baird prepared a lengthy presentation and as expected questions from the three judges began from Judge Winters approximately 60 seconds into her presentation. Attorney Rachel Baird concentrated on stating the issues in the case during the first sixty seconds at the podium.

Attorney Baird attacked the "TERRY STOP" reasoning of the District Court judge very effectively and used a New York Post article to rebutt opposing argurments very effectively.

The audio from the Second Circuit arguments was received on November 28th, and copied for posting at www.ctgunrights.com.

This is a link to the audio, please excuse the quality which may improve with some tweaking:

http://www.ctgunrights.com/0.2nd.Cir...11.21.2011.wmv

wazdat
11-30-2011, 7:26 AM
Try this link.

Oral Argument to Second Circuit Court of Appeals on Nov. 21st (http://www.ctgunrights.com/0.2nd.Circuit/Goldberg%20v.%20Glastonbury%20Oral%20Arguments%201 1.21.2011.wmv)

Maestro Pistolero
11-30-2011, 9:46 AM
Very well argued. Too bad her client admitted that he knew the behavior might be perceived as threatening. I hope that doesn't hurt him. It does seem that attorney Baird has the stronger argument based on the law. The DA's case seems to rest on the community 'standard' or expectation.

nicki
11-30-2011, 2:40 PM
The so called "Community Standard" could be called "Tyranny of the majority".

While I believe that "concealed carry" is preferred, there are times when open may be more practicle.

Hot weather is a good example, especially for women since women's clothes tend to be form fitting anyway. IMHO, a defense gun needs to be something you can access in under 1 second, so for me, purses don't work unless I plan to shoot through the purse.

Besides, in a free society it is the government's responsibility to write the laws, for a person to just assume.

It is easy to offend somebody, I'm sure I do it all the time, even when I am not trying. The town council is grasping at straws.

Besides, open carry is becoming a form of political expression, kinda like Flag Burning. My suggestion for people who are offended, deal with it.

Nicki

MasterYong
11-30-2011, 4:27 PM
:popcorn:

htjyang
11-30-2011, 5:30 PM
Besides, open carry is becoming a form of political expression, kinda like Flag Burning. My suggestion for people who are offended, deal with it.

Nicki

They already have. I don't know if you noticed, but in California, they passed a law against it.

The so called "Community Standard" could be called "Tyranny of the majority".

It happens all the time on everything ranging from elections (where a simple plurality, not even a majority, will suffice) to popular referenda. Perhaps you're the one who needs to follow your own advice and "deal with it"? ;)

Maestro Pistolero
11-30-2011, 5:39 PM
They really do need to deal with it. This IS licensed carry in CT. Are we to accept that even licensed carry may be suppressed on the whim of someone's subjective fear? This is what their legislature provided for, and now LE wants to substitute it's judgment for the judgement of the legislature.

SanPedroShooter
11-30-2011, 7:02 PM
Very well argued. Too bad her client admitted that he knew the behavior might be perceived as threatening. I hope that doesn't hurt him. It does seem that attorney Baird has the stronger argument based on the law. The DA's case seems to rest on the community 'standard' or expectation.

I heard that too... At the end the judge really siezed on it. Why would an attorney let his client make a statement like in a deposition?

I thought I was listening to someone read a Kafka short story.... "Your conduct is legal, untill it isnt..."

I couldnt get over that. How can legally permited actions (in this case literally permitted) be illegal..?

It seems to go from legal to illegal at the point when anyone is unhappy with it. It also sounded like the lawyer was saying that if the police thought it might be percieved as "disorderly" they could arrest you before anyone even complained. Very close to the edge if not over into "thought crime" or "pre crime" territory in my opinion.

Edward Peruta
11-30-2011, 7:24 PM
Very well argued. Too bad her client admitted that he knew the behavior might be perceived as threatening. I hope that doesn't hurt him. It does seem that attorney Baird has the stronger argument based on the law. The DA's case seems to rest on the community 'standard' or expectation.

For the Record, Attorney Rachel M. Baird was NOT James Goldberg's attorney when the depostion took place.

James was NOT trained regarding CT State Laws, he took the NRA Pistol Safety Course which is NOT state specific.

Even I believed that Connecticut was a Conceal Carry state until I was asked to help James Goldberg. The rest is now history.

There were many individuals in CT who were not familar with firearm laws back in 2007 and many who are still in the darkages.

The brief has much more information then provided in the oral arguments.

Time will tell.

SanPedroShooter
11-30-2011, 7:26 PM
When she said that she was not his criminal attorney, I figured that the dep must have been taken before she got there.

Maestro Pistolero
11-30-2011, 11:27 PM
Originally Posted by Maestro Pistolero
Very well argued. Too bad her client admitted that he knew the behavior might be perceived as threatening. I hope that doesn't hurt him. It does seem that attorney Baird has the stronger argument based on the law. The DA's case seems to rest on the community 'standard' or expectation.There is lots of behavior that is legal and protected by the constitution, but that may be perceived as a threat.

Even the KKK and Neo-Nazis have first amendment protection, and if you're Jewish or black, you might reasonably believe them to be a threat. They have to actually take affirmative illegal action to be subject to arrest and prosecution. Marching, flag waving, or shouting slogans aren't enough.

Let me see if I can construct a clear parallel circumstance. Imagine a neo-nazi walked into a Jewish deli with anti-semitic tattoos and slogans all over his clothing. He walks in, orders and pays for a sandwich, then sits down to wait for it. The manager gets is afraid and calls the police. According to the logic in this case in CT, he could be arrested and have his clothing seized and destroyed.

The attorney's example of a black person being arrested in the south for merely passing through a neighborhood was exactly on point. Sure, the ignorant, bigoted white residents perceived a threat. But perceptions are inherently unreliable, fickle things, and don't begin to form the basis for a prosecution. This prosecution, if allowed to stand, twists the sytem into this arbitrary, intangible thing that is antithetical to the rule of law. It's very disturbing to say the least.

Mulay El Raisuli
12-01-2011, 5:30 AM
There is lots of behavior that is legal and protected by the constitution, but that may be perceived as a threat.

Even the KKK and Neo-Nazis have first amendment protection, and if you're Jewish or black, you might reasonably believe them to be a threat. They have to actually take affirmative illegal action to be subject to arrest and prosecution. Marching, flag waving, or shouting slogans aren't enough.

Let me see if I can construct a clear parallel circumstance. Imagine a neo-nazi walked into a Jewish deli with anti-semitic tattoos and slogans all over his clothing. He walks in, orders and pays for a sandwich, then sits down to wait for it. The manager gets is afraid and calls the police. According to the logic in this case in CT, he could be arrested and have his clothing seized and destroyed.


And his tattoos as well! :eek:


The attorney's example of a black person being arrested in the south for merely passing through a neighborhood was exactly on point. Sure, the ignorant, bigoted white residents perceived a threat. But perceptions are inherently unreliable, fickle things, and don't begin to form the basis for a prosecution. This prosecution, if allowed to stand, twists the sytem into this arbitrary, intangible thing that is antithetical to the rule of law. It's very disturbing to say the least.


On a serious note; its not just the south. We had a case here in San Diego where a black man walking through white neighborhoods kept getting arrested (Lawson v. Kolender).


The Raisuli

Gray Peterson
12-16-2011, 12:43 AM
From Ed over at OCDO:

The following decision was received today in the Goldberg v. Glastonbury case.


10-4215-cv

Goldberg v. Town of Glastonbury
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York, on the 13th day of December, two thousand eleven.

Present: JON O. NEWMAN,
RALPH K. WINTER,
ROBERT A. KATZMANN,
Circuit Judges.
__________________________________________________ __________
JAMES F. GOLDBERG,
Plaintiff-Appellant,

- v - No. 10-4215-cv

TOWN OF GLASTONBURY, MICHAEL FURLONG,
Sgt. I/O, KENNETH LEE, Officer, I/O, and
SIMON BARRATT, Officer, I/O,
Defendants-Appellees.
__________________________________________________ __________

For Plaintiff-Appellant: RACHEL M. BAIRD, Law Office of Rachel M. Baird,
Torrington, Conn.

For Defendants-Appellees: THOMAS R. GERARDE (Beatrice S. Jordan, on the brief), Howd
& Ludorf, LLC, Hartford, Conn.

Appeal from the United States District Court for the District of Connecticut (Underhill,
J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant James F. Goldberg appeals from a September 20, 2010 judgment of the United States District Court for the District of Connecticut (Underhill, J.) granting summary judgment to defendants on plaintiff’s § 1983 claims, and in the alternative, concluding that defendants are entitled to qualified immunity. We assume the parties’ familiarity with the facts and procedural history of the case.

“We review a district court’s grant of summary judgment de novo, construing the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor.” Kuebel v. Black & Decker Inc., 643 F.3d 352, 358 (2d Cir. 2011). “Summary judgment is appropriate only if ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)).

For the first time on appeal, plaintiff argues that his rights under the Second Amendment have been impermissibly infringed. “Although we may exercise discretion to consider waived arguments where necessary to avoid a manifest injustice,” In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 133 (2d Cir. 2008) (per curiam), we conclude that the circumstances of this case do not warrant such an exercise of discretion. Plaintiff contends that this “did not become a Second Amendment case until the district court held tantamount to its decision the involvement of a firearm.” Pl. Br. 20 Plaintiff, however, had sufficient notice and ample opportunity to assert below the rights that he now claims are implicated, which he explicitly declined to do when his counsel conceded at oral argument before the district court that a Second Amendment claim was not raised.

Turning next to the issue of whether there was reasonable suspicion supporting defendants’ initial stop of plaintiff, see Terry v. Ohio, 392 U.S. 1 (1968), we conclude that there was. “In reviewing the reasonableness of a Terry stop, we ask whether there was a ‘particularized and objective basis’ for suspicion of legal wrongdoing under the ‘totality of the circumstances.’” United States v. Simmons, 560 F.3d 98, 103 (2d Cir. 2009) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). “Terry requires that a police officer have only reasonable suspicion that criminal activity may be afoot to justify an investigatory stop.

Reasonable suspicion requires considerably less of a showing than probable cause.” United States v. McCargo, 464 F.3d 192, 197 (2d Cir. 2006) (internal citations and quotation marks omitted). In the instant case, defendants were responding to a 911 call reporting that an individual had entered the Chili’s waiting area with an exposed firearm, and the manager was sufficiently alarmed to clear the immediate area and contact the police. Upon entering the restaurant, defendants observed that plaintiff had a holstered handgun visible on his hip. Under these circumstances, sufficient reasonable suspicion justified defendants’ investigative stop of plaintiff.

Finally, we assess defendants’ arrest of plaintiff for breach of the peace in the second degree.1 We need not decide whether there was probable cause to arrest plaintiff, because we

1 Connecticut's breach of the peace statute in the second degree provides in relevant part that:

A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk
thereof, such person: (1) Engages in . . . threatening behavior in a public place . . . . For purposes of this section, "public place" means any area that is used or held out for use by the public whether owned or operated by public or private interests. Conn. Gen. Stat. § 53a-181(a).

conclude that defendants are entitled to qualified immunity on plaintiff’s false arrest claim. “In determining whether an officer is entitled to qualified immunity for a false arrest claim in the absence of probable cause, we examine whether there was ‘arguable probable cause.’” Amore v. Novarro, 624 F.3d 522, 536 (2d Cir. 2010) (quoting Walczyk v. Rio, 496 F.3d 139, 163 (2d Cir. 2007)). “Arguable probable cause exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.” Id. (quoting Walczyk, 496 F.3d at 163) ( quotation marks omitted). “In deciding whether an officer’s conduct was ‘objectively reasonable’ for purposes of qualified immunity, we look to the information possessed by the officer at the time of the arrest, but ‘we do not consider the subjective intent, motives, or beliefs’ of the officer.” Id. (quoting Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84, 106 (2d Cir. 2003)). Prior to his arrest, plaintiff had entered the Chili’s restaurant wearing an exposed firearm, which the officers observed upon their arrival in response to the 911 call. Defendant Furlong observed that the manager, Laura Smith, appeared to be nervous, and she reported that she was alarmed over the handgun and had cleared the area as a result. On these facts, and given the lack of settled Connecticut law on the issue, we conclude that reasonable officers could, at minimum, disagree on whether there was probable cause to arrest plaintiff for breach of the peace in the second degree, and accordingly the district court’s qualified immunity determination ought to be affirmed.

We have considered plaintiff’s remaining arguments and find them to be without merit.

Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

FOR THE COURT:
Catherine O’Hagan Wolfe, CLERK


------------------------

Well, at least Kachalsky isn't effected....

Purple K
12-16-2011, 7:04 AM
And NOW what do you have to say Mr. Peruta? Looks like Alan Gotlieb knew what he was talking about.

SanPedroShooter
12-16-2011, 7:18 AM
Wait what happened? Did he lose....? I think thats what I just read.

Gray Peterson
12-16-2011, 8:33 AM
Wait what happened? Did he lose....? I think thats what I just read.

Yep, but not on 2nd amendment grounds....

dantodd
12-16-2011, 11:34 AM
Yep, but not on 2nd amendment grounds....

Not on 2A grounds but it does say that a 911 call based the mere presence of an openly carried firearm is reasonable suspicion of a crime warranting a Terry stop. That is very bad news for gun owners.

kermit315
12-16-2011, 11:41 AM
Not on 2A grounds but it does say that a 911 call based the mere presence of an openly carried firearm is reasonable suspicion of a crime warranting a Terry stop. That is very bad news for gun owners.

Is this binding?

Gray Peterson
12-16-2011, 12:19 PM
Not on 2A grounds but it does say that a 911 call based the mere presence of an openly carried firearm is reasonable suspicion of a crime warranting a Terry stop. That is very bad news for gun owners.





Is this binding?

No.

hoffmang
12-16-2011, 11:15 PM
Is this binding?

Dantodd's not exactly correct above. Under CT law, it was unclear wether carrying exposed is a crime or not. As such, a LEO had qualified immunity. Next time they most likely do not as CT is a licensed LOC state.

2A bullet dodged in 2nd Circuit...

-Gene

FABIO GETS GOOSED!!!
12-17-2011, 12:42 PM
Dantodd's not exactly correct above. Under CT law, it was unclear wether carrying exposed is a crime or not. As such, a LEO had qualified immunity. Next time they most likely do not as CT is a licensed LOC state.

It was not unclear at the time that permitted LOC was legal in CT. LEO knew Goldberg had a valid permit when he was arrested for breach of the peace. The qualified immunity ruling on the arrest had nothing to do with whether the permitted open carry was legal or not, everyone agreed it was.

SilverBulletZ06
12-17-2011, 4:22 PM
Dantodd's not exactly correct above. Under CT law, it was unclear wether carrying exposed is a crime or not. As such, a LEO had qualified immunity. Next time they most likely do not as CT is a licensed LOC state.

2A bullet dodged in 2nd Circuit...

-Gene

"Ignorance of the law is no excuse." I guess unless your an LEO? Would that be an affirmative defense that would work if he were to have been open carrying where it is illegal?

dantodd
12-17-2011, 4:51 PM
Dantodd's not exactly correct above. Under CT law, it was unclear wether carrying exposed is a crime or not. As such, a LEO had qualified immunity. Next time they most likely do not as CT is a licensed LOC state.

2A bullet dodged in 2nd Circuit...

-Gene

I can only go on the order posted by Gray but " defendants were responding to a 911 call reporting that an individual had entered the Chili’s waiting area with an exposed firearm, and the manager was sufficiently alarmed to clear the immediate area and contact the police. Upon entering the restaurant, defendants observed that plaintiff had a holstered handgun visible on his hip. Under these circumstances, sufficient reasonable suspicion justified defendants’ investigative stop of plaintiff."

Pretty much means that a gun being visibly carried is reasonable suspicion to initiate a disturbing the peace investigation and detain the armed individual. Nowhere does the court state that any other behavior on the part of the armed individual contributed to their finding that RS existed, nor did they say that the next time the plaintiff is called in for MWAG the officers should treat him any differently than the last time. This pretty much suggests that 12031(e) would be considered constitutional by this court.