STATE OF CONNECTICUT
DOCKET NO. CR070211668 SUPERIOR COURT
STATE OF CONNECTICUT J. D. HARTFORD
Plaintiff, at G.A. 12, MANCHESTER
GOLDBERG, J., JULY 20, 2007
MEMORANDUM IN SUPPORT OF
THE CHARGES WERE DISMISSED ON JULY 30, 2007
MOTION TO DISMISS
The Defendant has been charged with Breach of the Peace in the Second Degree, in violation of C.G.S. § 53a-181. The acts show that the Defendant was arrested as he sat in a Chili's restaurant, waiting for his take-out order. Apparently, the manager of Chili's observed the Defendant and saw that lie was carrying' a pistol in a holster that was partially visible under the defendant's T-shirt on his hip. The Defendant has a valid permit to carry a weapon in Connecticut pursuant to C.G.S. § 29-28. Alarmed by her observation of the Defendant's holstered pistol, the manager called the police who responded by coming to the restaurant and taking the Defendant into custody. Although there appeared to be some commotion in the restaurant after the restaurant staff moved all other customers away from the Defendant prior to his arrest, at no time was the Defendant threatening or unruly, and the Defendant never tried to call attention to the weapon in any way. In short, any commotion or disturbance in the restaurant was caused solely by the reaction of the restaurant manager and staff, and not by the Defendant.
EVEN WHEN TAKEN IN A LIGHT FAVORABLE TO THE PROSECUTION; THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A CONVICTION FOR BREACH OF THE PEACE.
Pursuant to C.G.S. § 54-56, a court may, at any time, upon motion by the defendant, dismiss any criminal case against the defendant and order the defendant to be discharged if, in the opinion of the court, "there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on tria1." In determining whether the evidence proffered by the state is adequate to avoid dismissal, such proof must be viewed in the light most favorable to the state. State v. Howell, 98 Conn. App. 369, 908 A.2d 1145 (2006).
The charge in this case has been brought under C.G.S. § 53a-181, which defines the crime of Breach of the Peace in the Second Degree and provides that the crime may be committed by one of six different actions:
A person is guilty of Breach of the peace in the. second degree when, with intentto causeinconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikesanother; or (3) threatens to commit any crime against another person or such other person's property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matterconcerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public and hazardous or physically offensive condition by any act which suchperson is not licensed or privileged to do. 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 privateinterests.
Based on the evidence in this case, it appears that only subsections (1), (3), or (6) could conceivably be relevant, and with regard to each of these possible statutory violations, the evidence simply cannot support a conviction.
In order for the court to determine that the Defendant engaged in threatening behavior under subsections (1), (3), or (6), it would have to conclude that the mere presence of an individual in a public place with a partially concealed weapon would constitute threatening behavior. Such a conclusion would be in complete conflict with the plain language of C.G.S. §§ 29-28 (b) and (e), which specifically allow the holder of a permit to carry a pistol or revolver to wear that weapon anywhere in the state except where specifically prohibited by law:
Upon the application of any person having a bona fide residence or place of business within thejurisdiction of any such authority, such chief of police, warden or selectman may issue a temporary state permit to such person to carry a pistol or revolver within the state, provided such authority shall find that such applicant intends to make no use of any pistol or revolver which such applicant may be permitted to carry under such permit other than a lawful use and that such person is a suitable person to receive such permit
C.G.S.A. § 29-28 (b) (emphasis added). The only restriction contained in the statute with regard to the locations where a permit-holder may carry a weapon is contained in § 29-28(e), which provides:
The issuance of any permit to carry a pistol or revolver does not thereby authorize the possession or carrying or a pistol or revolver in any premises where the possession or carrying of a pistol or revolver is otherwise' prohibited by law or is prohibited by the person who owns or exercises control over such premises.
There is no evidence whatsoever that the carrying of a concealed weapon in Chili's restaurant is either prohibited by law or, is prohibited by a rule or policy adopted by Chili's restaurants.
Thus, the Defendant's conduct was affirmatively approved under Connecticut law, and the Court cannot find that the Defendant's lawful conduct may be punished under a different section of Connecticut law. Indeed, the Connecticut Supreme Court has held in another context that local authorities may not frustrate the purpose of the weapons permit statute by restricting what is permitted under the statute. See Dwyer v. Farrell 193 Conn. 7, 475 A.2d 257 (1.984) (local authorities could not restrict the sale of handguns in a manner permitted by § 29-28, even though the local action did not expressly conflict with the language of that section, as the legislative purpose underlying § 29-28 was frustrated by the local action).
Moreover, the prosecution cannot possibly show that in acting in conformity with state law and the terms of his weapons permit, the Defendant either intentionally or recklessly intended to cause a public disturbance. Under the circumstances of this case, there is nothing to show that a reasonable person would have believed the carrying of a concealed weapon would have caused a public disturbance, and there is no evidence to support the conclusion that a reasonable person would have felt threatened by the Defendant's conduct or would have reacted to the Defendant as did the restaurant staff.
There is no claim that the Defendant intentionally breached the peace, but rather the state is claiming that the Defendant acted recklessly. Under C.G.S. § 53a-3(13), a person acts "recklessly" with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes s a gross deviation from the standard of conduct that a reasonable person would observe in the situation.
(Emphasis added.) The state cannot offer evidence that would support the conclusion that the Defendant's lawful carrying of a weapon pursuant to a permit was a "gross deviation" from reasonable conduct.
Further, as was noted in State v. 'DeLoreto, 265 Conn. 145, 827 A.2d 671 (2003), § 53a-181 is not unconstitutionally vague or overbroad precisely because the issue of whether a particular act or statement may properly be considered to be a threat is governed by an objective standard. The court held in State v. DeLoreto that a conviction under the statute requires specific proof that the defendant intentionally or recklessly threatened a crime that would, cause either a public disturbance, and further pointed out that the essence of a true threat is that a "reasonable person" would perceive that a threat was intended by the defendant. See also State v. Woff,; 237 Conn. 633, 678 A.2d 1369 (1996) (mens rea instruction with respect to breach of the peace which simply restated pertinent statutory language and referred to generalized instruction that the court had given on intent was inadequate as it did not require a finding that the predominant intent was to cause what a reasonable person operating under contemporary community standards would consider a disturbance to or impediment of a lawful activity); State v. Hoskins 35 Conn. Supp. 587, 401 A.2d 619 (1978) (evidence did not establish that defendant minister’s painted slogans, which charged that Jews murdered Jesus Christ, were intended or likely to produce imminent disorder; thus, defendant's conviction for violating breach of peace statute could not be sustained).
Moreover, it is well established that an overreaction to a defendant's lawful conduct cannot establish the elements of breach of the peace. For example, the court held in State v. Collis, 14 Conn. App. 440, 540 A.2d 1062 (1988), that the evidence was legally insufficient to show that the defendant committed a breach of peace by engaging in threatening behavior simply because the alleged victims felt threatened, where the evidence showed that the defendant simply drove slowly past two young women several times, and may have on one occasion spoken to one of them, and that he then stopped the car and opened the door. The court summarily found that such conduct could not violate § 53a-18l (1).
Also, it has been recognized explicitly in a number of other jurisdictions that the literal breadth of the definition of a breach of the peace "does not mean. . . that lawful and proper conduct may constitute a breach of peace just because it provokes violence or disorder." "O'Leary v. Commonwealth 441 S.W.2d 150, 154 (Ky. 1969). Rather, "the mere fact that the exercise of a lawful right may result in a disturbance or breach of the peace does not make the exercise of that right a violation of the law so long as the right is exercised in a peaceful manner and without force or violence or threats of same." Briggs v. State, 367 S.W.2d 750, 754 (Ark. 1963), vacated on other grounds, Hamm v. City of Rock Hill, 379 U.S. 306 (1964). See Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963) (plaintiffs, white persons who were arrested when they were eating peaceably with African Americanes in desegregate restaurant and were subsequently tried for disorderly conduct, were entitled to judgment as matter of law on false imprisonment count against officers who had arrested them; the plaintiffs' conduct could not be reasonably considered to be a breach of the peace simply because a crowd of bystanders were provoked into disorder as a result of their conduct).
For all of the reasons set forth above, this Court must dismiss the charge against the Defendant, J. Goldberg, pursuant to its authority under C.G.S. § 54-56.