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Thread: CT Open Carry legal controversey - THEY WILL BE JUDGED

  1. #1
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    “MATURE JUDGMENT DICTATES”[/b]


    Below you will find two perfect examples that demonstrate the stark differences of mature judgement [/b]in Connecticut.

    In the state of Connecticut, people who desire to operate motorcycle, make an application to DMV, pass a background check for driving history, wants and warrants, criminal activity, taxes owed etc.. The applicant then is required to take a written test, possibly have their eyes examined, and demonstrate their ability to operate a motorcycle. If an individual passes the background check, tests and other requirements, they are then entitled to receive from the DMV, an endorsement on their Connecticut operator’s license to legally operate motorcycles.

    NOW TO THE POINT:
    [/b]
    Please remember, most of us agree that driving is not mentioned in the Constitution and is a privilege, not a right.

    Many citizens, physicians, members of the state legislature and members of law enforcements believe strongly and possibly correctly, that riding a motorcycle without a helmet demonstrates a serious lack of “MATURE JUDGMENT[/b]”.

    But many individuals, who possess motorcycle license endorsements and ride motorcycles, choose to do so without wearing the helmet that mature judgment dictates. These individuals, who choose not to exercise MATURE JUDGEMENT[/b], do so based on their individual decision to ride without helmets, because[/b] CT law remains silent on the issue of helmets being required.

    This example is precisely on point to the issue of CT law being silent on any requirement to CONCEAL[/b] a legally carried weapon with a Valid Permit.

    I doubt very seriously that members of Connecticut Law Enforcement would be able to justify taking legal action against the motorcycle operators who clearly demonstrate a lack of mature judgment by operating a motorcycle while not wearing a helmet.

    And surely, (until the law is changed), there would be legal challenges to every[/b] attempt to seize or confiscate the licenses or motorcycles of those who fail to wear helmets while operating a motorcycle in CT.

    P.S. But don’t be surprised if you begin to see the question of motorcycle helmet use on Connecticut pistol permit applications, and used to judge your suitability[/b] to obtain a permit to carry a pistol or revolver in Connecticut.

    One of the reasons that changes to the law mandating concealment of a pistol or revolver has not been introduced may[/b] be that the Department of Public Safety will have to admit publicly to every person in possession of a valid permit, that there is currently no requirement to do so.






    “MATURE JUDGMENT POEM”




    September 2, 2007



    Like wearing pistols exposed on hips, women feed their babies and expose there ****

    Both are legal and can be revealed, but “Mature judgment dictates”[/b] they should be concealed

    To some this is trivial and not a big deal, but when your arrested it becomes very real.

    The loss of our weapons and permits to carry can be very serious and often scary.

    The right to bear arms is as old as our nation, and our modern society can’t grasp our frustration.

    Because the safety we seek and security wefeel, is part of our right, not to conceal.









  2. #2
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    Chief James Cetran,

    I am sending this email exchange between Dennis Golden and Sgt. Ronald Bastura, so you may track the evolvement of the issue regarding a temporary permit that you issued back in May. I am also including some relevant case law that seems to be missing from the thought process and response offered by Sgt. Ronald Bastura of the Connecticut State Police.

    Obviously, everyone seems to agree that there are circumstances where the actions of a person who is legally carrying a weapon may violate the law through intentional, reckless or careless action(s) which may subject an individual to arrest, criminal prosecution and/or administrative action by some authorized authority.


    But, the question and response to the issue, should be very simple, and shouldn’t be answered with a mumbo jumbo confusing response.[/b]

    Is there any legal requirement in Connecticut that a weapon be CONCEALED, while being carried by a person who is in possession of a Valid State Permit to Carry.


    As an example[/b], Sgt Ronald Bastura cites the “(can’t shout fire in a crowded movie theater)” theory, when the question should be,(DID THE INDIVIDUAL HAVE THE RIGHT TO ENTER THE MOVIE THEATER AND/OR ATTEND THE MOVIE?)[/b]

    -----Original Message-----
    From: Dennis Golden [mailto:golden001@comcast.net]
    Sent: Tuesday, August 28, 2007 10:40 PM
    ][/b]To: edperuta@amcable.tv
    Subject: FW: Clarification


    FYI

    Dennis


    -----Original Message-----
    From: Sgt. Ronald Bastura [mailto:dps.spec.licensing.co@po.state.ct.us]]

    Sent: Tuesday, August 28, 2007 6:44 PM]

    To: 'Dennis Golden']

    Cc: dps.spec.licensing.co@po.state.ct.us]

    Subject: RE: Clarification


    Dear Mr. Golden:

    The two documents that you sent me as attachments are not “statutes,” but are summaries of state gun laws that were provided to you by analysts within the Office of Legislative Research.

    While the reports indicate that a handgun permit allows people to carry handguns openly or concealed, this is not blanket permission for persons to carry or handle handguns anyway they choose. There are other state statutes in existence that may[/b] be violated with indiscriminant carry or carry methods. Just as there exist responsibilities and restrictions associated with exercising freedom of speech (can’t shout fire in a crowded movie theater), there are also responsibilities associated with the carry and handling of firearms. Possessing a valid pistol permit does not give the licensee cart blanche to carry a handgun with impunity. Public Safety is one of the main goals of government.

    In response to the question by your students and instructors, while certain actions in and of themselves may be considered illegal[/b], other actions by persons may require one or more elements involving intent, recklessness, negligence, etc.

    Each incident must be investigated individually, based on its own merits and totality of circumstances, including cause and effect. While unintentional display (usually momentary in duration) may not result in criminal arrest or administrative sanctions, it is the responsibility of the police to respond to and investigate complaints made. Unintentional displays have greater potential for legal consequences if the display was committed with flagrant carelessness or disregard for the rights of others[/b]. In such cases where legal action is taken against the permittee, a system of due process exists to allow for a defense[/b] and/or appeal to the appropriate court[/b] or firearms appeals board[/b].

    Sincerely,
    Sgt. Ronald A. Bastura



    From: Dennis Golden

    Sent: Thursday, August 16, 2007 11:30 PM

    To: Sgt. Ronald Bastura

    Subject: RE: Clarification


    Thank you for your reply - Please see the attached copy of the statute stating "open or concealed" is permitted by CT state law. ( summary 3 doc) Full statute is contained in Doc 2

    The question being raised by students and instructors is on unintentional display vs intentional and potential subsequent cause of alarm by onlookers .
    Appreciate your assistance

    Dennis Golden
    NRA Senior Training Counselor

    -----Original Message-----

    From: Sgt. Ronald Bastura [mailto:dps.spec.licensing.co@po.state.ct.us]

    Sent: Thursday, August 16, 2007 5:42 PM

    To: golden001@comcast.net

    Cc: dps.spec.licensing.co@po.state.ct.us

    Subject: RE: Clarification


    Dear Mr. Golden:

    Although the word “concealed” is not specifically mentioned in statute, intentionally causing public inconvenience, annoyance, alarm or panic, or recklessly creating a risk thereof by displaying a handgun may subject the possessor to possible pistol permit revocation, arrest, and loss of firearm. Holding a valid pistol permit does not make the holder exempt from the laws of the state. If a handgun is carried or used in such a manner as to violate a law of the state (whether intentional or by use of poor judgment), there are legal consequences, possibly through criminal arrest and prosecution, administrative sanctions, or both. You will find the use of the words “mature judgment” in the CT Board of Firearm Permits Examiners website.

    Further information can be obtained from the following Internet websites:
    http://www.ct.gov/dps,http://www.cga.ct.gov, and http://www.ct.gov/bfpe.


    Sincerely,
    Sergeant Ronald A. Bastura
    Executive Officer
    Special Licensing and Firearms Unit


    From: DPS Special Licensing [mailtoPS.Spec.Licensing@po.state.ct.us]

    Sent: Thursday, August 16, 2007 11:51 AM

    To: sgt

    Subject: Fw: Clarification


    ---- Original Message -----

    From: Feedback, DPS <mailtoPS.Feedback@po.state.ct.us>

    To: DPS.Spec.Licensing@po.state.ct.us

    Sent: Wednesday, August 15, 2007 5:48 PM

    Subject: FW: Clarification

    From: Dennis Golden [mailto:golden001@comcast.net]

    Sent: Wednesday, August 15, 2007 3:45 PM

    To: Feedback, DPS

    It was recently brought to my attention that the state law covering handgun carry permits states " the permit to carry a handgun allows people to carry them openly or concealed. But mature judgement says the Board of Firearm Permit Examiners dictates that " every effort should be made to ensure that no gun is exposed to view or carried in any manner that would tend to alarm people who see it...

    Can you please clarify what this means as I not only certify individuals but also instructors and have instructors asking what this means

    It suggests that if a handgun is exposed unintentionally it's ok

    Thank you
    Dennis Golden
    NRA Training Counselor


    RESPONSE
    [/b]


    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 isotherwise' prohibited by law or is prohibited by the person who owns or exercises control over suchpremises.

    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[/b]. 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.[/b] 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, it is well established that an overreaction to a defendant's lawful conduct[/b] 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[/b]………

    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[/b]. . . that lawful and proper conduct may constitute a breach of peace just because it provokes violence or disorder."[/b] [/b]"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."[/b] 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[/b]; 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).[/b]
    [/b]

    APPROVAL OF, OR LIMITS AND RESTRICTIONS PLACED UPON, GOVERNMENT AUTHORITY INCLUDING BUT NOT LIMITED TO, THE AUTHORITY OF POLICE OFFICERS AND LAW ENFORCEMENT AGENCIES ARE OFTEN ESTABLISHED DUE TO PAST OR CURRENT PRACTICES THAT BECOME THE SUBJECT OF REVIEW BY THE VARIOUS COURTS AND/OR ADMINISTRATIVE AGENCIES AND THEIR PUBLISHED DECSIONS AND OPINIONS.[/b]
    [/b]
    IN THE CASE OF SGT. BASTURA’S STATEMENTS, HE IS TECHNICALLY CORRECT, BUT MUST NOT BE CURRENT IN HIS KNOWLEDGE OF THE CURRENTLY AVAILABLE CASE LAW THAT ADDRESSES PUBLIC OFFICIALS ACTING UNDER THE COLOR OF LAW, DUE PROCESS OR THE STATUTORY LIMITS OFAGENCIES AUTHORITY AND ACTIONS.[/b]

    [/b]IT ALSO APPEARS THAT HE DOES NOT POSSESS THE ABILITY TO OFFER A SIMPLE NON-CONFUSING RESPONSE TO THE BASIC QUESTION BEING ASKED.


    [/b]




  3. #3
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    Edward,

    Did youlook at what you posted? (your second post on this thread)

    It is so cut up, and takes so much effort to do so that I quit reading it.

  4. #4
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    To BB62,

    I am aware of my second post, I thought I could copy and paste, and it didn't work.

    I tried to go in and delete it, and it made a mess.

    I have many documents and will try to get it right next time.

    Ed Peruta

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    THE CONCEALMENT OF WHAT IS REALLY HAPPENING



    I believe that a complete review of the past and present cases docketed by the B of Firearms Permit Examiners (BOFPE) and their published agendas (which have been obtained), will show a pattern that may answer several questions regarding the policies, practices and inability to provide due process to individuals who have had their permits to carry pistols and revolvers revoked by the DPS/CSP/SLFU.



    The Connecticut Department of Public Safety Special Licensing and Firearms Unit has recently admitted to at lease one Connecticut Police Chief, that it’s department has been, (and currently is), aware of the fact there is no provision in CT law that requires the holders of Valid Permits to conceal their weapons when carried with a valid permit.



    The case docket, agendas and backlog of The Board of Firearm Permit Examiners, as properly addressed in a 2003 state audit, which documents a pattern where due process is denied by the current 14 to 20 month length of time it takes to conduct a hearing on the merits of the revocation. (See Mackey v. Montrym, where the U. S. Supreme Court examined the three factors of the due process.)



    The policies and practices of the Special License and Firearms Unit currently prevents questionable or improper actions on the part of the Firearms Unit from being exposed in a timely manner, (if at all), to the jurisdiction, (at public hearings), of The Board of Firearms Permit Examiners.



    It appears that The Connecticut Department of Public Safety Special Licensing and Firearms Unit has, and is, acting under the color of law, by devising and implementing an administrative scheme that prevents their illegal questionable actions regarding denials and revocations of Pistol Permits from being exposed.



    The scheme implemented, and currently in place, may be found in files of cases that were resolved by settlement, with particular attention to the case files where the return of the revoked permit occurred prior to any appeal hearings on the merits of the revocation actions.



    The scheme involves the practice of reinstating or reissuing revoked permits prior to a submission of the DPS/CSP/SLFU questionnaire, creating the situation where the appellant’s claim is reported to the BOFPE as settled without the revocation facts in the file prior to the scheduled hearing.



    This practice in effect allows the Firearms Unit to continue any questionable policies and practices without creating what would become controlling case law by having revocations reviewed and reversed by The Board of Firearms Permit Examiners.

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    A journalexists that documents the events since June 21, 2007


    SUNDAY AUGUST 26, 2007:

    Person who wishes to remain anonymous, (FB), in a discussion today, reports an incident that occurred at the Department of Motor Vehicles Enfield office where a person was in the DMV building and observed with a weapon. The weapon was exposed/seen as the individual went for his cell phone. Enfield Police were called individual was confronted and questioned. It was determined that he possessed a Valid State Permit to Carry the weapon that was seen or reported to DMV staff. Informant reports that Enfield P.D. after confirming the Valid Permit explained to DMV that the individual had a Valid Permit and no action would be taken. Enfield P.D. then properly explained to DMV that they needed to put up signage to prevent Valid Permit holders with weapons in the DMV office. Informant also states that Enfield P.D. made out incident card, and will attempt to provide incident # and date. Informant believes the incident occurred within the past several months. Lt. Jeff Golden, on duty Enfield Police supervisor was contacted at 763-6400, he remembers incident, and will attempt to locate computer dispatch information.

    MONDAY AUGUST 27, 2007

    Have today learned from (FB) that Enfield DMV incident occurred on May 16, 2007 3:26 pm, Enfield Police officer was possibly present and may have made contact with CSP during incident. Also involved DMV Officer Singer, Involved person is, Name redacted , D.O.B 03/09/78, of address redacted, CT, incident/service # 0719856. No signage at or in DMV, Valid Permit, neither weapon nor permit was seized, and no law enforcement action taken. Terry in Records wants to speak to Deputy before any further information is disclosed.

    Met with Lt. Marty Lane of CSP Internal Affairs, took information and not actual complaint at this time.

    Informed him of this newly acquired information regarding who Enfield P.D. handled a similar incident.

    Went to Enfield P.D. at approximately noon, and obtained the following redacted service report from May 16, 2007.







    A scanned copy of the Enfield Service Report


    is available


    Typed text of Service Report follows

    Reported to the A/L, (Above/Location), for a party with a possible gun. C, (complainant), state the party later identified as XXX, was at the counter and that he was told by a passerby that XXX may have a concealed weapon. The A/L was not posted that he could not have a weapon (gun). I spoke to XXX who stated that he did have a concealed weapon Gun Permit for XXX was valid and the gun a Ruger P345 pisto XXXX were legal. Was negative NCIC, XXXX stated that the party may have seen his holster when he XXXXX answered his cell phone (same side his gun was on). CSP Trooper Bonola also confirmed that it was not illegal at DMV.”



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    JULY 30, 2007:
    [/b]

    PROSCECUTOR ADAM SCOTT, GA-12 DEMANDS PAYMENT OF $500.00 TO OFFICE OF VICTIM SERVICES, AND THAT GOLDBERG FORFEIT HIS FIREARM, IN RETURN FOR A NOLLE, PROSECUTOR SCOTT AGREES NOT TO OBJECT TO ANY MOTIONS[/b] MADE BY THE DEFENSE, BUT REFUSES TO ACKNOWLDEGE OR PUT FACTS ON THE COURT RECORD THAT ARREST WAS UNJUSTIFIED. ]FOLLOWING NOLLE, ATTORNEY CLINTON MAKES MOTION TO DISMISS, RETURN OF THE WEAPON TO LEGAL OWNER, AND TO HAVE THE IMPROPERLY SEIZED PERMIT RETURNED TO J.F.G. (Transcript of Court Hearing available to be read)

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    JULY 31, 2007:

    AS TAKEN FROM FIREARMS UNIT COMPUTER NOTES MADE BY TMK:[/b]


    FIREARMS NOTE: THIS INCIDENT OCCURRED 2 MONTHS AFTER THE VIRGINIA[/b] TECH INCIDENT[/b]. MILITARY GEAR[/b] WITH EXPOSED FIREARM[/b]. APP HAD FAILED TO SHOW MATURE JUDGEMENT[/b] AS REFERENCED IN THE BOARD OF FIREARMS WEBSITE AND HANDBOOK, QUESTION 36. TMK

    Note to file:

    [/b]
    The incident at Virginia Tech[/b] should have been balanced against the recent incident in [/b]Cheshire, CT.[/b]

    The choice of clothing in this case is not an element of Breach of Peace or lack of mature judgment[/b]

    James Goldberg was allowed by law to carry his weapon openly into Chili’s unless informed otherwise

    THE ALLEDGED Lack of mature judgment ???in the choice of clothing, (in this case), does not demonstrate the intent or rise to the level of reckless behavior required in 53a-181 (Enfield Police Department handled a similar incident at the Enfield DMV recently, and handled the situation differently.What if this incident involved an off duty police officer? See August 26, 2007 entry)

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    AUGUST 9, 2007:
    [/b]

    Contact made with Wethersfield Police Chief James Cetran to ask his opinion on carrying a pistol openly, Chief Cetran was sent an email with several attachments. ]At approximately 11:15am Chief Cetran called back and related that he had contacted the State Police Firearms Unit and was informed that there was no state requirement that a Valid Pistol Permit holder conceal his or her weapon. He stated his shock at learning this after all his years in law enforcement. (Email to Chief Cetran and phone record available)


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    AUGUST 10, 2007:
    [/b]

    Initial retainer payment to Attorney William Madsen to bring a Title 42 1983 action in Federal Court over these incidents and issues.

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    AUGUST 23, 2007:
    [/b]
    Received as part of a Freedom of Information Request, three Excel files from the Board of Firearms Permit Examiners that MAY[/b] document a scheme by CSP Firearms Unit to impose what amounts to indefinite periods of Permit SUSPENSIONS[/b] which vary in length between a Revocation and Reinstatement and/or Reissuing of the revoked permit prior to an appeal on the merits and reasons for the revocation.(All settled BOFE case files from 2004,2005 and 2006 HAVE BEEN ACQUIRED, with breakdown of why they were not heard Further research to take place, available for review)

    AUGUST 24, 2007:
    [/b]

    Return call from Captain William Dittman of the New London, CT Police Department, who was asked the three questions. Captain Dittman believed that Concealment was mandated, and further believed that local authorities have the right to confiscate and or seize a Valid State Permit. Capt. Dittman attempted to give me the SLFU telephone number for any questions about firearms. Told him the story, and he asked, “If what you’re saying is true, why has nobody gone to the legislature and changed the law to mandate concealment”. (My response, EXACTLY, the state police have known for years, and chose to do it their way instead of having the law changed.)


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    THE FOLLOWING UNSOLICITED EMAIL ATTEMPTS TO CLARIFY THE AUGUST 16, 2007 EMAIL.

    Due Process is denied by the length of the Board of Firearms Permit Examiner's case backlog.And I trust the judgment of the Federal Courts.

    I have inserted comments and questions into this email and colored them Blue so that you will know that they did not originate with Sgt. Bastura.

    -----Original Message-----

    From: Sgt. Ronald Bastura [mailto:dps.spec.licensing.co@po.state.ct.us]

    Sent: Tuesday, August 28, 2007 6:44 PM[/b]

    To: 'Dennis Golden'

    Cc: dps.spec.licensing.co@po.state.ct.us

    Subject: RE: Clarification

    Dear Mr. Golden:

    The two documents that you sent me as attachments are not “statutes,”[/b] but are summaries of state gun laws that were provided to you by analysts within the Office of Legislative Research. (TRUE)

    While the reports indicate that a handgun permit allows people to carry handguns openly or concealed,[/b] this is not blanket permission for persons to carry or handle [/b]handguns anyway they choose. (PLEASE EXPLAIN FURTHER)

    There are other state statutes in existence that may[/b] be violated with indiscriminant carry or carry methods[/b]. (PLEASE EXPLAIN FURTHER and list the “other state statutes”)[/b]
    [/b]
    Just as there exist responsibilities and restrictions associated with exercising freedom of speech (can’t shout fire in a crowded movie theater), there are also responsibilities associated with the carry and handling of firearms. (PLEASE EXPLAIN FURTHER)

    Possessing a valid pistol permit does not give the licensee cart blanche to carry a handgun with impunity[/b]. (TRUE, THERE ARE PLACES WHERE HANDGUNS CANNOT BE CARRIED, AND THERE ARE LIMITS ON OVERT ACTS WITH A HANDGUN, BUT PLEASE EXPLAIN FURTHER)[/b]

    Public Safety is one of the main goals of government.

    In response to the question by your students and instructors, while certain actions in and of themselves may be considered illegal, (ENTERING A PROHIBITED LOCATION AND POINTING A WEAPON IN SOMEONES DIRECTION ARE SOME OF THE ACTIONS UNDERSTOOD, BUT PLEASE EXPLAIN FURTHER) other actions by persons may require one or more elements involving intent, recklessness, negligence, etc. [/b]Each incident must be investigated[/b] individually, based on its own merits and totality of circumstances, including cause and effect[/b]. While unintentional display (usually momentary in duration) may not result in criminal arrest or administrative sanctions[/b], (PLEASE EXPLAIN FURTHER REGARDING INTENTIONAL DISPLAY)[/b] it is the responsibility of the police to respond to and investigate[/b] complaints made. (TRUE)[/b] Unintentional displays have greater potential for legal consequences[/b] if the display was committed with flagrant carelessness or disregard for the rights of others[/b]. (MUST A PERMIT HOLDER CARRING A WEAPON GIVE UP THEIR RIGHTS TO PROTECT THE RIGHTS OF OTHERS?)[/b] In such cases where legal action is taken against the permittee, a system of due process exists to allow for a defense and/or appeal to the appropriate court (DOES A DISMISSAL EFFECT ANY CRIMINAL OR or firearms appeals board.[/b]


    Sincerely,
    Sgt. Ronald A. Bastura


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    STATE OF CONNECTICUT

    DOCKET NO. CR070211668 SUPERIOR COURT

    STATE OF CONNECTICUT J. D. HARTFORD

    Plaintiff, at G.A. 12, MANCHESTER

    v.

    GOLDBERG, J., JULY 20, 2007

    Defendant.







    MEMORANDUM IN SUPPORT OF



    THE CHARGES WERE DISMISSED ON JULY 30, 2007




    MOTION TO DISMISS




    INTRODUCTION

    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.




    ARGUMENT

    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).



    CONCLUSION

    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.



  14. #14
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    IS JUSTICE FOR SALE?



    OR



    IS IT JUST




    EVERYDAY EXTORTION IN CONNECTICUT CRIMINAL COURTS




    YOU BE THE JUDGE




    (KEEP IN MIND THE DEFENDANT IN THIS CASE IS NOT GUILTY)

    Actions currently taking place in our Connecticut Courts appear to have all the elements necessary to fit the definition of EXTORTION.

    I have taken the exact language of the extortion section and inserted factual information from a real criminal matter that I witnessed on July 30, 2007 in GA-12 in Manchester, CT. (To protect the identity of the INNOCENT person involved, I will refer to him as John Doe)




    READ THE FACTS


    TAKEN FROM OUR CONNECTICUT STATE STATUTES

    Sec. 53a-119. Larceny defined. A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to:

    (1) Embezzlement. A person commits embezzlement when he wrongfully appropriates to himself or to another property of another in his care or custody.

    (2) Obtaining property by false pretenses. A person obtains property by false pretenses when, by any false token, pretense or device, he obtains from another any property, with intent to defraud him or any other person.

    (3) Obtaining property by false promise. A person obtains property by false promise when, pursuant to a scheme to defraud, he obtains property of another by means of a representation, express or implied, that he or a third person will in the future engage in particular conduct, and when he does not intend to engage in such conduct or does not believe that the third person intends to engage in such conduct. In any prosecution for larceny based upon a false promise, the defendant's intention or belief that the promise would not be performed may not be established by or inferred from the fact alone that such promise was not performed.

    (4) Acquiring property lost, mislaid or delivered by mistake. A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of larceny if, with purpose to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to it.





    ACTUAL LANGUAGE OF SECTION (5) ON extortion

    (5) Extortion. A person obtains property by extortion when he compels or induces another person to deliver such property to himself or a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will: (A) Cause physical injury to some person in the future; or (B) cause damage to property; or (C) engage in other conduct constituting a crime; or (D) accuse some person of a crime or cause criminal charges to be instituted against him; or (E) expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or (F) cause a strike, boycott or other collective labor group action injurious to some person's business; except that such a threat shall not be deemed extortion when the property is demanded or received for the benefit of the group in whose interest the actor purports to act; or (G) testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or (H) use or abuse his position as a public servant by performing some act within or related to his official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely; or (I) inflict any other harm which would not benefit the actor.




    THE EXTORTION SECTION (5) USING REAL FACTS



    (5) Extortion. A person (in this case a prosecutor) obtains property (in this case $500.00) by extortion when he compels or induces another person (in this case defendant John Doe) to deliver such property to himself or a third person (in this case The Office of Victim Services) by means of instilling in him a fear that, if the property ($500.00) is not so delivered, the actor or another (The Office of Victim Services) will: (A) Cause physical injury to some person in the future; or (B) cause damage to property; or (C) engage in other conduct constituting a crime; or (D) accuse some person (in this case defendant John Doe) of a crime or cause criminal charges (in this case continue criminal charges) to be instituted (in this case continued) against him; or (E) expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or (F) cause a strike, boycott or other collective labor group action injurious to some person's business; except that such a threat shall not be deemed extortion when the property is demanded or received for the benefit of the group in whose interest the actor purports to act; or (G) testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or (H) use or abuse his (The prosecutor’s) position as a public servant by performing some act (threatening to frivolously continuing a case that is to be nolled or dismissed) within or related to his official duties, or by failing or refusing to perform an official duty (Nolle or dismiss without demanding monetary strings), in such manner as to affect some person (defendant John Doe) adversely; or (I) inflict any other harm which would not benefit the actor.


    THIS IS A REAL SITUATION



    PEOPLE SHOULD WAKE UP TOTHE EXTORTION



    THAT OUR COURTS CONDONE



    REGARDING INNOCENT PEOPLE



  15. #15
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    Edward,

    If I may state my opinion, I find what you have posted to be VERY interesting, but hard to read.

    May I suggest that you use a smaller text size toimprove its readability? (not sure if I spelled that right!)

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    OPTIONS THAT COULD HAVE, BUT DID NOT HAPPEN
    Mr. Goldberg could have been interviewed, required to produce his valid permit and allowed to continue on his way without any action being taken, as was done in the Enfield DMV case on May 16, 2007.

    Mr. Goldberg could have been interviewed, required to produce his valid permit andissued a summons in accordance with CGS 54-1h, for the misdemeanor charge of Breach of Peace in the Second Degree, and allowed to continue on his way with possession of his weapon and valid state permit.

    Mr. Goldberg could have been interviewed, required to produce his valid permit to carry, and then allowed to continue on his way. The Glastonbury Police could have then taken two distinctly different actions to seize his weapon and/or permit while providing Mr. Goldberg with due process.

    The first action would have been to follow the procedures set forth in CGS 29-28c to seize Mr. Goldberg’s weapon, which would have provided due process to Mr. Goldberg who would have been assured that a hearing would have been mandated on the seizure of his weapon within 14 days of the seizure.

    The second action would have been to submit their facts to the Commissioner of Public Safety in accordance with CGS 29-32 (b), together with any request for revocation which would then have resulted in the required investigation by the Commissioner to determine if the required cause existed to revoke Mr. Goldberg’s permit to carry.

    Instead, Mr. Goldberg was unlawfully under the color of law, arrested for Breach of Peace in the Second Degree without any of the required elements of the crime present.

    Put in a position where he was required to retain legal counsel at considerable cost to receive due process.

    Coerced and extorted into making a bogus contribution to the Office of Victim services to receive justice.

    Denied the return of his father’s illegally seized weapon, without justification for seizure or forfeiture.

    Put in a position where his mug shot is currently on file in the Glastonbury Police records system in violation of PA. 06-111 creating the situation where he must expend time and financial resources to have the photograph deleted or destroyed as mandate.

    Forced to appeal his improper revocation to the Board of Firearms Permit Examiners at considerable cost,where the 14 to 20 month backlog of cases clearly denies Mr. Goldberg and all other appellants their rights of due process.








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    i have a headache.

    i'm not sure i would have the courage or the time to go through all that to OC in CT.

    we have an antigun legislature and an antigun governor. they get worse by the day.

    it wouldn't take too much for the legislature to introduce legislation to mandate CCW.

  18. #18
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    Can the originator of this thread concisely summarize what this is all about - is their a decided case or cases we should know about? Thanks.

  19. #19
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    Mike,

    First off, this is an issue for everyone, not just those with Permits to Carry.

    There is an incident where an arrest was made. The individual had his sidearm concealed, but the bottom two inches were exposed when he sat down. The arrest for Breach of Peace in the Second Degree was dismissed, and the issuewill be going to the U.S. Federal District Court in Connecticut.

    When it started, I was referred to this website and didn't bother until recently.

    It now appears that the issue of carrying in the open or concealed in Connecticut has been going on for some time.

    There is a long list of people who havebegun to discuss this issue, and if the legislature decides to mandate concealment, then so be it. At least we will know where we stand.

    The way it is now,law enforcement is applyinglaw that does not exist, and that is what is ACTING UNDER THE COLOR OF LAW.

    When the issue is filed in court, everyone will know about it, TRUST ME.

    Edward Peruta (my real name)




  20. #20
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    Let us not forget that it was Connecticut state senator Thomas Dodd that brought about the GCA of 1968. Mr Dodd, a government lawyer at Nuremberg, based this act on German law, both Wiemar and Nazi. The intention was to protect Connecticut Valley gun manufacturers from "cheap" imports and "surplus" arms. Yea, right.

    I'm not surprised that our state is out to ban though obscure laws our rights to firearms that are guaranteed by both our state as well as the U.S. constitutions.

  21. #21
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    The best thing folks in CT can do to help pop the boil of law enforcement editorializing against open carry in CT is to open carry in CT as much as possible - please consider doing this if you live or visit CT and have a permit to carry for CT.

    As I have said before, OC in your normal everyday course of business, not some mass open carry demonstration in a public venue that could easily trigger arguably reasonable police and judicial finding that the conduct was aimed to terrorize people.

  22. #22
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    I am a SC resident with a CT non-res permit. I've open carried in Newtown, Brookfield, and some parts of Danbury without incidents. I would like to see some clarification as well.

  23. #23
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    I want to open carry, (as I did in Washington and Virginia) but The idea of having my gun and my license taken from me for at least a year and a half (that took 3 months to get), doesn't make me happy. I don't want to spend thousands in lawyers, or spend the night in jail, or worse have some excited cops taser me, shoot me, or pound my face in the pavement while my wife and kids are watching. Some police training bulletins would be nice.

  24. #24
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    Mike wrote:
    The best thing folks in CT can do to help pop the boil of law enforcement editorializing against open carry in CT is to open carry in CT as much as possible - please consider doing this if you live or visit CT and have a permit to carry for CT.

    As I have said before, OC in your normal everyday course of business, not some mass open carry demonstration in a public venue that could easily trigger arguably reasonable police and judicial finding that the conduct was aimed to terrorize people.
    When I open carried in CT, I did so in dress clothes - black slacks, new shoes, nice white shirt, silk tie, fresh haircut - and nobody batted an eye at me. I went shopping, gassed up my car, went out to eat, and did so with a smile on my face, polite to everyone I met (as I always do). I had no problems at all.

  25. #25
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    Hef I live in newtown If you could reply with the streets and buisnesses that you visited or private message me if you wish. I'd love to know.

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