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Thread: Motion for Summary Judgment in Goldberg v. Glastonbury

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    A motion for Summary Judgment has been filed in the Federal civil case of James F. Goldberg v.Town of Glastonbury.

    Click on this link: http://www.ctgunrights.com/00.Webpages/goldberg_filestown_sjm.htm

    I have posted all the PDF documents which were filed with the Federal Court this afternoon.

    For all who have been following this case, the documents should be of interest.




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    I have taken the liberty to publish this section of one of the documents posted.

    G. Defendant Glastonbury is Liable to Plaintiff for His False Arrest and Unreasonable Search and Seizure Due to ItsFailure to Train Defendant Officers.

    In addition to individual liability of Defendant Officers, “a municipality can be held liable for a constitutional injury inflicted pursuant to an official policy, practice, or custom of the municipality, including the failure to train or supervise lower-level employees.” Kennedy v. City of New York, 2010 WL 1779235 (S.D.N.Y. Apr. 26, 2010) (attached hereto as Exhibit C) (citing Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658 (1978). Inadequate police training can give rise to §1983 liability for a municipality where “the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989). In evaluating a municipality’s liability for failure to train or adequately supervise, the Second Circuit has identified three requirements a plaintiff must establish: “(1) that a policymaker knows to a moral certainty that her employees will confront a given situation, excluding rare or unforeseen events; (2) that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is history of employees mishandling the situation; and (3) that the wrong choice by the city employee will frequently cause the deprivation of a citizen’s constitutional rights.” Faubel v. City of Stamford, 2010 WL 744930 (J.D. Fairfield Jan. 25, 2010) (citing Seri v. Town of Newtown, 573 F. Supp.2d 661 (D.Conn. 2008).

    Clearly, Plaintiff satisfies the first element in that police officers are certain to confront individuals who carry open weapons in public in the State of Connecticut. Second, because Connecticut is an open carry state, its officers will be presented with a difficult choice of whether merely carrying an unconcealed handgun constitutes a breach of peace. Adequate training or supervision is likely to create a better understanding of what constitutes a breach of peace.

    Lastly, as Defendant Furlong indicated, to him, merely carrying an unconcealed weapon in public is sufficient grounds for depriving an individual of his Fourth Amendment rights. Based on this assessment, Defendant Officers are likely to frequently cause the deprivation of individual’s Fourth Amendment rights.

    Further, despite the fact that Plaintiff’s rights have clearly been violated, Defendant Glastonbury, through Police Chief Sweeney, acquiesced to Defendant Officers’ unlawful conduct. Chief Sweeney indicated that the Defendant Officers acted consistent with their training, and admits that even if there was a violation of Plaintiff’s constitutional rights, Defendant Officers still acted consistent with their training. (Sweeney Depo. pp. 77-78).

    Moreover, the State of Connecticut, Department of Public Safety just recently issued a statement in order to protect the constitutional rights of individuals. (attached hereto as Exhibit D). As part of this statement, police officers are instructed that they “should not arrest a properly permitted individual merely for publicly carrying a handgun in plain view.” Consequently, it is clear that prior to the statement’s issuance, police officers were not adequately trained concerning an individual’s rights to be free from unlawful arrest and unreasonable search and seizure for merely carrying a handgun in plain view.

    IV. CONCLUSION

    Based on the foregoing case law, relevant authority, deposition, and documentary evidence, there are no issues of material fact as to whether Defendants violated Plaintiff’s constitutional rights when they unlawfully arrested him, subjected him to an unreasonable search and seizure, subjected him to unreasonable and excessive force, and failed to properly train and supervise the police officers.

    Plaintiff respectfully requests this Court grant partial summary judgment as to liability only and set this action for a trial on his damages.

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    Very good, using the FOIA notice from the 2A march instructions as proof positive that "merely" carrying an unconcealed firearm is not a crime!

    It gets better and better!



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    Very good indeed. Thanks for the post Ed.

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    So did this now set case precident or however you spell it for CT as far as open carrying a handgun is concerned? I.E ----- People won't be arrested for BOP now for merely openly carrying a handgun?

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    No precedent can be set until a decision has been made. This appears to be simply a motion by the plaintiff for summary judgement.

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    ok thank you



    gluegun wrote:
    No precedent can be set until a decision has been made. This appears to be simply a motion by the plaintiff for summary judgement.

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    Well it seems pretty clear to me. All I've ever asked is to be treated equal under the law. Funny but I remember that phrase from somewhere... hmmmm.

    Anyway, great news. Thank you Mr. Peruta.
    The Constitution shall never be construed... to prevent the people of the United States who are peaceable citizens from keeping their own arms. Samuel Adams

    "Here sir, the people govern." -- Alexander Hamilton (speech in the New York ratifying convention, 17 June 1788) Reference: The Debates of the Several State..., Elliot, vol. 2 (348)

    "I would rather be exposed to the inconveniencies attending too much liberty than to those attending too small a degree of it." -- Thomas Jefferson

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    sheepdaddy, PM sent
    The Constitution shall never be construed... to prevent the people of the United States who are peaceable citizens from keeping their own arms. Samuel Adams

    "Here sir, the people govern." -- Alexander Hamilton (speech in the New York ratifying convention, 17 June 1788) Reference: The Debates of the Several State..., Elliot, vol. 2 (348)

    "I would rather be exposed to the inconveniencies attending too much liberty than to those attending too small a degree of it." -- Thomas Jefferson

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    I'm confused. Is a nolle the same as beating the charge? According to one of the documents, Goldberg has no standing for unlawful arrest or 4th AMD violations because he did not get a "favorable decision from the State" on the charges (quote is not exact). Am I correct in that?

    I may be coming in late on this.

    The Constitution shall never be construed... to prevent the people of the United States who are peaceable citizens from keeping their own arms. Samuel Adams

    "Here sir, the people govern." -- Alexander Hamilton (speech in the New York ratifying convention, 17 June 1788) Reference: The Debates of the Several State..., Elliot, vol. 2 (348)

    "I would rather be exposed to the inconveniencies attending too much liberty than to those attending too small a degree of it." -- Thomas Jefferson

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    Right, a Nolle, which is short for:

    Nolle prosequi
    (pronounced /ˈnɒli ˈprɒsəkwaɪ/;[1][/sup] Latin:[ˈnolːe ˈproːsekwiː]) is a Latin legal phrase meaning "be unwilling to pursue"[2][/sup] a Latin construction that amounts to "please do not prosecute". It is the term used in many common law criminal jurisdictions to describe a prosecutor's application to discontinue criminal charges before trial, or up until, but before verdict.[3][/sup](from wiki)
    [/sup]
    This just means that the original lawyer for Mr. Goldberg said to the prosecuting attorney "How do we make this go away?" I'm guessing the PA thought he could avoid the public humiliation of losing a trial and said "we'll entertain the idea of a charitable contribution in the amount of $500 and we will let this go with a Nolle"
    The original lawyer said "I'll approach my client with this" and they went for it.
    It is tantamount to a bribe really, you don't get prosecuted for the charge but you still have to pay. It used to happen a lot with traffic violations but I haven't heard of many being offered these days with the state so hard up for cash and all.


    The police department and individual police officers lawyers are throwing out pre-trial motions to try and get the case dismissed so they don't have to fight it in court. The fact that he has no favorable judgment for him with the court is immaterial in my opinion (IANAL) because he's not claiming he was illegally prosecuted he is claiming (rightfully so) that he was illegally arrested (for something not a crime) so the judge ought to throw out these frivolous pre-trial motions as they don't really apply.
    I hope it costs the supervisor his job or at least his stripes and some pay. When he said "what can we get him for?" that said it was not about law enforcement at that point it was about cobbling together some sort of charge so they could make an arrest.
    If you break a law, then fine, you should be arrested and if the law is unjust work that out in the legal system. If you have a public servant making up stuff as they go along just to make an arrest, then that kind of activity disgusts me. A real police officer would have taken all the information, including Mr Goldbergs and told him "I am letting you go, however we will continue to investigate and if we determine that you violated the law we will prosecute you"


    Better a hundred criminals go free than one innocent man imprisoned..




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    A Nolle Prosequi, or Latin for: 'Will not Prosecute', is a term used by District Attorneys to indicate that they will no longer pursue the above styledmatter in Court for Criminal Disposition.

    In a sense, one has, '...beaten the Charge.', but, not nessecarily to the extent as would a finding of Not Guilty by The Jury.

    None the less, at least in my State of Georgia, whenever a Person recieves a Nolle Prosequi from a District Attorney the State maintains the Criminal Arrest Record, but it shows upon a Criminal Background Check as would a Dismissal. In other words, although it is there on paper, it does not hold any substanance.

    Essentially, yes, a Person in reciept of Nolle Prosequi has '...beaten the Charge!'

    In Georgia, at least, a Nolle Prosequi can not be used against you in further proceedings for enhanced Penalties under the same Statute, nor can it be used against you for any type of Civil or Constitutional Disabilties.



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    Okay folks,

    I think I see it now. Both sides are asking the court to rule in their favor and outlining their reasons for the request; summary judgement. I'm a little slow sometinmes, and it was a lot of material for one afternoon.

    As I said in my earlier post, it seems pretty clear to me that the town went over the top in their response.
    The Constitution shall never be construed... to prevent the people of the United States who are peaceable citizens from keeping their own arms. Samuel Adams

    "Here sir, the people govern." -- Alexander Hamilton (speech in the New York ratifying convention, 17 June 1788) Reference: The Debates of the Several State..., Elliot, vol. 2 (348)

    "I would rather be exposed to the inconveniencies attending too much liberty than to those attending too small a degree of it." -- Thomas Jefferson

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    Goldcoaster said: "The police department and individual police officers lawyers are throwing out pre-trial motions to try and get the case dismissed so they don't have to fight it in court. The fact that he has no favorable judgment for him with the court is immaterial in my opinion (IANAL) because he's not claiming he was illegally prosecuted he is claiming (rightfully so) that he was illegally arrested (for something not a crime) so the judge ought to throw out these frivolous pre-trial motions as they don't really apply."



    I see your point

    The Constitution shall never be construed... to prevent the people of the United States who are peaceable citizens from keeping their own arms. Samuel Adams

    "Here sir, the people govern." -- Alexander Hamilton (speech in the New York ratifying convention, 17 June 1788) Reference: The Debates of the Several State..., Elliot, vol. 2 (348)

    "I would rather be exposed to the inconveniencies attending too much liberty than to those attending too small a degree of it." -- Thomas Jefferson

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    LQM wrote:
    Okay folks,

    I think I see it now. Both sides are asking the court to rule in their favor and outlining their reasons for the request; summary judgement. I'm a little slow sometinmes, and it was a lot of material for one afternoon.

    As I said in my earlier post, it seems pretty clear to me that the town went over the top in their response.
    Just in case you are not clear on what summary judgement is:

    In court cases, juries decide issues of fact and judges decide issues of law. For example, consider a case where plaintiff (P) sues defendant (D) claiming that D ran a red light and hit P's car and causedP injury. In the resulting case, the jury will decide whether the light was red and/or as a result, whether D is liable for P's injuries. The judge will decide, based on the law, whether attorneys are allowed to ask certain questions, make certain statements in front of the jury, and how the jury will be charged - that is, how the law will be explained to them to apply to the facts presented.

    Summary judgement exists to sidestep the jury process. The legal standard applied (at least in federal court where this case is pending) is that a litigant is entitled to summary judgment where "there is no genuine issue of material fact." In short, this means that no reasonable jury could determine the truth of the matter in any other way based on the facts as they are. As difficult to understand, this summary judgment standard is considered a legal question, not a factual question and is, therefore, decided by a judge.

    Here, the defendants (Town of Glastonbury and named police officers) are asking the judge to rule in their favor because there is no genuine issue of material fact that would lead a jury to rule in James Goldberg's favor.

    For purposes of appeal, these decisions are reviewed "de novo" which means that the appeals court will review the entire record and make a new decision without deference to the court below. In other words, the decision that the court makes here can (an likely will) be appealed to the Second Circuit Court of Appeals (in New York) and be decided again with a completely different outcome.

    I hope this helps people understand the summary judgement process. It can be confusing.

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    So... who's winning?
    Chuck Norris/Ted Nugent That's the ticket for 2016!

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    carracer wrote:
    So... who's winning?
    There is no way to tell. Some judges take well over a year to decide these motions so we may not know for a long time...

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    Moreover, the State of Connecticut, Department of Public Safety just recently issued a statement in order to protect the constitutional rights of individuals. (attached hereto as Exhibit D). As part of this statement, police officers are instructed that they “should not arrest a properly permitted individual merely for publicly carrying a handgun in plain view.”
    Where is Exhibit D... I would like to carry that around in my wallet instead of the current documents I carry.

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    dwayner79 wrote:
    Where is Exhibit D... I would like to carry that around in my wallet instead of the current documents I carry.
    http://opencarry.mywowbb.com/attachment.php?id=11592
    Connecticut Carry is dedicated to advancing and protecting the fundamental civil rights of the men and women of Connecticut to keep and bear arms for self defense of themselves and the state as guaranteed by the United States Constitution and the Constitution of Connecticut.

    Join us and discuss the issues: http://ctcarry.com/Forum

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    Here is the PDF of the memo



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