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Thread: Oral argument in Goldberg v. Glastonbury this Friday

  1. #1
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    Oral argument in Goldberg v. Glastonbury this Friday

    AN INVITATION TO ATTEND:

    U.S. Federal District Court
    915 Lafayette Boulevard
    Bridgeport, CT 06604


    This Friday September 17, 2010, in the U.S. Federal District Court in Bridgeport, Ct., Judge Underhill will hear arguments regarding the Motions for Summary Judgment filed in the Goldberg v. Glastonbury case.

    This case involves OPENLY CARRYING a weapon while in possession of a VALID permit to do so.

    For anyone interested, this hearing should offer a great deal of information regarding whether or not a person can be arrested for simply exercising the right to OPENLY CARRY a firearm.

    Personally I intend on making my way down to Bridgeport to sit in and witness first hand the arguments made by both sides in the case.

    One way or the other regardless of how the judge rules, this case will have a substantial impact on the right to OPEN CARRY in Connecticut.

    I hope others can find the time to attend and offer support for the plaintiffs in this very important case.

  2. #2
    Regular Member Rich B's Avatar
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    I assume this means people will need to be there at 9am? Could this be set up as an impromptu CCDL member event to show solidarity for the plaintiffs?

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    Goldberg Hearing on Friday

    The Goldberg v. Glastonbury hearing is scheduled for 10:00 AM this Friday in the U.S. Federal District Court in Bridgeport.

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    Regular Member KIX's Avatar
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    Anyone from the central CT area want to carpool? I definitely want to go. I can drive or split the gas for someone else.

    Jonathan

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    Regular Member Rich B's Avatar
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    I was really hoping and planning to go, but I have an important meeting at work at that same time and this week has been chaotic anyway.

    Wish I could make it though, sounds very interesting.

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    Connecticut State Law says:

    Sec. 29-35. Carrying of pistol or revolver without permit prohibited. Exceptions. (a) No person shall carry any pistol or revolver upon his or her person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same issued as provided in section 29-28. The provisions of this subsection shall not apply to the carrying of any pistol or revolver by any parole officer or peace officer of this state, or parole officer or peace officer of any other state while engaged in the pursuit of official duties, or federal marshal or federal law enforcement agent, or to any member of the armed forces of the United States, as defined in section 27-103, or of this state, as defined in section 27-2, when on duty or going to or from duty, or to any member of any military organization when on parade or when going to or from any place of assembly, or to the transportation of pistols or revolvers as merchandise, or to any person transporting any pistol or revolver while contained in the package in which it was originally wrapped at the time of sale and while transporting the same from the place of sale to the purchaser's residence or place of business, or to any person removing such person's household goods or effects from one place to another, or to any person while transporting any such pistol or revolver from such person's place of residence or business to a place or individual where or by whom such pistol or revolver is to be repaired or while returning to such person's place of residence or business after the same has been repaired, or to any person transporting a pistol or revolver in or through the state for the purpose of taking part in competitions, taking part in formal pistol or revolver training, repairing such pistol or revolver or attending any meeting or exhibition of an organized collectors' group if such person is a bona fide resident of the United States and is permitted to possess and carry a pistol or revolver in the state or subdivision of the United States in which such person resides, or to any person transporting a pistol or revolver to and from a testing range at the request of the issuing authority, or to any person transporting an antique pistol or revolver, as defined in section 29-33. For the purposes of this subsection, "formal pistol or revolver training" means pistol or revolver training at a locally approved or permitted firing range or training facility, and "transporting a pistol or revolver" means transporting a pistol or revolver that is unloaded and, if such pistol or revolver is being transported in a motor vehicle, is not readily accessible or directly accessible from the passenger compartment of the vehicle or, if such pistol or revolver is being transported in a motor vehicle that does not have a compartment separate from the passenger compartment, such pistol or revolver shall be contained in a locked container other than the glove compartment or console. Nothing in this section shall be construed to prohibit the carrying of a pistol or revolver during formal pistol or revolver training or repair.

    (b) The holder of a permit issued pursuant to section 29-28 shall carry such permit upon one's person while carrying such pistol or revolver.

    AND

    Sec. 53a-181. Breach of the peace in the second degree: Class B misdemeanor. (a) 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 fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; 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 matter concerning 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 such person 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 private interests.

    (b) Breach of the peace in the second degree is a class B misdemeanor.

    Notice..., Conneticut Law 53a-181(6) says: '...Creates a Hazardous/Physically Offensive Condidtion in Public [i.e. Open Carry of a Loaded Pistol] by... a Person NOT Licensed or Priviledged to do so.

    Open Carry of a Loaded Pistol, is, thus to me, especially with a Pistol Permit under Conneticut Law 29-28, Lawfull as exempt per the terms of 53a-181(6), by its own Penal terms.
    Last edited by aadvark; 09-16-2010 at 12:15 PM.

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    Some of tomorrows issues

    PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO LIABILITY

    Plaintiff, James F. Goldberg (“Plaintiff”), by and through his counsel, hereby moves for summary judgment as to liability for violation of Plaintiff’s constitutional rights on all counts in the above captioned matter because there are no genuine issues as to any material fact and Plaintiff is entitled to judgment as a matter of law. Defendants, Town of Glastonbury (“Glastonbury”), Sergeant Michael Furlong (“Sergeant Furlong”), Officer Kenneth Lee (“Officer Lee”), and Officer Simon Barratt (“Officer Barratt”) (collectively referred to as “Defendants”), interfered with Plaintiff’s constitutional rights when it: 1) unlawfully arrested Plaintiff; 2) used unreasonable force in detaining Plaintiff; 3) unreasonably searched Plaintiff’s person; and 4) unreasonably seized Plaintiff and his property.
    For these reasons, as set forth more fully in the accompanying Memorandum of Law and Local Rule 56(a) statement, summary judgment should enter in favor of Plaintiff and the case should proceed to a hearing on damages to determine the amount of damages due and to award attorneys’ fees and costs.



    MEMORANDUM OF LAW IN SUPPORT OF


    PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT


    I. STATEMENT OF FACTS
    Plaintiff, James F. Goldberg (“Plaintiff”), has been around guns his entire life, as his father was in law enforcement. (See Deposition of James F. Goldberg, taken December 2, 2008 (“Goldberg Depo.”) p. 16). Plaintiff’s father instructed him from a very young age about the proper handling, care and use of guns, and in fact, Plaintiff shot his first hand gun at the age of 7. (Id. at pp. 16-18). For his twenty-ninth birthday, in March of 2007, Plaintiff’s father gave him a .40 caliber Glock pistol. (Id. at p. 23). Beginning in March of 2007, Plaintiff entered and completed at least four (4) training courses with respect to handguns and other weapons. (Id. at 50-51). Plaintiff subsequently obtained his permit to carry a handgun in May of 2007. (Id. at 30-31).
    During the relevant time period, Plaintiff worked as his brother’s assistant at his liquor store. (Id. at 14-16). Plaintiff also routinely cared for his father who was very ill. (Id. at p. 5). As part of his duties at the liquor store, Plaintiff is responsible for securing the money at the liquor store and making night deposits. (Id. at 29). After obtaining his pistol permit, Plaintiff would use his handgun for security purposes when making the night deposits. In doing so, Plaintiff would leave the liquor store, go to his apartment, pick up his handgun, go back to the liquor store to get the money, and then drive to the bank. (Id. at 29-30).
    On June 21, 2007, Plaintiff took his father coffee, as he routinely did, ran some errands for his father, and worked at the liquor store. (Id. at pp. 52-54). At the end of the evening, Plaintiff closed the store, cleaned up, and, as he did on a regular basis, went home to pick up his handgun, went back to the store to get the money and drove to the bank to make the night deposit. (Id.). Following the deposit, Plaintiff drove to Chili’s Restaurant to order and pick up take out food, which he intended to bring home to eat. (Id. at 55-58; Furlong Depo. pp. 94-95).
    Concerned that his handgun would not be safe in his car, Plaintiff securely locked his handgun in its holster and placed the holster on his right hip, and pulled his shirt over the holster. (See Goldberg Depo. pp. 65-69).
    Upon arriving at Chili’s, Plaintiff ordered his food and silently sat on the bench in the take out section of the restaurant, waiting for his order. (Furlong depo. pp. 76, 94-95). Plaintiff did not unholster his handgun, threaten anyone or act in a violent manner.
    Chili’s restaurant manager spotted Plaintiff’s handgun and called 911 to inquire if it was legal for an individual to carry an unconcealed handgun. (Id.; Sweeney Depo. pp. 70-71). In response, the 911 dispatchers sent out a call for officers to respond. Defendants, Officer Simon Barratt, Officer Kenneth Lee, and Sergeant Michael Furlong (hereinafter referred to as “Defendant Officers”[1]) responded to the dispatcher’s call. (Furlong Depo. pp. 44-45, 53). Upon arrival, Defendant Officers entered the take out section of Chili’s. (Id. at 64-67). Defendant Officers observed Plaintiff sitting silently on a bench in the take out section. (Id.).
    Defendant Furlong noticed Plaintiff had a holstered gun on his right hip, which faced away from the regular dining area. (Id.; Exhibit 5). There were no other individuals in the take out waiting area where Plaintiff sat, except for the manager who was in the kitchen doorway. (Id. at 73-74). Once Plaintiff realized that Defendant Officers were coming towards him, he put his hands in the air, identified himself, and indicated that he had a handgun with 15 rounds and none chambered. (Goldberg Depo. p. 81). Defendant Officers then instructed Plaintiff to stand up, and Plaintiff immediately complied. (Id. at 83; Furlong Depo. p.82).
    Defendant Officers then grabbed one of Plaintiff’s wrists, spun him around, and slammed Plaintiff against the wall, face first, injuring him. (Goldberg Depo.p. 83). At no time did Plaintiff resist Defendant Officers or act in a hostile or violent manner. (Furlong Depo. pp. 86-87).
    Defendant Officers then confiscated and seized Plaintiff’s handgun and pistol permit, and placed Plaintiff under arrest for breach of the peace. (Id. at pp. 100-108). Plaintiff was thereafter escorted out of the restaurant and placed in the back of Defendant Barratt’s patrol car. (Id. at 128-130). Plaintiff was subsequently taken to the Glastonbury Police Station and finally released from his handcuffs. (Id. at 128-132).
    II. LAW AND ARGUMENT
    A. Summary Judgment Standard
    Pursuant to Fed. R. Civ. P. 56(e), summary judgment is proper if the pleadings, depositions, answers to interrogatories, and affidavits demonstrate there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. It is well settled that a district court may grant a party's motion for summary judgment if the party can establish that “there is no genuine issue as to any material fact” and that, based on the facts presented, “[it] is entitled to judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
    Summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an essential element to that party’s case, and on which the party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party initially has the burden of informing the Court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Id. At 323. The burden then shifts to the nonmoving party who “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P. 56(e)).
    B. Civil Liability and Qualified Immunity

    “Section 1983 imposes civil liability upon a party who under color of law…subjects, or causes to be subjected, any citizen of the United States…to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” Ginsberg v. Healey Car & Truck Leasing, Inc., 189 F.3d 268, 271 (2d Cir. 1999) (internal quotation marks omitted) (citing 42 U.S.C. § 1983). The Second Circuit has defined “color of law” as under pretense of law, meaning “misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken under color of state law. U.S. v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999) (quoting U.S. v. Classic, 313 U.S. 299, 326 (1941)). It is clear that Defendant Officers were acting under the color of law when they participated in an investigatory detention, arrested Plaintiff and used excessive force against Defendant.
    Defendant Officers are not entitled to qualified immunity as they violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In their Answer, Defendant Officers have asserted a qualified immunity defense to Plaintiff’s claims of unlawful arrest and unreasonable search and seizure against them.
    In relation to Plaintiff’s unreasonable search and seizure claim, the question is whether, at the time of the incident, Plaintiff’s rights were clearly established. Clearly, they were. Officers may not seize or search and individual without specific, legitimate reason. See Terry, 392 U.S. at 21. As demonstrated below, Defendant Officers did not have a legitimate reason or articulable suspicion to detain Plaintiff. As such, Defendant Officers are not entitled to qualified immunity.
    With respect to Plaintiff’s unlawful arrest claim, Defendant Officers are entitled to qualified immunity only if they can establish arguable probable cause. Caldarola v. Calabrese, 298 F.3d 156, 161 (2d Cir. 2002). In explaining “arguable probable cause”, the Second Circuit has explained that “officers can have reasonable, but mistaken, beliefs as to the facts establishing the existence of probable cause.” Id. (citations omitted). As will be demonstrated below, Defendant Officers did not have an objective basis for detaining an subsequently arresting Plaintiff for breach of the peace. Consequently, they cannot establish a reasonable believe that probable cause existed. Thus, they are not entitled to qualified immunity on Plaintiff’s unlawful arrest claim.
    Finally, concerning Plaintiff’s claim for use of excessive force, Defendant Officers are likewise not entitled to qualified immunity defense. Defendant Officers are not entitled to qualified immunity because their use of force was not objectively reasonable and a reasonable officer under the circumstances would have known that forcefully grabbing a non-resisting and non-threatening individual, striking his head against the wall and handcuffing him was an unreasonable use of force.
    C. Defendants Furlong, Barratt and Lee Violated Plaintiff’s Fourth Amendment Rights in Conducting an Unreasonable Search and Seizure.


    Defendant Officers conducted an unreasonable search and seizure of Plaintiff and his property when they detained him inside of Chili’s prior to his arrest. The United States Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968) clearly defined the rights of citizens and police officers during an investigatory detention. In Terry, the Court carefully scrutinized individuals’ Fourth Amendment rights and the rights of police officers. The Court first recognized that “whenever a police officer accosts and individual and restrains his freedom to walk away, he has ‘seized’ that person.” Terry, 392 U.S. at 16. The Court continued by stating that an officer subjects an individual to a search even when he merely pats down the outside of an individual’s clothing. Id. at 19. The Court concluded by stating:
    We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangers, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

    Id. at 30.
    1. Unreasonable Seizure of Plaintiff
    In the forty-one years since the Terry decision, various courts have further clarified the holding in Terry with respect to a constitutional seizure. A seizure by means of an investigative detention is constitutional “if [the police] have a reasonable and articulable suspicion that an individual is involved in criminal activity.” U.S. v. Rivera, 353 Fed. Appx. 535, 536 (2d Cir. 2009). The Second Circuit has held that reasonable suspicion is “not a high threshold”. United States v. Lawes, 292 F.3d 123, 127 (2d Cir. 2002). However, “the Fourth Amendment imposes some minimal level of objective justification to validate the detention or seizure.” INS v. Delgado, 466 U.S. 210, 214 (1984). It is not enough that an officer has an “inchoate and unparticularized suspicion or hunch.” Alabama v. White, 496 U.S. 325, 329 (1990) (quoting Terry v. Ohio, 392 U.S. at 27). In justifying an investigatory detention, the totality of the circumstances must demonstrate that “the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.” U.S. v. Arvizu, 534 U.S. 266, 273 (2002) (emphasis added).
    It cannot be denied that Defendant Officers seized Plaintiff when he was ordered to show his hands and when Defendant Barratt placed Plaintiff in handcuffs. At that moment, Plaintiff had been accosted and his freedom restrained. Thus, Plaintiff was seized as defined by Terry and its progeny.
    Defendant Officers cannot establish an articulable suspicion that Plaintiff had violated, was violating, or was about to violate any law when he was sitting at Chili’s. Defendants admit that carrying an open weapon in the State of Connecticut is not a crime. (Sweeney Depo. pp. 94-95; Furlong Depo. p. 141). Additionally, there were no signs at Chili’s prohibiting an individual from carrying a gun onto the premises. (See Sweeney Depo. p. 94; Furlong Depo. p. 127).
    Likewise, Defendants cannot establish an articulable suspicion that Plaintiff breached the peace. At the time of Defendant Officers’ arrival, Plaintiff was sitting silently on the bench in Chili’s take out section with his arms crossed and folded on his chest. (Furlong Depo. P. 76). Plaintiff’s gun was securely locked in its holster on his right hip, facing away from the main dining area. (See id. at 66-67, 87-88; Exhibit 5 from Furlong Depo.; Goldberg Depo. P. 58). Defendant Officers did not observe any commotion or anyone in a state of distress. (Furlong Depo. P. 74). The only other individual in the take out area was the manager who was standing in the kitchen doorway. (Id.). Conn. Gen. Stat. §53a-181 provides, in pertinent part:
    (a) A person is guilty of breach of the peace…when, with intent to cause inconvenience, 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 strikes another; or (3) threatens to commit any crime…; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter…; or (5) …uses abusive or obscene language or makes an obscene gesture; or (6) creates a public and hazardous or physically offensive condition…

    Clearly, Plaintiff did not intend to create inconvenience, annoyance or alarm and was not engaged in violent, tumultuous, threatening, obscene behavior or language, or threaten to commit any crime. In fact, Defendant Furlong admitted that Plaintiff did not engage in tumultuous behavior; assault anyone; engage in any obscene gestures or behavior; distribute any obscene materials; or act with the intent to cause annoyance, inconvenience or alarm. (Furlong Depo. P. 123).
    Moreover, Plaintiff took necessary precautions to ensure there was no risk of alarm. Plaintiff testified that he kept the gun on his person so as to not create a risk of someone dangerous stealing the gun and using it to commit a crime. (Goldberg Depo. pp. 65-67). In addition, prior to walking into the restaurant, Plaintiff covered the gun with his shirt so as to not alarm anyone. (Id. at 69-70). Plaintiff calmly and quietly sat on the bench waiting for his order with the gun facing the opposite direction of the individuals in the dining area. (See Furlong Depo. pp. 66-67; Exhibit 5 from Furlong Depo.; Goldberg Depo. p. 58). Thus, Plaintiff did not recklessly create a risk of annoyance, inconvenience or alarm and Defendant cannot establish an objective basis for suspecting that Plaintiff engaged in unlawful activity.
    Defendant Furlong’s belief that Plaintiff was reckless was not based on any objective facts. Defendant Furlong indicates that it was his own personal belief that walking in public with an exposed gun is reckless. (Furlong Depo. pp. 123-24). In fact, Defendant Furlong admits that despite the fact that Connecticut law permits an individual to carry an exposed gun, he personally believes the law to be confusing. (Id. at 141-142). Furthermore, in U.S. v. Ubiles, 224 F.3d 213 (3d Cir. 2000), the Third Circuit held that merely possessing a loaded firearm in a crowded place does not justify a search or seizure. The officers in Ubiles seized and searched the individual after receiving a tip that he was carrying a gun. Id. at 214. Similar to Connecticut, the jurisdiction in Ubiles had no applicable law prohibiting an individual from carrying a gun. Id. at 218. The Court ruled that the officers violated the individual’s Fourth Amendment rights, noting that “as dangerous as firearms may be,” that does not “justify an officer in stopping a suspect….” Id. at 217.
    Similarly, other courts have found that lawfully possessing a loaded gun in public does not rise to the level of articulable suspicion as required by Terry. See U.S. v. King, 990 F.2d 1552 (10th Cir. 1993); St. John v. McColley, et al., 653 F.Supp.2d 1155 (D.N.M 2009). In King, the Tenth Circuit held that possession of a loaded gun does not give rise to articulable suspicion. King, 990 F.2d at 1559. The Court rejected the argument that the officer’s investigatory detention was warranted due to the safety concerns for himself and others around:
    In a state such as New Mexico, which permits persons to lawfully carry firearms, the government’s argument would effectively eliminate Fourth Amendment protections for lawfully armed persons. Moreover, the government’s reasonableness standard would render toothless the additional requirement that the scope and duration of detention be carefully tailored to its underlying justification. For example, if a police officer’s safety could justify the detention of an otherwise lawfully armed person, the detention could last indefinitely because a lawfully armed person would perpetually present a threat to the safety of the officer.

    Id. at 1559 (internal quotation marks and citations omitted). Likewise, in St. John, the Court granted summary judgment to the plaintiff due to police officers’ violations of his Fourth Amendment rights. St. John, 653 F.Supp.2d at 1166. The plaintiff in St. John went into a theater wearing a holstered handgun. Id. at 1158. Upon being notified by an employee at the theater, the police seized the plaintiff and escorted him out of the theater. Id. The Court held “ecause New Mexico law allows individuals to openly carry weapons in public – and Mr. St. John had nothing to arouse suspicion, create tumult or endanger anyone’s well-being – there were no articulable facts to indicate either criminal activity or threat to safety. Accordingly, Defendants’ seizure of Mr. St. John violated his Fourth Amendment rights.” Id. at 1162-63. In the instant matter, Defendants have pointed to no objective basis for having a reasonable suspicion that Plaintiff engaged in unlawful activity.
    Similarly, Defendant Officers did not have the requisite articulable suspicion to seize Plaintiff’s handgun and pistol permit. Because Defendant Officers were unreasonable in detaining Plaintiff, they were unreasonable in seizing his property. As such, Defendant Officers violated Plaintiff’s Fourth Amendment right when they deprived him of his property.
    Based on the above arguments, it is apparent that there is no genuine issue of material fact that Defendants violated Plaintiff’s Fourth Amendment right to be free from unreasonable seizure. Therefore, summary judgment should be granted in Plaintiff’s favor.
    2. Unreasonable Search
    If an officer has articulable suspicion that an individual who has been detained for investigatory purposes is armed and dangerous, the officer may conduct a search of that individual. U.S. v. Padilla, 548 F.3d 179, 187 (2d Cir. 2008). However, to justify such search, it must be “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, surpa at 20. As demonstrated above, Defendants’ seizure of Plaintiff was not a valid investigatory detention. Accordingly, the resulting search of Plaintiff was invalid. See St. John, supra at 1163.
    In addition, Defendants cannot show that Plaintiff was armed and dangerous as required. See Padilla, 548 F.3d at 187. Plaintiff was clearly not dangerous as upon realizing Defendant Officers were coming towards him, he immediately put his hands in the air, identified himself, informed them that he had a gun with 15 rounds and none chambered. (Goldberg Depo. p. 81). Thus, there are no genuine issues of material fact, and Plaintiff is entitled to summary judgment for Defendants’ violations of his Fourth Amendment rights.
    D. Defendants Furlong, Barratt and Lee Violated Plaintiff’s Constitutional Rights in Unlawfully Placing Him Under Arrest.

    Defendant Officers unlawfully placed Plaintiff under arrest as they had no probable cause to justify arresting and subsequently charging Plaintiff with breach of the peace. “The Fourth Amendment “guarantees citizens the right ‘to be secure in their persons against unreasonable… seizures' of the person.” Faubel v. City of Stamford, Civ. Act. No. CV085012985, 2010 WL 744930, *5 (J.D. Fairfield Jan. 25, 2010)(quoting Graham v. Connor, 490 U.S. 386, 394 (1989). The Second Circuit has ruled “In analyzing § 1983 claims for unconstitutional false arrest, we generally looked to the law of the state in which the arrest occurred.” Jaegly v. Couch, 439 F.3d 143, 152, (2d Cir. 2006) (citations omitted). Connecticut law defines false arrest as “the unlawful restraint by one person of the physical liberty of another.” Russo v. City of Bridgeport, 479 F.3d 196, 204 (2d Cir. 2007). To establish a claim for false arrest, Plaintiff must demonstrate “the defendant intentionally confined him without his consent and without justification.” Winter v. Northrop, 2008 WL 410428 (D.Conn. Feb. 12, 2008). Because Plaintiff’s arrest was without a warrant, he must show that the officers lacked probable cause for his arrest. Beinhorn v. Saraceno, 23 Conn. App. 487, 490 (1990).
    The first element to Plaintiff’s false arrest claim is easily established. Plaintiff did not consent to being handcuffed, arrested or taken to the police station. (See Furlong Depo. p. 87). Plaintiff can establish that Defendant Officers did not have justification for his arrest. First, the charges against Plaintiff were dismissed. (Furlong Depo. p. 143).
    Second, Plaintiff can easily establish that Defendant Officers did not have probable cause to arrest him. The determination of whether probable cause exists “depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of arrest. Devenpeck v. Alford, 543 U.S. 146, 152 (2004). “An officer has probable cause to arrest when he or she has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Jaegly, supra at 152. Probable cause “presents a question of law that must be determined by the court.” Faubel v. City of Stamford, et al., No. CV085012985, 2010 WL 744930, *6 (J.D. Fairfield Jan. 25, 2010) (citing Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 94 (2007), Vandersluis v. Weil, 176 Conn. 353, 356 (1978), McMahon v. Florio, 147 Conn. 704 (1960)).
    Probable cause requires more than that which is required for articulable suspicion for an investigative detention. State v. Madison, 116 Conn. App. 327 (2009). As demonstrated above, Defendants did not even have articulable suspicion in order to conduct an investigative stop. Accordingly, there was no probable cause for Plaintiff’s arrest.
    Assuming arguendo that this Court finds Defendant Officers had articulable suspicion to conduct an investigatory detention, Plaintiff can still establish that there was no probable cause for his arrest. The Second Circuit has found no probable cause for an arrest of breach of peace in circumstances far more alarming than the present matter. In Gagnon v. Ball, et al., 696 F.2d 17 (1982), the Court upheld a jury verdict finding defendant officers liable for unlawful arrest. In Gagnon, the plaintiff was sitting in her home when a man undressed himself in front of her door. Id. at 19. Plaintiff grabbed a pellet gun and chased the man. Id. The defendant police officers drove by in route of regular patrol. Id. Upon seeing the police car, the plaintiff ran towards them shouting and waiving her gun. Id. The plaintiff was placed under arrest and charged, inter alia, with breach of the peace. Id. In ruling that the defendants did not have probable cause, the court determined that it was not a violation of the statute to act in the manner that she did. Id. at 20.
    In the instant case, Plaintiff did nothing more than walk into Chili’s restaurant with his gun securely locked in the holster on his hip. Defendant Officers admit that Plaintiff was not threatening and did not assault anyone, act in a hostile or violent manner. (Furlong Depo. pp. 86-87, 123; Sweeney Depo. p. 93). Plaintiff did not at any time flash or waive his gun; it remained safely locked in his holster. (See Sweeney Depo. p. 93; Furlong Depo. pp. 87-88). In addition, the witness indicated to Defendant Furlong that she was not physically threatened by Plaintiff. (Id. at 103).
    In Sabir v. Jowett, 214 F.Supp.2d 226 (D.Conn. 2002), the Court upheld a jury verdict finding no probable cause for an arrest of breach of the peace. In Jowett, the plaintiff was at a casino and went to the credit office to request a reimbursement. Id. at 234. The casino host testified that the plaintiff was loud and using profanity. Id. The police officers testified that upon questioning the plaintiff, he became belligerent and loud and also took steps away from the officers.
    Unlike the plaintiff in Jowett, Defendant Furlong admits that Plaintiff was calm and cooperative. (See Furlong Depo. pp. 74-87). Prior to Defendant Officers’ arrival, Plaintiff calmly and quietly ordered his food and sat silently by himself waiting for his order. (See id. at 103; Goldberg Depo. pp. 55-58).
    Defendant Furlong testified that he based his determination of probable cause to arrest Plaintiff on two factors: (1) the fact that Plaintiff was carrying an unconcealed weapon in public; and (2) his interview of the Chili’s manager. As demonstrated above, simply carrying an open weapon in the State of Connecticut does not rise to the level of articulable suspicion, let alone probable cause. Second, Defendant Furlong’s interview of the Chili’s manager, even if his recitation of the events were true, does not satisfy the probable cause standard.[2] Defendant Furlong did not corroborate what the manager allegedly said to him. (Furlong Depo. pp. 94-96). Further, the fact that the Chili’s manager was allegedly “upset” by Plaintiff wearing a gun on his hip does not rise to the level of breach of peace.
    E. Defendants Furlong, Barratt and Lee Used Excessive Force in Striking Plaintiff’s Head Against the Wall and Handcuffing Plaintiff.

    It is well-settled that individuals are protected by the Fourth Amendment against the use of unreasonable or excessive force during the course of an arrest and investigatory detention, a. See Graham v. Conner, 490 U.S. 386 (1989); U.S. v. Vargas, 369 F.3d 98 (2d Cir. 2004); Lowth v. Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996). The use of force by a police officer violates the fourth Amendment if it is unreasonable under the circumstances. Anderson v. Branen, 17 F.3d 552, 558 (2d Cir. 1994). The inquiry into whether the force used by officers is objective, “without regard to their underlying motives or subjective intent.” Frobel v. County of Broome, 419 F.Supp.2d 212, 220-221 (N.D.N.Y. 2005) (citing Anderson v. Branen, 17 F.3d 552, 558 (2d Cir. 1994)). The United States Supreme Court has described factors in determining whether the force used was unreasonable: “whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. Additionally, the Second Circuit has held that “under ordinary circumstances, drawing weapons and using handcuffs are not part of a Terry stop.” Vargas, 369 F.3d at 102.
    In the instant matter, it is undisputed that Plaintiff was not threatening Defendant Officers or other individuals. In addition, it is undisputed that Plaintiff was compliant and not resisting arrest or attempting to evade arrest. It was clearly unreasonable for Defendant Officers to grab Plaintiff, spin him around, strike his head against the wall, and handcuff him during their investigatory detention. There is no justifiable reason to injure an individual in conducting an investigatory detention or arresting him. Therefore, Plaintiff is entitled to summary judgment on his excessive for claim as no genuine issues of material fact exist.
    F. Defendant Glastonbury is Liable to Plaintiff for His False Arrest and Unreasonable Search and Seizure Due to Its Failure 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) (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 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 ). 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.
    III. 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.

    [1] Although Defendant Michael Furlong is officially a Sergeant with the Town of Glastonbury Police Department, for ease of identification, in this Memorandum, Plaintiff will refer to the three individual defendants as “Defendant Officers”.

    [2] Defendant Furlong claims that the Chili’s manager stated “that she was upset and alarmed over the incident…that she believes other employees and customers were upset and alarmed as well.” (Furlong Depo. p. 95). However, this claim is suspect for three main reasons. First, the dispatch tape from her 911 call merely requested whether it was legal to carry an unconcealed weapon. (Sweeney Depo. pp. 70-71). Second, Defendant Furlong did not request the identity of the other individuals he claims the manager “believed” were upset, nor did he interview any of these allegedly upset individual. Last, Defendant Furlong did not take any notes during his interview with the Chili’s manager; thus, there is no documentary evidence regarding the interview.





    PLAINTIFF’S LOCAL RULE 56(a)(1) STATEMENT

    [b] Plaintiff, through his undersigned counsel, hereby supply this Local Rule 56(a)(1) statement of material facts on which it is contended that there is no genuine issue to be tried.
    1. As of June 21, 2007, Plaintiff had a valid hand gun permit. Furlong Depo. p. 102).
    2. On June 21, 2007, Plaintiff went into Chili’s Restaurant to order take out food. Goldberg Depo. pp. 54-55).
    3. Plaintiff entered Chili’s Restaurant with a holstered .40 caliber Glock pistol. (Id.; Furlong Depo. Pp. 66-67).
    4. A manager at Chili’s Restaurant called 911 and inquired whether it was illegal to carry a gun in the open. (Sweeney Depo. pp. 70-71).
    5. The manager at Chili’s indicated that Plaintiff did not physically threaten her. (Furlong Depo. p. 103).
    6. Defendants, Officer Simon Barratt, Officer Kenneth Lee, and Sergeant Michael Furlong (hereinafter referred to as “Defendant Officers”[1]) responded to the dispatcher’s call. (Furlong Depo. pp. 44-45, 53).
    7. Upon arrival, Defendant Officers entered the take out section of Chili’s. (Id. at 64-67).
    8. Defendant Officers observed Plaintiff sitting silently on a bench in the take out section. (Id.).
    9. Defendant Furlong noticed Plaintiff had a holstered gun on his right hip, which faced away from the regular dining area. (Id.; Exhibit 5).
    10. There were no other individuals in the take out waiting area where Plaintiff sat, except for the manager who was in the kitchen doorway. (Id. at 73-74).
    11. Defendant Officers then instructed Plaintiff to stand up, and Plaintiff immediately complied. (Id. at 82).
    12. At no time did Plaintiff resist Defendant Officers or act in a hostile or violent manner. (Furlong Depo. pp. 86-87).
    13. Defendant Officers then confiscated and seized Plaintiff’s handgun and pistol permit, and placed Plaintiff under arrest for breach of the peace. (Id. at pp. 100-108).
    14. Plaintiff was thereafter escorted out of the restaurant and placed in the back of Defendant Barratt’s patrol car. (Id. at 128-130).
    15. Plaintiff was subsequently taken to the Glastonbury Police Station and finally released from his handcuffs. (Id. at 128-132).

    [1] Although Defendant Michael Furlong is officially a Sergeant with the Town of Glastonbury Police Department, for ease of identification, in this Motion, Plaintiff will refer to the three individual defendants as “Defendant Officers”.

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    Anyone attend? How'd it go?

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    yea i wanna know what happen as well. Down here in Stamford police still think it's illegal

    Quote Originally Posted by beanoboy7 View Post
    Anyone attend? How'd it go?

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    On to the Second Circuit

    The judge ruled in Glastonbury's favor on the premise that openly carrying a weapon in a family restaraunt is just cause to detain and investigate.

    An expedited transcript has been ordered and the decision will be appealed to the Second Circut Court of Appeals in New York.

    More will be posted on this topic when the transcript is received from the court for all to read.

  11. #11
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    Quote Originally Posted by Edward Peruta View Post
    The judge ruled in Glastonbury's favor on the premise that openly carrying a weapon in a family restaraunt is just cause to detain and investigate.
    That is BS! Another bad decision that comes out of the Connecticut courts that needs to settled in a higher court!

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    Quote Originally Posted by Lenny Benedetto View Post
    That is BS! Another bad decision that comes out of the Connecticut courts that needs to settled in a higher court!
    True enough, when you can't even rely on the courts to uphold the wording of the LAW and just make it up as they go along then the whole justice system is shot.

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    Somehow I am not suprised. I look forward to reading more. Thank you Mr. Peruta for providing us with this information.

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    Unbelieveable..., and furthermore, nothing tells me that The New York Second Circuit Federal Court will rule any different!
    Last edited by aadvark; 09-18-2010 at 11:29 AM.

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    Wait till you read the transcript of this hearing

    When the court transcript is obtained and posted the case will get very interesting to say the least.

    The topics were diverse in the arguments made, and the opinions of the judge are very clear.

    It was hard to sit through the argument and not come away in total disbelief at what the court believes happened and the opinions expressed from the bench.

    I'm not an attorney, but I know that the judge got it wrong.

    If you think you're upset or confuse now, wait till you read the transcript which has been ordered on an expedited basis.

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    So what happens next, and would a new State AG help?

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    Keep these facts in mind for future reference

    When the transcript is posted, consider these facts:

    On June 21, 2007, there was no evidence of fear or alarm in the initial or subsequent 911 communications between the complainant and the Glastonbury Police Dispatch center employees.

    On June 21, 2007, there were NO patrons seated in the closed dining area on the west (takeout) side of the restaurant.

    On June 21, 2007, members of the Glastonbury Police Department embellished the true facts while documenting the events at chili’s and preparing their report on the incident.

    On June 21, 2007, the female Glastonbury dispatch center employee demonstrating no concern over the situation during the original 911 call received, laughed when asked a question by the Chili’s manager, and then proceeded to end the call.

    On June 21, 2007, it was well established police protocol to NOT hang up on a “MAN WITH A GUN” call.

    On June 21, 2007, James Goldberg was conducting himself in a professional and legal manner during his time in Chili’s.

    On June 21, 2007, James Goldberg immediately recognized and submitted to the authority of the arriving members of law enforcement and promptly announced the fact that he was in possession of a weapon and had a weapon and a permit to carry.

    On June 21, 2007, after verifying that James Goldberg was in possession of a VALID Permit to Carry Pistols and Revolvers, should have immediately released him from custody, (during what they contend was a Terry Stop), based on the fact that there was no signs or request by Chili's which entitled him to carry the firearm OPENLY or CONCEALED at and in that location.

    On June 21, 2007, the three responding members of the Glastonbury Police Department knew that OPENLY carrying a firearm by a person with a valid permit was permitted and legal under provisions of Connecticut law.

    On June 21, 2007, well established provisions of the Connecticut General Statutes allowed for the issuance of a summons for Breach of Peace in the second degree without the need to take an accused into custody for processing.

    On June 21, 2007, there was no provision contained in the Connecticut General Statutes which allowed for the seizure of a valid permit to be seized or confiscated by local law enforcement personnel.

    On June 21, 2007, Terry v. Ohio was established case law regarding the circumstances under which a person may be approached, detained, and searched.

    Regardless of whether or not Heller or McDonald had been decided, James Goldberg’s Second Amendment rights were in place, no different than those enjoyed by Mr. Maloney in Maloney v. Cuomo which was decided post McDonald on June 29, 2010.

    P.S.
    On June 21, 2007, the complainant manager of chili’s was so upset and alarmed that she asked the police if she could complete the sale of chicken wings to the accused prior to his being transported to the police station.
    Last edited by Edward Peruta; 09-19-2010 at 11:00 AM.

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    Regular Member KIX's Avatar
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    no wings are that good!

    Judicial activism at its best.

    Jonathan

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    Angry

    Guess the Glastonbury 'police' will act and respond the same when a LAW ABIDING citizen is carrying a firearm and a MWAG call comes in. And don't think other local PD's aren't watching this case either!! Can't tell you how P**SED off I am right now. Is there not any justice in this friggin state anymore............

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    sounds like maybe an open carry event is in order perhaps in the Glastonbury area...Hmmmm?

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    Scotus

    After reading this thread and seeing with my own eyes the ruling of this idiotic "judge" I feel quite certain this case will wind up in the laps of the supremes. I only hope We still have a conservative majority still sitting by the time it winds its way up the hill.
    Last edited by Thos.Jefferson; 09-19-2010 at 02:52 AM.
    He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent which will reach to himself. -- Thomas Paine (1737--1809), Dissertation on First Principles of Government, 1795

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    Thumbs up

    Will the NRA support this case? OR get involved? because the more support the better the outcome. this why i paid membership fee too protect my rights from these type of judges. I should not even pay too protect my rights. but its all for a cause. and you see the system is not backing us up. guys i'am just trying to help Mr.GOLDBERG. and he needs our support more than ever. CARRY ON!
    Last edited by Alex.EastHartford.; 09-19-2010 at 09:28 AM.

  23. #23
    Regular Member KennyB's Avatar
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    Quote Originally Posted by Ctclassic View Post
    sounds like maybe an open carry event is in order perhaps in the Glastonbury area...Hmmmm?
    X2!!!

    I'm in.

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    12 Months earlier on September 17th 2009

    Everyone needs to remember that the Second Circuit Court of Appeals in a related case inquired of the Assistant Attorney General if OPEN carry was legal in CT.

    The Second Circuit is well aware of the fact that Connecticut's Constitution addresses the right to keep and bear arms.

    Attorney Baird offered this fact to the three judge panel and they in fact asked several questions and made several statement regarding same in the appeal they were hearing in Goldberg v. Danaher on 9.17.09.

    When the transcript of Friday's hearing is posted you will see that Attorney Rachel Baid did a fantastic job of presenting these issues to the court and preserved the issues for any appeal to the Second Circuit Court of Appeals.



    So again, I am posting the issues that need to be appealed to the Second Circuit with mention of the discussions that took place before them in 2009.

    As for the NRA or any other group getting involved to support this case, I can only suggest that EVERYONE with a permit to carry in CT has an interest in this case.

    Here are the newly edited fact as I see them:

    Keep these facts in mind for future reference
    When the transcript is posted, consider these facts:

    On June 21, 2007, there was no evidence of fear or alarm in the initial or subsequent 911 communications between the complainant and the Glastonbury Police Dispatch center employees.

    On June 21, 2007, there were NO patrons seated in the closed dining area on the west (takeout) side of the restaurant.

    On June 21, 2007, members of the Glastonbury Police Department embellished the true facts while documenting the events at chili’s and preparing their report on the incident.

    On June 21, 2007, the female Glastonbury dispatch center employee demonstrating no concern over the situation during the original 911 call received, laughed when asked a question by the Chili’s manager, and then proceeded to end the call.

    On June 21, 2007, it was well established police protocol to NOT hang up on a “MAN WITH A GUN” call.

    On June 21, 2007, James Goldberg was conducting himself in a professional and legal manner during his time in Chili’s.

    On June 21, 2007, James Goldberg immediately recognized and submitted to the authority of the arriving members of law enforcement and promptly announced the fact that he was in possession of a weapon and had a weapon and a permit to carry.

    On June 21, 2007, after verifying that James Goldberg was in possession of a VALID Permit to Carry Pistols and Revolvers, should have immediately released him from custody, (during what they contend was a Terry Stop), based on the fact that there were, (on June 21, 2007), no posted signs or requests made by anyone employed by Chili's which therefore entitled him to carry the firearm OPENLY or CONCEALED at and in that location.

    On June 21, 2007, and to this date, there are NO signs, or known corporate policies which prohibit the carrying of firearms in the Chili's in Glastonbury CT.

    On June 21, 2007, the three responding members of the Glastonbury Police Department knew that OPENLY carrying a firearm by a person with a valid permit was permitted and legal under provisions of Connecticut law.

    On June 21, 2007, well established provisions of the Connecticut General Statutes allowed for the issuance of a summons for Breach of Peace in the second degree without the need to take an accused into custody for processing.

    On June 21, 2007, there was no provision contained in the Connecticut General Statutes which allowed for the seizure of a valid permit to be seized or confiscated by local law enforcement personnel.

    On June 21, 2007, Terry v. Ohio was established case law regarding the circumstances under which a person may be approached, detained, and searched.

    Regardless of whether or not Heller or McDonald had been decided, James Goldberg’s Second Amendment rights were in place, no different than those enjoyed by Mr. Maloney in Maloney v. Cuomo which was decided post McDonald on June 29, 2010.

    P.S.
    On June 21, 2007, the complainant manager of chili’s was so upset and alarmed that she asked the police if she could complete the sale of chicken wings to the accused prior to his being transported to the police station.
    Last edited by Edward Peruta; 09-19-2010 at 11:19 AM.

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    Quote Originally Posted by Ctclassic View Post
    sounds like maybe an open carry event is in order perhaps in the Glastonbury area...Hmmmm?
    Judge Stefan Underhill is considered one of the smartest judges on the federal bench in Connecticut. He is very sharp. I will read the transcript when it is out but I have to say that -- in my opinion -- the brief written by Goldberg's attorneys was not very good. He absolutely needs a better brief with a more powerful presentation of the facts for appeal.

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