DOCKET NO: CR11-0128328-S : SUPERIOR COURT AT NORWALK
STATE OF CONNECTICUT
DUANE T. DOUTEL : MAY 23, 2011
MOTION TO VACATE ORDER
The Defendant Duane T. Doutel (the “Defendant” or “Doutel”), by and through his
undersigned attorney and pursuant to Practice Book §§ 38-13, 38-17, hereby moves to vacate1
the Order of the Court issued on May 20, 2011, which modified the Defendant’s terms and
conditions of release to prohibit the Defendant from pursuing his application for a temporary
state permit2 or possessing firearms. At oral argument on May 20, 2011, the Court articulated
its reason for the Order as the criminal offense charged; specifically, Threatening in the
Second Degree, a violation of General Statutes § 53a-62.
I. THE MAY 20, 2011, ORDER IS UNWARRANTED IN THE ABSENCE OF A
A charge of Threatening in the Second Degree does not disqualify the Defendant from
holding a state permit under General Statutes § 29-28(b) or possessing firearms under Title 18
U.S.C § 922(g). Even if convicted of Threatening in the Second Degree, the Defendant would
not be disqualified from holding a state permit under General Statutes § 29-28(b) or
possessing firearms under Title 18 U.S.C § 922(g).
1 See State v. Manns, 91 Conn.App. 827, 833 (2005) (“He could have: (1) sought to have the order modified or
vacated by a judge of the Superior Court pursuant to Practice Book § 38-13; or (2) appealed the terms of the order to the
Appellate Court in accordance with General Statutes § 54-63g.) (internal citations and quotations omitted).
2 An Order of Protection may be issued in accordance with the statutory requirements of
General Statutes §§ 46b-38c(e), 54-1k, and 54-82k. Conn. Gen. Stat. § 53a-223.3 The
allegations and charge against the Defendant do not meet the statutory requirements for an
Order of Protection to issue. Therefore, the Defendant could not be prohibited from
possessing firearms pursuant to an Order of Protection.
The Court’s May 20, 2011, articulation of its sole basis for modifying the Defendant’s
terms and conditions of release as the charge of Threatening in the Second Degree is not
sufficient grounds to prohibit the Defendant from pursuing his application for a temporary
state permit4 or possessing firearms when even a conviction for the offense would not
disqualify the Defendant from the conduct prohibited under the Court’s May 20, 2011, Order.
The basis for any Order prohibiting the Defendant from pursuing his application for a
temporary state permit5 or possessing firearms must be founded in the alleged conduct.
II. THE EVIDENCE IS INSUFFICIENT TO PROCEED TO TRIAL
The Defendant has filed a Motion to Dismiss pursuant to General Statutes § 54-56 and
Practice Book § 41-8(5) based on the insufficiency of the evidence. The entirety of the case
relies upon a voicemail that neither the Court nor the defense has heard. As argued in the
Defendant’s Motion to Dismiss, even accepting the allegations contained in the police reports
2 Conn. Gen. Stat. § 29-28(b).3 General Statutes 53a-223(a) provides: “A person is guilty of criminal violation of a protective order when an
order issued pursuant to subsection (e) of section 46b-38c, or section 54-1k or 54-82r has been issued against
such person, and such person violates such order.”
4 Conn. Gen. Stat. § 29-28(b).
5 Conn. Gen. Stat. § 29-28(b).
and witness statements as true, which the defense does only for the purposes of the Motion to
Dismiss but not for any other purpose, the allegations do not meet the elements of Threatening
in the Second Degree.
III. THE IMPLICATION OF FIRST AND SECOND AMENDMENT RIGHTS
The dispossession of the Defendant’s right to bear arms and possess firearms in his
home based upon words uttered in a voicemail that neither the Court nor the defense has
not lawfully be accomplished under state statute.
6 Probable cause was never found for the arrest because the Defendant was not in custody at the time of his
heard,6 when the voicemail as reported by the police contains no threat of violence involving
firearms or otherwise, imposes a restriction on the speech of individuals such as the
Defendant who choose to exercise rights guaranteed under the Second Amendment.
At hearing on the instant motion the Defendant intends to present evidence that the
arrest lacked probable cause, the Defendant’s words did not constitute a threat of violence
with firearms or otherwise, and that the Order issued by the Court on May 20, 2011, was
based not on the facts but on the Court’s and the State’s determination to curtail the
Defendant’s Second Amendment rights. The State did not request nor did the Court order that
the Defendant not possess firearms or pursue his application for a temporary state permit until
the Defendant’s counsel engaged in the attached email exchange with Sergeant Arthur
Weisgerber of the Norwalk Police Department. When Sgt. Weisgerber could not prevail on
the law, he sought the intervention of the prosecution to achieve by Court Order what could
If the Norwalk Police Department had sufficient cause to allege that the Defendant
presented an imminent danger to himself or others then state statute provides a means for
seeking a warrant to prevent such danger. Conn. Gen. Stat. § 29-38c. Our Appellate Court
has ruled that even when the police have already seized firearms and the firearms are in the
evidence room it is not too late to obtain a Risk Warrant to seize the same firearms. See In re
Addie May Nesbitt, 124 Conn.App. 400, cert. denied In re Addie May Nesbitt, 299 Conn. 917
(2010). In this manner due process protections attach to the seizure and the prohibition on the
possession of firearms, including a full hearing on the matter.
The Norwalk Police Department, the State, and the Court bypassed the procedures set
forth in the Risk Warrant statute that would have afforded the Defendant due process and a
right to be heard on the Court’s Order that he not possess firearms and be disqualified from
holding a state permit.7 For this reason, the Defendant is entitled to no less procedural
protections afforded an individual subject to a Risk Warrant including a full evidentiary
hearing within fourteen (14) days. Conn. Gen. Stat. § 29-38c.
7 An individual subject to a Risk Warrant is prohibited from holding a state permit. Conn. Gen. Stat. § 29-28(b).
DUANE T. DOUTEL
BY: /s/ Rachel M. Baird
Rachel M. Baird (CT Juris #407222)
Law Office of Rachel M. Baird
379 Prospect Street
Torrington CT 06790-5238
Tel: (860) 626-9991
Fax: (860) 626-9992
The foregoing motion having been duly heard, it is hereby,
BY THE COURT
Judge/Clerk of the Superior Court
Pursuant to Practice Book § 10-14, I hereby certify that a copy of the above was mailed
postage paid first-class on May 23, 2011, to all counsel as listed below:
Office of the State’s Attorney
17 Belden Ave
Norwalk CT 06850-3303
/s/ Rachel M. Baird
Rachel M. Baird
Commissioner of the Superior