NO. AC 31142 : APPELLATE COURT :
EDWARD A. PERUTA : STATE OF CONNECTICUT
COMMISSIONER OF PUBLIC SAFETY,
ET AL. : JUNE 3, 2011
MOTION FOR RECONSIDERATION OR, IN THE ALTERNATE, FOR RECONSIDERATION EN BANC
The Plaintiff-Appellant Edward A. Peruta hereby moves, pursuant to Practice Book § 71-5 for reconsideration or, in the alternative, for reconsideration en banc of this Court’s decision in the above-captioned matter, officially released May 24, 2011.
PREFATORY STATEMENT/SUMMARY OF THE ARGUMENT
Individual core fundamental Second Amendment constitutional rights are violated every day in this State and the entirety of the burden for finding a remedy has rested, not on the government, not on the courts, and certainly not on the Department of Public Safety, but on individuals, such as the Plaintiff below, who holds no position of authority or accountability but is left with the responsibility that the government has abdicated.
I. BRIEF HISTORY OF THE CASE
This is an appeal from the Superior Court’s ruling granting the Defendant’s motion to dismiss for lack of subject matter jurisdiction. The Plaintiff-Appellant Edward A. Peruta (“Peruta” or “Plaintiff”) brought an Action for Declaratory Judgment by way of Complaint filed December 3, 2007, in the Judicial District of New Britain, seeking a determination of his right to openly carry a pistol or revolver when in possession of a valid state permit and not on premises where carrying a pistol or revolver is prohibited by the premises owner or by law. The Superior Court determined that Peruta’s request for Declaratory Judgment was subject to exhaustion through the administrative remedies provided in General Statutes §§ 4-175, 4-176 and dismissed the Complaint for failure to so exhaust.
In his main Brief on appeal at Section II encompassing Subsections A through D, inclusive, set forth in pages 5 through 18, Peruta affirmatively requested review under State v. Golding, 213 Conn. 233 (1989), on his Second Amendment constitutional claims and argued his entitlement to such a review. His request arose from a circumstance that had not occurred in more than forty years, specifically, that while his case was on appeal the United States Supreme Court incorporated a core fundamental constitutional right through the Fourteenth Amendment to the States. See Pl.’s Br. at 4 (“While this case was pending on appeal, the United States Supreme Court, in McDonald v. City of Chicago, Illinois, __ U.S. __, 130 S.Ct. 3020 (2010), incorporated the Second Amendment individual right to keep and bear arms through the Due Process Clause of the Fourteenth Amendment as fully applicable to the States.”).
This Court heard oral argument on January 4, 2011. At oral argument the Court did not address or alert counsel to any inadequacy in the briefing on the constitutional claims raised under Golding. The Court then concluded in its May 24, 2011, decision: “[T]he plaintiff’s claim of a new constitutional right is inadequately briefed, and, accordingly, we decline to review the plaintiff’s unpreserved claim pursuant to the exceptional circumstances doctrine.” Peruta v. Commissioner of Public Safety, __ A.3d __, 2011 WL 1848841, at *4 (App. Ct. May 24, 2011). Peruta moves for reconsideration of this conclusion and asks the Appellate Court to clarify a statute or remand so that the Superior Court may clarify a statute that has been described by the Commissioner as “ambiguous” but which nonetheless results in a potential loss of liberty for an individual alleged to be in violation of the “unwritten law” in Connecticut that the open carry of a pistol or revolver (by an individual holding a valid permit and not on premises where carrying a pistol or revolver is prohibited by the premises owner or by law) is cause for detention and arrest. Conn. Gen. Stat. § 29-35. The immediacy of this issue in Connecticut and the danger created by the government’s avoidance of the issue, both in the courts and at the administrative level, leaves individuals vulnerable to arrest for the mere exercise of a Second Amendment right.
II. STATEMENT OF FACTS
Peruta possesses a permit issued by the state of Connecticut to carry pistols or revolvers (“state permit”) pursuant to Chapter 529 of the General Statutes. Conn. Gen. Stat. § 29-28(b). He travels throughout the State. A person holding a state permit is not prohibited by state statute from carrying a pistol openly. The Department of Public Safety (DPS) and municipal law enforcement agencies in Connecticut prohibit, under threat of arrest, state permit holders from openly carrying a pistol. When such an arrest occurs, the DPS revokes the holder’s state permit based upon the arrest. This deprives the individual his or her right to self-defense in case of confrontation.
III. LEGAL GROUNDS
Contrary to the Appellate Court’s statement of the issue in its decision, Peruta did not file an Action for Declaratory Judgment seeking an “unequivocal declaration that he will not be arrested for openly carrying a firearm.” Peruta, WL1848841, at *7(“To the extent that the plaintiff seeks an unequivocal declaration that he will not be arrested for openly carrying a firearm, it is not the department's lack of authority that keeps the plaintiff from the remedy he seeks; rather, it is a consequence of the question's indefinite parameters.”). Peruta requested a determination of his right to openly carry a pistol or revolver when in possession of a valid state permit and not on premises where carrying a pistol or revolver is prohibited by the premises owner or by law. This is no different than asking whether an individual will be arrested in the State for smoking a cigarette when the individual is over the age of eighteen years and not on premises where smoking a cigarette is prohibited by the premises owner or the law. There are few if any unequivocal answers or issues in the law; however the law, i.e. the courts, must still interpret the law for individuals whose only guidance is the plain language of the law which law enforcement expands upon when the issue regards the right to keep and bear arms in self-defense. In this case, the burden has fallen on an individual, the Plaintiff in this action, to clarify the law for an entire State while the administrative agency and the courts shift the responsibility from one to the other.
For example, while this appeal was pending Peruta asked the DPS for a declaratory ruling on the same issue of open carry as set forth in his Complaint. The DPS informed Peruta that it could not respond while an appeal was pending. No law, regulation, or policy exists that would have prevented the DPS from responding to the request. See Peruta, WL 1848841, at *3 n. 11 (“In addition, the department’s letter was written by a member of its legal affairs unit and expressly refused to provide answers to his questions because the plaintiff’s appeal from the dismissal of his action for declaratory relief in the Superior Court was pending before this court.”). The DPS’s intent to avoid clarification of the “ambiguous” language in General Statutes § 29-35 unless the statute is amended to prohibit open carry could not be more evident. Meanwhile, individual core fundamental Second Amendment constitutional rights are violated every day in this State and the entirety of the burden for finding a remedy rests, not on the government, not on the courts, and certainly not on DPS, but on individuals, such as the Plaintiff, who holds no position of authority or accountability but is left with the responsibility that the government has abdicated.
B. The Incorporation of the Second Amendment to the States
In McDonald v. City of Chicago, Illinois, 561 U.S. __, 130 (2010), the Supreme Court incorporated the Second Amendment individual right to keep and bear arms through the Due Process Clause of the Fourteenth Amendment as fully applicable to the States. The Supreme Court had not incorporated a right guaranteed under the first eight amendments to the United States Constitution for more than forty years when the McDonald decision issued on June 28, 2010. The last such case preceding McDonald was Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), incorporating the Fifth Amendment bar against double jeopardy to the States through the Fourteenth Amendment.
The “right to keep and bear arms” is “among those fundamental rights necessary to our system of ordered liberty.” McDonald, 130 S.Ct. at 3043. A fundamental right, such as the right to keep and bear arms, is “enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” McDonald, 130 S.Ct. at 3035. While “‘longstanding regulatory measures’” such as “‘prohibitions on the possession of firearms by felons and the mentally ill,’” “‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms’” are not imperiled by incorporation, limitations on the legislative freedom and policy choices of the States and restrictions on “‘experimentation and local variations’” are necessary consequences of the “‘enshrinement of constitutional rights.’” McDonald, 130 S.Ct. at 3050 (quoting Heller, 128 S.Ct. at 2816-2817). “This conclusion is no more remarkable with respect to the Second Amendment than it is with respect to all the other limitations on state power found in the Constitution.” McDonald, 130 S.Ct. at 3050.
In an Amicus Curiae Brief submitted on May 27, 2011, to the United States Court of Appeals for the Ninth Circuit in Edward Peruta v. County of San Diego, No. 10-56971 (9th Cir.), the National Rifle Association (NRA) articulates support in Heller, McDonald, and Nordyke v. King, __ F.3d __, 2011 WL 1632063 (9th Cir. May 2, 2011), for the evident principle that the Second Amendment right to keep and bear arms is no less a fundamental constitutional right than other constitutional rights. See NRA Br. at 10 (citing Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 484 (1982)). Consequently, there is “no basis to review any regulations that burden that right, let alone those that burden it substantially, under anything less demanding than the strict scrutiny that governs restrictions upon exercise of other fundamental rights.” NRA Br. at 11.
By requiring courts to focus on the burden a regulation imposes, rather than the strength of the Second Amendment “interest” at stake, the substantial burden test precludes courts from “constrict[ing] the scope of the Second Amendment in situations where they believe the right is too dangerous.” Nordyke, 2011 WL 1632063 at *4; seealsoHeller, 554 U.S. at 634 (“A constitutional guarantee subject to future judges‘ assessment of its usefulness is no constitutional guarantee at all.”). Because the district court‘s analysis in this case achieved precisely that forbidden result, it plainly cannot stand.
NRA Br. at 14. By any understanding of the scope of Second Amendment rights, an
“unwritten law” in Connecticut or any other State that the open carry of a pistol or revolver (by an individual holding a valid permit and not on premises where carrying a pistol or revolver is prohibited by the premises owner or by law) is cause for detention and arrest, imposes a substantial and unconstitutional burden on the Second Amendment‘s core lawful purpose of self-defense. See NRA Br. at 14-15. No declaratory ruling by the DPS or by the more than one-hundred (100) law enforcement agencies in Connecticut not subject to the direction or authority of DPS in determinations of probable cause for arrest arising from the open carry of a pistol or revolver (by an individual holding a valid permit and not on premises where carrying a pistol or revolver is prohibited by the premises owner or by law) will resolve uniformly the issue in Connecticut whether such detentions and arrests impose a substantial and unconstitutional burden on the Second Amendment‘s core lawful purpose of self-defense.
Requiring Peruta to file over one-hundred (100) requests for declaratory rulings from each separate law enforcement agency in Connecticut with the authority to arrest, creating the specter that each ruling may be subject to separate appeal in the Superior Court, as warranted, is a burdensome impediment to the Plaintiff’s exercise of his core fundamental Second Amendment rights to self-defense. A declaratory ruling issued by the DPS on the issue of whether the open carry of a pistol or revolver (by an individual holding a valid permit and not on premises where carrying a pistol or revolver is prohibited by the premises owner or by law) is cause for detention and arrest will be worthless in any jurisdiction in this State with an independent municipal police department. There is no record that supports the presumption that municipal law enforcement agencies view the DPS as their superior in knowledge, the interpretation of the law, or otherwise.
C. The Plain Language of General Statutes § 29-35
The plain language of General Statutes § 29-35 does not prohibit the open carry of a pistol or revolver any more than the statute prohibits the concealed carry of a pistol or revolver. When it is not implicit through stare decisis, tradition, or collective understanding of right versus wrong, the argument against presuming that the statutory silence of General Statutes § 29-35 provides notice that carrying a pistol or revolver openly constitutes criminal conduct is even more compelling, if the principle that due process mandates notice of criminal conduct can be made any more compelling than it is already. See McDonald, 130 S.Ct. at 3023 (“Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States.”). When a criminal statute prohibits open carry or concealed carry, it states so. For example:
No person shall within the District of Columbia carry either openly or concealed on his person, except in his dwelling house or place of business or on other land possessed by him, a pistol, without license therefor issued as hereinafter provided, or any deadly or dangerous weapon capable of being so concealed.
Tuten v. United States, 460 U.S. 660, 661, 103 S.Ct. 1412, 1413, 75 L.Ed.2d 359 (1983). The plain language of General Statutes § 29-35 provides notice only that carrying a pistol or revolver on one’s person in Connecticut requires a state permit. In construing a right related to a criminal statute the rule of strict construction applies. “The requirement that criminal statutes shall be strictly construed is predicated on two fundamental principles. First, the public is entitled to fair notice of what the law forbids. Second, legislatures and not courts are responsible for defining criminal activity.” State v. Cote, 286 Conn. 603, 616 (2008) (quoting State v. Skakel, 276 Conn. 633, 674-75, cert. denied, 549 U.S.1030 (2006)). The Connecticut carry law is not vague. An individual holding a state permit in Connecticut may carry openly or carry concealed a pistol or revolver. General Statutes § 29-28(e) provides:
The issuance of any permit to carry a pistol or revolver does not thereby authorize the possession or carrying of 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.
The dispositive issue is whether the location or premises owner prohibits a state permit holder from carrying a pistol or revolver. If the law allows a state permit holder to carry, whether or not the carry is open or concealed makes no difference under the law. Both are allowed to the same and equal degree.
Currently, a valid state permit holder is subject to detention and arrest at any time when openly carrying in public creating a de facto law at the whim of law enforcement. No individual in Connecticut, conducting himself or herself in compliance with General Statutes §§ 29-28(e), 29-35, openly carrying a pistol or revolver, is secure from a seizure by state or municipal government authorities at any time or in any place.
For all the foregoing reasons, the Plaintiff-Appellant Edward A. Peruta moves for reconsideration or, in the alternative, for reconsideration en banc. Reconsideration en banc is requested because of the importance of the Appellate Court’s decision which leaves Connecticut state permit holders subject to arrest and prosecution despite compliance with the laws of this State and the lawful exercise of their Second Amendment rights.
EDWARD A. PERUTA
Rachel M. Baird (Juris No. 407222)
Law Office of Rachel M. Baird
379 Prospect St
Torrington CT 06790-5238
Tel: (860) 626-9991
Fax: (860) 626-9992
CERTIFICATION OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was mailed first-class, postage-paid, on June 3, 2011, to:
Matthew B. Beizer, A.A.G.
Office of the Attorney General
110 Sherman St
Hartford CT 06105-2267
The Honorable Henry S. Cohn
Superior Court Judge, Judicial District of New Britain
20 Franklin Sq
New Britain CT 06051-2653
Rachel M. Baird
Commissioner of the Superior Court
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the foregoing Plaintiff-Appellant’s Motion complies with the provisions of Connecticut Practice Book, § 67-2.
Rachel M. Baird
Commissioner of the Superior Court
 Peruta argued also that he met to the extent possible the administrative exhaustion requirement for seeking a declaratory judgment in that the Department of Public Safety waived its jurisdiction as an agency to render declaratory rulings by not adopting regulatory guidelines as required under state statutes, that a request to the Department of Public Safety would have been futile, and finally that Peruta did file a request for declaratory ruling with the Department of Public Safety which the department failed to answer. Pl.’s Br. at Section III, pages 18-34.
 The last such case preceding McDonald was Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), incorporating the Fifth Amendment bar against double jeopardy to the States through the Fourteenth Amendment.
 Peruta was not alerted to the Appellate Court’s conclusion that the briefing on the constitutional claims was inadequate until it was too late to request from the Appellate Court an order of supplemental briefing. For example, in State v. Andre Campbell, 300 Conn. 368 (2011), the Supreme Court, sua sponte, asked the parties to file supplemental briefs. See Gosselin v. Gosselin, 110 Conn.App. 142, 153 (2008) (“Simply put, an order of supplemental briefing ordinarily may not raise a new issue unless that issue involves a question of jurisdiction, occasions of “plain error” or, though somewhat duplicative of plain error, fundamental constitutional issues. … In a number of other cases, courts have requested supplemental briefing when the claim, though raised by a party, lacked clarity or required explication in light of a consideration not addressed by the parties previously.”) (internal citations and quotations omitted).
 In proposed legislation seeking to amend General Statutes § 29-35 to prohibit open carry of a pistol or revolver the Commissioner referred to the statute as “ambiguous.” Pl.’s App. at A52-A55.
 Section 29-35(a) provides in relevant part: “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.”
Section 29-28(e) provides: “The issuance of any permit to carry a pistol or revolver does not thereby authorize the possession or carrying of 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.”
 See Pl.’s App. at A47-A51, OLR Research Report 2008-R-0238, “Gun Permit Issues”; A52-A53, Letter from Comm. Danaher to Public Safety and Security Committee at 2; A54-A56, Agency Legislative Proposal.
 Amicus Curiae Brief filed by the NRA on May 27, 2011, to the United States Court of Appeals for the Ninth Circuit in Edward Peruta v. County of San Diego, No. 10-56971 (9th Cir.), attached. See also Amicus Curiae Brief of Congress of Racial Equality Inc., Amicus Curiae Brief of International Law Enforcement Educators and Trainers Association, and the Independence Institute, Amicus Curiae Brief of Gun Owners of California, Senator H.L. Richardson (Ret.), Amicus Curiae Brief of Center for Constitutional Jurisprudence, Doctors for Responsible Gun Ownership, and Law Enforcement Alliance of America, Amicus Curiae Brief of Second Amendment Foundation, Inc., the Calguns Foundation, Inc., Adam Richards, Brett Stewart.