EXPECTED to be filed in Federal Court today, Burgess suit against Wallingford

DDoutel said:

Hear, hear!! The fund could be something as simple as a PayPal account administered by a trustworthy individual. Doesn't need to be anything elaborate.

Click to expand...

As long as you have mentioned it, I will post a shameless plug; there is that kind of fund set up for this case against Wallingford. I wish I could commit to helping more people, but as many people here know, those plans were also met with silence. Maybe someday I will be involved in the creation of something better. Right now, my case and the other cases cannot wait until the organizations in CT get on board.

http://withregardstorights.com/page/Donations-needed-for-Wallingford-federal-Lawsuit.aspx

If anyone wants to help and get involved in the case against Wallingford (at least financially), there is a way they can do so at the above link. Already several very committed and generous members of this forum have stepped up and helped and I really appreciate it. This case is still largely privately funded however. No organizations have made any contributions or commitments.

Anyone who is in need of help with regards to their rights in this state are fortunate to have Ed Peruta, Attorney Rachel Baird and Attorney Douglas Hall working hard to keep the state and towns accountable for their actions. I feel very fortunate and I am very appreciative. This is not a road I would wish to go down alone.

DDoutel said:

Hear, hear!! The fund could be something as simple as a PayPal account administered by a trustworthy individual. Doesn't need to be anything elaborate.

Click to expand...

It would probably need to be set up as a 501-c3 to be totally above the board. This is not about complying with some overbearing government, but rather about maintaining total transparency.

Once you acquire a decent balance, the question of who decides how much to spend and on what, comes up.

So, you see, if its something more than a single purpose fund, like Rich may have started, it gets much more complicated.
I'll talk to my father today. (He's a CPA who finished law school, but never took the Bar) and see how he thinks it should be set up and what it will cost to do.
I imagine that there would be a bd of trustees.

Don

dcmdon said:

It would probably need to be set up as a 501-c3 to be totally above the board. This is not about complying with some overbearing government, but rather about maintaining total transparency.

Once you acquire a decent balance, the question of who decides how much to spend and on what, comes up.

So, you see, if its something more than a single purpose fund, like Rich may have started, it gets much more complicated.
I'll talk to my father today. (He's a CPA who finished law school, but never took the Bar) and see how he thinks it should be set up and what it will cost to do.
I imagine that there would be a bd of trustees.

Don

Click to expand...

Excellent points, Don; I'll be interested to hear what your Dad thinks about it!

Duane

Rich - I'm guessing that this was not an oversight on your or Ms. Baird's part, but why did you say that the handgun is legally registered with the CT State Police. There is no handgun registration in CT. They keep the info when you call for the approval, but thats not a registration. Only "assault weapons" and "machine guns" as defined by CT law require registration.

Don

dcmdon said:

Rich - I'm guessing that this was not an oversight on your or Ms. Baird's part, but why did you say that the handgun is legally registered with the CT State Police. There is no handgun registration in CT. They keep the info when you call for the approval, but thats not a registration. Only "assault weapons" and "machine guns" as defined by CT law require registration.

Don

Click to expand...

Don,

Isn't that a distinction without a difference? If they keep the information, they know what you have; ergo, registration...

Duane

handguns are not required to be registered in CT. Period.

If you owned one before 95, or if you move here with handguns, the state does not know about them.

The bottom line is that if you have a handgun and for some reason are arrested, the burden is on the police to show that you acquired it illegally. There is NO burden on you to show that it was "registered".

So there is a HUGE difference. Rich's gun did not have to be registered if thats the word you want to use, to be legal.
I own machine guns which are required to be registered. That means that every July I have to fill out a form confirming ownership and location. Even if nothing changed.

But like I said. We know Rich and Ed are very adroit at parsing the law. I'm sure this was not an oversight. I'm just curious why they chose that language.

Don

The 'registration' component came from the police department who called my firearm into the state when they seized it.

There is registration in CT. They can (and will) check your serial number against their database.

Update

This link will take you to a PDF document recently obtained via FOI.

http://www.ctgunrights.com/05.Legal.State/Chief_Dortenzio_Memo.pdf

The contents of this document paint a very troubling picture of the attitudes on the part of the Wallingford Connecticut Police Chief.

The question remains as to how widely this memo was distributed in Connecticut.

This is a scanned text copy of a portion of the PDF document which contains the Wallingford Chief's opinion(s) :

May 27, 2010

A question has recently arisen about whether the existing statutory language pertaining to state issued firearms permits provides the possessor the legal right to openly carry a firearm. Very recently this has been a controversial topic with the public and many, if not most, police officers believing that the state's permits were intended solely for the carrying of concealed weapons. This posture was based on commonplace instruction as well as official state publications emanating from the Board of Firearms Permit Examiners. At present it appears that some special interest group members may be displaying unconcealed firearms in public spaces or entering commercial and government facilities seemingly to provoke a police response, create some controversy, and test the boundaries of current law.

In contrast are the aforementioned historic state publications, and some state web postings that espouse the opposite position and a number of claims within our court system that may provide some future interpretation or re-interpretation of the law. The consensus opinion at present is that current statutory law does not require the holder of a valid firearms permit to conceal the weapon.

To complicate matters a bit more, there has been some on-going dialog within our profession that while the open carrying of a firearm may be permitted, any resultant public alarm or panic may be unlawful.

There seems to be little guidance on this issue. To date, I know of no Connecticut judicial decisions, or written guidance by our State's Attorney's Office, regarding whether there is some threshold degree to which the public alarm or panic must cross before becoming actionable.

Accordingly, and until more definitive instruction is received from an authoritative legal source pertaining exclusively to Connecticut, the following department guidance is provided:

• Officers may still ask a gun bearing individual to produce their state permit, which must be carried on their person. Where the individual cannot produce the permit, a violation of C.G.S. 29-35b has occurred. This is an infraction listed within the published infraction fine schedule.

• Personnel should not arrest individuals merely for publicly carrying a firearm in plain View

• A permit to carry a firearm does not convey an unfettered right to carry a firearm. Possession of a firearm may still be prohibited in certain locations among which are certain government complexes or grounds and on private property where the property owner prohibits the possession of firearms. In the latter example, if the owner asks someone possessing a firearm to leave their property and the individual refuses, the criminal trespass statutes apply.

• Where a complaint alleges a gun bearing individual has caused panic or alarm in a public place the specific facts and circumstances of the event will determine whether an arrest for disorderly conduct is justified.

Though not controlling in Connecticut, the following recent decision in Wisconsin may provide some limited insight and guidance: On May 11, 2010, the US District Court for the Eastern District of Wisconsin in a case entitled Gonzalez v. Village of West Milwaukee, Donovan, Krafcheck, City of Chilton and Young (No. 09CV0384), granted summary judgment to the defendants and dismissed a case of interest. Gonzalez brought a §1983 claim against three officers and two municipalities over his arrests for entering retail stores while openly carrying a firearm. Gonzalez was charged with Disorderly Conduct, under Wisconsin law, in both cases. Gonzalez alleged a number of claims among which was that the officers lacked probable cause to charge Gonzalez with Disorderly Conduct. In considering the claim, the court considered the definition of Wisconsin's statute for Disorderly Conduct which provides that an individual commits disorderly conduct by "in a public or private place, engag[ing] in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance ... "

The District Court noted that in one of the retail stores, the plaintiffs open carrying of a firearm resulted in the store manager calling police and indicating that "employees were nervous, wigged out, freaked out, geeked out, something to that effect." In the other retail store, a Wal-Mart, the nervous store manager called 9-1-1 and reported she was concerned about safety in the store. The responding officer, upon arrival, found the store manager nervous and upset. The manager also related that the plaintiff so frightened another employee that "he pretended not to have the keys necessary to obtain the ammunition that plaintiff wanted to buy." The court opinion states, " ... plaintiff's conduct caused store employees to become frightened and notify their managers. The managers became frightened and called the police, who immediately responded."

The court concluded that the plaintiff did not engage in any of the conduct specifically enumerated in the statute and turned its attention to whether the defendants reasonably believed that Gonzalez' conduct was "otherwise disorderly ... under the circumstances in which the conduct tends to cause or provoke a disturbance." The District Court noted Wisconsin case law that emphasized that "it is the combination of conduct and circumstances that is crucial in applying the statute to a particular situation." The District Court, in determining that the officers did indeed have probable cause to arrest the plaintiff wrote the following in the decision: "No reasonable person would dispute that walking into a retail store openly carrying a firearm is highly disruptive conduct which is virtually certain to create a disturbance. This is because when employees and shoppers in retail stores see a person carrying a lethal weapon, they are likely to be frightened and possibly even panicky. Many employees and shoppers are likely to think that the person with the gun is either deranged or about to commit a felony or both. Further, it is almost certain that someone will call the police. And when police respond to a "man with a gun" call, they have no idea what the armed individual's intentions are. The volatility inherent in such a situation could easily lead to someone being seriously injured or killed."

The District Court also noted in the decision, "The fact that, for reasons, undisclosed in the record, the local district attorneys chose not to prosecute is irrelevant to the question of probable cause."

In Connecticut there is a similarly worded requirement in our Disorderly Conduct, Breach of Peace and Creating A Public Disturbance statutes but there are also some distinctions. For purposes ofthe open carry situation, Disorderly Conduct is probably the most relevant statute. This statute requires that the offender act "with intent to cause inconvenience, annoyance or alarm, or recklessly create a risk thereof..."

In State v. Indrisano, the Connecticut Supreme Court construed this phrase as follows:

"[T]he predominate intent is to cause what a reasonable person operating under contemporary standards would consider a disturbance to or impediment of lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm. A person acts recklessly "with respect to a result or a circumstance described by statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation."

As in Wisconsin, our local state's attorneys also seem very reluctant to prosecute any case wherein the allegation is that the defendant's open carry of a firearm resulted in public alarm.

In conclusion, employees are reminded that whether probable cause exists to support an arrest depends upon the totality of the facts and circumstances known to the officer at the time. In these types of complaints officers should carefully document all of the facts and circumstances which justify any arrest which is made. Sworn statements should be secured from both the complainant and any witnesses that clearly articulate the facts and circumstances of the incident with specific focus on the degree to which danger or panic and alarm were also present. If there is any evidence that the offending person knew that their conduct would create the risk of danger, panic or alarm and consciously disregarded that knowledge and carried on, then any evidence of such forethought should also be included in your report.

Lastly, as with all law enforcement actions but particularly with the advent of this new chapter in firearms possession, the safety of the officer and the public is of paramount concern. Approaching someone who is carrying a firearm should always be done with extreme caution.

Chief Douglas L. Dortenzio

So what do we do? Do we send him the audio from the Sulton Hearing were the BPFE clearly states that this kind of thing doesn't fly?

I have half a mind to take this document and send another letter to my state senator,

He completely ignores the fact that you can not turn something perfectly legal into a crime... I'm so fed up with this kind of crap.

I take some positive things from this. He explicitly tells his officers that "Personnel should not arrest individuals merely for publicly carrying a firearm in plain View"


We've all known that the correct answer to the question "are you trying to make a statement" is an emphatic "no" because of its relevance to breach of peace statutes.
So no new news there.

I'd say on balance, this is a good thing. In fact, had this guidance been in place when Rich was OCing in Wallingford, I'd bet he would not have been arrested.
Goldberg DEFINITELY would not have been arrested.

So this is progress.

Don

• Officers may still ask a gun bearing individual to produce their state permit, which must be carried on their person. Where the individual cannot produce the permit, a violation of C.G.S. 29-35b has occurred. This is an infraction listed within the published infraction fine schedule.

Click to expand...

Huh? On what lawful grounds can an officer ask a gun bearing individual to produce a state permit absent any knowledge that said individual does not possess such a permit? Can an officer stop and ask a driver to produce a driver's license absent any reason to otherwise detain said driver?

Statkowski said:

Huh? On what lawful grounds can an officer ask a gun bearing individual to produce a state permit absent any knowledge that said individual does not possess such a permit? Can an officer stop and ask a driver to produce a driver's license absent any reason to otherwise detain said driver?

Click to expand...

Statkowski,
I believe an officer CAN ask a person driving a MV for a license. The difference is that the law explicitly says that you must produce a MV license if asked for one by a LEO while operating a MV.

There is no statute that says you must produce a pistol permit. In fact the question of whether you must produce a PP if requested has been discussed on this forum several times with attorneys weighing in on it and their answer is that this issue is unresolved. It will take some case law to be made for there to be a definitive answer.

I have been advised that it is not necessary to provide a permit upon request unless detained for RAS. ("Am I being detained?" "Am I free to go?") I would imagine, however, that many officers would react to the refusal with arrest no matter what the law says. The issue will eventually have to be resolved by a court. I am confident the courts will rule in favor of the arrested person. It would probably be best to get Goldberg and Wallingford all resolved to establish a solid foundation first.

Not for those with a weak stomach or an aversion to being hassled.

But please notice Dortenzio uses the wording 'ask' not 'demand'. A police officer asking for ID in CT absent RAS or probable cause essentially bears the same legal weight as a homeless person asking for change.
I am sure that is why the DPS gave the advice to the CSP to not ID people simply open carrying at the Second Amendment rally at the capitol.

Its splitting hairs when the law says that you must carry a permit on yourself when carrying, but does not say you must present it. But its still the law. So I agree with you that a person refusing to show a permit would probably be arrested and if it ever got to court, would succeed.

Re this portion of your post:

Rich B said:

But please notice Dortenzio uses the wording 'ask' not 'demand'. A police officer asking for ID in CT absent RAS or probable cause essentially bears the same legal weight as a homeless person asking for change.
I am sure that is why the DPS gave the advice to the CSP to not ID people simply open carrying at the Second Amendment rally at the capitol.

Click to expand...

I just want to clarify something. EVEN WITH RAS, you do not have to present ID. More specifically, if you are not engaged in an activity that requires something like a license or a permit, you NEVER need to show ID. Even if you are under arrest or being detained with RAS.
for example. If you are the passenger in a car and the driver is pulled over and arrested. (if you are not carrying a hand gun) you do not have to show ID to anyone.
Even if, for example, you had an unloaded rifle with you in the passenger compartment of the car. You don't need a license or permit to possess a long gun in CT so you don't need to carry or present ID.

Don

p.s. I'm not saying you don't need to identify yourself in some circumstances. But you don't need to present an ID.

p.p.s. I was working the Sportsmans Show today at Blue Trails with the Appleseed folks. We were right next to the CT DEP trailer and I got talking to some very friendly Conservation Officers. One of the guys was telling me how utterly absurd it was that whenever they work with local LEOs checking hunters, the cops get all worked up and want to have their guns drawn when approaching hunters because they are armed.

Ugh

Steroids make your mind go to mush.

dcmdon said:

Its splitting hairs when the law says that you must carry a permit on yourself when carrying, but does not say you must present it.

Click to expand...

It is not splitting hairs. With no RAS, they cannot detain you. There is no law stating you must show ID (permit or otherwise) on demand. This is equivalent to saying open carry is 'splitting hairs' or 'ambiguous' because it doesn't state explicitly in the law that open carry is legal.

I just want to clarify something. EVEN WITH RAS, you do not have to present ID. More specifically, if you are not engaged in an activity that requires something like a license or a permit, you NEVER need to show ID. Even if you are under arrest or being detained with RAS.

Click to expand...

Fair enough. I will concede on that, it is my personal policy as opposed to the law.

It is splitting hairs, but that doesn't change the fact that thats what the law says.


Thats one of the things we pay lawyers for, parsing out the law and splitting hairs. Maybe I'm using the wrong term.

But in summary

I AGREE with you: If you refuse to show a PP when requested, you will probably be arrested and then the charges will probably be dismissed because they don't want to take the chance of losing and making case law.

Hi guys - I haven't posted in a while but saw this thread and decided that it was time to reenter the fray. I want to respond to what dcmdon said above:

dcmdon said:

I just want to clarify something. EVEN WITH RAS, you do not have to present ID. More specifically, if you are not engaged in an activity that requires something like a license or a permit, you NEVER need to show ID. Even if you are under arrest or being detained with RAS.

Click to expand...

If the officer does have RAS, you must produce ID or risk being charged with, at least, interfering with a police officer in the performance of his or her duties in violation of Conn. Gen. Stat. 53a-167a. That rule was established by case law despite the fact that CT does not have a statute requiring a suspect to produce ID.

In 2007, the CT Supreme Court shed light on this question when it decided the case State v. Aloi, 280 Conn. 824 (2007). That case, involving a relative of Ed Peruta (I believe we talked about this in another thread some time ago), involved a suspect who was detained under suspicion that he had comitted a crime and who refused to produce ID:

Sergeant Robert LaBonte and Officers Jay Salvatore and Jenny Keys of the Wethersfield police department] arrived at Mill Woods Park in response to Peruta's complaint and found the defendant [with mud all over his shirt] standing on public property near the fire truck․ Salvatore approached and advised the defendant that Peruta had complained that the defendant was trespassing and possibly had damaged the fire truck.  Salvatore requested that the defendant produce identification.   The defendant did not immediately hand over his identification.   The defendant also stated that he did not need to produce identification, that he was on public property and that ‘this isn't Russia.   I'm not showing you any [identification]․’ ”  State v. Aloi, supra, 86 Conn. at App. 365-66, 861 A.2d 1180.   At the conclusion of the trial, the court found the defendant guilty of several charges, including interfering with a police officer in violation of § 53a-167a.

Click to expand...

The court held that the suspect's refusal to produce ID was, indeed, within the ambit of activity that could constitute a violation of CGS 53a-167a. The court stressed that the power to compel production of ID is concomitant with a Terry stop only and even framed the question in that light:

We first must determine whether a person lawfully may be convicted of interfering with a police officer under § 53a-167a for refusing to provide identification to that police officer who is investigating possible criminal activity pursuant to a Terry stop.

Click to expand...

The court held:

Because a refusal to provide identification in connection with a Terry stop may hamper or impede a police investigation into apparent criminal activity, we see no reason why such conduct would be categorically excluded under the expansive language of § 53a-167a.

Click to expand...

So if you are stopped for OC alone and refuse to produce ID when demanded, note that you may be arrested for violation of CGS 53a-167a. however, you would likely win a motion to strike the charges against you if you could show that the officer lacked RAS for the detention (e.g. the demand was not made in connection with a Terry stop).

Now the court stated that you must produce ID but the case says nothing about whether a pistol permit must be produced. That question has yet to be decided by the courts.

guntoting lawyer,

So lets forget about guns for a second. If I am arrested and provide the officer with the correct name, address , etc, but refuse to provide ID, I am breaking the law according to the citatitions you gave?

What if I don't have ID?

This seems impossible to me. I've done a lot of reading on this and there is no requirement to "carry papers" in America, right? I"m not challenging you; I'm just astonished at this. It sounds like we need some legislation explicitly stating that you do not need to produce ID. What are the chances of that? I'm guessing less than zero.

We are getting off topic IMO. The simple fact is that there is no specific crime an officer can point to as RAS if they simply observe someone carrying a firearm openly.

When being detained unlawfully, there is requirement to do anything other than stay quiet until you speak to your lawyer.