Edward Peruta
Regular Member
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
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
