The Goldberg Appeal Brief
Goldberg was arrested for Breach of Peace in 2007 for Openly Carrying a firearm with a Valid Pemit to do so.
Here is the Plaintiff's Appeal Brief
http://www.ctgunrights.com/0.2nd.Circuit/10-4215-cv_Goldberg_2dCirBrief_032111.pdf
Here is some of the background
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
I. Was the investigatory stop of the Plaintiff conducted by the three Town of Glastonbury police officers justified at its inception and, if so, reasonably related in scope to the circumstances which justified the interference in the first place?
II. Did the three police officers have probable cause to arrest the Plaintiff?
III. Did the Plaintiff establish his entitlement to summary judgment in Count One alleging unreasonable search and seizure and unlawful arrest against the three Town of Glastonbury police officers sued in their individual capacities as a matter of law or, alternately, do genuine issues of material fact exist to preclude summary judgment against the Plaintiff in Count One?
STATEMENT OF THE CASE
Plaintiff James F. Goldberg (“Goldberg”) appeals from the final judgment entered in the action below on September 20, 2010, in favor of the Defendants Michael Furlong, Simon Barratt, and Kenneth Lee2 and from a Ruling rendered by The Honorable Stefan R. Underhill on September 17, 2010, granting the Defendants’ Motion for Summary Judgment and denying Plaintiff’s Motion for Goldberg filed a Complaint on November 21, 2007, in the District of Connecticut alleging in Count One unlawful arrest and unreasonable search and
seizure of property and person in violation of the Fourth and Fourteenth Amendments of the United States Constitution brought pursuant to 42 U.S.C. § 1983. Goldberg alleged that the three Town of Glastonbury Defendant police officers lacked reasonable and articulable suspicion to detain him at the Chili’s Restaurant in Glastonbury on June 21, 2007, and lacked probable cause for his subsequent arrest. The parties filed cross-motions for summary judgment and the district court heard oral argument on September 17, 2010.
At oral argument, the district court articulated the issue for determination:
“Was there probable cause or with respect to the qualified immunity issue, was there arguable probable cause for the arrest?” The court and the parties agreed that a claim under the Second Amendment to the United States Constitution had not been raised by Goldberg.
The court began its inquiry by asking Goldberg’s counsel why a
Terrystop was not warranted to determine whether Goldberg possessed a valid state permit to carry a pistol or revolver.
Goldberg’s counsel responded that “there was no indication that Mr. Goldberg was engaged in criminal conduct, about to engage in criminal conduct or was threatening criminal conduct.” Accordingly, Goldberg’s open carry or inadvertent open carry of a pistol “was no different than him walking into Chili’s with a bag, with a wallet, with any other item that it’s lawful to carry. The fact that it was a firearm made absolutely no difference and it constituted no reason for the police to approach him in any way.” The court responded that the difference was “it is illegal for the vast majority of people in Connecticut to carry it into Chili’s or to display it or to possess it openly.” Goldberg’s counsel rejected the principle that the popularity of lawful conduct decides the degree of rights afforded an individual engaging in the lawful conduct. The court then agreed stating “whether it’s 1 percent or 99 percent” did not matter to its analysis. To support its position next, the court referenced the fact that Goldberg was in a public place that had To support its position next, the court referenced the fact that Goldberg was in a public place that had been the subject of “armed robberies” on two occasions within the previous five years.
The court ignored the intent of the state legislature expressed through General Statutes § 29-35(a) that a valid permit holder may lawfully carry his or her pistol in public, openly or concealed. In response to a statement by Goldberg’s counsel that “we have a state legislature that could add to the state statutes if you hold a state permit …” the court responded: “But we’re not here to talk about what the state legislature could do.”
However, it is an issue for the legislature because the legislature is the branch that enacts laws by the will of the people. When law enforcement exceeds the law to accomplish ends it deems worthy, the will of the people is trampled. In explanation, Goldberg’s counsel argued:
The police have a concern about people carrying firearms, openly carrying firearms. And so what they try to do, because there is no law that can place you under arrest for openly carrying a firearm, is they tried to fit it into the breach of peace statute by saying that he was engaged in threatening behavior. There’s no evidence in Laura Smith’s affidavit that was submitted by the defendants that Mr. Goldberg engaged in any threatening behavior.
Furthermore, Goldberg’s counsel continued:
So, even though the police were concerned about Mr. Goldberg carrying a firearm or pistol, it’s legal and there’s nothing that – there’s nothing that anyone can do or say to get away from that fact that he was engaged in completely lawful behavior and we don’t condone our police just walking up to people engaged in completely lawful behavior and demanding from them proof either that they are allowed to drive and they are allowed to be in this country or they are allowed to carry a firearm. That’s just not the law and it was clearly established at the time that that’s not the law.
