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Thread: Goldberg v. Glastonbury Audio from the Second Circuit Arguments of 11.21.2011

  1. #1
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    Goldberg v. Glastonbury Audio from the Second Circuit Arguments of 11.21.2011

    Attorney Rachel M. Baird argued the Goldberg v. Glastonbury case before and a three judge panel, (Winter, Newman and Katzman), at the Second Circuit Court of Appeals in New York on November 21, 2011.

    Each side was given 10 minutes to state their case and additional time was provided each side.

    In preparation Attorney Baird prepared a lengthy presentation and as expected questions from the three judges began from Judge Winters approximately 60 seconds into her presentation. Attorney Rachel Baird concentrated on stating the issues in the case during the first sixty seconds at the podium.

    Attorney Baird attacked the "TERRY STOP" reasoning of the District Court judge very effectively and used a New York Post article to rebutt opposing argurments very effectively.

    The audio from the Second Circuit arguments was recived on November 28th, and copied for posting at www.ctgunrights.com.

    This is a link to the audio, please excuse the quality which may improve with some tweaking:

    http://www.ctgunrights.com/0.2nd.Cir...11.21.2011.wmv


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    Regular Member KIX's Avatar
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    Good argument for shutting up without an attorney.

    The whole arguments where Goldberg said he knew his conduct could be annoying and alarming could have been avoided entirely.

    Interesting argument except the one judge that kept arguing what is lawful unless it's alarming. Good arguments, some frustrating.

    Jonathan
    www.ctpistolpermitissues.com - tracking all the local issuing authority, DPS and other insanity with permit issues
    www.ctgunsafety.com - my blog and growing list of links useful to gun owners (especially in Connecticut).

    Rich B: My favorite argument against OC being legal in CT is "I have never seen someone OC in CT".
    I have never seen a person drink tea from a coke bottle while standing on their head, that doesn't mean it is illegal.

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    Goldberg's Depostion statements

    James Goldberg was taught by an instructor that did not know the law and his father and I also believed that CONCEALMENT WAS MANDATED AND REQUIRED IN CT.

    It wasn't until I got involved with James Goldberg's case that I found out OPEN carry was lawful.

    You'll also notice that Attorney Gerarade blends the OLD policy that was on the Firearm Permit Examiners website until September of 2007, Mature judgement etc.

    Attornehy Thomas Gerarde also misled the court on two spefic topics.

    1. The approved firearm courses in CT DO NOT teach CONCEALEMENT

    2. There were NO customers alarmed or moved in Chili's on the night of June 21st 2007.

    Pistol Safety Instructors certified by the NRA, like myself and others, are not permitted to teach what is not in their training materials.

    That is why I authored and teach a course which incorporates the NRA material along with specific areas regarding Connecticut law.


    But Kix is correct, stupid statements or mistakes can cost you dearly if you don't know what you are doing.

    That is why I have convinced a Connecticut Attorney to offer an Eight week retainer agreement for those who would like to submit applications that are properly filled out with an attorney to monitor the application process.

    It might also be helpful for everyone to know that former State Police Sgt. Douglas Hall will be available to assit with firearm problems in a couple of weeks.

    Attorney Hall was prevented by the State's ethics law from representing individuals before the Board of Firearms Permit Examiners for one year after his retirement.

    Times are about to change.

    A better audio/video clip will be posted soon with more graphic rearding what was said at the Second Circuit.

    edperuta@ctgunrights.com

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    Just what the Goldberg v. Glastonbury case is all about

    This a link to a perfect example of what the Second Circuit was discussing with both sides.

    http://www.ctgunrights.com/00.Docs/Y...%20PDF0001.pdf

    Read the taped interview and you will see for yourself.

    Ed Peruta

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    Quote Originally Posted by Edward Peruta View Post
    This a link to a perfect example of what the Second Circuit was discussing with both sides.

    http://www.ctgunrights.com/00.Docs/Y...%20PDF0001.pdf

    Read the taped interview and you will see for yourself.

    Ed Peruta

    WOW talk about a bunch of crap.... way to lead an interview the way you want it to sound.

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    So, based on the questions asked by the court, what's the opinion on the outcome?

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    The research continues with review of the Audio Tape

    The times mentioned in this post are NOT matched to the video which was shortened to eliminate dead time between the parties.


    Go to 13:45
    on the Court supplied audio file


    The Court: What was the threatening manner

    Attorney Gerarde: Well the threatening manner is simply we're in a family restaurant alright and this man come in with camoflauge pants on a sidearm and obviously he's got a gun on his on his hip Um he has no badge he has no uniform it's clear that he's not a police officer or someone who obviously is licensed or, or, or, um... normally would carry such a gun and... It scared the daylights out of people now you say why is that reasonable That's our Community Standard these people are taught...



    Go to 17:25 on the Court supplied audio file

    The Court: But your argument is that in the absence of the posted sign the carrying into a public place runs the risk of creating a threat is that it

    Attorney Gerarde: YES ABSOLUTELY 100%

    The Court: SO IF THAT'S YOUR ARGUMENT AND IF YOU'RE RIGHT The Connecticut Statute permitting carrying of a weapon unconcealed precludes carrying it in any public place because there is always going to be a risk of a Breach of the Peace arrest
    is that right

    Attorney Gerarde: It's not any public place, because there are some public places where it might not...

    The Court: Such as…

    Attorney Gerarde: Such as a shooting range, Such as a police Academy, a Military base…

    The Court: Oh OK But barring a place where firearms are expected to be discharged Um in the general run of expected public places… Restaurants, Movie Theaters, Schools The Breach of Peace violation would always be available to the police officer
    who saw it ah to make an arrest Is that your view

    Attorney Gerarde: No, not always available, what every one of these men is taught is that if you decide to walk into Walmart or Chili’s or some public place with your gun open you are running the risk because …

    The Court: That's what I thought I just said, you would always be running the risk of arrest if you went into a public place where firearms are not expected to be discharged..

    Attorney Gerarde: YES The risk is there and what it requires is someone needs to be alarmed and it has to be a reasonable alarm. So if we were in Western Wyoming or Western Texas maybe no one would be alarmed, and if they were it would be unreasonable

    The Court: Oh does the officer need to know that in fact a person was alarmed or is the appearance of a weapon in the public place enough to create the risk of alarm

    Attorney Gerarde: Well the, I think that the, it's the totality of the circumstances and it has to do with the place um I don't I think the fact that someone was alarmed is certainly helpful but not required because you.. any.. and the reason why is this... there's three sources… This is our community standard

    MORE TO FOLLOW

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    Regular Member Rich B's Avatar
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    Quote Originally Posted by Edward Peruta View Post
    Attorney Gerarde: YES The risk is there and what it requires is someone needs to be alarmed and it has to be a reasonable alarm. So if we were in Western Wyoming or Western Texas maybe no one would be alarmed, and if they were it would be unreasonable
    Wow. This is a real attorney in a real Federal courtroom during a very important appeal using the "OC is only OK in Texas argument".

    I guess checking the laws and finding out that open carry is 100% legal by statute (but apparently not by his secret second set of laws known as 'community standards') in Connecticut, but strictly against the law in Texas would be too much to expect.

    Amazing. Simply amazing.

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    That's incoherent, thank God.
    Hoplophobia is a social disease.

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    Quote Originally Posted by Rich B View Post
    Wow. This is a real attorney in a real Federal courtroom during a very important appeal using the "OC is only OK in Texas argument".

    I guess checking the laws and finding out that open carry is 100% legal by statute (but apparently not by his secret second set of laws known as 'community standards') in Connecticut, but strictly against the law in Texas would be too much to expect.

    Amazing. Simply amazing.

    maybe someone should point that lawyer here to our website so he could see that in fact Texas is a Conceal carry state so Open carry isn't allowed there either. Maybe he should check his facts before making a fool out of himself WOW

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    Second Circuit Decision in Golberg v. Glastonbury

    10-4215-cv

    Goldberg v. Town of Glastonbury
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT

    SUMMARY ORDER

    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
    SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York, on the 13th day of December, two thousand eleven.

    Present: JON O. NEWMAN,
    RALPH K. WINTER,
    ROBERT A. KATZMANN,
    Circuit Judges.
    __________________________________________________ __________
    JAMES F. GOLDBERG,
    Plaintiff-Appellant,

    - v - No. 10-4215-cv

    TOWN OF GLASTONBURY, MICHAEL FURLONG,
    Sgt. I/O, KENNETH LEE, Officer, I/O, and
    SIMON BARRATT, Officer, I/O,
    Defendants-Appellees.
    __________________________________________________ __________

    For Plaintiff-Appellant: RACHEL M. BAIRD, Law Office of Rachel M. Baird,
    Torrington, Conn.

    For Defendants-Appellees: THOMAS R. GERARDE (Beatrice S. Jordan, on the brief), Howd
    & Ludorf, LLC, Hartford, Conn.

    Appeal from the United States District Court for the District of Connecticut (Underhill,
    J.).

    ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
    AND DECREED that the judgment of the district court is AFFIRMED.

    Plaintiff-Appellant James F. Goldberg appeals from a September 20, 2010 judgment of the United States District Court for the District of Connecticut (Underhill, J.) granting summary judgment to defendants on plaintiff’s § 1983 claims, and in the alternative, concluding that defendants are entitled to qualified immunity. We assume the parties’ familiarity with the facts and procedural history of the case.

    “We review a district court’s grant of summary judgment de novo, construing the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor.” Kuebel v. Black & Decker Inc., 643 F.3d 352, 358 (2d Cir. 2011). “Summary judgment is appropriate only if ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)).

    For the first time on appeal, plaintiff argues that his rights under the Second Amendment have been impermissibly infringed. “Although we may exercise discretion to consider waived arguments where necessary to avoid a manifest injustice,” In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 133 (2d Cir. 2008) (per curiam), we conclude that the circumstances of this case do not warrant such an exercise of discretion. Plaintiff contends that this “did not become a Second Amendment case until the district court held tantamount to its decision the involvement of a firearm.” Pl. Br. 20 Plaintiff, however, had sufficient notice and ample opportunity to assert below the rights that he now claims are implicated, which he explicitly declined to do when his counsel conceded at oral argument before the district court that a Second Amendment claim was not raised.

    Turning next to the issue of whether there was reasonable suspicion supporting defendants’ initial stop of plaintiff, see Terry v. Ohio, 392 U.S. 1 (1968), we conclude that there was. “In reviewing the reasonableness of a Terry stop, we ask whether there was a ‘particularized and objective basis’ for suspicion of legal wrongdoing under the ‘totality of the circumstances.’” United States v. Simmons, 560 F.3d 98, 103 (2d Cir. 2009) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). “Terry requires that a police officer have only reasonable suspicion that criminal activity may be afoot to justify an investigatory stop.

    Reasonable suspicion requires considerably less of a showing than probable cause.” United States v. McCargo, 464 F.3d 192, 197 (2d Cir. 2006) (internal citations and quotation marks omitted). In the instant case, defendants were responding to a 911 call reporting that an individual had entered the Chili’s waiting area with an exposed firearm, and the manager was sufficiently alarmed to clear the immediate area and contact the police. Upon entering the restaurant, defendants observed that plaintiff had a holstered handgun visible on his hip. Under these circumstances, sufficient reasonable suspicion justified defendants’ investigative stop of plaintiff.

    Finally, we assess defendants’ arrest of plaintiff for breach of the peace in the second degree.1 We need not decide whether there was probable cause to arrest plaintiff, because we

    1 Connecticut's breach of the peace statute in the second degree provides in relevant part that:

    A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk
    thereof, such person: (1) Engages in . . . threatening behavior in a public place . . . . For purposes of this section, "public place" means any area that is used or held out for use by the public whether owned or operated by public or private interests. Conn. Gen. Stat. § 53a-181(a).


    conclude that defendants are entitled to qualified immunity on plaintiff’s false arrest claim. “In determining whether an officer is entitled to qualified immunity for a false arrest claim in the absence of probable cause, we examine whether there was ‘arguable probable cause.’” Amore v. Novarro, 624 F.3d 522, 536 (2d Cir. 2010) (quoting Walczyk v. Rio, 496 F.3d 139, 163 (2d Cir. 2007)). “Arguable probable cause exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.” Id. (quoting Walczyk, 496 F.3d at 163) ( quotation marks omitted). “In deciding whether an officer’s conduct was ‘objectively reasonable’ for purposes of qualified immunity, we look to the information possessed by the officer at the time of the arrest, but ‘we do not consider the subjective intent, motives, or beliefs’ of the officer.” Id. (quoting Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84, 106 (2d Cir. 2003)). Prior to his arrest, plaintiff had entered the Chili’s restaurant wearing an exposed firearm, which the officers observed upon their arrival in response to the 911 call. Defendant Furlong observed that the manager, Laura Smith, appeared to be nervous, and she reported that she was alarmed over the handgun and had cleared the area as a result. On these facts, and given the lack of settled Connecticut law on the issue, we conclude that reasonable officers could, at minimum, disagree on whether there was probable cause to arrest plaintiff for breach of the peace in the second degree, and accordingly the district court’s qualified immunity determination ought to be affirmed.

    We have considered plaintiff’s remaining arguments and find them to be without merit.

    Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

    FOR THE COURT:
    Catherine O’Hagan Wolfe, CLERK

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    What say you Ed?

    I've read the finding and still can't fathom how the court connected the dots from A to Z so piss-poorly. The poster in another thread summed it up well, "what if J Goldberg was an off duty or under cover cop" you know damn well he wouldn't have been arrested or even hassled.

    Because the manager was "alarmed" that created probable cause for arrest? What about the old lady that sat next to him while he waited for his deep fried death? I seem to remember he had a short conversation with someone and obviously if that were the case she wasn't alarmed so there wasn't a general sense of alarm just the manager taking it upon herself to over-react.

    It disappoints me that the legal recourse we have at our not so easy disposal is just an extension of the same law enforcement that makes stuff up as they go along. The telling item in the finding was that the law was unclear, well it damn well isn't unclear it says you may not carry a pistol or revolver without a permit. that's pretty clear, and since it doesn't say "You may not carry a pistol or revolver openly" then it's not illegal.

    So Ed, what are your feelings on this? You usually distill it down after a bit of thought.

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    What is next

    The issue is being discussed and I for one like to make lemonade out of these lemons.

    There are several key points stated in the ruling that could be used to make the lemonade.

    Please be patient,

    Ed Peruta

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    Quote Originally Posted by Edward Peruta View Post
    The issue is being discussed and I for one like to make lemonade out of these lemons.

    There are several key points stated in the ruling that could be used to make the lemonade.

    Please be patient,

    Ed Peruta
    Sounds good, I shall look forward to the next installment.

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