Second Circuit Decison in Goldberg v. Glastonbury

The following decision was received today in the Goldberg v. Glastonbury case.


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

Very disturbing indeed.

Evidently, openly carried firearms provide "reasonable suspicion".

Therefore, I would begin the process of calling the police on every police officer I see that is openly carrying a firearm.

(After all, their openly carried firearms have been held by this ruling to be "reasonably suspicious", correct?)

If they tell you you're wrong....show them this court ruling.

Question is..... do we get this out of the "second circus" or will it die here.

Sad indeed.

Jonathan

I am disheartened but not surprised. Not surprised because I listened to the audio of the court arguments. My gut reaction was that the attorney for Glastonbury had struck a cord with the justices with his argument that the OC gun caused alarm and was out of place in a family restaurant. I also felt that attorney Baird had not effectively countered that argument orally. Perhaps it was addressed in attorney Baird's brief to the court?

Nevertheless it is quite disheartening to learn the the Second Circuit Court believes one's rights vary by arbitrary location.

The following decision was received today in the Goldberg v. Glastonbury case.

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

**************

Am I to take from this that Connecticut General Statute 29-28 is meaningless? I want my money back.

Not to turn this into an anti-cop bashing fest, but I've been arguing the increasingly stronger support of qualified immunity and Terry protections that today's law enforcement seems to be receiving from our courts for some time. Don't get me wrong, I fully support law enforcement, I don't envy the work they do, but even they should have a limit. It looks like the courts reasoning hinged around the fact that a call was made.

Boggles the mind

It still boggles my mind that if Goldberg was a off duty (or on duty plain clothes) police officer the responding officer would have told the caller everything is ok, it is leagal he is a cop. No breach of peace, no arrest, nothing. Yet the facts would remain the same, a citizen was overly concerned about a gun. If I understand the courts decision then this hypothetical cop could and should be arrested. I do not understand how our courts can take away the rights of an individual who was doing nothing illegal.

Your Right of Defense Against Unlawful Arrest

Citizens may resist unlawful arrest to the point of taking an arresting officer's life if necessary.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”

“An arrest made with a defective warrant, or one issued without affidavit, or one that fails to allege a crime is within jurisdiction, and one who is being arrested, may resist arrest and break away. lf the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter.” Housh v. People, 75 111. 491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v Rousseau, 241 P. 2d 447; State v. Spaulding, 34 Minn. 3621.

“When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justified.” Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1.

“These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence.” Jones v. State, 26 Tex. App. I; Beaverts v. State, 4 Tex. App. 1 75; Skidmore v. State, 43 Tex. 93, 903.

“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right to use force in defending himself as he would in repelling any other assault and battery.” (State v. Robinson, 145 ME. 77, 72 ATL. 260).

“Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self- defense.” (State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100).

“One may come to the aid of another being unlawfully arrested, just as he may where one is being assaulted, molested, raped or kidnapped. Thus it is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody, without resistance.” (Adams v. State, 121 Ga. 16, 48 S.E. 910).

“Story affirmed the right of self-defense by persons held illegally. In his own writings, he had admitted that ‘a situation could arise in which the checks-and-balances principle ceased to work and the various branches of government concurred in a gross usurpation.’ There would be no usual remedy by changing the law or passing an amendment to the Constitution, should the oppressed party be a minority. Story concluded, ‘If there be any remedy at all ... it is a remedy never provided for by human institutions.’ That was the ‘ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice.’” (From Mutiny on the Amistad by Howard Jones, Oxford University Press, 1987, an account of the reading of the decision in the case by Justice Joseph Story of the Supreme Court.

As for grounds for arrest: “The carrying of arms in a quiet, peaceable, and orderly manner, concealed on or about the person, is not a breach of the peace. Nor does such an act of itself, lead to a breach of the peace.” (Wharton’s Criminal and Civil Procedure, 12th Ed., Vol.2: Judy v. Lashley, 5 W. Va. 628, 41 S.E. 197)

http://www.constitution.org/uslaw/defunlaw.htm

Superlite27 said:

Evidently, openly carried firearms provide "reasonable suspicion".

Therefore, I would begin the process of calling the police on every police officer I see that is openly carrying a firearm.

(After all, their openly carried firearms have been held by this ruling to be "reasonably suspicious", correct?)

If they tell you you're wrong....show them this court ruling.

Click to expand...

That's why I don't allow officers to disarm me.

Ladies and Gentlemen, we have a Circuit Split!

http://www.ca4.uscourts.gov/opinions/Published/115084.p.pdf

4th Circuit says OC absent any other suspicious circumstances cannot justify a stop...and this case was actually brought by a convicted felon carrying concealed...the OC guy was his friend and was 100% legal, the officers attempted to impart their suspicion of the OC'er (for open carrying) to his compatriots...one of whom attempted to flee and was tackled whereupon the gun was found. The 4th found that the original stop of the OC'er, even to check his status, was unlawful because OC was legal and citizens are presumed to be lawful rather than unlawful. There was therefore even less to justify the detention of the felon-friend and his ultimate arrest, which was overturned after the gun was suppressed.

Nice read, enjoy.

CT Barfly said:

http://www.ca4.uscourts.gov/opinions/Published/115084.p.pdf

4th Circuit says OC absent any other suspicious circumstances cannot justify a stop...and this case was actually brought by a convicted felon carrying concealed.

Nice read, enjoy.

Click to expand...

Gotta love a circuit split.

I may ask prof. volokh. what he thinks. The "LOGIC" JUST BOGGLES my mind.

PALO said:

Gotta love a circuit split.

I may ask prof. volokh. what he thinks. The "LOGIC" JUST BOGGLES my mind.

Click to expand...

It was disquieting to see how the Court glossed over Atty Baird's explanation of the Breach of Peace statute...particularly section 6 which applies the BOP statute only to folks who aren't licensed to perform the act complained of, which is OC. Baird got bullied and that was unfair to all. It's unfortunate to see a pure failure to properly read and apply the clear language of the statute and it certainly seems to render the decision worthy of reargument.

Inferring intent as a mens rea is pretty far fetched, too. The standard was not recklessness (knew/disregarded a risk that people would be alarmed), it was INTENT to cause alarm/threaten which should have been applied here...which means that ONLY Goldberg, his statements and his actions in addition to mere OC, could have resulted in this charge being proper. In fact, the fact that Goldberg attempted to cover up his weapon is evidence that he LACKED THE INTENT TO CAUSE ALARM...and that was in the record. If Goldberg had gone silent after producing his permit, he should have been let go as no PC existed to support his arrest...and no PC could have been dreamt up by officers. Baird argued around it but it was clear the Court had made up its mind...other peoples' reaction to your behavior can lead to police inferring that you subjectively intended to elicit that reaction...which is pretty insane as a concept as there are 6billion people on earth who can react to your conduct...which is 6billion possible flavors of intent. To Baird's credit, the "black guy in a white neighborhood" argument was compelling but the Court completely missed the point...just a failure to properly segregate the issues of "intent", "open carry", "licenced" and "breach of peace".

CT Barfly said:

It was disquieting to see how the Court glossed over Atty Baird's explanation of the Breach of Peace statute...particularly section 6 which applies the BOP statute only to folks who aren't licensed to perform the act complained of, which is OC. Baird got bullied and that was unfair to all. It's unfortunate to see a pure failure to properly read and apply the clear language of the statute and it certainly seems to render the decision worthy of reargument.

Inferring intent as a mens rea is pretty far fetched, too. The standard was not recklessness (knew/disregarded a risk that people would be alarmed), it was INTENT to cause alarm/threaten which should have been applied here...which means that ONLY Goldberg, his statements and his actions in addition to mere OC, could have resulted in this charge being proper. If Goldberg had gone silent after producing his permit, he should have been let go as no PC existed to support his arrest...and no PC could have been dreamt up by officers. Baird argued around it but it was clear the Court had made up its mind...other peoples' reaction to your behavior can lead to police inferring that you subjectively intended to elicit that reaction...which is pretty insane as a concept as there are 6billion people on earth who can react to your conduct...which is 6billion possible flavors of intent. To Baird's credit, the "black guy in a white neighborhood" argument was compelling but the Court completely missed the point...just a failure to properly segregate the issues of "intent", "open carry", "licenced" and "breach of peace".

Click to expand...

That's spot-on analysis and I agree wholeheartedly. It should fall back to the "reasonable person" standard and if a state is shall issue CCW or OC or conswtitutional carry OC, there is no way a reasonable person should assume "criminal activity is afoot" merely because somebody is carrying. It does appear, much like Raich, that the court made up its mind and just trotted out a bunch of rubbish analysis to retroactively justify it.

Intent is of course "the essence of the law". It is totally circular logic to assume intent based on the reaction of (some members) of the public. And when OC is legal (not prohibited by statute) imo, the ASSUMPTION should be that REASONABLE people will not be alarmed by same (a holstered handgun at one's side)

cheers

PALO said:

That's spot-on analysis and I agree wholeheartedly. It should fall back to the "reasonable person" standard and if a state is shall issue CCW or OC or conswtitutional carry OC, there is no way a reasonable person should assume "criminal activity is afoot" merely because somebody is carrying. It does appear, much like Raich, that the court made up its mind and just trotted out a bunch of rubbish analysis to retroactively justify it.

Intent is of course "the essence of the law". It is totally circular logic to assume intent based on the reaction of (some members) of the public. And when OC is legal (not prohibited by statute) imo, the ASSUMPTION should be that REASONABLE people will not be alarmed by same (a holstered handgun at one's side)

cheers

Click to expand...

Here's some analysis gold from the Black case in the 4th:

1. "where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention."

2. "[the OCer's] lawful display of his lawfully possessed firearm cannot be the justification for [the OCer's] detention....That the officer had never seen anyone in this particular division openly carry a weapon also fails to justify reasonable suspicion. From our understanding of the laws of North Carolina, its laws apply uniformly and without exception in every single division, and every part of the state. Thus, the officer’s observation is irrational and fails to give rise to reasonable suspicion".

The Court went on to hold that "even if the officers were justified in detaining [the OC'er] for exercising his constitutional right to bear arms, reasonable suspicion...is not particularized as to Black, and we refuse to find reasonable suspicion merely by association."

There's even specific language in the decision that holds that stopping to check to see if a person is a felon-in-possession is unlawful because people are presumed to not be felons.



It's beautiful when a court gets analysis correct without clouding the issues with political/personal views.

CT Barfly said:

Here's some analysis gold from the Black case in the 4th:

1. "where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention."

2. "[the OCer's] lawful display of his lawfully possessed firearm cannot be the justification for [the OCer's] detention....That the officer had never seen anyone in this particular division openly carry a weapon also fails to justify reasonable suspicion. From our understanding of the laws of North Carolina, its laws apply uniformly and without exception in every single division, and every part of the state. Thus, the officer’s observation is irrational and fails to give rise to reasonable suspicion".

The Court went on to hold that "even if the officers were justified in detaining [the OC'er] for exercising his constitutional right to bear arms, reasonable suspicion...is not particularized as to Black, and we refuse to find reasonable suspicion merely by association."

There's even specific language in the decision that holds that stopping to check to see if a person is a felon-in-possession is unlawful because people are presumed to not be felons.



It's beautiful when a court gets analysis correct without clouding the issues with political/personal views.

Click to expand...

Exactly. And fwiw, in regards to felons... A felon would have to be colossally stupid to OC a gun knowing that they are committing a felony (VUFA in my state) by doing so. Concealment isn't evidence the person *is* a felon, but open carry is frankly strong evidence the person is NOT a felon. I've dealt with a lot of stupid felons, but I can't imagine any of them being that stupid.

My favorite stupid felon firearm story was when I caught a convicted violent (manslaughter and armed robbery convictions) felon in possession of a flare gun. He said he was using it for "protection" since he couldn't lawfully carry a firearm!

lol. Under the RCW, a flare gun meets the definition of FIREARM. It uses a comnbustible to propel a projectile. Firearm. Air gun? Not firearm. Flare gun? Firearm.

duh.

It would have been much cleaner [and hilarious] if Atty Baird had simply said:

"we don't leave the question of whether open carry amounts to breach of peace up to the subjective legal understanding and knowledge of a chili's manager in Glastonbury, CT...the legislature gets to make that determination (OC is legal) and police officers must apply ONLY that law (lawful activity does not give PC for BOP)."