Lazurek OBJECTION To Motion To Terminate Stay

NO.
HHB-CV-14-6026730S
COMMISSIONER, STATE OF
CONNECTICUT DEPARTMENT OF
EMERGENCY SERVICES AND
PUBLIC PROTECTION
Plaintiff
v.
BOARD OF FIREARMS PERMIT
EXAMINERS AND SCOTT LAZUREK
Defendants
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SUPERIOR COURT
JUDICIAL DISTRICT OF NEW BRITAIN

AT NEW BRITAIN
NOVEMBER 24, 2014
PLAINTIFF'S OBJECTION TO SCOTT LAZUREK'S

MOTION TO TERMINATE STAY
The plaintiff, the Commissioner of the Department of Emergency Services and Public
Protection (the "Commissioner of DESPP" or the "Commissioner"), hereby objects to defendant
Scott Lazurek's Motion to Terminate Stay, filed on November 7, 2014. [Docket Entry Nos.
105.00 and 106.00].
At issue in this appeal is whether the Board of Firearms Permit Examiners (the "Board")
erred when it reinstated Lazureks firearms permit even though Lazurek, while openly carrying a
loaded pistol on a crowded boardwalk, refused a police officers repeated requests to show his
firearms permit and later asserted to the Board that he would continue to defy such police
requests in the future. On October 3, 2014, in the absence of any objection, this court granted the
Commissioner's motion to stay enforcement of the Boards decision reinstating Lazurek's permit
pending the resolution of this appeal. [Doc. No. 101.01]. Lazurek now seeks to terminate the
stay, notwithstanding his insistence that he will continue to flout Connecticuts firearms
permitting laws by refusing to cooperate with any police officer who asks to see his permit.
Because this attitude invites more conflict between Lazurek and law enforcement officers that is
avoided by the stay, and a balancing of the equities favors the Commissioner, Lazureks motion
to terminate the stay should be denied.
FACTUAL BACKGROUND
The facts in this matter are undisputed. On June 2, 2013, at approximately 9 p.m., Scott
Lazurek and Timothy Jones were walking on the boardwalk in West Haven, Connecticut.
(Petition for Administrative Appeal, 5; Doc. No. 100.31). Each man was carrying an exposed
loaded pistol on his hip. (Id. 6). Carrying firearms outside of one's home or business is a felony
in Connecticut unless the person doing so has first obtained a permit pursuant to Conn. Gen. Stat.
29-28 or one of the statutes limited exceptions applies. See Conn. Gen. Stat. 29-35(a), 2937(b). Connecticut law further explicitly requires that the permit holder carry his permit on his
person while carrying his firearm. Conn. Gen. Stat. 29-35(b).
Two uniformed West Haven police officers who were patrolling the boardwalk on June
2nd approached Lazurek and Jones and asked them to show their permits to confirm that they
were legally carrying their weapons. (Id. 7). Jones complied with the request, but Lazurek
refused. (Id. 7). Lazurek was subsequently arrested for interfering with a police officer in
violation of Conn. Gen. Stat. 53a-167a. (Id. 8-9).
On June 27, 2013, the Commissioner of DESPP revoked Lazurek's firearms permit. (Id.
10). The criminal charges against Lazurek were dismissed on July 9, 2013, and on August 16,
2013, Lazurek appealed the Commissioner's decision to the Board of Firearms Permit Examiners
pursuant to Conn. Gen. Stat. 29-32b. (Id. 12).
The Board held a hearing on July 24, 2014, at which Lazurek admitted that he was openly
carrying a loaded pistol on the crowded West Haven boardwalk and that he refused to allow the
police officer to determine whether he was legally carrying his pistol by producing his valid
pistol permit. (Id. 13). Lazurek further testified that if faced with similar circumstances in the
future, he would again refuse to produce his permit. (Id. 14).
On August 1, 2014, based on a tied 3-3 vote of the Board members, the Board issued a
written decision reversing the Commissioner and reinstating Lazurek's permit. (Id. 13).
According to the Board, Lazurek was a "suitable person" to possess a handgun permit. (Id. 13,
Petition Ex. A).
On September 12, 2014, the Commissioner filed the present appeal from the Board's
decision pursuant to Conn. Gen. Stat. 4-183 and 29-32b(f), and, on the same date, filed a
motion for stay of enforcement. [Doc. No. 101.00]. In the absence of any objection, the court
granted the stay on October 3, 2014. [Doc. No. 101.01]. On November 7, 2014, Lazurek moved
to terminate the stay, arguing that he was denied an opportunity to be heard and a balancing of
the equities favored termination. This court scheduled argument on the motion for November 17,
2014, which was rescheduled at Lazurek's request to December 9, 2014. DESPP opposes the
motion to terminate the stay.
ARGUMENT
I.
LAZUREK HAD THE OPPORTUNITY TO OBJECT TO THE MOTION FOR

STAY, BUT FAILED TO DO SO.
Lazurek's argument that the stay granted by this court on October 3, 2014, should be
terminated because he was not afforded an opportunity to be heard before the stay was granted is
totally meritless. He had the opportunity to be heard by filing an objection to the motion to stay,
but failed to do so. Lazurek and his attorney of record before the Board, John Drapp, were each
served with the motion for stay, which they received on September 18, 2014, and September 15,
2014, respectively. [Doc. No. 104.00]. The Board was also served with a copy. [Id.] Having been
notified of the motion, Lazurek could have filed an objection at any time, but as of October 3,
2014, he had done nothing. Having received no opposition either from Lazurek or the Board,
there was no need for the court to expend resources on a hearing. Accordingly, the court simply
granted the motion for stay "absent objection." [Doc. No. 101.01]. Under the circumstances,
Lazurek's claim that he had no opportunity to be heard is completely unfounded and provides no
basis for terminating the stay.
II.
A BALANCING OF THE EQUITIES FAVORS THE COMMISSIONER.

Terminating the stay is not warranted for the further reason that a balancing of the
equities favors the Commissioner.

In an administrative appeal under Conn. Gen. Stat. 4-183, the court may stay an agency
decision "upon appropriate terms." Conn. Gen. Stat. 4-183(f). "The provision for 'a stay upon
appropriate terms' gives the court broad authority to fashion appropriate relief to protect the
interests of all those involved during the pendency of an administrative appeal." Griffin Hospital
v. Commission on Hospitals and Health Care, 196 Conn. 451, 455 (1985).
In determining whether to grant or terminate a stay, the Connecticut Supreme Court has
approved the use of a balancing of the equities test. Griffin Hospital, 196 Conn. at 458. Although
"[i]t is not possible to reduce all of the considerations involved in stay orders to a rigid formula,"
id. at 458, the Court has indicated that some of the factors to be considered include: "(1) the
likelihood that the appellant will prevail; (2) the irreparability of the injury to be suffered from
immediate implementation of the agency order; (3) the effect of a stay upon other parties to the
proceeding; and (4) the public interest involved." Id. at 456. In the present case, these factors
counsel against terminating the stay.
A.
The Commissioner Is Likely To Prevail On Appeal.
First, contrary to Lazurek's claim, there is a serious argument that the Board abused its
discretion when it concluded that Lazurek was a suitable person to possess a firearms permit
despite his openly defiant attitude towards compliance with law enforcement and the State's
firearms permit laws. Given Lazureks utter contempt for the law, which readily distinguishes
this case from that of McWhorter in Commissioner of Public Safety v. Board of Firearms Permit
Examiners, 129 Conn. App. 414, cert. denied, 302 Conn. 918 (2011), on which Lazurek relies,
the Commissioner is likely to prevail.
1.
Under Connecticut Law, A Firearms Permit May Be Revoked If The

Holder Is Not A "Suitable Person" To Possess A Firearm.
The U.S. Supreme Court has held that a gun, whether loaded or not, "is a dangerous
weapon." McLaughlin v. U.S. 476 U.S. 16, 17 (1986). "[T]he use for which it is manufactured
and sold is a dangerous one, . . . [and] the display of a gun instills fear in the average citizen, . . .
creat[ing] an immediate danger that a violent response will ensue." Id. at 17-18.
Given the inherent danger that firearms pose, and the "vital public safety concern that
only responsible citizens be allowed to carry lethal weapons," Farmington v. Board of Firearms
Permit Examiners, CV-95-0550258S, 1996 WL 106842 at *3 (Conn. Superior Ct. Feb. 23,
1996), Connecticut has adopted a carefully designed firearms permitting scheme, set forth in
Conn. Gen. Stat. 29-28 through 29-38, that is intended "to protect the safety of the general
public from individuals whose conduct has shown them to be lacking the essential character or
temperament necessary to be entrusted with a weapon." Dwyer v. Farrell, 193 Conn. 7, 12
(1984). Connecticut's interest in ensuring that firearms are kept out of the hands of those who
lack the essential character or temperament necessary to be entrusted with a weapon is "strong
and compelling." Kuck v. Danaher, 600 F.3d 159, 166 (2d. Cir. 2010); see also Rabbitt v.
Leonard, 36 Conn. Supp. 108, 116 (1979)(recognizing Connecticut's "extraordinary" interest in
gun control legislation).
Under Connecticut's statutory scheme, with only limited exceptions, it is a felony to carry
a pistol or revolver outside of one's house or business without first obtaining a firearms permit.
Conn. Gen. Stat. 29-35(a), 29-37(b). An application for a permit, which is initially submitted
to local town authorities and later to the State, will only be issued after the issuing authority
determines that the applicant (1) does not intend to make unlawful use of the permitted firearm;
(2) "is a suitable person to receive such permit;" and (3) is not subject to any of ten statutory
grounds for mandatory denial of an application. Conn. Gen. Stat. 29-28(b)(emphasis added).
An applicant who is issued a permit is required by statute to carry it on his person while carrying
his firearm. Conn. Gen. Stat. 29-35(b). Failure to do so is an infraction subject to a fine. Conn.
Gen. Stat. 29-37(c).
Pursuant to Conn. Gen. Stat. 29-32(b), the Commissioner of DESPP may revoke a
firearms permit for cause, and must revoke a permit upon the occurrence of any event that would
have disqualified the holder from being issued a permit under Conn. Gen. Stat. 29-28(b).
Because a finding that a person is not "a suitable person to receive such permit" is sufficient to
disqualify an applicant from being issued a permit under 29-28(b), it is also a basis for
revoking a permit under 29-32(b).
While the term "suitable person" has not been statutorily defined, the Appellate Court has
held that the words "have a definite meaning in our law, and their use in the act furnishes a
standard by which the agency must be guided." Commissioner of Public Safety v. Board of
Firearms Permit Examiners, 129 Conn. App. 414, 422-423, cert. denied, 302 Conn. 918
(2011)(brackets omitted). According to the court, "[a] person is suitable who, by reason of his
character his reputation in the community, his previous conduct as a licensee is shown to be
suited or adapted to the orderly conduct of a business which the law regards as so dangerous to
public welfare that its transaction by any other than a carefully selected person duly licensed is
made a criminal offense." Id. at 423, quoting Smiths Appeal from County Commissioners, 65
Conn. 135, 138 (1894). "Specifically, in the context of a firearms permit, General Statutes
29-28 through 29-38 clearly indicate a legislative intent to protect the safety of the general public
from individuals whose conduct has shown them to be lacking the essential character or
temperament necessary to be entrusted with a weapon." Id., quoting Dwyer v. Farrell, 193
Conn. 7, 12 (1984). A person is "unsuitable" where there are "facts sufficient to show generally
that he or she lacks 'the essential character or temperament necessary to be entrusted with a
weapon.'" Saviske v. Corradino, CV-10-6006014, 2011 WL 2536461 at *5 (Conn. Superior Ct.
June 1, 2011), quoting Dwyer v. Farrell, 193 Conn. 7, 12 (1984).
2.
The Commissioner Appropriately Determined That Lazurek Was Not

A "Suitable Person" To Possess A Firearm Permit.
In the present case, the Commissioner appropriately determined that Lazurek lacked the
essential character or temperament to be entrusted with a pistol permit after he exhibited
complete distain for law enforcement and Connecticut's permitting laws by refusing to show his
permit when requested by a police officer seeking to ascertain that he was legally carrying a
firearm. The Commissioners conclusion was reinforced when Lazurek expressed no regret to
the Board for obstructing the police officer's efforts to ascertain whether he was in compliance
with the law and, instead, defiantly asserted that if faced with a similar future request to show his
permit he would again flout Connecticut's laws by refusing to do so. Such conduct obstructs the
State's ability to protect public safety by ensuring that those who carry firearms, including loaded
firearms, as was the case here, are legally authorized to do so.
Conn. Gen. Stat. 29-35(b) requires that "[t]he holder of a permit issued pursuant to
section 29-28 shall carry such permit upon one's person while carrying such pistol or revolver."
The legislature adopted this law in 1988 after hearing police testimony expressing frustration that
when a gun owner did not carry his permit it could be difficult for the police to confirm that he
was carrying his firearm legally, necessitating phone calls and, during off hours when
verification could not be obtained, confiscation of the weapon. See Conn. Joint Committee
Hearings, Public Safety, pp. 268-270 (Mar. 3, 1988)(remarks of Chief Thomas); see also 31
Conn. H. R. Proc., pt. 5, 1988 Sess. 1639-1640 (Mar. 30, 1988)(remarks of Rep. Migliaro).
Enabling officers to quickly and efficiently verify if a person carrying a gun is legally authorized
to do so is vital to protecting public safety.
Lazurek's position -- that the requirement that permit holders carry their permits when
carrying their weapons does not require them to show their permits if asked -- effectively negates
the purpose of the law. If there is no requirement that a permit holder show his permit to a police
officer when asked, then why require that permits be carried at all? There would be no point.
The permit might as well be left at home in a drawer. In construing a statute, the court
presume[s] that the legislature did not intend to enact meaningless provisions. State v. Kevalis,
313 Conn. 590, 600 (2014). [C]ommon sense must be used and courts must assume that a
reasonable and rational result was intended. Lagueux v. Leonardi, 148 Conn. App. 234, 242
(2014). Here, the only rational construction of Conn. Gen. Stat. 29-35(b) that does not render
meaningless the requirement that a permittee carry his permit, is that the permittee must show his
permit when asked.
Lazurek not only refused to show his permit and asserted he would continue to refuse to
show his permit, but also adopted the position that the police have no business even asking him if
he has a permit. See Lazurek's Memorandum of Law in Support of Motion to Terminate Stay,
pp. 9-10. Such contempt for law enforcement further compels the conclusion that Lazurek lacks
the essential character or temperament to be entrusted with a pistol permit.
A gun is a
dangerous weapon, and the display of a gun instills fear in the average citizen, . . . creat[ing]
an immediate danger that a violent response will ensue. McLaughlin v. U.S., 476 U.S. 16, 17-18
(1986). Because a gun is inherently dangerous, Connecticut law requires a permit to carry a
handgun, and carrying a handgun without obtaining a permit is a felony. Conn. Gen. Stat. 2935(a), 29-37(b). Even with a permit, however, the right to carry a firearm openly outside the
home is not clearly established law in Connecticut. See Burgess v. Town of Wallingford, 569
Fed. Appx. 21, 23-24 (2d Cir. June 12, 2014)(summary order); petition for certiorari pending.
There are no Connecticut statutes or decisions clearly establishing that Connecticut handgun
permit-holders can openly carry their weapons, and Connecticut courts have confirmed that
carrying a permitted firearm openly can lead to arrest when circumstances warrant. Id. at 23-24,
citing Peruta v. Commissioner of Public Safety, 128 Conn. App. 777, 794 and n. 16, cert.
denied, 302 Conn. 919 (2011).
Given this state of the law, courts have held that [p]olice officers who observe a person
carrying a . . . weapon are permitted to conduct a limited stop, rather than risk harm to
themselves and to bystanders, while they determine whether possession of the weapon is lawful.
U.S. v. Wiggan, 3:09-CR-51(SRU), 2010 WL 2698277 at * 12 (D.Conn. July 8, 2010), affd,
10
530 Fed. Appx. 51 (2d Cir. 2013)(summary order), cert. denied,134 S. Ct. 1565 (2014); see also
U.S. v. Lucas, 68 Fed. Appx. 265 (2d Cir. July 10, 2003)(summary order), cert. denied, 540 U.S.
1024 (2003)(officers observation of apparent gun justified a stop). In short, upon seeing Lazurek
openly carrying a handgun on a crowded boardwalk, the officers, in the interest of protecting
public safety, had a right to question him to determine whether he had a firearms permit, and
Lazurek, pursuant to Conn. Gen. Stat. 29-35(b), had an obligation to produce it.
By refusing to show his permit and asserting that he will continue to refuse to show his
permit in the future, Lazurek has effectively thumbed his nose at law enforcement and the state
legislature, and has adopted a position that obstructs the ability of the police to protect public
safety by being able to determine easily and efficiently whether a person carrying a handgun is
doing so legally. Under the circumstances, the Commissioner appropriately determined that
Lazurek lacked the essential character or temperament to be entrusted with a pistol permit and
properly revoked it.
3.
The Board Abused Its Discretion In Finding Lazurek Suitable To

Possess A Firearms Permit.
In reversing the Commissioner and finding Lazurek suitable to possess a firearm permit,
the Board abused its discretion. Although judicial review of administrative decisions is
deferential . . . [a] statutory right to appeal . . . must be meaningful. Gibbons v. Historic District
Commission, 285 Conn. 755, 766 (2008). Courts must not 'rubber-stamp . . . administrative
decisions that they deem inconsistent with a statutory mandate or that frustrate the [legislative]
policy underlying a statute.' Enquist v. General Datacom, 218 Conn. 19, 46 (1991)(Hull, J.
11
dissenting), quoting Bureau of Alcohol, Tobacco & Firearms v. Federal Labor Relations
Authority, 464 U.S. 89, 97 (1983); Muffler Shop of East Hartford, Inc. v. Dept. of Labor, No.
332678, 1990 WL 269179 at *3 (Conn. Superior Ct. July 20, 1990); see also Roto-Rooter
Services Co. v. Dept. of Labor, 219 Conn. 520 (1991)(reversing agency decision inconsistent
with legislative intent of statute). Thus, a court cannot take the view in every case that the
discretion exercised by the [administrative agency] must not be disturbed, for if it did the right of
appeal would be empty. Felician Sisters of St. Francis of Conn., Inc. v. Historic Dist. Commn,
284 Conn. 838, 854 (2008)(holding that the defendant Commission abused its discretion); see
also Nicholson v. Bd. of Firearms Permit Examiners, No. CV-94-0541048, 1995 WL 584377
(Conn. Superior Ct. Sept. 28, 1995)(Board abused its discretion by incorrectly applying the law
to the facts). In the present case, the Board abused its discretion because the clear message of its
decision that a permit holder need not show his permit when asked for it by law enforcement
conflicts with the manifest legislative intent of the permit statute and frustrates the States public
policy of protecting public safety.
Although Lazurek argues that this appeal is governed by the court's decision in
Commissioner of Public Safety v. Board of Firearms Permit Examiners, 129 Conn. App. 414,
cert. denied, 302 Conn. 918 (2011), in which the court affirmed a decision of the Board reversing
the revocation of Griffess McWhorter's pistol permit, McWhorter's case bears little resemblance
to Lazurek's. McWhorter had consumed substantial amounts of alcohol, fallen asleep, and was
awakened by his wife in the early hours of the morning and asked to pick up his son who was
stranded in Hartford with a broken-down car. Id. at 416. McWhorter jumped in his car, realizing
12
after he did so that he had a handgun in his pants pocket, and was subsequently arrested for
carrying a firearm while under the influence of alcohol and illegally possessing a firearm in a
motor vehicle. Id. The Commissioner revoked McWhorter's firearms permit, but the Board
reversed based on its findings that "McWhorter's possession of the handgun that morning was
accidental; he did not brandish or use the handgun; he appropriately alerted the arresting officer
that he was carrying the handgun; he has led an otherwise law-abiding life; and he was candid,
contrite and credible at his hearing." Id. at 424. Concluding that the Board reasonably inferred
that McWhorter's conduct was a "single, isolated incident," the court affirmed. Id.
In contrast to McWhorter, who accidentally violated the law and was "candid, contrite
and credible" at his hearing, Lazurek intentionally defied police authority and exhibited disdain
for the state's firearms permit law. Far from being a single, isolated incident as McWhorter's
was, Lazurek's conduct was, by his own assertion, only the first incident. According to Lazurek,
he will continue to defy any similar requests to show his permit to police in the future. Given the
stark contrast in attitude and temperament between McWhorter and Lazurek, McWhorter's case
has no bearing on Lazurek's. By reversing the revocation of Lazurek's permit, despite Lazurek's
disdain for law enforcement and the law, the Board abused its discretion. It sent a clear message
to Connecticut's gun owners that the statutory requirement that they carry their firearms permits
is meaningless. Under the circumstances, the Commissioner is likely to prevail on appeal.
B.
The Remaining Factors Favor The Retention Of The Stay.
Absent a stay, the resulting reinstatement of Lazureks firearms permit would harm the
Commissioners ability to enforce Connecticuts firearms permit requirements and endanger
13
public safety. It would open the door to repeat confrontations between Lazurek and law
enforcement -- particularly given his defiant attitude and his practice of openly carrying loaded
weapons -- and would send the clear message that gun owners need not bother to carry their
permits because there is no requirement that they show them. Without the ability to check a
permit on the spot, at any hour, it is far more difficult for state and local law enforcement officers
to verify that an individual carrying a gun is legally authorized to do so.
In contrast, continuation of the stay will not change Lazureks current situation. At the
time of his Board hearing, he had been without a permit for over a year, and yet he testified that
he would do it all again if the same situation presented itself. Given this attitude, being without a
permit must not be significantly hindering him in his employment or otherwise.
In sum, a balancing of the equities favors the Commissioner and a continuation of the
stay pending appeal. The Commissioner has a strong argument that the Board has abused its
discretion in this case, and terminating the stay now would present the very real possibility of
further confrontations between Lazurek and the police. Under the circumstances, the stay should
not be terminated.
CONCLUSION
For all of the foregoing reasons, Lazureks motion to terminate the stay should be denied.
14
PLAINTIFF
COMMISSIONER, CONNECTICUT
DEPARTMENT OF EMERGENCY
SERVICES AND PUBLIC PROTECTION
GEORGE JEPSEN
ATTORNEY GENERAL
BY:
15
/s/ Jane R. Rosenberg_

Jane R. Rosenberg
Assistant Attorney General
Juris No. 085141
55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120
Tel: (860) 808-5020
Fax: (860) 808-5347
jane.rosenberg@ct.gov
CERTIFICATION
I hereby certify that a copy of the foregoing was mailed, first class postage prepaid, this
24th day of November, 2014 to:
DeAnn S. Varunes, AAG

Office of the Attorney General
110 Sherman Street
Hartford, CT 06105
Tel: (860) 808-5450
Fax: (860) 808-5591
Email: deann.varunes@ct.gov
Richard A. Rochlin, Esq.
Taboada Rochlin LLP
1224 Mill Street
Building D, Suite 200
East Berlin, CT 06023
Tel: (860) 357-5003
Fax: (860) 218-9659
Email: RRochlin@taboadarochlin.com
/s/ Jane R. Rosenberg

Jane R. Rosenberg
Assistant Attorney General
16
Burgess v. Town of Wallingford, 569 Fed.Appx. 21 (2014)
569 Fed.Appx. 21
This case was not selected for
publication in the Federal Reporter.
Not for Publication in West's Federal Reporter.
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
FEDERALRULEOFAPPELLATEPROCEDURE
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
ORAN 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.
United States Court of Appeals,
Second Circuit.
Richard E. BURGESS, Plaintiff-Appellant,
Holdings: The Cami of Appeals held that:

[ l] police officers were entitled to qualified immunity from
arrestee's Second Amendment claims, and
[2] officers were entitled to qualified immunity on arrestee's

claims for false arrest and unlawful seizure.
Affirmed.
*22 UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADmDGED, AND DECREED that the
judgment of the district court is AFFIRMED.
Attorneys and Law Firms
Rachel M. Baird, Rachel M. Baird & Associate, Torrington,
CT, for Plaintiff-Appellant.
Thomas R. Gerarde (Kristan M. Maccini, on the brief), Howd
& Ludorf, LLC, Hartford, CT, for Defendants-Appellees.
V.
TOWN OF WALLINGFORD, Douglas L.

Dortenzio, Chief, in his Individual and Official
PRESENT: B.D. PARKER, DEBRA ANN LIVINGSTON,

CHRISTOPHER F. DRONEY, Circuit Judges.
Capacities, Anthony Martino, Lieutenant, in

his Individual and Official Capacities, Michael
Colavolpe, Sergeant, in his Individual and
Official Capacities, Gabriel Garcia, Officer, in
his Individual Capacity, Devin Flood, Officer, in
his Individual Capacity, Defendants-Appellees,
Mark Vanaman, Defendant. *
The Clerk of the Court is directed to amend the caption

as set forth above.
No. 13-2369-CV.
June 12, 2014.
Synopsis
Background: Arrestee brought 1983 action against town
and police officers, alleging violations of his constitutional
rights stemming from arrest on charges of disorderly conduct.
Defendants moved for summary judgment. The United States
District Court for the District of Connecticut, Tucker L.
Melan~'on, J., 2013 WL 4494481, granted motion. Arrestee
appealed.
SUMMARY ORDER
Plaintiff-Appellant Richard E. Burgess appeals from a
judgment of the United States District Court for the District
of Connecticut (Melarn;on, J.), entered May 15, 2013. The
district court granted summary judgment in favor of all of
the defendants named in Burgess's complaint. Burgess's suit
brought claims against the Town of Wallingford and police
officers Douglas L. Dortenzio, Anthony Martino, Michael
Colavolpe, Gabriel Garcia, and Devin Flood (collectively,
the "Defendants-Appellants") under 42 U.S.C. 1983,
alleging violations of his constitutional rights stemming from
Burgess's arrest on charges of disorderly conduct. 1 We
assume the parties' familiarity with the underlying facts and
the procedural history of the case.
Burgess's complaint also contained a malicious
prosecution claim against Mark Vanaman, a private
individual. The district court, acting sua sponte but after
requesting a response from Burgess, granted summary
judgment in Vanaman's favor on that claim. Burgess
has not appealed this portion of the judgment, and
accordingly we do not address this claim. We also do not

address Burgess's First Amendment claim or his claim
against the Town of Wallingford for failure properly to
train its police officers, as Burgess has chosen not to
pursue those claims on appeal.
I.
"The doctrine of qualified immunity protects government

officials from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known." Pearson v. Callahan, 555 U.S. 223, 23 l, 129
S.Ct. 808, l 72 L.Ed.2d 565 (2009) (internal quotation marks
omitted). This standard is "forgiving and protects all but
the plainly incompetent or those who knowingly violate the
law." Amore l'. Nomrro, 624 F.3d 522, 530 (2d Cir.2010)
(internal quotation marks omitted). "A police officer who has
an objectively reasonable belief that his actions are lawful is
entitled to qualified immunity." Okin F. Village ofCornwall011-fl11Jwm Police Dq/t, 577 F.3d 415, 433 (2d Cir.2009);
see also S'aucier v. Katz. 533 U.S. 194, 202, 121 S.Ct. 2151,
I 50 L.Ed.2d 272 (200 l) (stating that qualified immunity
attaches unless "it would be clear to a reasonable officer that
his conduct was unlawful in the situation he confronted"),
overruled in part on other grounds by Pem~wn, 555 U.S. 223,
129 S.ct. 808, 172 L.Ed.2d 565 (2009). A police officer is
also entitled to qualified immunity if "officers of reasonable
competence could disagree on the legality of the action
at issue in its particular factual context." 1-Valc:::yk v. Rio,
496 F.3d 139, 154 (2d Cir.2007) (internal quotation marks
omitted).
The qualified immunity analysis has two portions. First, we
inquire whether, "[t]aken in the light most favorable to the
*23 party asserting the injury, ... the facts alleged show
the officer's conduct violated a constitutional right." Saucier,
533 U.S. at 201, 121 S.Ct. 2151. The second question is
whether the right was "clearly established," which must be
determined "in light of the specific context of the case, not as a
broad general proposition." 2 Id. In the course of this inquiry,
"[o]nly Supreme Court and Second Circuit precedent existing
at the time of the alleged violation is relevant in deciding
whether a right is clearly established." Aioore v. Vega, 371
F.3d l I 0, 114 (2d Cir.2004).
Although the Supreme Court formerly required lower

courts to examine these questions in order, the Court has
since ruled that the sequence is no longer mandatory. See

Pearson. 555 U.S. at 236, 129 S.Ct. 808.
II.
(11 The first issue Burgess raises on appeal concerns his

claim that his arrest on charges of disorderly conduct violated
his right to bear arms under the Second Amendment. We
need not reach the merits of this question, however, because
even if a right of Burgess's was violated, it was not clearly
established.
In District ofColumbia v. Heller, the Supreme Court held that

the Second Amendment conferred an individual right to keep
and bear arms for self-defense sufficient to invalidate a law
that prohibited keeping firearms in one's home. 554 lJ.S. 570,
628-30, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). But as the
Court also said, the right protected by the Second Amendment
"is not unlimited." IJ. at 626, 128 S.Ct. 2783. Even at present,
we are unsure of the scope of that right. See Kacha/sky v.
Cnzv. ofTVesrchester, 701 F.3d 81, 89 (2d Cir.2012) ("[W]e
do not know ... the scope of [the Second Amendment] right
beyond the home and the standards for determining when
and how the right can be regulated by a government. This
vast 'terra incognita ' has troubled courts since Heller was
decided."), cert. denied sub nom. Kacha/sky v. Cacace, - U.S.---, 133 S.Ct. 1806, 185 L.Ed.2d 812 (2013). Thus, the
protection that Burgess claims he deserves under the Second
Amendment-the right to carry a firearm openly outside the
home-is not clearly established law. See Saucier, 533 U.S.
at 201, 121 S.Ct. 2151. And as of Burgess's arrest on May
16, 2010, this right was even less concrete, as the Supreme
Comt had not yet held that the Second Amendment right in
Heller applies to state governments; it did so shortly thereafter
in McDonald v. City lf Chicago, 561 U.S. 742, 130 S.Ct.
3020. 177 L.Ed.2d 894 (2010). Given this legal ambiguity,
Defendants-Appellants were entitled to qualified immunity,
and the district court correctly granted summary judgment in
their favor on Burgess's Second Amendment claim.
III.
Burgess also brought a claim in the district court for false
arrest and unreasonable seizure of a handgun. He contends
that at the time of his arrest, Connecticut law clearly entitled
him to carry his firearm openly, and that the defendant
officers' decision to stop him and subsequently arrest him
on charges of disorderly conduct was unreasonable in the

circumstances of this case. We disagree.
Connecticut statutory law governing the possession of
handguns does not expressly prohibit or endorse the open
carry of properly licensed firearms, and Burgess has not
cited any legal decision clearly establishing that Connecticut
handgun permit-holders can openly carry their weapons.
Moreover, Connecticut courts have confirmed that carrying
a permitted firearm *24 openly can lead to arrest when
circumstances warrant. See Perutu v. Comm'r of Pub. Sakty.
128 Conn.App. 777, 20 A.3d 691, 702 & n. 16 (2011)
(stating that "[d]epending on the specific circumstances, a
person who openly carries a pistol conceivably may be
subject to arrest for violating several statutes," including
the disorderly conduct statute, even if the statute governing
handgun licenses may "not prohibit a permit holder from
carrying a pistol openly" (footnote omitted)).
12) In this case, Burgess was arrested outside Yale Billiards,
a pool hall that serves liquor, when the defendant police
officers responded to the establishment after a verbal
altercation between Burgess and Mark Vanaman, another
patron, that arose as a result of Burgess's open carry of his
firearm and refusal to conceal it upon request. Vanaman
called 911 and reported that Burgess was then outside
the establishment with a handgun and two magazines of
ammunition. Robert Hilton, the owner of Yale Billiards,
also called 911 and stated that he had asked Burgess to
leave because "he made some customers uncomfortable."
The dispatcher told responding officers that Burgess had
an exposed firearm and was pacing back and forth in
front of the billiards hall. Officer Devin Flood stated in a
subsequent memorandum that he "believed ... based upon
the initial dispatch [that] there was a possibility that patrons
at Yale Billiards were in danger of serious physical injury
from a suspect pacing back and forth with an exposed
firearm," and once he reached the scene, he understood
based on his on-scene investigation that Burgess "carried
his unconcealed weapon into a pool hall crowded with
patrons with the intention of causing a disturbance." Sergeant
Michael Colavolpe said that he saw the firearm on Burgess's
person upon approaching him, as well as the two magazines
End of Document
on his waist. In a radio transmission during police response

to the scene, Sergeant Colavolpe reported to another officer
that Burgess had "caused a disturbance" at the pool hall and
that people were "freaking out" after the incident.
As in Goldberg v. Toil'n of G!astonbu1J', 453 Fcd.Appx. 40
(2d Cir.2011) (summary order), a prior nonprecedential order
in which we concluded that a claim similar to Burgess's
was barred by qualified immunity, we cannot conclude
that the defendant officers acted unreasonably in believing
that they could stop and arrest Burgess. Burgess, like the
plaintiff in Goldberg, was wearing an exposed firearm in an
establishment open to the public. He engaged in a verbal
altercation with a customer inside, which resulted in two
separate 911 calls reporting a disturbance. As in Goldberg,
"we conclude that reasonable officers could, at minimum,
disagree on whether there was probable cause to arrest
plaintiff ... , and accordingly the district court's qualified
immunity determination ought to be affirmed." fd. at 42.
Moreover, because we conclude that "officers of reasonable
competence could disagree on the legality" of the police
conduct here, Walc:::yk, 496 F.3d at 154 (internal quotation
marks omitted), we decline to address the merits of Burgess's
Fourth Amendment claim. In sum, the district court properly
granted summary judgment to Defendants-Appellants on the
claim of false arrest and unlawful seizure because the officers
are entitled to qualified immunity. 3
3
Burgess's complaint also claimed a violation of the

right to bear arms under the Connecticut Constitution.
The district court declined to exercise supplemental
jurisdiction on this claim after dismissing his causes
of action brought under federal law. See 28 U.S.C.
1367(c). We detect no abuse of discretion in the district
court's dismissal of these claims without prejudice. See
Oneida Indian Nation tfN. Y. v. Aladison Cn~v., 665 F.3d
408. 43 7 (2d Cir.2011 ).
*25 We have considered all of Burgess's remaining

arguments and find them to be without merit. For the
foregoing reasons, the judgment of the district court is hereby
AFFIRMED.
(\) 2014 Thomson Reuters. No c!aim lo original U.S. Government Works.
Muffler Shop of East Hartford, Inc. v. Department of Labor, Not Reported in A.2d (1990)
1990 WL 269179
1990 WL 269179
Only the Westlaw citation is currently available.
UNPUBLISHED OPINION. CHECK
COURT RULES BEFORE CITING.
Superior Court of Connecticut, Judicial
District of Hartford-New Britain, at Hartford.
MUFFLER SHOP OF EAST HARTFORD,
INC., Muffler Shop of Rocky Hill, Inc.,
performed. His regular rate of pay determined by dividing

his earnings for the week from the percentages for the
repair services performed by the number of hours worked in
the week generally exceeds twice the minimum hourly rate
applicable to him under 31-58 of the General Statutes, and
he generally works less than fifty-four hours for a six day
work week.
Section 31-76i of the General Statutes provides for certain
exceptions from an employer's statutory duty under 31-76c
to pay his employees for overtime work. Subsection (g)
provides that overtime pay requirements do not apply to:
Muffler Shop of New Britain, Inc.,

v.
DEPARTMENT OF LABOR, et al.
No. 332678.
July 20, 1990.
MEMORANDUM OF DECISION
HAMMER, Judge.
*1 The plaintiffs have brought this action for a declaratory
judgment based on a ruling of the defendant labor
commissioner that their employees were not exempt under
31-76itg) of the General Statutes from the overtime pay
requirements of Sections 31-76b through 31-7qj of the
General Statutes.
The facts have been stipulated by the parties and may be

summarized as follows. Each of the plaintiffs' shops employ
mechanics and when a customer arrives at the shop, his car is
assigned to a mechanic for inspection. After the mechanic has
made his inspection, he determines the repair work required
and completes a service agreement containing the repair work
proposed and estimated cost.
The mechanic then contacts the customer, discusses the work
proposed and obtains the customer's signed authorization for
the work. The authorized repair service is then performed by
the same mechanic.
He is paid a fixed percentage of the amount paid by the
customer for each type of repair service performed. There
is a percentage rate of pay for exhaust work and a different
percentage rate of pay for all other work including brakes,
shocks and struts and front end work.
The overwhelming majority of each mechanic's earnings is
based on such percentages for the types of repair services
any employee except outside salesmen ( 1) whose regular rate

of pay is in excess of two times the minimum hourly rate
applicable to him under section 31-58, (2) more than half of
whose compensation for a representative period, being not
less than one month, represents commissions on goods or
services, and (3) who does not work more than fifty-four
hours during a work week of seven consecutive calendar days.
In determining the proportion of compensation representing
commissions, all earnings resulting from the application of
a bona fide commission rate shall be deemed commissions
on goods or services without regard to whether the computed
commissions exceed the draw or guarantee.
The plaintiffs, by letters dated July 13, 1987, and November
3, 1987, asked the labor department for a declaratory ruling
pursuant to 4-176 of the General Statutes. (Trial Exhibits A
and B). They summarized the underlying facts and requested
a ruling that the exception to the overtime pay requirements of
3 l-76i(g)"applies to the factual situation set forth herein."
The commissioner's declarat01y ruling dated May 4, 1988
(Trial Exhibit D, p. 12), stated that the second condition of
the statuto1y exemption, which requires that commissions
comprise more than half of an employee's earnings, had
not been satisfied because the statutory language "must
be interpreted as limited to compensation for sales." She
concluded that "[b]ecause the overwhelming majority of
earnings of petitioners' mechanics are derived from the
performance of services rather than sales according to [the
stipulation of facts] the requirement of 3 l-76i(g)(2) is not
met, and the exception to overtime pay requirements in
3 l-76i(g) does not apply to the mechanics." Id. 12.
*2 The ruling noted that the word "commissions" is not
defined in the overtime statutes nor have the Connecticut
courts interpreted it in the context of the statutory scheme.
1990 WL 269179
It went on to state that based on dictiona1y definitions

which associate it with "sales" or "transactions", and court
decisions from other states which give it the same general

meaning, "commissions" may be defined "in terms of
direct responsibility for generating income in a commercial
transaction and hence sales." Id. 5.
The commissioner also stated that "if the exception were
interpreted to extend beyond sales to any type of work
for which 'commissions' were allegedly paid such as the
production of goods or performance of services, widespread
abuse and circumvention of the purposes of the overtime
statutes would result." Id. 6. She pointed out that an
employer could evade the statutory overtime requirements
by simply characterizing incentive payments for production
workers and percentage payments for service personnel as
"commissions."
The ruling also relied on the legislative history of the statute
(1969 Public Acts No. 548), including a statement by Senator
Miller who stated in reporting the bill out of committee that
it "would exempt commission salesmen." The commissioner
also referred to the bill's statement of purpose which was "to
remove a hardship on highly paid commission salesmen and
their employers," and its title, which was "An Act Concerning
Commission Salesmen and Overtime." Id. 9.
The commissioner, in support of her interpretation of the
statute, also cited an opinion of the attorney general dated
June 14, 1972, which had been consistently followed by
the department, that the statutory exemption "is restricted to
commission salesmen who otherwise qualify." The opinion
stated that the phrase "commissions on goods and services"
is "patently ambiguous" and raises the question of whether
the legislature intended all or only some kinds of labor to be
compensable by way of commissions, and that ifit intended
to impose such a restriction "which form of labor it intended
to place within the exemption from overtime."
In his 1972 opinion, the attorney general stressed that the
remedial nature of the overtime laws required that exceptions
be strictly construed. He also noted that a broad interpretation
of the word "commissions" as used in 31-76i(g)"would not
only be contrary to the usual rule of strict interpretation of
exceptions to remedial legislation, but could lead to abuses
which would deny overtime compensation to those rightfully
entitled to it."
Subsequent to the hearing in this case, the court granted

the defendants' request that the parties be permitted to
file supplemental briefs concerning a recently enacted
amendment of 31-76i(g) of the General Statutes. This
statutory change was made by Public Act No. 89-24 which
substituted the words "any inside salesperson whose sole duty
is to sell a product or service" in place of "any employee
except outside salesmen."
*3 The legislator who reported the amendment stated that
it was requested by the labor department "to plug a gap
that came about in an attorney general's informal opinion in
June of 1972, regarding salesmen." 32 Conn.H.R.Proc., Pt.
5, 1989 Sess. 1582 (March 22, 1989). The defendants claim
that the statutory change was made to clarify the exemption
in accordance with the labor department's prior interpretation
of the original statutory language.
The plaintiffs argue that the legislative history does not
support the defendants' claim that the amendment was
designed to clarify the prior law and that because it "effects a
fundamental change in the scope of an overtime exemption it
cannot be applied retroactively to the plaintiff."
In his supplemental reply brief, counsel for the defendants
asserts that the 1989 amendment was not intended to
influence the outcome of this litigation and that, in fact, he did
not become aware of the amendment until after the case was
argued. He has also submitted an affidavit from the director
of the division of regulation of wages which states that he
was personally involved in the department's request for the
amendment and that it was designed to clarify the statute "in
accordance with the Department's interpretation of the prior
statute, consistent with the amendment, as limited to inside
salespersons whose sole duty is to sell a product or a service."
The Uniform Administrative Procedure Act (UAPA)
empowers administrative agencies to issue declaratory
rulings based on their interpretation of statutes and mandates
that an administrative determination of such questions of
law be made before judicial review can be obtained by
way of an action for declaratory judgment. General Statutes
4-175, 4-176. The administrative ruling as to the
meaning of the law has been made an integral part of the
process of statutory interpretation under the UAPA because
administrative agencies must necessarily interpret laws which
are made for their guidance and statutes "cannot be read
in a vacuum but must be illuminated by the force of
1990 WL 269179
concrete, everyday pressures." Con11ccticut Lif(' & Health Ins.

Guarani\' Assn. I'. Jackson, 173 Conn. 352, 356-57.
"An agency's construction of a statute it is charged with
enforcing is entitled to deference ifit is reasonable ... in light
of the language, policies, and legislative hist01y of the Act ... ",
and is not in conflict with the expressed legislative intent.
United States v. Riverside Bayview Homes, Inc., 474 U.S.
455, 461 (1985). However, in order for reviewing courts to
properly perform their function they should not "stand aside
and rubber-stamp their affirmance of administrative decisions
that they deem inconsistent with a statutory mandate ... ", or
that frustrate the legislative policy which underlies the statute.
NLRB v. Brown, 380 U.S. 278, 291 (1965).
"The primary purpose of the minimum wage law is to require
the payment of fair and just wages [and like] our workmen's
compensation and unemployment compensation laws, the
minimum wage law should receive a liberal construction in
order that it may accomplish its purpose." West v. Egan,
142 Conn. 437 at 442. The burden rests on the employer to
establish that his employees come within an exemption and
"it is essential that exemptions or exclusions be strictly and
narrowly construed." Shell Oil Co. v. Ricciuti, 147 Conn. 277
at 283.
*4 The plaintiffs claim that the phrase "commissions on
goods and services" is plain and unambiguous, and that
it so clearly expresses the intention of the legislature to
exclude from entitlement for overtime pay any employee
who is paid on a commission basis that it is "unnecessary
and inappropriate even to resort to the principles of statutory
construction." In effect, the plaintiffs' argument attributes to
the legislature an intention to create an exemption in 31-76i
unlike any of the other eleven statutory exceptions in that it is
based solely on the mode of payment chosen by the employer
rather than on the nature of the work that is performed by the
employee.
The plaintiffs' literal reading of the "commissions" exception
would have the further effect of making subsection (i),
which exempts household delivery route salesmen of milk
or bakery products who are paid on a commission basis,
entirely unnecessary. The exemption in subsection U) of
salesmen "primarily engaged in selling automobiles" would
also be rendered virtually nugatory under the plaintiffs'
interpretation.
It is a basic rule of statutory construction that "the legislature
is presumed to know all the existing statutes and that when it

enacts a law it does so in view of existing relevant legislation,
intending the statute enacted to be read with the pertinent
existing legislation so as to make one consistent body oflaw."
Jennings\'. Connecticut Light & Power Co., 140 Conn. 650 at
665-66. The court will not infer that the legislature intended
to enact a significant change in existing law by importing a
new class into a statute which has always been limited in its
scope "without an unequivocally expressed manifestation of
legislative intent." Kinney v. State, 213 Conn. 54, 66.
The argument that any form of compensation based on a
percentage of sales was a "commission" within the meaning
of the Fair Labor Standards Act (FLSA), was made and
rejected in Mechmet v. Four Seasons Hotels, Ltd., 825
F.2d 1173 (7th Cir.1987). The court stated that "it would
not be sensible" to decide whether banquet service charges
were "commissions" based on dictionary definitions or even
common legal usages because it did not want to "create
an unintended loophole in the Act by a literal-minded
application" of the exemption provision, and then proceeded
to consider "what interpretation would best advance the
legislative purpose." Id at 1175.
Mechmet also refutes the plaintiffs' claim that the definition

of "commissions" may be found in the second sentence
of subsection (g) which states that "[i]n determining the
proportion of compensation representing commissions, all
earnings resulting from the application of a bona fide
commission rate shall be deemed commissions on goods and
services." [Emphasis added]. The identical language appears
in the FLSA exemption for employees of retail and service
establishments; 29 U.S.C. 207(i); and was quoted and
construed in Mechmet without any suggestion by the court
that the prescribed method of computing the proportion of
commissions had any definitional value with respect to the
meaning of"commissions on goods or services."
*5 If a statute is silent or ambiguous on the question at
issue, the court does not simply impose its own construction
as it would in the absence of an administrative interpretation,
but rather, the question for the court is whether the agency's
answer is based on a permissible construction of the statute.
Chevron, U.S.A .. Inc. 1>. Natural Resources Defense, 467
U.S. 837, 843 (1984). In resolving that question, the court
will defer to the executive department's construction of the
statutory scheme it is entrusted to administer, unless the
legislative history of the enactment shows with sufficient
1990 WL 269179
clarity that the agency construction is contrary to the

legislative intent. Jap1.111 FV/11.1/ing Association v. American
Cetacean Society, 478 U.S. 221, 233 ( 1986 ).
consistent with his opinion. Co1111ecticur Hospira! Association

v. Commission on Ho.1pita/s & Health Care, 200 Conn. 133,
143.
Ambiguity may be found to exist even where the legislature

has addressed itself to the precise question at issue but has
not clearly expressed its intent through its choice of statutory
language, thereby giving rise to reasonable but conflicting
interpretations. Young v. Community Nutrition !11stit11te. 4 76
U.S. 974, 980 (l 986). Where the agency has advanced its own
interpretation of such an ambiguous statutory provision, the
court need not find that it is the only permissible construction
that the agency might have adopted, but only that it is a
sufficiently rational one to preclude a court from substituting
its judgment for that of the agency. Id. 981.
*6 The commissioner's ruling and the attorney general's

opinion relied on the legislative history of the statute,
including a statement by the legislator who reported the
bill that it "would exempt commission salesmen." She also
cited the bill's statement of purpose which was "to remove
a hardship on highly paid commission salesmen and their
employers," and its title which was "An Act Concerning
Commission Salesmen and Overtime."
The court finds, for the reasons just stated, that the phrase
"commissions on goods and services" is not so plain and
unambiguous as to exclude from entitlement for overtime
pay "any employee" who is paid on a commission basis and
that it is therefore necessary and appropriate for the court to
resort to principles of statutory construction to determine the
legislative intent.
Ordinarily, the construction of a statute on an issue that
has not previously been subjected to judicial scrutiny is
a question of law on which administrative rulings are not
entitled to special deference. Connecticut Light & Power Co.
v. Department ofPublic Utility Control. 210 Conn. 349, 357.
Nevertheless, a practical construction placed on legislation
by an agency over many years will be accorded deference
"but only when the agency has consistently followed its
construction over a long period of time, the statutory language
is ambiguous, and the agency's interpretation is reasonable."
Srate Medical Society v. Board ofErnminers, 208 Conn. 709
at 719.
The commissioner's declaratory ruling in this case that
the statutory language must be interpreted as limited to
compensation for sales rather than for the perfo1mance
of services was based on the attorney general's opinion
issued in 1972 which has been consistently followed up
to the present time. Opinions of the attorney general "are
usually regarded by courts as highly persuasive and entitled
to substantial weight"; Windham Cummuni{v Memorial
Ho.;pital v. 1-Villimantic, 166 Conn. 113 at 118; and although,
of course, such an opinion is not binding on the court, it
is entitled to careful consideration where an administrative
agency's interpretation of a statute is based upon, or is
In construing a statute and determining the legislative intent,

the court may take judicial notice of statements made by
the legislators in moving for acceptance of the committee's
report and passage of the bill, particularly where they are
the only members who speak on the bill. Miller v. Board(!/'
Education, 166 Conn. 189, 194. Where the only speaker on
the bill is its sponsor, his statements "are an authoritative
guide to the statute's construction" and may be accorded
substantial weight where they are the only reliable indications
oflegislative intent. North Haven Board ()f Education v. Bell.
456 U.S. 512, 526-27 (l 982).
The title or caption of a bill before the legislature may
properly be considered in determining the legislative intent
where the statute is doubtful or ambiguous in meaning. State
1'. Faro, 118 Conn. 267, 262. The statement of purpose ofa
bill may also be a valuable aid in determining the meaning of
the law after its enactment. Zichichi v. Middlesex Memorial
Hospital, 204 Conn. 399, 405.
The defendants, in their post-trial briefs, have also asked the
court to consider the 1989 amendment to the statute (Public
Act No. 89-24) which substituted the words "any inside
salesperson whose sole duty is to sell a product or service"
in place of "any employee except outside salesmen." The
plaintiffs assert that the court cannot properly consider this
belated legislative action as having any bearing on the intent
of the legislature in enacting the prior statutory exemption.
It should be noted that the issue before the court as
framed by the plaintiffs' complaint is not the correctness
of the defendants' long-standing position that the statutory
exemption applies only to "inside salespeople." The court is
only being asked to decide the validity of the ruling made
by the commissioner on the stipulated facts before her in this
1990 WL 269179
case based on her legal conclusion that the exemption must

be interpreted as limited to compensation for sales.
The rule in this state is that a subsequent legislative act may
throw light on the legislative intent of a prior related act
and an amendment which in effect construes and clarifies a
prior statute must be accepted as the legislative declaration
of the meaning of the original act. Har(f'ord v. S11f)ield, 137
Conn. 341, 346. However, in this case, the 1989 amendment
is clearly a change rather than a clarification in that it does
more than merely incorporate the particular administrative
interpretation which is the subject of this action. Cf. Grant
Cen/cr Huspital v. Health Group, 538 So.2d 804, 81 O
(\fas.1988).
*7 Apart from the Mechmet case previously discussed in this
opinion, the court's research has uncovered only one reported
state court case dealing with a "commissions" exemption
from a state overtime law. The California appellate court in
that case, which involved automobile mechanics, reversed the
trial court and upheld the labor department's interpretation
that "employees must be involved principally in selling a
product or service, not making the product or rendering the
service." Keyes Motors v. Division of Labor Standards, 242
Cal.Reptr. 873 (Cal.App.1987).
The employer argued in the trial court that his employees were
an integral part of the sales force because their specialized
knowledge allowed them to diagnose needed repairs, but
the appellate court rejected that contention on the ground
that they were rendering services, and were not engaged
in selling. Id. The 1990 supplement to Volume 7A of
Words and Phrases, basing its definition of "commission
wages" on the Keyes decision, states (p. 180) that "[i]n
order for compensation scheme to constitute 'commission
wages' within meaning of the overtime requirements of state
labor laws, employees must be involved principally in selling
product or service, not making product or rendering service,
and amount of their compensation must be percent of price of
product or service." (Emphasis added).
The plaintiffs have also requested this court to determine
whether 3 l-76i(g), "as construed and applied by
Defendants, is unconstitutionally vague." Their constitutional
argument is flawed because of the general principle that the
Constitution does not require impossible standards of clarity
in statutes or administrative regulations. l 6A Am.Jur.2d,
Constitutional Law 818.
Our supreme court, in West v. Egan. 142 Conn. 437 at

443, sustained the minimum wage law against constitutional
attack on due process grounds and also held that the labor
department's administrative determination that tips should be
considered as part of the statutory fair minimum wage was not
an unconstitutional exercise of legislative power. The court
held that the statute must necessarily be broadly applied to
include "a wide variety of way and means" for paying wages,
and that a statute "could not possibly be drawn to meet every
exceptional situation" because of the "wide range in the type
and quality of the service rendered" in a particular situation.
Id. 445.
The United States Supreme Court has said that "when an
agency is charged with administering a statute part of the
authority it receives is the power to give reasonable content
to the statute's textual ambiguities", and in exercising that
authority it must accommodate the conflicting policies that
have been committed to the agency's care by the statute.
Dcpartmelll of Treasury v. FLRA. 110 S.Ct. 1623, 1629
( 1990). The court noted that "[i]t is not a task we ought to
undertake on the agency's behalf in reviewing its orders." Id.
1630.
*8 Overtime pay exemptions must be narrowly construed
against the employers seeking to asse11 them. Arnold v.
Kanowski, 361 U.S. 388, 392. "To extend an exemption to
other than those plainly and unmistakably within its terms and
spirit is to abuse the interpretive process ..."Phillips Co. v.
1-Valling, 324 U.S. 490 at 493 (J 945).
For the foregoing reasons, a declaratory judgment is entered
as follows:
1. The declaratory ruling issued by the labor commissioner
on May 4, 1988, that 31-76i(g)(2J of the General Statutes
must be interpreted as limited to compensation for sales, and
that because more than half of the earnings of the plaintiffs'
employees are derived from the performance of services
rather than sales the requirement had not been met, was
correct.
2. The employees are not exempt under 31-76i(g) of the
General Statutes from the statutory requirements that the
employer compensate its employees for overtime work.
3. Section 3 l-76i(g), as construed and applied by the labor
department, is not unconstitutionally vague.
1990 WL 269179
End of Document
((c12014 Tt1ornson Reuters. No ciaim to oriqinal U.S. Government Worl\c;.
Nicholson v. Board of Firearms Permit Examiners, Not Reported in A.2d (1995)

1995 WL 584377, 15 Conn. L. Rptr. 193
KeyCite Yellow Flag - Negative Treatment
Distinguished by
Conn.Super.,
Reveron v. Board of Fircarms Permit Ex,1111incrs.

May 26, 2009
1995 WL 584377
UNPUBLISHED OPINION. CHECK COURT RULES
BEFORE CITING.
Superior Court of Connecticut, Judicial
District of Hartford/New Britain, at Haitford.
Michael T. NICHOLSON
v.
BOARD OF FIREARMS PERMIT EXAMINERS.
No. CV 94 054 10 48.
Sept. 28, 1995.
MALONEY, Judge.
*1 PlaintiffMichael T. Nicholson appeals the decision of the

defendant board of firearms permit examiners revoking his
permit to carry a pistol or revolver. The board acted pursuant
to Genl'ral Statutes 29-32b. The plaintiff appeals pursuant
to 4-183. The court sustains the appeal.
The facts essential to the court's decision are not in dispute.
The plaintiff had held a permit to carry a handgun, issued by
the state police, for about thirty years. On March 4, 1994, the
state police revoked the permit. In the notice of revocation,
the police stated that the basis of the revocation were two
incidents: the plaintiffs conviction in 1964 on a misdemeanor
involving stolen property and his arrest in July 1993 on felony
charges of assault and risk of injury to a minor. The 1993
criminal charges were nolled by the state on March 17, 1994.
The plaintiff appealed the revocation to the defendant board
in accordance with General Statutes 29-32b. The board held
a hearing de novo on the revocation at which the plaintiff
appeared and testified. A representative of the state police
also appeared and testified as did a detective from the Enfield
Police Department.
Following the hearing, the board rendered its final decision
affirming the revocation of the plaintiffs permit. In its
decision, the board made the following findings of fact:
1. The appellant was arrested for Assault 2nd and Risk of

Injury to a Minor. The charges were based on a complaint
that he beat his son with a belt. Both charges were nailed
on 3/17/94.
2. The son has a history of difficult behavior and is
enrolled in a school for children with difficulties run by the
Newington Children's Hospital.
3. The appellant admits he hit his son with the belt but
claims most of the bruises came from his son falling off a
skate board. The evidence makes clear the bruises but not
their source.
4. The appellant held a permit for about 30 years without
any difficulties prior to this incident.
Based on those findings, the board concluded "that there is
just and proper cause for the revocation of a pistol permit
because based upon the facts produced at the hearing, the
appellant is not a suitable person." In accordance with its
findings and conclusions, the board affirmed the revocation
of the plaintiffs permit.
The plaintiff advances two arguments in support of his
appeal: (I) that the board wrongfully admitted and relied upon
hearsay evidence; and (2) that the board's decision constituted
an abuse of its discretion.
At the hearing before the board, a state police detective
testified as to the contents of the report of an Enfield police
officer and affidavits made in support of the warrant for the
plaintiffs arrest. An Enfield police officer also testified as to
the contents of those documents. The reports and affidavits
themselves were not admitted in evidence and the author of
the police reports and the affiants were not present at the
hearing. In his brief to this court on appeal, and with some
justification, the plaintiff characterizes the allowance of this
testimony as revealing "a complete and utter disregard for any
form of evidentiary protocol."
*2 The problem with the plaintiffs objection to the board's

allowance of the police officers' testimony concerning the
contents of the documents is that it comes too late. General
Statutes 4-178 provides that "(a)ny oral or documentary
evidence may be received" at the administrative hearing of
a contested case, and our courts have held that this includes
even hearsay evidence so long as it is reliable and probative.
Cassella v. Civil Service Commission. 4 Conn.App. 359, 362

1995 WL 584377, 15 Conn. L. Rptr. 193
( 1985); affd202 Conn. 28. 33 t 1987). Furthermore, and with

particular relevance for this case, "[w]hen hearsay statements
have come into a case without objection they may be relied
upon by the trier, in proof of the matters stated therein,
for whatever they were worth on their face." (Citations and
internal quotation marks omitted; emphasis added.) Volek v.
Mu::io, 204 Conn. 507. 518 ( 1987).
In the present case, the record clearly shows that the plaintiff
made no objection to the testimony of the police officers at
the hearing. In his testimony, he did attempt to contradict
what they said, but he never objected to the admissibility of
their statements. In his brief on appeal, he points out that he
was not represented by counsel at the hearing. He makes no
claim, however, that he was in any way denied the right or
opportunity to be represented. The court concludes that, in the
absence of any objection by the plaintiff at the hearing, it was
not error for the board to admit the testimony, including the
hearsay statements.
The plaintiff next contends that the board's ultimate decision
constituted an abuse of its discretion. In essence, the plaintiff
argues that the board had legally insufficient grounds for
revoking the plaintiffs permit even assuming the validity of
its factual findings. In this regard, the plaintiff argues that "the
board revoked the plaintiffs permit because it did not agree
with the plaintiffs means of parental discipline ... It is not
the duty of the board to revoke pistol permits as a means of
governing family values." (Plaintiffs brief, pp. 13-14.) The
plaintiffs argument requires the court to review the board's
statutory authority to revoke handgun permits.
General Statutes 29-35 prohibits anyone from carrying a
pistol or revolver outside his or her home or business without
a permit issued pursuant to 29-28. That statute sets forth
the criteria and procedure for obtaining a permit to carry a
handgun. It is a two-step procedure under which the applicant
first obtains from the appropriate local official a permit to
carry a pistol in his or her town of residence and then obtains
a state-wide permit from the state police, acting in behalf
of the commissioner of public safety. The statute provides,
in relevant part, that the local official will grant the permit
"provided such authority shall find that such applicant intends
to make no use of any pistol or revolver which he may be
permitted to cany ... other than a lawful use and that such
person is a suitable person to receive such pennit." The statute
provides no criteria for issuance of the state-wide permit by
the state police but provides, merely, that the "commissioner
may, upon application, issue to any holder of any [local]

permit, a permit to carry a pistol or revolver within the state."
*3 General Statutes 29-32 establishes the summary
procedure by which either the local authority or the
commissioner may revoke a permit. "Any permit for the
caiTying of any pistol or revolver may be revoked by the
authority issuing the same for cause and shall be revoked by
the authority issuing the same upon conviction of the holder
of such permit" of a felony or specified misdemeanor (not
applicable in this case).
General Statutes 29-32b(b) sets forth the standards for the
defendant board to follow in reviewing a revocation of a
permit by the local authority or the commissioner. "On such
appeal the board shall inquire into and determine the facts, de
novo, and unless it finds that such ... revocation ... would be
for just and proper cause, it shall order such permit to be ...
restored .... "
As the board indicates in its decision, and argues in its brief to
this court, it considers that a determination that an individual
is not "a suitable person," in the language of 29-28, is just
and proper cause for revocation of a permit under 29-32.
In the present case, the board concluded as a matter oflaw that
the plaintiff is an "unsuitable person." The term "suitable" is
nowhere specifically defined in the pistol permit laws. The
term "unsuitable person", as used in the Board's decision,
also does not appear anywhere in the applicable statutes. In
its brief to the court on this appeal, the board cites Smith's
Appeal jiwn County Commissio11e1:s, 65 Conn. l 35, 138
(1894) holding:
The word "suitable" as descriptive
of an applicant for license under
the statute, is insusceptible of any
legal definition that wholly excludes
the personal views of the tribunal
authorized to determine the suitability
of the applicant. A person is "suitable"
who by reason of his characterhis reputation in the community, his
previous conduct as a licensee-is
shown to be suited or adapted to the
orderly conduct of [an activity] which
the law regards as so dangerous to
public welfare that its transaction by
any other than a carefully selected
person duly licensed is made a

1995 WL 584377, 15 Conn.
L. Rptr.
193
criminal offense. It is patent that the

adaptability of any person to such
[an activity] depends upon facts and
circumstances that may be indicated
but cannot be fully defined by law,
whose probative force will differ in
different cases, and must in each
case depend largely upon the sound
judgment of the selecting tribunal.
(Emphasis added).
Since Smith's Appeal, there has been relatively little judicial
light shed on the scope of the term "unsuitable person" as
employed by the board in determining whether a person
should continue to hold a handgun permit. In Rabbitt v.
L!!onanl, 36 Conn.Sup. I 08, 115, (1979), cited by the board
in its brief, the Superior Court (Saden, l) observed that the
"governmental interest here is to protect the safety of the
general public from individuals whose conduct has shown
them to be lacking the essential character or temperament
necessary to be entrusted with a weapon." (Emphasis added.)
In Srurace v. lv!ariano, 35 Conn.Sup. 28 ( 1978 ), cited by the
plaintiff in his brief, the Court of Common Pleas sounded
a similar note. In that case, the plaintiff, an employee of
Fairfield Hills Hospital, disobeyed the instructions of his
supervisor regarding the storage of his pistol on the grounds of
the hospital. The court, contrary to the findings of the board,
concluded that the plaintiffs insubordination did "not render
the plaintiff unsuitable" to hold a pistol permit. In reaching
this conclusion, the com1 noted that "the record fails to show
any danger to inmates or to the public or other grounds for
upholding the revocation." Id., 33.
*4 These cases impose a special responsibility on agencies
such as the board, which must determine an individual's
"suitability" to hold a license. As indicated by the Supreme
Court of Errors in Smith's Appeal, supra, 65 Conn. 138,
the personal views of the agency members are necessarily
a factor in the decision, and similar facts and circumstances
will have varying "probative force" in different cases. In
accordance with General Statutes ~ 4- l 83(i)( 6), however, the
board must avoid decisions which are "arbitrary or capricious
or characterized by abuse of discretion or clearly unwarranted
exercise of discretion." As this court has previously held, "It
is incumbent on the agency in such cases ... to be reasonably
precise in stating the basis of its conclusion that an individual
is 'unsuitable.' Otherwise, the decision on its face will be
susceptible to the interpretation that it is unduly subjective, an
essentially arbitrary act." Wend v. Board of Firearms Permit
Examiners, Superior Court, judicial district of Hartford/New

Britain at Hartford, Docket No. CV92 051 86 55 (May 28,
1993).
The court presumes that the tenn "unsuitable" as used by the

board means not "suitable" to hold a pistol permit within the
meaning of 29-28, the statute governing the issuance of
such permits. In accordance with the Rabbitt v. Leonard and
Starace v. Mariano cases, supra, an "unsuitable person" under
that statute is one whose conduct indicates that he or she is
potentially a danger to the public if entrusted with a handgun.
In Smith's Appeal, the court indicates that the board may take
into account the person's "reputation in the community" and
"his previous conduct as a licensee."
In the present case, the board sets forth very limited findings
of fact in support of its conclusion that the plaintiff is not
suitable to hold a permit. In essence, the facts that the board
states are the basis of its conclusion are that the plaintiff beat
his son with a belt on one occasion and was arrested as a
result.
All of the other facts set forth in the board's written decision
are either not probative or favor the plaintiff.
The court is well aware of the basic principle ofadministrative
law that the scope of the com1's review of an administrative
agency's decision is very limited. General Statutes 4- l 83U)
provides that "(t)he court shall not substitute its judgment
for that of the agency as to the weight of the evidence
on questions of fact ... The court shall affirm the decision
of the agency unless the court finds that substantial rights
of the person appealing have been prejudiced because the
administrative findings, inferences, conclusions, or decisions
are ... clearly erroneous in view of the reliable, probative,
and substantial evidence on the whole record." Nevertheless,
where "the issue is one of law, the court has the broader
responsibility of determining whether the administrative
action resulted from an incorrect application of the law
to the facts found or could not reasonably or logically
have followed from such facts. Although the court may not
substitute its own conclusions for those of the administrative
board, it retains the ultimate obligation to determine whether
the administrative action was unreasonable, arbitrary, illegal
or an abuse of discretion." U11ited Parcel Service, Inc. v.
Administrator, Unemployment Compensation Act, 209 Conn.
381, 385 (1988).
1995 WL 584377, 15 Conn. L. Rptr. 193

*5 In the present case, the court concludes that the board
incorrectly applied the law to the facts that it found or

could reasonably have inferred from those facts. In order
to determine that a person is "unsuitable" to continue to
hold a gun permit, the law requires that there be facts
sufficient to show generally that he or she lacks "the essential
character or temperament necessary to be entrusted with a
weapon." Rabbitt v. Leonard, supra, 36 Conn.Sup. 115. More
specifically, the facts found by the board should show or
provide a logical inference that the person poses some danger
to the public if allowed to carry a weapon outside the home
or business. Starace v. Mariano, supra, 35 Conn.Sup. 33.
In the present case, the facts set forth in the board's decision
do not support its ultimate conclusion. Although the board
found that the plaintiff was arrested as the result of an incident
involving violence, all of the other relevant facts found by the
board tend to negate the conclusion that he lacks the proper
character or temperament to be entrusted with a gun or that
he poses some danger to the public if allowed to carry a
End of Document
gun outside his home or business. In particular, the board

found that the plaintiff has a long unblemished record as
a permit holder; that the isolated incident that precipitated
the revocation did not involve the use of a gun; and that
the plaintiff was not convicted of any crime in connection
with the incident. Although no one of those facts, standing
alone, might be sufficient to negate the board's conclusion,
the totality of those facts overwhelms it. The court finds,
therefore, that, in light of the evidence, the board's decision
was unreasonable and an abuse of its discretion.
The plaintiffs appeal is sustained. In accordance with General
Statutes 4- l83(k), the case is remanded to the board and
the board is instructed to order that the plaintiffs permit be
restored in accordance with 29-32b(b).
Parallel Citations
15 Conn. L. Rptr. 193
's' 201,1 ThOrnson Reuters. No daim to original U.S. Government Works.
Saviske v. Corradino, Not Reported in A.3d (2011)
1. Saviske resides at I 003 Briarwood Court, Rocky Hill,
Connecticut.
2011 WL 2536461
2. He is 58 years old and has held a pistol pennit since

approximately the early 1980s.
UNPUBLISHED OPINION. CHECK

COURT RULES BEFORE CITING.
3. On November 23, at approximately 6: 19 p.m., the Rocky

Hill Police Department received a telephone call from
David Mocarsky ("Mocarsky"). Mocarsky is a New Britain
Police Officer and Saviske's cousin.
Superior Court of Connecticut,

Judicial District of New Britain.
RobertJ. SAVISKE
v.
4. Mocarsky told the individual who received the telephone

call that Saviske, whom Mocarsky identified as his cousin,
had telephoned him to complain that "government people
had attempted to break" into Saviske's house. Mocarsky
related that he tried to speak to Saviske, but that Saviske
kept hanging up the telephone, and that Mocarsky was
concerned about Saviske.
Hon. Joseph CORRADINO,

Chairman Board of Firearms et al.
No. CV106006014S.
June 1, 2011.
Opinion
HENRY S. COHN, Judge.
5. In response to receiving the telephone call from

Mocarsky, the Rocky Hill Police Department dispatched
police officers to Saviske's residence. While responding,
the police officers learned that Saviske may possess
firearms.
*1 The plaintiff Robert J. Saviske appeals 1 pursuant to

General Statutes 29-32b(t) and 4-183 from a July 15,
2010 final decision of the defendant board of firearms permit
examiners (the board). The board, in its final decision,
affirmed the revocation by the commissioner of public safety
(the commissioner) pursuant to 29-32(b) of the plaintiffs
permit to cany pistols and revolvers.
The plaintiff is aggrieved by the final decision. Jukna v.
Board of Firearms Permit Examiners, Superior Court,
judicial district of Hartford-New Britain at Hartford,
Docket No. CV 96 0576132 (October 23, 1998, Mc
Weeny, J.) [23 Conn. L. Rptr. 329].
The record shows as follows. On December 11, 2008, the

plaintiffs permit was revoked by the commissioner, and
he appealed to the board on January 21, 2009. (Return of
Record, ROR, 1, 2.) The board sent out questionnaires to
the commissioner and the plaintiff and on the return of the
questionnaires, held a hearing on May 13, 2010. (ROR, 1.)
On May 25, 2010, the board sent a notice to the plaintiff that
it had concurred in the commissioner's decision. (ROR, 5.)
On July 15, 2010, the final decision was issued by the board.
(ROR, 6.)
Based on the record before the board at the May 13, 2010
hearing, the board made the following findings of fact in the
July 15 final decision:
6. Officer Mark Lefebrve ("Lefebrve") - was the

investigating officer and testified at the hearing. The Board
found Lefebrve's testimony credible.
2
In the transcript in the return ofrecord the officer's name

is spelled "Lefevre." This is the spelling that the court
adopts other than in the findings of fact.
7. After reaching Saviske's house, police officers formed

a perimeter around the house and attempted to speak to
Saviske via telephone "several times." Those attempts
were unsuccessful as Saviske hung up the telephone when
contacted. Lefebrve recalled that the house was dark.
8. Sometime after the police attempted to contact
Saviske, Saviske opened the garage door and walked
out to his driveway, at which time the police officers
identified themselves and secured Saviske. A search
of Saviske revealed a loaded .38 caliber revolver and
folding knife in his pants pockets.
9. Lefebrve subsequently spoke to Saviske. Lefebrve
explained the purpose of the police visit to Saviske's
house and the call the police received from Mocarsky.
Saviske denied stating to Mocarsky that "government
people were trying to break into" Saviske's house.
*2 I 0. Lefebrve also noted that Saviske, who
apparently lived alone, had wedged a folding chair
against the door knob of the front door as well as
tied a rope to a door knob of his garage door to
prevent people from entering the house. When Lefebrve
asked Saviske to explain why he had done so, Saviske
replied that he was attempting to prevent people from
entering his house and that he felt "unsafe" in his house.
Although Saviske disputed whether he told Mocarsky
that "government people" had attempted to break into
his house, Saviske repeated that someone had attempted
to break into his house.
11. The police examined Saviske's house and did not
identify any evidence of an attempt to break into the
house.
12. In response to Lefebrve's question about Saviske was
carrying a gun, Saviske first replied "for fun" and then
later replied that he felt "unsafe."
13. Saviske also informed Lefebrve that Saviske took
several medications for anxiety and other medical issues.
Lefebrve noted the following medications in the house:
suboxone, trazodone, diazapan, naproxen, alprazalam,
zolipidem, oxycontin, prevacid and oxycodone.
14. The Rocky Hill Police Department discovered
several firearms and ammunition in Saviske's house.
Saviske had properly secured those items.
15. Based on the information available to him, Lefebrve
determined that Saviske should be transported to
Hartford Hospital for an emergency mental health
evaluation.
16. After returning (to) the Rocky Hill Police
Department, Lefebrve spoke to Mocarsky and confinned
that Saviske had stated to Mocarsky that "government
people had attempted to break into his house."
17. During the hearing, Saviske initially disputed that
he spoke directly to Mocarsky, but subsequently stated
that he had done so to express his concern that a certain
type of safe was being sold with a key capable of
unlocking a different safe of the same type and that he
wanted to bring that fact to Mocarsky's attention. He
then admitted using the term "government people," but
claimed that he used it in a different context. The Board

does not find Saviske's explanation credible, especially
since Mocarsky-a family member and law enforcement
officer-believed that he should contact another law
enforcement agency in light of the statements made
during his conversation with Saviske.
18. Saviske was admitted for evaluation on November
23, 2008 and remained hospitalized until at least
December 15, 2008, a period of time well exceeding the
statutorily limited general 72-hour examination period.
Although Saviske disputed whether his admission
properly should be characterized as "voluntary" or
"involuntary," he admitted during the hearing that some
form of independent review of his admission and that he
sought to challenge his continued hospitalization.
19. Although Saviske possessed at the hearing
documents relating to his admission, he declined to
provide those documents to the Board.
*3 20. Lefebrve stated that, though generally
cooperative in interacting with the police, Saviske
was evasive in responding to questions about his
conversations with Mocarsky or his belief that someone
had attempted to break into his residence.
21. The Board credits Lefebrve's characterization of
Saviske's behavior as "evasive" and notes that the
characterization is consistent with Saviske's behavior
before the Board. In short, the Board finds that Saviske
was not candid in answering questions when those
questions possibly could harm his appeal. When asked
questions at the hearing that Saviske appeared to believe
were helpful to him, he responded without hesitation
and directly. Conversely, when asked questions at the
hearing that Saviske appeared to believe may harm his
position, he became combative, evasive, and attempted
to avoid answering the question posed. For example,
when asked whether he had authored a letter dated
December 15, 2008 that had been notarized was, Saviske
seemed inclined to disown the handwriting as his own.
Further, when asked a question about whether he was
still hospitalized as of the writing of the letter, Saviske
disputed whether he was hospitalized at that time even
though the letter states "I am in the hospital ... "
22. On December 11, 2008, the Commissioner revoked
Saviske's state permit to carry a pistol.
23. Since the November 23, 2008 incident, Saviske has

not had another encounter with law enforcement.
24. Saviske stated without contradiction that he has not
been hospitalized for mental health reasons other than
the hospitalization related to November 2008 incident.
25. Saviske presented two letters to the Board as
evidence.
26. Exhibit D is a letter dated May 5, 2010 from
Rekha Ranade-Kapur, M.D., F.A.P.A., whom Saviske
identified as a psychiatrist with whom he meets weekly
for medication management and evaluation. The letter
stated that Saviske is under care for major recurrent
depression and chronic pain (for which he is treated
with opiates), but that Saviske is "stable" and neither
depressed or suicidal and "has never been homicidal,
nor a source of danger to others at any time in his life."
The psychiatrist states "[i]n my professional opinion, it
would be safe for Mr. Saviske to get his firearms permit."
27. Exhibit E is a letter dated May 5, 2010 from
Murray Kuperminc, Ph.D., whom Saviske identified as a
psychologist with whom he meets approximately every
two or three weeks for psychotherapy. The letter notes
that Saviske has been in psychotherapy since November
2005 and that he currently is diagnosed as having a
major depressive disorder, mild. The letter states that
Saviske does not pose a threat to himself or others and
that "in [Kupern1inc's] professional opinion that there
is no psychological issues that make him unsuitable for
carrying a pistol or revolver outside his home ... [and]
there is no reason to believe that this suitability status
will change."
*4 28. Saviske stated that he was uncertain whether he
last visited Kuperminc.
29. Saviske stated during the hearing that a family
member regularly visits him to ensure that he is taking
his medications. (ROR, 6.)
Based upon these findings of fact, the board set forth its
conclusions. First the board stated that the commissioner may
revoke a permit for cause, and that revocation was subject to a
"de novo" review by the board. See 29-32b(b ). The board's
review, in light of the fact that the permit was not revoked for
a mandat01y statutmy reason, turned on whether the plaintiff
was "no longer a person suitable to carry firearms."
The board concluded that the plaintiff was "no longer

suitable:" (1) He had had a significant mental disturbance
on November 23, 2008; (2) This disturbance was not
insignificant based on the length of his subsequent
hospitalization; (3) The plaintiff exhibited a lack of candor
in his explaining to the board his comments to his relative
Mocarsky and to the Rocky Hill policeman, Lefevre, and
explaining why his hospitalization was lengthy; and (4) The
plaintiff's letters from the therapists were inadequate and
incomplete as they did not address the November 23 incident.
(ROR, 6.)
This appeal followed. Before reaching the merits of the
plaintiffs appeal, the court must rule on the board's motion
to dismiss on the ground of subject matter jurisdiction. On
May 25, 2010, the board sent a letter to the plaintiff informing
him that the board had voted to uphold the commission and
would issue a detailed decision under separate cover. On July
9, 2010, the plaintiff filed his administrative appeal with the
court. On July 15, 2010, the board issued its final decision.
The board correctly notes that at the time the plaintiff filed his
administrative appeal, the board had only given the plaintiff
a preliminary notification of its final decision. It was only
after the plaintiff's appeal had been filed that the board issued
its final decision. The board argues that the fact that the
appeal was filed subsequent to the preliminary notification,
but not after the final decision, renders the appeal subject to
dismissal.
The court disagrees with the board and denies the motion
to dismiss. Were the com1's docket entries to show only an
appeal from the board's May 25 notification, then the appeal
would be premature and the court would lack jurisdiction.
See Office of Consumer Counsel v. Dept. of Public Utility
Control, Superior Court, judicial district of Hartford-New
Britain at Hartford, Docket No. CV 93 527905 (December 17,
1993, Maloney, J.) [10 Conn. L. Rptr. 509]. Here, however,
the final decision has been issued, the appeal is no longer
preliminary, and it is now properly before the court. See
Pirozzilo v. Inland Wetlands & Watercourses Commission,
Superior Court, judicial district of New Britain, Docket No.
CV 99 049462 (April 22, 2002, Cohn, J.) [32 Conn. L. Rptr.
103] (zoning enforcement officer's order preserved for appeal
with filing of final decision).
*5 Turning to the merits, the plaintiff's appeal is resolved
under the "substantial evidence" standard of the Uniform
Administrative Procedure Act, 4--166, et seq. Judge Owens

in Vermigilio v. Board of Firearms Permit Examiners,

04 4002680 (May 24, 2005, Owens, J.T.R.), summarizes
this standard for review of a final decision of the board as
follows: "If the administrative record provides substantial
evidence upon which the hearing officer could reasonably
have based his finding ... the decision must be upheld ...
Substantial evidence exists if the administrative record
affords a substantial basis of fact from which the fact in issue
can be reasonably inferred ... Conclusions of law reached by
the administrative agency must stand if the Court determines
that they resulted from a correct application of the law to the
facts found and could reasonably and logically follow from
such facts." (Citations omitted; quotation marks omitted.)
This is the same rule that applies in cases not involving
gun permits. Commenting on the substantial evidence test,
Cio!dvtar i\Iedical Services, I11c. v. Dept. <~/Social Scnices,
288 Conn. 790, 800, 955 A.2d 15 (2008), states: "With regard
to questions of fact, it is neither the function of the trial court
nor of this court to retry the case or to substitute its judgment
for that of the administrative agency ... Judicial review of the
conclusions of law reached administratively is also limited.
The court's ultimate duty is only to decide whether, in light of
the evidence, the [agency] has acted unreasonably, arbitrarily,
illegally or in abuse of its discretion."
Jn this appeal, the plaintiff first claims that the board
erroneously found that he was no longer "suitable" for a pistol
permit. On this point, Vermigilio succinctly summarizes the
law: "Jn order to deem a person 'unsuitable' to continue
to hold a pistol permit, the law requires that there be facts
sufficient to show generally that he or she lacks 'the essential
character or temperament necessary to be entrusted with a
weapon.' Du'.ver v. Farrell, 193 Conn. 7, 12 (1984); Rabbit v.
Leonard, 36 Conn.Sup. 115-16 (1979)."
As indicated above, the board made detailed findings of
fact and concluded that the plaintiff was no longer suitable
for a permit. The plaintiff contests the basis of the board's
factual findings and conclusions. He argues that the board
relied on "gross inaccuracies." According to the plaintiff,
the commissioner's questionnaire and the Rocky Hill police
report related that the plaintiff had erected a barricade at
his front door, when he had not. While he had a loaded
revolver on his person, this was allowed under his permit.
The statements of his relative, Mocarsky, were not available
on an audio recording, and the plaintiff contests that he told
Mocarsky that he feared that government intruders were at his
.Next.
home. According to the plaintiff, the November 23 incident,

if it occurred at all, should not have carried such weight
in the board's decision. The plaintiff was polite throughout
with Officer Lefevre, showing no evidence of a disturbed
temperament.
*6 The court does not agree with the plaintiff's argument.
As indicated, the court will not allow the plaintiff to retry
his case. When there is conflicting evidence in the record,
the court may not reject the board's factual determinations
of "unsuitability, in favor of the plaintiff's contrary version
of the evidence. Credibility determinations are for the board.
See Goldstar Medical Services v. Dept. of Social Services,
supra, 288 Conn. at 890. Here there is substantial evidence
of record. Mocarsky had a conversation with the dispatcher
for the Rocky Hill police department where he stated that he
was concerned for the plaintiff's well-being. (ROR, transcript,
pp. 9-10.) Efforts by Mocarsky to contact the plaintiff were
unsuccessful because the plaintiff continued to hang up on his
repeated calls. (ROR, 2, Exhibit A.) The plaintiff appeared
at his garage with a loaded revolver at his waist. (ROR, 2,
Exhibit C.)
The plaintiff's evidence was inconsistent. He told Officer
Lefevre that he was concerned for his safety at one point. Id.,
Exhibit C. He also told the officer that he had attached the
rope to his car so that he could secure his car in the garage.
Id. In his testimony to the board, he was not concerned for
his personal safety, but was preparing his home because he
was taking a trip. (ROR, transcript, pp. 32-33.) He denied
mentioning government intruders to Mocarsky; he had only
been discussing different keys to a safe with his relative. The
board thus had justification in light of these contradictions to
resolve the facts as it did.
The plaintiff's second argument is that the board's reasoning
is based only on fears of the plaintiff's lack of mental stability.
It did not look at the entire record. The first answer to
this contention is that the board gave four reasons for its
decision to uphold the revocation of the permit-in addition
to citing the November 23 incident and its seriousness, the
board also concluded that the plaintiff was not candid with
it and that the medical record and letters of the psychiatrist
and psychologist as submitted were incomplete. The plaintiff
incorrectly argues that the board should have given greater
deference to the letters from the psychiatrist and psychologist,
but as stated in Go/dstar, supra, it was free to accept or reject
the expert evidence in whole or in paii.
The plaintiffs final contention is that the board erred in
drawing negative conclusions from what it perceived as a lack
of candor in the plaintiffs failure to make available the record
of his hospitalization after November 23, as well as the failure
of his experts' letters to discuss the November 23 incident.
The claim is that the board was not permitted to compel
the plaintiff to disclose this information as the commissioner
carried the burden of proving "unsuitability."
The court disagrees with the plaintiff for two reasons. First,
under 29-32b(c) and board regulation 29-32b-7, the
board's secretary has the right to "make a thorough inquiry
of the facts of the appeal." Thus the board regulations
envision that the plaintiff should make available hospital
records and expert opinions that bear on his appeal. Indeed,
the board was entitled to such records to determine if a
specific disqualification applied to the plaintiff. See, e.g.,
29-32(b) referring to 29-28(b )(5) (disqualification required
if a pem1ittee "has been confined in a hospital for persons with
psychiatric disabilities ... within the preceding twelve months
by order of a probate court").
End of Document
*7 Second, while the board was required by 29-32b(b) to

make its decision "de novo," and the commissioner required
to support its initial decision, the board was allowed to
investigate the facts at its hearing and expect the plaintiff
to relate his grounds of appeal fully. See Simard v. Salinas,
CV 99 0493042 (May 18, 1999, Hartmere, J.); see also Let::.
v. Fama. Inc .. 613 S.W.2d 190 (Mo.App.1981); State ex rel.
Dept. ofPublic Health and Weljare v. Ruble, 461 S .W.2d 909
(Mo.App.1970) (there is a distinction between the ultimate
burden of proof and the burden of going forward with the
evidence).
For the above reasons, the appeal is dismissed.
Parallel Citations
<~)
2014 Tilornson Reuters. No ciairn lo ori9inal U.S. Government Worl;s.
Town of Farmington v. Board of Firearms Permit Examiners, Not Reported in A.2d (1996)
1996 WL 106842, 16 Conn. L. Rptr. 174
1996 WL 106842
UNPUBLISHED OPINION. CHECK COURT RULES
BEFORE CITING.
Superior Court of Connecticut.
TOWN OF FARMINGTON et al.
v.
BOARD OF FIREARMS PERMIT EXAMINERS
No. CV 9505502588.
Feb. 23, 1996.
DYER.
*1 The plaintiffs, the Town of Farmington, the Farmington
Police Department and its Chief of Police, Leroy Bangham,
appeal a decision of the defendant Board of Firearms Permit
Examiners which ordered plaintiffs to issue a permit to carry a
pistol or revolver to David W. Noetzel, a Farmington resident.
The Board acted pursuant to General Statutes 29-32b. The

plaintiffs' appeal is authorized by Gencrnl Statutes 4-183.
The court, after reviewing the entire case record, finds the
following pertinent facts:
On or about Januaiy 17, 1995, Noetzel went to the Farmington
Police Department to submit an application for the issuance
of a permit to carry a pistol or revolver. At that time, Noetzel
was prepared to submit his application on a form mandated
by General Statutes 29-28a. He was also prepared to be
fingerprinted, and to pay the permit application fee required
by 29-30.
When he attempted to submit his application, Noetzel was
informed by a Farmington police officer that his permit
application would not be processed by the department unless
Noetzel complied with two additional requirements. These
extra prerequisites were as follows:
1. Noetzel would have to pay the sum of $24, in addition
to the statutory fee of $35, to reimburse Farmington for
the cost charged by the Federal Bureau oflnvestigation to
process and check Noetzel's fingerprints;
2. In addition to the application fo1m, Noetzel would have
to submit three letters of character reference.
Neither of the forgoing conditions is required by the state

statutes. Each is apparently required by the Farmington Police
Department of anyone applying there for a locally issued
permit to carry a pistol or revolver.
Farmington contends that when Noetzel was advised of
these additional requirements, he "elected" not to submit
his application. Noetzel asse11s that he was informed by
the Farmington police officer that his application would not
be accepted unless he paid the fee for FBI processing and
submitted the character reference letters. He argues that the
town's insistence on conditions not required by state statute
was illegal, and effectively barred him from applying for the
gun permit, despite the fact that he was in compliance with
all of the state's requirements
The plaintiffs maintain that the FBI had for many years
processed and checked the fingerprints of gun permit
applicants without billing local police departments. Pursuant
to a recent change in that policy, the FBI now bills a fee of
$24 per applicant to the local departments for this service.
Plaintiffs argue that this FBI "user fee" was not envisioned
by the legislature when it passed 29-30 and should be borne
by the prospective permit recipients.
With respect to the requirement for three letters of character
reference, Farmington maintains that this condition is a tool
which aids police in their statutorily mandated (General
Statutes 29-29) investigation of an applicant's suitability to
carry firearms.
*2 On January 20, 1995, Noetzel appealed the actions of

the plaintiffs to the Board, claiming in effect that plaintiffs'
refusal to accept his application until he complied with the
additional requirements constituted a de facto refusal to issue
him a permit.
The Board, by letters dated January 30, 1995, notified Noetzel
and the Fam1ington Police that it would conduct a hearing on
the alleged refusal. At that time, the hearing was tentatively
scheduled for April 5, 1995.
On February 7, 1995, plaintiffBangham wrote to the Board.
In this Jetter, the police chief stated that his department had no
record ofNoetzel ever applying for a pistol permit and, hence,
his agency had never refused to issue one. In correspondence
dated February 8, 1995, the Board furnished Baugham with
documents outlining the specifics ofNoetzel's complaint. The
1996 WL 106842, 16 Conn. L. Rptr. 174
Board subsequently notified both Noetzel and the plaintiffs

that its hearing would be held on April 17, 1995.
On that date, the Board conducted the administrative hearing
on this complaint, pursuant to General Statutes 29-32b.
Neither the plaintiffs nor their legal representatives attended
this hearing. The plaintiffs also failed to respond to a
questionnaire from the Board, which elicited responses to,
and information about, Noetzel's allegations.
By letter dated April 28, 1995, the Board informed plaintiffs
that it was sustaining Noetzel's administrative appeal. The
Board predicated its decision on the fact that plaintiffs had
failed to provide information to the Board as required by
General Statute 29-32b(c). The Board ordered that the
plaintiffs issue a pistol permit to Noetzel forthwith.
On May 4, 1995, the plaintiffs, through counsel, filed a
motion for reconsideration and request for rehearing with the
Board. This motion was subsequently denied.
Plaintiffs now appeal both the denial of their motion for
reconsideration, and the Board's order that they issue Noetzel
a pistol permit.
A threshold issue raised by the plaintiffs is one ofjurisdiction.
Basically, the plaintiff contend that General Statutes
29-32b(b) only allows the Board to consider appeals where
local issuing authorities have refused to issue a permit, or
have refused to provide a permit application. Farmington
argues that Noetzel was given an application, and chose not to
submit it. The plaintiffs argue that since Noetzel "elected" not
to file his application when he was informed of Farmington's
additional conditions, there was no refusal to issue him a
permit. Because there was no refusal, the plaintiffs contend
that Noetzel is not aggrieved within the meaning of 4-183
et seq., and that the Board had no authority to entertain his
administrative appeal.
This reasoning overlooks the issue of whether or not plaintiffs
constructively refused to issue Noetzel a pistol permit. If
plaintiffs had no statutory authority to mandate the user
fee and character reference requirements, their insistence on
compliance with those conditions before allowing Noetzel to
submit his application would be tantamount to a refusal.
*3 Specific state statutes set forth the conditions which must
be satisfied by applicants for a local permit to carry a pistol
or revolver: Requests for permits under section 29-28 shall
be submitted to the issuing authority on application forms

prescribed by the Commissioner of Public Safety. General
Statutes 29-28a. The fee for each permit originally issued
under the provisions of subsection (b) of section 29-28 for
canying pistols and revolvers shall be thirty-five dollars.
General Statutes 29-30.
As noted above, no provision of any of the applicable statutes
authorized the Town of Farmington to charge a fee higher
than $35, or to require that letters of character reference
accompany the pistol permit application before its acceptance
and processing.
Connecticut's municipalities have no inherent legislative
authority, and can wield only those powers expressly granted
to them by the legislature. Poprusky v. Shea, 21 Conn.App.
35 L 355 (1990); Si nu ms v. Camy. 195 Conn. 524, 530 (1985 );
Capalbo v. Planning and Zoning Board (d' Appeals, 208
Conn. 480, 490 ( 1988). "It is a well settled law that as a
creation of the state, a municipality has no inherent powers of
its own ... and that a municipality possesses only such rights
and powers that have been granted expressly to it by the state
or that are necessary to discharge its duties and carry out its
objectives and purposes." Blue Sky Bar, Inc. v. Stratford, 203
Conn. 14, 19 (1987).
In the instant case, the plaintiffs act pursuant to state statute

as the issuing authority for local pistol permits. As the
legislative history cited in the defendant's brief suggests, it
is clear that the General Assembly intended that there be
uniformity amoung the state's cities and towns with respect
to the applications for, and issuance of, these permits. In
promulgating standardized procedures for the granting of
local gun permits, the legislature clearly attempted to strike a
balance between the constitutionally protected right to keep
and bear arms, and the vital public safety concern that only
responsible citizens be allowed to carry lethal weapons.
The Court finds that the plaintiffs exceeded their statutory
authority by insisting that Noetzel pay the additional fee and
submit three character reference letters before his application
would be accepted and processed by the Farmington Police
Department. Since these local prerequisites are not authorized
by state statute, the plaintiffs' actions in summarily refusing
even to consider an applicant who had apparently complied
with all the statutory conditions amounted to a constructive
refusal to issue Noetzel a permit. The plaintiffs' argument
that Noetzel never physically submitted his paperwork is
unpersuasive. The applicant presented himself at Farmington
1996 WL 106842, 16 Conn. L. Rptr. 174

Police Headquarters, fully prepared to submit his application.
He was by all accounts in compliance with all the
requirements of state laws governing the application process.
Plaintiffs' insistence that Noetzel comply with unauthorized
local conditions before he could apply prevented him
from turning in the application. Accordingly, Noetzel was
aggrieved by the plaintiffs' refusal, and the Board had
jurisdiction to hear his administrative appeal.
*4 In so ruling, the court does not discount plaintiffs'
argument that character references are valuable investigative
tools. General Statutes 29-28(b) provides that the local
issuing authority may only grant a permit to "a suitable
person." General Statutes 29-29 requires that the issuing
authority conduct an investigation to determine the applicant's
suitability. Nothing in either law spells out the procedures
or methodology which must be employed in conducting that
investigation. If the plaintiffs wished to speak with Noetzel,
ask him for references and confer with persons who knew him
as part of their inquiry, they were free to do so. However, they
are not permitted by the statute to prevent him from applying
until he furnished three letters of character reference.
Similarly, it is clear that the recent change in FBI policy
which now requires local police to pay for fingerprint
checks was not envisioned when the current gun laws
were enacted. Plaintiffs' contention that applicants, and
not financially strapped municipalities, should pay this
cost is understandable. Nonetheless, action by the General
Assembly-and not unilateral action by a town or cityis required to change the gun pe1mit fee structure and
application process. To hold otherwise would create the
real risk of diverse procedures being followed by the local
authorities, and undermine the goal of uniformity so clearly
envisioned by the legislature.
Plaintiffs have also appealed defendant's denial of their
motion to reconsider. The record of this case reveals that
plaintiffs were provided adequate notice of the administrative
hearing and the basis ofNoetzel's complaint. The plaintiffs,
adopting the position that Noetzel never applied for a permit,
claimed that the Board had no jurisdiction over the matter and
declined to appear at the hearing or respond to the Board's
statutorily authorized request for information. The record
also reveals that defendant Board afforded the plaintiffs
their full due process rights, including ample opportunity
to plead their cause in the administrative hearing. Although
plaintiffs did not take advantage of this opportunity, and were
chagrinned by the Board's decision, they are not entitled to a
second hearing on the merits as a matter of statute or right.

Accordingly, the court finds that the defendant did not abuse
its discretion or violate the law in denying the reconsideration
motion.
The plaintiffs' other challenge to the Board's decision is based
upon the claim that no investigation ofNoetzel's suitability
for a pistol permit, as required by General Statutes 29-29,
was ever conducted. That statute requires a local authority to
determine if an applicant "is a suitable person to receive such
(a) permit." It also mandates that the local authority perform
an investigation to determine the applicants suitability. The
plaintiffs argue that because they never investigated Noetzel
to determine if he was an appropriate person to carry a pistol
or revolver, the Board's order that Farmington issue the permit
"forthwith" is violative of 29-29.
*5 The record is clear that the Board acted pursuant to
the provisions of General Statutes 29-32b in ordering
plaintiffs to issue Noetzel a permit. That statute addresses
cases such as this when an issuing authority fails to furnish
the Board with a written statement in response to a complaint,
or where it fails to furnish an applicant with a gun permit
application. The statute empowers the Board to circumvent
uncooperative local issuing authorities by granting "the relief
sought forthwith and without hearing." However, this statute
cannot be read independently of other sections of the gun
permit laws.
"General Stanitcs 29-28 through 29-38 clearly indicate a
legislative intent to protect the safety of the general public
from individuals whose conduct has shown them to be
lacking the essential character or temperament to be entrnsted
with a weapon." Dwyer v. Farrell. 193 Conn. 7, 12-13
( 1984 ). Although Connecticut's firearms licensing laws do
not specifically define the terms "suitable" and "unsuitable,"
the decision in Smith's Appeal ji'Oln County Commissio11e1:1',
65 Conn. 135 (1894) affords an appropriate definition: A
person is 'suitable' who by reason of his character-his
reputation in the community, his previous conduct as a
licensee-is shown to be suited or adapted to the orderly
conduct of a business which the law regards as so dangerous
to public welfare that its transaction by any other than a
carefully selected person duly licensed is made a criminal
offense.
Given the vital public safety concerns which motivate
Connecticut's guns laws, it is absolutely imperative that no
person be permitted to carry pistols or revolvers until his or
1996 WL 106842, 16 Conn. L. Rptr. 174
her suitability to do so has been adequately determined. To

that end, the provisions of 29-32b which empower the Board
to grant the relief requested must be read in conce1i with
29-29, which mandates an investigation of the applicant
before any gun permit is issued.
In the instant case, no independent determination ofNoetzel's
suitability to carry firearms was ever undertaken. The lack of
an investigation can be blamed on plaintiff's failure to process
Noetzel's application in accordance with state law. But the
Board could have rectified that situation.
In Chiarenzelli v. Board ofFirearms Permit Examiners, 1994
Ct.Sup. 6862-J, No. 13 26 41, Judicial District of Stamford/
Norwalk at Stamford, (July 11, 1994), Judge John Maloney
ruled that the Board had the inherent authority to rule on an
applicant's suitability, when the local authority erroneously
failed to do so: The plaintiff contends that the only appropriate
forum for a finding of suitability is the office of the local
police department. That argument, however, overlooks the
provisions of 29-32b(b). That statute, in effect, requires the
board to make the necessary findings and conclusions when,
as here, the chief of police has neglected or refused to do so.
In this case, the Board based its decision on plaintiffs'
"failure to provide the information requested by the Board as
directed by 29-32b(c)." It did not entertain evidence about
Noetzel's suitability, or make findings related thereto, at the
administrative hearing. Pursuant to the holding in Chiranze!li,
it could and should have done so.
End
Document
*6 By ordering the issuance of a pistol permit without

conducting an investigation or making a determination about
Noetzel's suitability as required by 29-29, the Board acted
illegally and in abuse of its discretion. Even where a local
authority has failed to comply with the licensing statutes,
a gun permit should only be issued after a finding that the
applicant is a fit person to carry firearms. A contrary holding
would potentially endanger public safety by authorizing
permits for persons who are unqualified, or unfit, to have
them.
Where an administrative agency has failed to make necessary

factual findings, the court cannot perform that function on
administrative appeal. The appropriate remedy is to remand
the case so that the agency may make the requisite findings
based on evidence in the record. Gaudino v. Board uf
Firearms Permit Examine1~1", et al., 5 Conn. L. Rptr. 718, 1991
Ct.Sup. 10474. 7 CSCR 100, 387791, Superior Court, Judicial
District of Hartford/New Britain at Hartford (December 5,
1991).
Accordingly, the court orders that this case be remanded to
the Defendant Board, with direction that it conduct further
proceedings limited solely to deciding the issue of applicant
Noetzel's suitability for a permit.
Parallel Citations

\9 2014 Thomson Reuters. hlo claim to original U.S. Government Works.
U.S. v. Lucas, 68 Fed.Appx. 265 (2003)
68 Fed.Appx. 265
This case was not selected for
publication in the Federal Reporter.
United States Court of Appeals,
Second Circuit.
UNITED STATES of America, Appellee,
v.
Lamone LUCAS, Defendant-Appellant.
No. 02-1775.
1Oth day of July, two thousand and three.

ON CONSIDERATION WHEREOF, IT IS HEREBY
ORDERED, ADruDGED, AND DECREED that the
judgment of the District Court be and it hereby is
AFFIRMED.
July 10, 2003.
Defendant was convicted in the United States District Court

for the Western District of New York, John T. Elvin, J., of
being a felon in possession of a firearm. Defendant appealed.
The Court of Appeals held that police officer had reasonable
suspicion that defendant was unlawfully possessing a firearm,
justifying an investigatory stop and pat-down of defendant's
person.
Affirmed.
*265 Appeal from the United States District Court for the
Western District ofNew York (John T. Elvin, Judge).
Timothy Hoover, Buffalo, NY, for Appellant.
Joel L. Violanti, Assitant United States Attorney, on behalf
of Michael A. Battle, United States Attorney for the Western
District of New York, Buffalo, NY, for Appellee.
PRESENT: WfNTER, B.D. PARKER, Circuit Judges, and
DRONEY,"' District Judge.
RELATED CASE, OR IN ANY CASE FOR PURPOSES OF

COLLATERAL ESTOPPEL OR RES ruDICAT A.
At a stated term of the United States Court of Appeals for the
Second Circuit, held at the Thurgood Marshall United States
Courthouse, Foley Square, in the City of New York, on the
The Honorable Christopher F. Droney, United States

District Court for the District of Connecticut, sitting by
designation.
SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED
fN THE FEDERAL *266 REPORTER AND MAY NOT
BE CITED AS PRECEDENTIAL AUTHORITY TO THIS
OR ANY OTHER COURT, BUT MAY BE CALLED TO
THE ATTENTION OF THIS OR ANY OTHER COURT
fN A SUBSEQUENT STAGE OF THIS CASE, fN A
Defendant-Appellant Lamone Lucas appeals from a

judgment of conviction in the United States District Court
for the Western District of New York (John T. Elvin, Judge
), following his conditional plea of guilty to one count of
possessing a firearm after being previously convicted of a
felony, in violation of 18 U.S.C. 922(g)(l) and 924(n)
(2). Appellant's plea preserved his right to appeal the District
Court's denial of his motion to suppress a firearm recovered
by the police officers on the basis that they lacked reasonable
suspicion to conduct an investigatory stop. The motion was
referred to Magistrate Judge Hugh B. Scott, who conducted
an evidentiary hearing and recommended that the motion
be denied. The District Court adopted the recommendation
and denied the motion, and appellant pleaded guilty. He
was sentenced to 70 months' imprisonment, three years'
supervised release, and ordered to pay a $100 special
assessment.
On appeal, appellant contends, as he did below, that
police officers lacked reasonable suspicion to conduct an
investigatory stop of him as he walked down a residential
street in Buffalo, New York on the day of his arrest. See Teny
v. Ohio, 392 U.S. 1, 88 S.ct. 1868, 20 L.Ed.2d 889 (1968).
"Although we review de novo the legal issues presented by
a motion to suppress, we accept the district court's factual
findings unless clearly erroneous, and we view those fact in
the light most favorable to the government." United States v.
Casado, 303 F.3d 440, 443 (2d Cir.2002).
Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
889 ( 1968), and its progeny, law enforcement officers possess
the limited authority "in appropriate circumstances and in an
appropriate manner" to approach a person they believe might
be engaged in criminal activity for the purpose of conducting
an brief investigatory stop even though they lack probable
cause to make an arrest. 392 U.S. at 22, 88 S.Ct. 1868.
Officers "must be able to point to specific and articulable facts
U.S. v. Lucas, 68 Fed.Appx. 265 (2003)
which, taken together with rational inferences from those

facts, reasonably warrant that intrusion." Id. at 21, 88 S.Ct.
1868. Furthermore, in connection with such a stop, officers
may conduct a limited weapons search when they believe a
suspect is armed "with a weapon that could unexpectedly and
fatally be used against [them]." Id at 23, 88 S.Ct. l 868.
At an evidentiary hearing before the magistrate judge,
arresting officer Jeny Gulian of the Buffalo police department
testified to the following. On the day of appellant's arrest,
Gulian and his partner Pat Humiston were riding in a marked
Buffalo police car in the vicinity of Woodlawn and Dupont
Avenues at approximately 7 o'clock in the evening when
Gulian observed appellant and another individual walking
down Woodlawn towards the intersection of Dupont. From
approximately sixty feet away, Gulian observed appellant
"mess around with his waistband" and *267 observed "what
appeared to be a revolver, handgun or something." (Transcript
of Suppression Hearing Jan. 11, 2002, at 8.) 1 Gulian stated
to Humiston, who was driving, "I think this guy has got a
gun, let's check him out." (Id. at JO.) Humiston pulled the car
over and the two exited the car and directed appellant and the
other individual to approach the car and put their hands on the
car for the purpose of conducting a pat-down. At that point,
appellant fled from officers, instigating a brief foot chase
by Gulian during which Gulian saw appellant throw a gun
from his waist area to the ground. Appellant was subsequently
apprehended and the gun recovered a short distance away.
On further questioning from the court, Gulian testified

that he observed "a dark object, it looked kind oflike the
handle ofa pistol." (ld. ai 9.)
The magistrate credited this testimony and, in light of the

circumstances, found the investigatory stop to be proper,
and the District Court, after reviewing the arresting officers'
testimony, agreed and denied the motion. We affirm. The
circumstances described by Officer Gulian are those in
which a "Terry stop" is appropriate. The officer's personal
observation of an object that appeared to be a gun created
adequate "reasonable suspicion" to believe that appellant was
unlawfully possessing a firearm, and justified conducting
a limited weapons search to protect the safety of officers
and others. That New York state permits certain licensed
individuals to carry concealed weapons does not negate
the officer's reasonable suspicion that unlawful activity was
afoot, since the officers were entitled to draw on their
experience that far more individuals who carry concealed
handguns do not have licenses than do. Cf Unired Srates v.
Forero-Ri11co11. 626 F.2d 218, 222 (2d Cir.1980) (holding
that the fact that a suspect's conduct may be as consistent with
innocent activity as with nefarious activity does not preclude
that conduct from supporting reasonable suspicion).
We have considered appellant's remaining arguments and find
them without merit. Accordingly, the judgment of the District
Court is AFFIRMED.
Parallel Citations
2003 WL 21649647 (C.A.2 (N.Y.))

I&' 2014 Tt10rnson Reuters. No claim to original U.S. Government Works
End of Document
Ne:.:t
11>
U.S. v. Wiggan, Not Reported in F.Supp.2d (2010)

2010 WL 2698277
anonymous tip that a black man named "Hope" was carrying
2010 WL 2698277
United States District Court,
D. Connecticut.
UNITED STATES
v.
Hopeton WIGGAN.
No. 3:09cr51 (SRU).
July 8, 2010.
Christopher M. Mattei, Robert M. Spector, David B. Fein,

U.S. Attorney's Office, New Haven, CT, Nora R. Dannehy,
U.S. Attorney's Office, Hartford, CT, for United States.
Ronald B. Rcsctarits, Federal Public Defender's Office, New
Haven, CT, for Hopeton Wiggan.
RULING ON MOTIONS TO SUPPRESS
STEFAN R. UNDERHILL, District Judge.

*1 On the morning of October 25, 2008, Hopeton Wiggan
was stopped and arrested by local police in New Haven,
Connecticut. A search incident to that seizure revealed a
loaded Colt .45 pistol, a large quantity of marijuana, and
more than $1,300 in cash on Wiggan's person. Subsequently,
the government indicted Wiggan for unlawful possession
of a firearm and drugs. Wiggan moved to suppress the
government's evidence against him. A suppression hearing
was held on January 22, 2010 and continued on January 26,
2010. The parties thereafter submitted post-hearing briefing,
and oral argument was held on June 18, 2010.
Based on my findings of fact, set forth below, Wiggan's

Fourth Amendment rights were not violated when he was
seized and ultimately arrested. The officers' initial approach
to Wiggan did not constitute a Fourth Amendment seizure,
and when the officers seized Wiggan, they had reasonable
suspicion to support an investigato1y stop-and-frisk. Wiggan
is therefore not entitled to the suppression of the government's
evidence and his motion is denied.
I. Findings of Fact
At 8:40 a.m. on Saturday, October 25, 2008, a dispatcher
at the New Haven Police Department ("NHPD") radioed an
a gun in his pocket. 1 The dispatcher relayed to patrol officers

that the anonymous caller described "Hope" as wearing a blue
sweater, blue jeans with a design on the back pocket, and a
blue hooded sweatshi1i, and that he had entered a barbershop
at the comer of Lombard and Rowe Streets in the Fair Haven
neighborhood of New Haven. The dispatcher also said that
the anonymous caller left no call-back number. (Ex. 2A.)
The government's brief describes the anonymous
informant as giving more information to the NHPD. The
informant's full complaint included that he/she knew
"Hope" from the neighborhood, that he/she had seen the
gun, and that "Hope" had threatened reprisal if he/she
called the police. Those facts, however, are irrelevant
for the purposes of the motion to suppress because
the dispatcher's knowledge may not be imputed to the
arresting officers. See United Stm<:s v. Culun, 250 F.3d
130 (2d Cir.200 l) (holding that collective knowledge
doctrine does not apply to information learned by police
dispatchers that is not relayed to law enforcement
officers).
Detective Carlos Roman responded to the call and drove to

the comer of Lombard and Rowe, where he saw Moe Love's
Barbershop on Rowe Street. Officer Diego Quintero arrived
shortly thereafter. At 8:43 a.m., Roman radioed the dispatcher
to confirm the person's description; Roman could not recall
whether he called from his car or from his portable radio, but
Roman testified that he radioed before approaching the front
door of the barbershop. (Tr. 37.) The dispatcher replied that
the person was a black male; was wearing a sweater, a hooded
sweatshirt, and jeans with print on the back; and was known
as Hope. (Ex. 4A.)
After receiving the suspect's description, Roman and
Quintero walked up to the front door of Moe Love's
barbershop and entered it together, with Roman leading
and Quintero following. Roman surveyed the store. The
barbershop was narrow, perhaps seven to ten feet in width.
Along the left wall were four cutting stations; a barber named
Kim Graham 2 was cutting a boy's hair in the chair closest to
the door, while Rodney Tucker, another barber, was cutting
a customer's hair two chairs down. Graham and Tucker were
standing and their customers were sitting on chairs pulled
away from the left wall. On the right side of the shop were
chairs for waiting customers; there was approximately two to
three feet of space between those waiting chairs and Graham
and Tucker's barber chairs. (Tr. 303.) Near the front door sat
George Blackwell, whose son was receiving a haircut from

2010 WL 2698277
Graham. Farther down, just beyond Tucker's work station, sat

Hopeton Wiggan. He wore a baggy pair of jeans and a large
blue hooded sweatshirt. Roman also testified that, in addition
to the people sitting on both sides of the narrow room, the
barbershop was cluttered with furniture and debris.
The testimony left some uncertainty about Kim's last

name-witnesses said it was "Graham" or "Moore."
Although perhaps not accurate, I refer to her as Graham
for the sake of consistency.
*2 Upon entering Moe Love's, Officer Roman asked in a

commanding tone of voice whether anyone there was named
"Hope." Tucker and Blackwell turned their heads to look
at the officers. Wiggan, who had been slouching, jerked his
body up, raised his hand, and identified himself as Hope.
Roman and Quintero then began to walk over to Wiggan's
seat, with Quintero trailing Roman closely. Blackwell turned
to look back at his son and remembers seeing Graham
continuing to cut his son's hair. Tucker also returned his
attention to his customer as Roman and Quintero approached
Wiggan.
What happened next is disputed and essential to Wiggan's
motion. According to Roman, he and Quintero walked
towards Wiggan until they stood approximately two feet away
from him, close enough that Wiggan would have bumped
into Roman had he tried to leave the store. (Tr. 165.) Roman
testified that he walked quickly because he did not want to
delay removing Wiggan from the shop (Tr. 167); he also said
that he did not have his hand on his se1vice weapon {Tr.
152). According to Roman, Wiggan appeared suspicious: he
changed his position dramatically when the police entered the
store, glanced behind him at a back doorway leading out of the
barbershop as the officers approached, and only reluctantly
answered that he was Hope. {Tr. 47-49.) After reaching
Wiggan, Roman claims that he asked Wiggan to step outside
in a calm, normal voice. As he recalled, his exact wording was
"Sir, can you step outside with me, please?"(Tr. 52.) At this
point, Wiggan began to stand up. As he rose from his seat,
Roman testified that the officers observed a brown pistol grip
sticking out of his right pants pocket. 3 Roman then said, "75 !
75!," the police department's code for a handgun. (Tr. 5556.) Roman took Wiggan by his right arm, and Quintero by
his left. The officers pulled Wiggan's wrists behind his back
and placed them in handcuffs, and proceeded to lead Wiggan
outside.
Wiggan argues that the Roman was incapable of seeing

the gun in Wiggan's pants pocket because the pocket
was spacious enough to have covered the whole gun.
Furthermore, Wiggan claims that his baggy sweatshirt
would have obstructed the officers' view of the top of his
pants. Although I acknowledge that Wiggan's clothing
was loose and oversize, Roman's account of seeing
the gun as Wiggan arose is not implausible. Indeed,
it is entirely possible that Wiggan's gun was not fully
enclosed by his pocket; that his pants were worn below
his waist so that his pants pocket was further down his
leg and away from the hem of his sweatshirt; and that
his sweatshirt was bunched and did not extend to his
pants pocket. The simple fact that Wiggan's clothing was
baggy does not make Roman's account unbelievable.
On the other hand, I do not credit Sergeant
Zena's corroborating testimony about the location of
Wiggan's gun on his person. At approximately 8:45
a.m., Sergeant Zona arrived at the corner of Lombard
and Rowe Streets. He testified that he saw Roman
and Quintero escorting Wiggan out of the barbershop
and observed them search Wiggan. Zona claims that
when he arrived at Moe Love's, he observed a brown
pistol grip protruding from Wiggan's pants pocket.
(Tr. 211.) Zena's recollection, however, may have
been affected by his reading of Roman's incident
report in preparation for this hearing. As the defense
demonstrated, Zona never wrote a contemporaneous
report about the arrest and did not remember seeing
the butt ofWiggan's gun when he first met with federal
prosecutors in June 2009. (Tr. 211, 219.) Zona read
Roman's incident report before the hearing, however,
and only first recalled seeing the brown grip at a
second meeting with federal prosecutors in January
2010. Although Zona undoubtedly saw the gun at
some point on the morning of October 25, 2008he radioed that the officers retrieved the firearm and
narcotics after arriving at Moe Love's (ex. 14A)--it
is unlikely that he saw the weapon sticking out of
Wiggan's pocket when he arrived on the scene.
George Blackwell and Rodney Tucker had quite different

accounts of what happened at 8:44 a.m. in Moe Love's
barbershop. 4 Blackwell said that Roman and Quintero
opened the door to Moe Love's and asked "Who's Hope?,"
but walked quickly towards Wiggan as if they knew who
he was. Blackwell testified that Roman walked right by him
with his hand on his service weapon and that, once in front
of Wiggan, Roman said in a loud voice "stand up, you're
under arrest." (Tr. 253, 260, 286.) Blackwell also recalled
the officers ordering Wiggan to get his hands out of his
pockets. (Tr. 255.) Similarly, Tucker testified that Roman

2010 WL 2698277
and Quintero walked up to Wiggan and said, "Get your hand

out of your pocket. Stand up, tum around. You're under
arrest."(Tr. 305.) Tucker said that Roman spoke in a firm,
raised voice. (Tr. 307.) After ordering Wiggan to stand up,
the officers handcuffed him and took him outside. (Tr. 306.)
Tucker said that he was standing two to three feet away
from Wiggan when the handcuffing occurred. (Tr. 306.)
Neither Blackwell nor Tucker remember hearing Roman ask
Wiggan to step outside (Tr. 255, 305-6) or seeing anything in
Wiggan's right pants pocket (Tr. 289, 306).
4
Wiggan also testified at trial. His testimony, however,

was mostly limited to identifying the clothing he wore on
the date of his arrest, demonstrating how those clothes
hung off of him, and describing how he was physically
subdued during the seizure. Wiggan offered no testimony
about what Roman and Quintero said to him, how they
entered the barbershop, or other aspects of their conduct
while arresting him.
*3 Roman, Blackwell, and Tucker are all credible witnesses,

and the testimony of each is entitled to respect. Roman is a
longstanding member of the New Haven Police Department
who has received numerous awards and has a minimal
disciplinary record; Blackwell is a former marine, a married
father of two children, and has consistently been employed,
sometimes working multiple jobs to support his family; and
Tucker has been regularly employed, serving, in addition
to his barbershop shifts, as a counselor for adults with
special needs. The evidence is clear that all three men are
upstanding members of their communities. Although Wiggan
has challenged Roman's credibility, and the government has
argued that Blackwell and Tucker were inclined to give
testimony in Wiggan's favor, I am loath to attribute bias to any
of them or credit one witness's testimony as being inherently
more believable than another's.
Wiggan also claims that Blackwell and Tucker are more
credible because their version of events-that the officers
immediately arrested Wiggan upon entering the barbershop
-is more consistent with the timing of Wiggan's seizure.
Wiggan is correct that the events in Moe Love's happened
quickly. At 8:44:35 a.m., 28 seconds after Roman contacted
the police department outside Moe Love's for a description of
the suspect, Sergeant Anthony Zona radioed Quintero to see
whether he had arrived at Lombard and Rowe. Quintero and
Roman were still in the barbershop but had placed Wiggan
in handcuffs. Quintero replied, "We have him secured. We
have him secure for now. We're going to take him out." 5 That
communication lasted 16 seconds; police department phone
logs record that communication ending at 8:44:51 a.m. (Ex.

7A.) Thirty seconds later, at 8:45:21 a.m., after he and
Quintero had taken Wiggan out of the barbershop, Roman
radioed to NHPD that he had searched Wiggan and found
the firearm. (Ex. l 3A.) In total, at least 46 seconds-from
the beginning of Quintero's communication with Zona until
Roman's transmission outside Moe Love's-elapsed between
the handcuffing in the barbershop and the pat-down outside,
as compared to the 28 seconds it took for the officers to walk
up to and enter the barbershop, and then identify and handcuff
Wiggan. But while 28 seconds is a relatively short period
of time, it is not so quick that it renders Roman's account
implausible, especially when one considers the small distance
the officers had to cover in the barbershop and the officers'
admitted interest in conducting their investigation efficiently.
I therefore do not find that the timing of Wiggan's seizure
makes the defense witnesses' testimony more credible that the
government witnesses' recollections.
On its face, Officer Quintero's statement appears to

bolster Wiggan's claim that the officers never asked
him to step outside or saw the butt of his firearm, but
handcuffed him entirely on the basis of the anonymous
complaint. Quintero did not mention that a weapon
was observed and his phrasing implies that the officers
had entered Moe Love's with the purpose of removing
Wiggan and not to investigate the report of weapon
possession. That suggests that Quintero and Roman
believed they had reasonable suspicion to seize Wiggan
on the sole basis of the anonymous complaint, which
discredits Roman's account that he asked Wiggan to step
outside and that Wiggan's weapon was exposed when he
stood up.
It is difficult to read much into the content of
Quintero's transmission, however, because there was
little testimony about why Quintero said what he said.
Quintero was not called by either the government
or Wiggan, and Roman could not offer a reason
for why Quintero did not mention their observation
of a weapon in his transmission. (Tr. 170-71.) And
Quintero's statement can also be interpreted more
favorably for the government. Quintero's declaration
that he and Roman had secured Wiggan may have
simply been an update to other arriving officers that
the situation was under control. (Tr. I 69.) Understood
that way, Quintero's statement does not imply that
he entered Moe Love's believing he already had
reasonable suspicion to seize Wiggan. Rather, his
transmission was intended to convey that he and
Roman had fully responded to the call, there was no
emergency, and backup was unnecessary.

2010 WL 2698277
Despite the fact that their recollections of the events

of October 25, 2008 diverge, Roman's, Blackwell's, and
Tucker's testimony can be fairly harmonized as follows.
When Officers Roman and Quintero entered Moe Love's
barbershop, Roman asked "Who's Hope?" Wiggan responded
by raising his hand and identifying himself. He shifted his
body and looked briefly over his right shoulder. Roman and
Quintero walked briskly and purposefully past Blackwell and
Tucker, covering a distance of no more than 25 feet, until they
stopped immediately in front of Wiggan. While he walked,
Roman had his hand close to or on his service weapon. As
the officers neared Wiggan, Blackwell turned to his son in
order to make sure he was secure, and Tucker looked at his
customer, perhaps out of respect or even embarrassment for
Wiggan while he was being confronted by police. Roman then
asked Wiggan to step outside for questioning. As Wiggan
began to rise, Roman saw the brown pistol grip sticking out of
Wiggan's right front pants pocket. At that point, Roman yelled
"75!" and then loudly ordered Wiggan to stand and keep
his hands away from his pockets. Roman proclaimed that
Wiggan was under arrest, and he and Quintero handcuffed
Wiggan. Blackwell and Tucker then looked back to see
Wiggan handcuffed and being taken out, and Officer Quintero
responded to Sergeant Zona's transmission, informing him
that Wiggan had been secured. Roman's initial questioning
and the officers' eventual handcuffing of Wiggan happened
fast-literally, in a matter of seconds-and were quick
enough for witnesses to miss material details if they were
turned away. 6
6
It is because of the speed with which the events

unfolded that I do not credit Blackwell's testimony that
Roman ordered Wiggan to get his hands out of his
pockets while the officers approached Wiggan. (Tr. 263.)
Blackwell admitted to turning his head away while the
officers proceeded down Moe Love's aisle (Tr. 277), and
therefore was not in the best position to observe where
Roman was when he uttered his commands to Wiggan.
*4 The ensuing events were uncontested. As the officers led

Wiggan out of the barbershop, Quintero asked him whether
he had "anything" on his person. Wiggan responded, "I have
a gun," and then said "I'm hit, I'm hit." (Tr. 63-64.) Outside
of Moe Love's, Roman and Quintero searched Wiggan's front
right pants pocket and retrieved a loaded Colt .45 caliber
pistol. (Tr. 66.) Roman radioed NHPD that the gun was
secure. He then asked Wiggan whether he had a permit for
the weapon; Wiggan admitted that he did not. (Tr. 67-68.)
The officers placed Wiggan under arrest for possession of a
concealed weapon without a permit and searched Wiggan's
person. That search incident to arrest yielded a large plastic

bag of marijuana, a scale, and $1,348 in cash.
On February 25, 2009, the government indicted Wiggan on
two counts: possession of a firearm by a convicted felon,
in violation of 18 U.S.C. 922(g)(l) & 924(a)(2), and
possession of marijuana with intent to distribute, in violation
of21 U.S.C. 84l(a)(l) & (b)(l)(D). Wiggan then filed
two motions to suppress. He first moves for suppression
of physical evidence-namely, the retrieved firearm, drugs,
and scale-because he was seized in violation of the
Fourth Amendment. Wiggan also moves for suppression of
the statements he made to the officers during his seizure
because they were purportedly obtained in violation of his
Fifth Amendment privilege against self-incrimination. The
government opposes both motions but presented evidence
only with respect to the unreasonableness of the seizure,
arguing that if the physical evidence were held to be
admissible then the question whether to exclude Wiggan's
incriminatory statements would be moot.
II. Discussion
"In a motion to suppress physical evidence, the burden
of proof is initially on the defendant. Once the defendant
has established some factual basis for the motion, the
burden shifts to the government to show that the search
was 1awful."United States v. Breckenridge, 400 F.Supp.2d
434, 437 (D.Conn.2005) (citations omitted). Ultimately, the
burden is on the government to prove by a preponderance of
the evidence that Wiggan's seizure was not in violation of
the Fourth Amendment. United States v. Bayless, 921 F.Supp.
21l,213 (S.D.N.Y.211), aff'd,201F.3d116 (2d Cir .2000).
Wiggan raises several arguments in support of his contention

that he was seized illegally. First, he asserts that the seizure
occurred before he was handcuffed and physically restrained.
In Wiggan's view, he was seized when the officers first
approached him at his seat, a point in time when the officers
lacked reasonable suspicion. Next, Wiggan argues that,
when he was handcuffed, he was arrested without probable
cause and not merely subjected to a limited investigative
stop. Finally, he claims that, if his detention was a mere
investigative stop and not an arrest, the seizure was illegal
because Officers Roman and Quintero lacked reasonable
suspicion. I consider each issue in that order.
A. When did the seizure occur?

2010 WL 2698277
*5 The Fourth Amendment provides that "[t]he right

of the people to be secure in their persons ... against
unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause."U.S.
Const. amend. IV. Not every interaction between a police
officer and a civilian constitutes a "seizure" within the Fourth
Amendment's terms. Rather, a seizure occurs only when
a reasonable person, standing in the same position as the
allegedly seized individual, would not feel free to leave or to
refuse to cooperate with the police officer. As the Supreme
Court has held:
Law enforcement officers do not
violate the Fourth Amendment's
prohibition of unreasonable seizures
merely by approaching individuals on
the street or in other public places
and putting questions to them if they
are willing to listen .... Even when law
enforcement officers have no basis
for suspecting a particular individual,
they may pose questions, ask for
identification, and request consent to
search ... provided they do not induce
cooperation by coercive means .... If a
reasonable person would feel free to
terminate the encounter, then he or she
has not been seized.
Unif(J States v. Drc~vto11, 536 U.S. 194, 200-0L 122 S.Ct.
2105, 153 L.Ed.2d 242 {2002) (citations omitted). That
reasonable person standard is objective and "presupposes an
innocent person." Florida i'. Bostick, 501 U.S. 429, 438, 11 l
S.ct. 2382, 115 L.Ed.2d 389 ( 1991 ).
In determining whether a seizure has occurred, the Court

has eschewed per se rules for fact-specific examinations.
"[T]he crucial test is whether, taking into account all of the
circumstances surrounding the encounter, the police would
'have communicated to a reasonable person that he was not
at liberty to ignore the police presence and go about his
business.' "Bostick, 501 U.S. at 437 (quoting Michigan v.
Chestemut, 486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d
565 (1988 l); see also Drayton. 536 U.S. at 20 l ("Bostick
first made it clear that for the most part per se rules are
inappropriate in the Fourth Amendment context."); United
Stares v. l1lendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64
L.Ed.2d 497 (1980) (opinion of Stewart, J.) ("We conclude
that a person has been 'seized' within the meaning of the
Fourth Amendment only if, in view of all of the circumstances
surrounding the incident, a reasonable person would have

believed that he was not free to leave."). Factors that can
turn a consensual exchange of information between a police
officer and civilian into a Fourth Amendment seizure include
the following:
[T]he threatening presence of several
officers; the display of a weapon;
physical touching of the person by the
officer; language or tone indicating
that compliance with the officer was
compuls01y; prolonged retention of
a person's personal effects, such as
airplane tickets or identification; and
a request by the officer to accompany
him to the police station or a police
room.
U//ited States v. Hooper, 935 F.2d 484, 491 (2d Cir.1991)
(quotation omitted).
*6 It is undisputed that Wiggan was seized when he

was handcuffed. Wiggan claims, however, that he was
initially seized when Roman and Quintero approached and
questioned him in the barbershop because, given the officers'
conduct and tone, no reasonable person would have felt free
to terminate the encounter. Wiggan emphasizes the small
distance between the officers and him; that the officers
essentially blocked his exit because of their positioning
and the narrow dimensions of the barbershop; Roman and
Quintero's uniformed and aimed presence; that Roman had
his hand on or near his holstered service weapon; and that
the officers approached him speedily and purposefully. Under
those circumstances, Wiggan asserts, no reasonable person
would have felt free to leave or to decline Officer Roman's
request to speak outside. 7
Wiggan also alleges that the officer's order that Wiggan

stand up, tum around, and take his hands away from
his pockets were coercive. I would agree. But, as a
matter of factual finding, I have determined that Roman's
commands to Wiggan occurred after Roman asked
Wiggan to step outside and saw the gun in Wiggan's
pants pocket. Roman issued that command, in other
words, in the course of physically restraining Wiggan.
Roman's statements are therefore not relevant to the
question whether a seizure occurred before Wiggan was
handcuffed.
Whether a seizure occurred at that instant is a close

question. The government cites Drayton, which involved

2010 WL 2698277
police questioning of travelers within the cramped confines

of a commuter bus. There, the Supreme Court held that no
seizure had occurred because, even if a reasonable person
would not have felt free to exit the bus, a reasonable person
would have felt free to decline to answer the officers'
questions or submit her effects to a search. Other factors
such as the closed space between the officers and the
passengers, the officers' uniformed and am1ed presence, the
inaccessibility and impracticality of exiting the bus, and the
officers' failure to notify the passengers of their rights to
refuse questioning were all considered; none was found in
isolation or conjunction to amount to a Fourth Amendment
seizure. Drayton, 536 U.S. at 203---05 ;see also Bostick, 501
U.S. at 435-37 (holding that small space and inaccessibility
of the exit did not inherently render police questioning on
a bus a Fourth Amendment seizure). On the other hand,
Wiggan cites cases where facts similar to his own have been
found to constitute a seizure. In United States v. Person,
134 F.Supp.2d 517, 521 (E.D.N.Y.2001), a case decided
before Drayton, police officers requested a suspect seated
in a restaurant "to do them 'a favor' and put [his food]
down, stand, and raise his hands."That conduct was held
to be a seizure because "[r]egardless of how 'politely' [the
officers] asked, no reasonable person would believe he was
free to leave in such a situation."Id. at 523 n. I. In other
words, the officers' question was, in fact, an order that no
reasonable person would ignore. See also United States v.
Riley. 351 F.3d 1265. 1267 (D.C.Cir.2003) (holding that
officers' ordering of motorist to stop and dismount his vehicle,
and then surrounding the motorist so that he "couldn't have
moved without actually making contact with one or the
other" officer, was restrictive enough for a reasonable person
to conclude that he or she was not free to terminate the
encounter).
The closeness of the space between Wiggan and the officers,
as well as the officers' positioning to cut off Wiggan's
access to the barbershop's front exit, are not dispositive of
whether Wiggan was stopped under the Fourth Amendment.
In Drayton and in Bostick, the Court held that the proximity
between the officers and an individual is not, in itself,
determinative of the voluntariness of the encounter. See
Drayton, 536 U.S. nt 204 ("The fact that an encounter takes
place on a bus does not on its own transform standard police
questioning of citizens into an illegal seizure."); Bostick,
501 U.S. at 437 (holding that "[w]here the encounter takes
places is one factor, but is not the only one" pertinent
to the Fourth Amendment analysis). Rather, in addition to
the close spacing, other factors-specifically, circumstances
11
indicating that the officers used physical force or othe1wise

demonstrated their authority-must be present to conclude
that the police acted coercively and the person was detained.
Hooper. 935 F.2d at 49 l.
*7 The fact that the officers were uniformed and armed
does not establish the kind of coerciveness necessary to
establish a seizure. See Drayron, 536 U.S. at 204--05 (noting,
in dicta, that "[o]fficers are often required to wear uniforms
and in many circumstances this is cause for assurance, not
discomfort," and "[m]uch the same can be said for wearing
sidearms"); United States v. Smith. 423 F.3d 25, 30 (I st
Cir.2005) (holding that stop did not occur when aimed
and uniformed officers approached person on either side
and questioned him). Nor does the fact that Roman and
Quintero walked quickly and purposefully towards Wiggan
establish a demonstration of authority that would have forced
a reasonable person to submit to them. See United States
v. Goddard, 491F.3d457, 461-62 (D.C.Cir.2007) (holding
that stop did not occur when uniformed and armed officers
"jumped out" of their cars and walked quickly, but did not run
aggressively, toward the defendant). Rather, the best fact that
Wiggan puts fo1ward is Roman's positioning of his hand on
or near his service weapon as he walked in the barbershop.
Just as it is clear that the presence of an officer's holstered
weapon does not establish a seizure, there is also no doubt that
an officer's display of a weapon-that is, an officer's removal
of his firearm and aiming in a person's direction-is a show
of authority that immediately turns a consensual encounter
into a coercive detention. Compare Drczvton, 536 U.S. at
204 ("The presence of a holstered firearm thus is unlikely to
contribute to the coerciveness of the encounter absent active
brandishing of the weapon."), with Mendenhall, 446 U.S. at
554 (opinion of Stewart, J.) ("Examples of circumstances
that might indicate a seizure ... would be the ... display of
a weapon by an officer."). But an officer's placement of his
hand on or near a holstered service weapon falls somewhere
between those two extremes. The gesture is ambiguous-it
can be taken equally as a meaningless happenstance, as a selfdefense measure, or a demonstrative threat of physical force
-and its significance will be determined according to the
context in which is occurs.
Here, the facts indicate that Ramon had his hand close to
his weapon as a security precaution. There is nothing in the
record indicating that Roman made a point of showing his
holstered firearm to Wiggan or that Wiggan even saw where
Roman's hands were. The sole evidence that Roman kept his

2010 WL 2698277
hand on his weapon was provided by Blackwell, who testified

about the position of Roman's hand but said nothing about
whether Roman acted threateningly or made a show of the
fact that he could promptly unholster his sidearm. Thus, the
record establishes only that Roman's placement of his hand
on or near his service weapon was a defensive gesture, and
did not effectively restrain Wiggan or force him to cooperate
with the police. Other courts have reached the same result
on similar facts. See, e.g., U11ited States v. Baker, 78 F.3d
1241, 1244 (7th Cir.1996) (holding that officer's approach
toward car with hand on his weapon was reasonable under
the circumstances and did not constitute a threat to compel
defendant's cooperation); United States v. Cox, 752 F.2d 741,
747 (1st Cir.1985) ("Nor ... does the fact that the DEA agents
may have had their hands on their holsters automatically show
that [the defendant's] will was 'overborne.' "); united States
v. Graham, No. 08-<:'r-6259L, 2009 WL 4110370, at *7 n.
9 (W.D.N.Y. Nov.23, 2009) (noting, in dicta, that no seizure
occurred when officer "unsnapped his holster and placed his
hand on his firearm without withdrawing it" in response to
defendant's erratic behavior).
*8 Wiggan puts great weight on Roman's testimony that he
placed his hand on his holstered weapon and acted generally
"to control the situation." (Tr. 151.) But exerting control over
a situation does not imply that Roman and Quintero took
actions to subdue Wiggan and force him to follow their orders
against his will. Roman is better understood as having taken
steps to "control the situation" in order to limit the risk of
harm to himself and others but without going so far as to
seize Wiggan. Indeed, Roman testified that he did not want
to rush or otherwise intimidate Wiggan for fear that Wiggan
might panic and attempt to flee, struggle with the officers,
or reach for a weapon. In short, Roman acted out of concern
that a demonstration of aggression might provoke a dangerous
situation for the officers and bystanders, who included a small
child. (Tr. 52-53 .) That is consistent with Roman's account
that he wanted Wiggan to leave voluntarily and without
physical force, and with my conclusion that Roman held his
hand near his service weapon as a self-defense measure.
For those reasons, I conclude that Wiggan was not seized

until the officers placed him in handcuffs. Although Wiggan
may not have been comfortable in the small space of the
barbershop and under the gaze of aimed, uniforn1ed police
officers, he was not effectively detained by the police at
the initial moment Roman asked him to step outside. The
proper inquiry under the Fourth Amendment is whether a
reasonable person would have felt free to decline Roman's
request and remain seated. Based on my findings of fact, a

reasonable person would have felt free to refuse cooperation
with Roman's entreaty to leave the barbershop. Wiggan,
therefore, was not stopped until the officers resorted to using
physical restraints against him.
B. Was Wiggin arrested when he was handcuffed?

Wiggan next argues that when Detective Roman and Officer
Quintero placed him in handcuffs and led him out of the
barbershop they arrested him within the meaning of the
Fomih Amendment, which required the officers to have
probable cause. The government responds that Wiggan was
not arrested until after he was led outside and patted down,
and that the officers' use of handcuffs in the barbershop did
not elevate the seizure beyond an investigative stop justified
by the lower standard ofreasonable suspicion.
"Under Terry v. Ohio. 392 U.S. l, 88 S.Ct. 1868, 20 L.Ed.2d

889 ( 1968 ), police may briefly detain an individual for
questioning if they have a reasonable suspicion that criminal
activity is afoot, and may frisk him if they reasonably believe
he is armed and dangerous .... A Terry stop represents an
intermediate response allowing police to pursue a limited
investigation when they lack the precise level of information
necessary for probable cause to arrest."United States v.
Elmore, 482 F.3d 172, 178 (2d Cir.2007) (citations omitted).
A Teny stop, by definition, is a seizure less intrusive than a
full arrest.
*9 The predicate permitting seizures

on suspicion short of probable cause is
that law enforcement interests warrant
a limited intrusion on the personal
security of the suspect. The scope
of the intrusion permitted will vary
to some extent with the particular
facts and circumstances of each
case. This much, however, is clear:
an investigative detention must be
temporary and last no longer than is
necessary to effectuate the purpose of
the stop. Similarly, the investigative
methods employed should be the least
intrusive means reasonably available
to verify or dispel the officer's
suspicion in a short period of time.
Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75
L.Ed.2d 229 (l 983) (plurality opinion).

2010 WL 2698277
Wiggan argues that the officers' use of handcuffs was more

than what was minimally necessary in order to effectuate
the legitimate purpose of investigating and preventing a
suspected crime. He contends that, because the officers used
more force than was required, what could have been a stopand-frisk ripened into an arrest that must have been justified
by probable cause. See Posr v. Doher~v, 944 F.2d 91, 98
(2d Cir.1991) ("If the totality of circumstances indicates
that an encounter has become too intrusive to be classified
as an investigative detention, the encounter is a full-scale
arrest, and the government must establish that the an-est is
supported by probable cause."(quotation omitted)). Wiggan
cites to United States v. Acosta-Co/on, 157 F.3d 9 (!st
Cir. 1998), for the proposition that the use of handcuffs in
the course of a stop-and-frisk is an unreasonably intrusive
form of restraint absent specific facts demonstrating that
cuffing was necessary. Acosta-Colon involved the temporary
detention of airplane passengers suspected of carrying drugs;
the defendants were stopped and handcuffed before they
could board their aircraft and then held for half an hour despite
the absence of evidence demonstrating that they posed an
imminent safety risk to customs officers or the public. Id. at
12.The Fist Circuit noted that the use of handcuffs in a Terry
stop is exceptional:
[W]hen the government seeks to
prove that an investigatory detention
involving the use of handcuffs did
not exceed the limits of a Terry stop,
it must be able to point to some
specific fact or circumstance that could
have supported a reasonable belief
that the use of such restraints was
necessary to carry out the legitimate
purposes of the stop without exposing
law enforcement officers, the public,
or the suspect himself to an undue risk
of harm.
Id. at 18-19.The Acosta-Co/on Court held that handcuffs
were uncalled for in the performance of a Teny stop because,
on the facts of that case, there was no evidence that the
officers "harbored an actual suspicion that [the defendant]
was armed or otherwise presented an appreciable danger."Id.
at 19 (footnotes omitted) (emphasis in original).
Wiggan claims that the facts of his seizure are nearly

identical: although the officers observed that he was holding
a firearm, there was no indication that he was likely to use it
against the officers or otherwise likely to use it immediately to

commit another crime. Therefore, the specific facts indicating
an "undue risk of harm" were not present and the use of
handcuffs was unnecessary to effectuate the stop-and-frisk.
*10 Wiggan is correct that handcuffing, a hallmark of a
custodial an-est, is an unusual step to take in the course of an
investigative stop. But there should be nothing controversial
about police officers using more restraining techniques
in the course of performing a Terry stop when there is
reasonable suspicion that a suspect is can-ying a firearm.
See Oliw:ira v. Mayer, 23 F.3d 642, 646 (2d Cir.1994)
("Indeed, whenever this Court and other circuits have found
an intrusive detention to be only a Terry stop, the police
have always had a reasonable basis to believe the suspect
was armed or otherwise dangerous."). In United States v.
Alexander, 907 F.2d 269, 272-73 (2d Cir.1990), the Second
Circuit upheld the use of highly intrusive and threatening
police conduct-namely, pulling over the defendant's car,
approaching it with guns drawn, and ordering the driver out
-in the course of a roadside investigative stop. The police
officers' basis for resorting to those tactics was adequately
supported by the facts that the defendant had been observed
engaging in suspicious activity, including returning to his
car parked in a known drug area with a brown paper bag
in tow, and then driving evasively and dangerously. Id. at
273.Moreover, when the officers pulled over the defendant,
they were in a public place filled with potential innocent
bystanders. Id. The Alexander Court held that circumstantial
evidence of the defendant's possible illegal activity and safety
risk to others justified the officers' use of intrusive restraints
and did not elevate their investigative stop into an arrest.
Officers Roman and Quintero, by contrast, used a more
limited fonn of restraint on a much stronger basis of suspected
dangerousness. Although Wiggan's hands were bound, his
life was never imperiled by the officers' drawn weapons.
Also, unlike in Alexander, where the officers had to infer that
the suspect was engaged in illegal and potentially dangerous
activity, Roman observed what appeared to be a pistol grip in
Wiggan's pants pocket and therefore had a direct evidentiary
basis for concluding that Wiggan was engaged in unlawful
conduct-i.e., illegal possession ofa concealed weapon-and
posed an immediate safety risk.
It is important to note, too, that the officers' use of handcuffs
was the only fact that would have led Wiggan's seizure to
blossom into a Fourth Amendment an-est. Other factors, such
as the small number of officers and the short duration of the
stop, militate in favor of concluding that the officers only

2010 WL 2698277
performed a stop-and-frisk. See United S1ates v. Perea. 986

F.2d 633, 645 (2d Cir.1993) (listing factors that courts have
considered in determining whether a Teny stop became a de
facto arrest). Roman did announce that Wiggan was "under
arrest" while handcuffing Wiggan. But the subjective belief
of the seizing officer does not control the analysis of whether
a TenJ1 stop occurred. United States 1. Jackson, 652 F.2d 244,
250 (2d Cir.1981 ). Here, the objective facts show that Wiggan
was seized for a period of less than a minute, enough time to
permit the officers to escort Wiggan out of the barbershop,
perform a frisk, and discover and remove the gun from his
person.
*11 It was only after the stop-and-frisk had revealed the
handgun that Wiggan was arrested. Cf United States 1.
Vargas, 369 F.3d 98, 102 (2d Cir.2004) (holding that seizure
of a fleeing suspect did not result in an arrest until after
officers handcuffed and frisked him, and discovered the
defendant's firearm); United States v. Ramos, 71 F.Supp.2d
40, 46-4 7 (D.Conn. l 999) (holding that brief detention of
suspect with handcuffs and with drawn weapons was an
investigative stop, and that no arrest occurred until the
officers completed the frisk and retrieved the defendant's
gun). The distinction between the initial investigatory stop
and eventual custodial arrest is supported by the transcripts
of the communications between the officers on the scene
and the police department. Roman radioed a report to the
NHPD once Wiggan was removed from the barbershop
and his firearm was secured, at which point the Teny stop
had been completed. (Ex. 13A.) Then, seven seconds later,
Sergeant Zona, who had just arrived at the barbershop,
radioed that the firearm and drugs were recovered. (Ex. 14A.)
That subsequent transmission indicates that Wiggan had been
arrested and had been subject to a full search beyond the
preliminary frisk.
Wiggan was subject to an investigatory stop-and-frisk when
he was handcuffed, removed from the barbershop, and
patted down. Although the use of handcuffs is generally
uncalled for in performing a TenJ1 stop, Officers Roman
and Quintero were justified in using them because they
had a reasonable basis for believing Wiggan was armed
and, therefore, potentially dangerous. It was only after the
gun was retrieved and Wiggan remained in cuffs and was
further searched that the seizure became an arrest-an arrest
that, following the discovery of Wiggan's weapon, was
undoubtedly supported by probable cause.
C. Did the officers have reasonable suspicion to handcuff

Wiggan?
Because no stop was performed until the officers put Wiggan
in handcuffs, none of the exchange beforehand implicates
the Fourth Amendment. 8 But Officers Roman and Quintero

needed at least reasonable suspicion, based on specific
articulable facts, to justify the seizure that occurred when they
physically restrained Wiggan. Elmore, 482 F.3d at 178 79.
8
Wiggan argued at length that no reasonable suspicion

existed based exclusively on the anonymous tip to
support the officers' purported seizure of Wiggan before
they observed his handgun. See Florida v. J.l., 529
U.S. 266, 120 S.Ct. 1375, 146 L.E<l.2d 254 (2000)
(holding that anonymous tip that defendant had a gun
and offering nothing other than his physical description
and location lacked sufficient indicia of reliability
to establish reasonable suspicion). Those arguments,
however, are mooted by my ruling that the seizure
happened after Roman saw Wiggan's firearm.
Wiggan argues that the police had no reasonable suspicion for

stopping him because, although their observations confirmed
the anonymous tip that he was carrying a weapon, the officers
lacked any reasonable suspicion that he was in the midst of or
about to commit a crime, or that he was otherwise dangerous.
For, as Wiggan argues, he could have had a firearm permit
and been catTying the pistol lawfully. In support, he cites
United States v. Ubiles, 224 F.3d 213 (3d Cir.2000), where
the Third Circuit held that a reliable tip that the defendant,
who was standing in a parade in the Virgin Islands, was
carrying a gun did not establish reasonable suspicion because
carrying a concealed weapon was not necessarily a crime and
the government did not put forward other facts establishing
that the defendant's gun possession was likely illegal. Id. at
217-18.Wiggan claims that his case parallels Ubiles because
in Connecticut it is also not necessarily a crime to carry a
concealed weapon. SeeConn. Gen.Stat. 29-28 (establishing
pe1mit system for individuals to carry concealed weapons).
*12 The government disagrees with that conclusion,
and argues that Ubiles has been distinguished by several
unpublished Second Circuit cases. See United States v. Lucas,
68 Fed. Appx. 265, at *2 (2d Cir. July l 0, 2003) (unpublished
opinion) (holding that seizure of defendant observed carrying
a weapon, and who fled the police after being summoned,
was supported by reasonable suspicion); United States v.
Manuel, 64 Fed. Appx. 823, at *3 (2d Cir. 1\.fay 15,
2003) (unpublished opinion) (holding that stop-and-frisk of
U.S.
v. Wiggan, Not Reported in F.Supp.2d (2010)
2010 WL 2698277
immaterial to determining whether reasonable suspicion

existed to justify the seizure in this case.
defendant was supported by reasonable suspicion because the

officer received a tip, saw what appeared to be a concealed
gun on the defendant's person, and the defendant was standing
"shortly after midnight in a high-crime area"). What is
consistent in those cases, and distinguishable from Ubiles, is
the presence of other articulable facts that, in combination
with their observation of the weapon, would permit the
officers to reasonably suspect that the gun was possessed
illegally. Such facts are present here: the officers saw the gun
in Wiggan's pants pocket, which, based on their experience,
was an unusual way for a lawful gun possessor to carry a
firearm, and Wiggan reacted visibly and nervously to the
officers' entrance into the store. 9 Furthermore, Connecticut
law dictates that possession of a concealed weapon is illegal
unless a person has acquired a permit; in other words, it was
fair for the officers to presume that Wiggan's gun possession
was unlawful, especially when coupled with the suspicious
way he carried it and comported himself. Cf United States v.
Bold. 19 F.3d 99, 104 (2d Cir.1994) (concluding that, because

"the overwhelming majority of the people in New York State
and City are not licensed to carry handguns," officers had
reasonable suspicion to believe that the defendant did not
possess his weapon legally). Police officers who observe a
person carrying a concealed weapon are permitted to conduct
a limited stop, rather than risk harm to themselves and to
bystanders, while they determine whether possession of the
weapon is lawful.
9
The government also claims that reasonable suspicion

was supported by the fact that Wiggan was stopped
in a high crime area, which is one factor for the
court to consider in analyzing whether a seizure was
reasonable. Illinois v. Wardlaw. 528 U.S. 119, 124,
120 S.CL 673, 145 L.Ed.2d 570 (2000). Although I do
not question the testimony of Roman and Zona that
Fair Haven suffers from a high crime rate, I find it,
at best, weakly supportive of the officers' reasonable
suspicion. Factually, there was no indication that any
crime was occurring that morning; by all accounts,
the neighborhood was quiet. In addition, I share the
reservations expressed by Chief Judge Thompson in
Ramos:"[I]fthe mere fact that a chain of events occurred
in a high crime area is a material consideration, the
logical result is that residents (law-abiding and not) of
such areas are afforded less in the way of protection from
unreasonable seizures by law enforcement authorities
than their peers who are fortunate enough to live in
neighborhoods with better reputations."71 F.Supp.2d
40, 46 n. 4. I therefore recognize this potential factor
in deciding Wiggan's motion to suppress, but find it
The totality of those facts establishes that the officers had

reasonable suspicion to perform a Terry stop when they
handcuffed Wiggan.
10
The officers saw the weapon and
had a sufficient basis to believe that it was being carried

unlawfully. That justified Wiggan's seizure-including the
use of handcuffs-and the limited search outside of Moe
Love's barbershop.
10
Even if I am wrong, and Wiggan had actually been

arrested when he was handcuffed, the officers likely had
probable cause. (The government did not argue this point
but relied entirely on its reasonable suspicion analysis.)
Probable cause to arrest "exists when the officers have
knowledge or reasonably trustworthy information of
facts and circumstances that are sufficient in themselves
to warrant a person of reasonable caution in the belief
that (1) an offense has been or is being committed (2) by
the person to be arrested."U11i1ed States 1 Fisher, 702
F.2d 372, 375 (2d Cir.1983). In this case, the officers
arguably had probable cause based on the information
that the arresting officers learned from the anonymous tip
and their observation of the handgun on his person. An
apposite case is United S1a1es 1. Redick. No. 3:05crl68
(MRK), 2006 WL 908153 (D.Conn. Apr. 5, 2006),
where the district court held that police officers had
probable cause to arrest after receiving information that
the defendant possessed a gun illegally and, in the
course of performing the initial stop, observed that he
actually was carrying a weapon. Id. at *2 (citing Adams
v. IFilliams. 407 U.S. 143, 148. 92 S.Ct. 1921, 32
L.Ed.2d 612 (1972)). In Redick, the officers had probable
cause even though the informant said nothing about the
lawfulness of the gun's possession; their sighting of the
weapon was sufficient to establish probable cause to
support the arrest. The same outcome is warranted here,
as well.
III. Conclusion
Hopeton Wiggan was seized once Officers Roman and
Quintero handcuffed him. That seizure constituted a
temporary investigative stop-and-frisk, which lasted until
the officers removed Wiggan from Moe Love's barbershop,
patted him down, and removed his gun, at which point
Wiggan's seizure became a full arrest. The stop-and-frisk was
supported by reasonable suspicion, based on the anonymous
phone call, Wiggan's behavior once the officers entered
the barbershop, and, most importantly, the protrusion of
Wiggan's firearm from his pants pocket.

2010 WL 2698277
*13 For those reasons, Wiggan's motion to suppress

evidence on the basis of the Fourth Amendment (doc. #
19) is DENIED. I deny without prejudice Wiggan's motion
End of Document
to suppress the statements he made to Officers Roman and

Quintero, as neither side presented evidence on the matter.
It is so ordered.
r0 2014 Thomson Reuters, No claim to original U,S, Governi11ent Works,

Lazurek OBJECTION To Motion To Terminate Stay

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NO.

JUDICIAL DISTRICT OF NEW BRITAIN

NOVEMBER 24, 2014

PLAINTIFF'S OBJECTION TO SCOTT LAZUREK'S

LAZUREK HAD THE OPPORTUNITY TO OBJECT TO THE MOTION FOR

A BALANCING OF THE EQUITIES FAVORS THE COMMISSIONER.

equities favors the Commissioner.

The Commissioner Is Likely To Prevail On Appeal.

Under Connecticut Law, A Firearms Permit May Be Revoked If The

The Commissioner Appropriately Determined That Lazurek Was Not

The Board Abused Its Discretion In Finding Lazurek Suitable To

The Remaining Factors Favor The Retention Of The Stay.

/s/ Jane R. Rosenberg_

DeAnn S. Varunes, AAG

/s/ Jane R. Rosenberg

Burgess v. Town of Wallingford, 569 Fed.Appx. 21 (2014)

Holdings: The Cami of Appeals held that:

[2] officers were entitled to qualified immunity on arrestee's

*22 UPON DUE CONSIDERATION, IT IS HEREBY

TOWN OF WALLINGFORD, Douglas L.

PRESENT: B.D. PARKER, DEBRA ANN LIVINGSTON,

Capacities, Anthony Martino, Lieutenant, in

The Clerk of the Court is directed to amend the caption

June 12, 2014.

Burgess v. Town of Wallingford, 569 Fed.Appx. 21 (2014)

accordingly we do not address this claim. We also do not

"The doctrine of qualified immunity protects government

Although the Supreme Court formerly required lower

since ruled that the sequence is no longer mandatory. See

(11 The first issue Burgess raises on appeal concerns his

In District ofColumbia v. Heller, the Supreme Court held that

Burgess v. Town of Wallingford, 569 Fed.Appx. 21 (2014)

on charges of disorderly conduct was unreasonable in the

on his waist. In a radio transmission during police response

Burgess's complaint also claimed a violation of the

*25 We have considered all of Burgess's remaining

(\) 2014 Thomson Reuters. No c!aim lo original U.S. Government Works.

performed. His regular rate of pay determined by dividing

Muffler Shop of New Britain, Inc.,

July 20, 1990.

The facts have been stipulated by the parties and may be

any employee except outside salesmen ( 1) whose regular rate

It went on to state that based on dictiona1y definitions

decisions from other states which give it the same general

Subsequent to the hearing in this case, the court granted

concrete, everyday pressures." Con11ccticut Lif(' & Health Ins.

It is a basic rule of statutory construction that "the legislature

is presumed to know all the existing statutes and that when it

Mechmet also refutes the plaintiffs' claim that the definition

clarity that the agency construction is contrary to the

consistent with his opinion. Co1111ecticur Hospira! Association

Ambiguity may be found to exist even where the legislature

*6 The commissioner's ruling and the attorney general's

In construing a statute and determining the legislative intent,

case based on her legal conclusion that the exemption must

Our supreme court, in West v. Egan. 142 Conn. 437 at

((c12014 Tt1ornson Reuters. No ciaim to oriqinal U.S. Government Worl\c;.

Nicholson v. Board of Firearms Permit Examiners, Not Reported in A.2d (1995)

KeyCite Yellow Flag - Negative Treatment

Reveron v. Board of Fircarms Permit Ex,1111incrs.

Sept. 28, 1995.

*1 PlaintiffMichael T. Nicholson appeals the decision of the

1. The appellant was arrested for Assault 2nd and Risk of