Richard Burgess walked into a Wallingford pool hall with a gun and two magazines of ammunition.
A bartender said some patrons felt uncomfortable and left. Another scared customer called 911.
Carrying a gun out in the open is not illegal in Connecticut. Still, police ended up charging Burgess with disorderly conduct. Even though the charge was later dropped, Burgess sued the town for false arrest.
In a case that gained the attention of Second Amendment advocates, the U.S. Court of Appeals for the Second Circuit in June upheld a Connecticut federal judge’s decision to toss the lawsuit, ruling that the officers had governmental immunity from such claims.
“In this day and age people do get worried when they don’t know what someone else’s intentions are,” said the lawyer representing Wallingford, Thomas Gerarde, who noted the long list of recent mass shootings in Connecticut and across the country. “To me it signals that at least in our jurisdiction the courts are willing to support the police who make breach of peace or disorderly conduct arrests when a member of the public becomes alarmed at the sight of another person openly carrying a handgun.”
Second Amendment advocates, however, are outraged that a citizen can be arrested when they are not breaking a firearms law and then barred from from seekin civil recourse afterwards. “Legal conduct can’t be established by what people are annoyed or alarmed by,” said Burgess’ lawyer, Rachel Baird, of Torrington. “What basically you have in Connecticut is something that’s legal and not prohibited, but is prohibited by the courts.”
Connecticut is not a conceal carry state, meaning a person with a firearms permit in the state is not required to keep the weapon hidden from view. Some municipalities, however, have enacted their own ordinances prohibiting people from carrying guns in plain site.
Experts say the criminal charges for legally carrying a gun in the state are almost always dropped. Perhaps the most noteworthy example of that involved New Haven attorney Sung-Ho Hwang, who was charged after bringing a gun into a movie theater in 2012 just days after a man gunned down Colorado moviegoers at a showing of the Batman film “The Dark Knight Rises.” Hwang’s breach of peace charge was later dropped.
Despite the enactment of other gun control measures in Connecticut in the wake of the Newtown shootings, bills proposing that Connecticut become a conceal carry state, like New York, have not generated the support of a majority of state lawmakers. The current law, said Baird, makes it clear that the legislature is empowering licenced firearms owners to carry guns without worrying about getting arrested for breach of peace.
As such, Baird had strong words for the Second Circuit, which upheld an earlier U.S. District Court decision in Connecticut to dismiss Burgess’ lawsuit against the Wallingford police.
“This is such an example of judicial activism where the judges think it’s ridiculous to carry handguns openly because it scares people,” said Baird. “I think it’s just egregious that the courts would allow such a circumstance to remain when they’ve had so many opportunities to say the statute doesn’t prohibit this type of conduct.”
Around 7 p.m., May 16, 2010 Burgess walked into Yale Billiards in Wallingford wearing a Glock 23 in a holster outside the waistband of his right hip. He also had two spare magazines.
He proceeded to play pool in the establishment, which serves alcohol. According to court documents, some of the 40 or so patrons felt uncomfortable after seeing the gun. One patron asked Burgess to conceal the weapon but he wouldn’t so the man called 911. The owner of the pool hall also called the emergency number. He said he had asked Burgess to leave the building because he was making the patrons uncomfortable.
Burgess remained in front of the building, and was pacing in front of the pool hall, when police arrived. One of the officers said in a police report that “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.”
Officers arrested Burgess and charged him with disorderly conduct but prosecutors later dropped the charges since he was lawfully carrying the gun. “An argument at the Second Circuit was that he had enough ammo to kill everyone in the establishment if that was his purpose,” said Gerarde, the lawyer for Wallingford who practices at Howd & Ludorf in Hartford. “No one thinks that was his purpose but in this day and age people become afraid when they see a heavily armed person.”
The three-judge panel consisting of Barrington Parker, Debra Ann Livingston and Christopher Droney, upheld U.S. District Court Judge Tucker Melancon’s decision from May 2013 to dismiss Burgess’ suit.
“We cannot conclude that the defendant officers acted unreasonably in believing that they could stop and arrest Burgess,” the panel wrote. “Burgess…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.”
Gerarde said the ruling mirrors a previous case that came before the Second Circuit. In that case, James Goldberg had a gun that was in the waist of his pants, but still visible to others, inside a Chili’s restaurant in Glastonbury in 2007.
The restaurant manager called police and began moving people away from where he was sitting. Police arrived, seized his weapon and placed Goldberg under arrest for breach of peace.
Baird said the charge was dropped at the first court hearing after the arraignment; court documents indicate that Goldberg agreed to pay a $500 charitable donation in exchange for the dismissal of charges. Baird filed a civil lawsuit on Goldberg’s behalf against the town of Glastonbury and the police officers for false arrest and unreasonable search and seizure.
Gerarde, of Howd & Ludorf in Hartford, similarly sought to dismiss the Glastonbury case on qualified immunity grounds and was successful. As in the Wallingford case, he argued that government workers—such as police officers—generally are immune from lawsuits when they take discretionary action in the course of doing their work. In both cases, arresting a man with a gun was considered by the courts to be within the realm of a police officers’ discretion.
Baird appealed the Glastonbury case to the Second Circuit, bu the court upheld the lower court decision in that case as well.
“In Connecticut, we don’t have a culture where people carry handguns openly like might be the case in West Texas or Wyoming,” said Gerarde. “In our culture in Connecticut we don’t have people openly carrying handguns. We do have a history of horrible gun violence.”•