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Is Connecticut Properly Policing Gun Owners or Violating Their Constitutional Rights?

Rich Burgess was drinking coffee and working on his laptop at the Old Saybrook Starbucks when several cops approached him about the gun he was carrying. Burgess always carries a gun in a holster on his right hip and two ammo clips on his left.

The officers took Burgess outside and questioned him. Burgess audio recorded the interaction and posted it to OpenCarry.com, a national gun activist website devoted to allowing gun owners to “open carry,” or display their guns rather than hide them under their clothing. (Laws on open carry vary from state to state.)

The police threatened to charge Burgess with breach of peace even though he had his pistol permit on him.

The Starbucks incident happened just a few weeks ago. But over the summer, Burgess was arrested for carrying his gun in a hip holster at a Wallingford bowling alley. Several customers told the bowling alley owner the visible gun was making them uncomfortable. According to an affidavit filed with the police, the owner asked Burgess to put his gun away. Burgess said no, but offered to leave. Burgess showed the owner his permit and a pamphlet on state gun laws.

Then the owner called the police.

Burgess was arrested and charged with breach of peace and disorderly conduct. The charges have since been dropped and he’s considering suing the town.

Back in Old Saybrook, Burgess tried to educate the officers: “I wanna let you know, though, what you were saying before is wrong. This isn’t a concealed-carry state,” Burgess said, handing a pamphlet on state gun laws to the officers.

After checking with headquarters, the cops let Burgess go, but not before trying to understand his motivation.

“I can’t imagine any reason why I would not conceal,” one cop said. “What’s your logic for not concealing?”

“I don’t have to have a reason,” responds Burgess. “I’m honest and open about everything, and I think we need to make sure everybody knows about state laws.”

That’s the crux of a growing movement in Connecticut. Gun activists say they want the state to follow the laws and some have filed lawsuits to make their point

They’ve been emboldened and motivated by two recent U.S. Supreme Court decisions — Heller v. Washington D.C. and McDonald v. Chicago , which challenged bans on handguns in Washington, D.C., and Chicago, respectively. Heller said Washington, D.C., couldn’t ban handguns. McDonald said Chicago’s ban on handguns was illegal and clarified that the Second Amendment (the right to bear arms) is an individual right. But the decision also said some regulation of that right is constitutionally permissible. McDonald left several issues — like what can be regulated and how much — open to debate.

“Since then, litigation has been booming, because all the laws are up for grabs,” says Torrington-based attorney Rachel Baird, who’s filed several gun-related lawsuits in Connecticut in the past few years. Baird has become the go-to gal for gun lawsuits in Connecticut.

Several of her lawsuits take aim at clarifying the state’s open carry law and the way the state issues pistol permits. There were more than 16,000 pistol permits granted in Connecticut in 2009, and 1,000 permits revoked for bad behavior. So far in 2010, there have been roughly 1,500 permits granted each month.

“I look at it as a purely legal issue,” she says. “This is what the law says, so this is what should happen. I am not in it to make a point or to change things or anything like that. I’m in it to make what happens consistent with the laws on the books.”

At least a few people around the state have been stopped by police or arrested for openly carrying their guns, including James Goldberg, who was arrested at a Chili’s restaurant in Glastonbury in 2007. Goldberg’s gun was covered by his camouflaged shirt, but cops and witnesses saw its outline. The charges against him were dropped and he’s since filed a lawsuit against the town.

When Goldberg and Burgess were wrongly arrested, the first person they called for help was Ed Peruta.

Ed Peruta is the state’s most visible gun activist.

Peruta runs ctgunrights.com, a website full of court documents from the latest state battles over gun rights. He videotapes all the state Board of Firearm Permit and Examiners meetings and he gets phone calls and e-mails from strangers who feel they’ve been wronged in the pistol permitting process or for openly carrying their guns.

Peruta owns three guns. When he carries one, it’s most often his Colt .45 Commander. But Peruta rarely carries it on him, because the gun is so heavy it pulls his pants down. He’s considering a shoulder holster.

Peruta first decided he needed a gun more than two years ago. He travels from Connecticut to California in a motor home to stay for several months a year. Peruta says “several unnamed high-ranking law enforcement officers” knew he traveled in a motor home. “They asked me, ‘Ed, you got a gun?’ I said, ‘No, what for?’ They said, ‘Motor home: One door in, one door out.’”

In other words, if a robber or attacker entered the motor home, Peruta and his wife would have no way to escape.

“They convinced me I needed a gun,” he says.

He has a pistol permit in Connecticut and is suing the state of California for denying him one. In California, citizens need to state why they want a gun and prove residency. Peruta’s lawsuit claims those hurdles are unconstitutional. He’ll be in California for a hearing later this month.

Peruta now thinks not owning a gun is “foolish.” He equates it to not buying renters’ or car insurance.

“We cannot rely on government to protect us,” he says. “My heart goes out to the families of the victims at Hartford Distributors [where, on Aug. 3, an employee shot and killed eight co-workers before killing himself]. But I look at it like eight unarmed employees had no way of defending themselves. What would have happened if everybody [there] had a gun? He may have got one or two, but not eight.”

Peruta’s main complaint — one echoed by other gun activists — is something called “suitability.” There are several disqualifying factors that legally prevent someone from getting a gun in Connecticut. If, for example, you’re a felon or if you’ve recently been committed to a mental institution. Or if you’re found to be “unsuitable.” Thing is, there’s no legal definition of “suitable.”

“Owning and carrying a firearm is a constitutional right,” Peruta says. “Shouldn’t we have cut-and-dry reasons to say you can’t have one? It can’t be because the police chief doesn’t like you. There has to be some reason. That’s where suitability comes in. With more than 100 law enforcement authorities, there are more than 100 opinions on suitability.”

Anyone can ask for a pistol permit by applying to their local police chief (or first selectmen if there is no police chief). If, after the state and FBI complete a background check, the police chief decides to deny the application, you can appeal to the Board of Firearms Permit Examiners (BFPE). Similarly, if the state Department of Public Safety (DPS) revokes a permit, you can appeal to the BFPE.

The BFPE gets about 300 hearing requests per year.

Peruta’s filed a lawsuit in state court asking a judge to declare it legal to carry a holstered handgun out in the open. Peruta is concerned that pistol permit holders are harassed and wrongly arrested by police for openly carrying their guns. After they’re arrested, the DPS revokes their permits, claiming they’re not suitable.

That’s what happened when James Goldberg was arrested at Chili’s in June of 2007. The Glastonbury police seized his gun and permit. Then they contacted the DPS, which revoked his permit. At court a month later, the breach of peace charges were dropped, but Goldberg didn’t get his gun or permit back.

Instead, Goldberg had to appeal his permit revocation to the board. He didn’t get a hearing until 22 months after his arrest. He got his permit back in May 2009.

So what does the state say about openly carrying a pistol? “That’s always been a bone of contention,” says DPS spokesman Lt. Paul Vance. Vance says that if the presence of someone’s gun breaches someone else’s peace then “it’s caused a problem.”

But what would a state police officer do if he or she saw someone walking around with a gun on his hip?

Instead of answering, Vance flips the question: “What would you do if you saw someone walking around with a gun?”

I’m not an officer of the law, I say.

“You wouldn’t call the police if someone’s walking in your neighborhood carrying a gun on their hip? Most people would. Most people would want to know why. If they have a permit to carry that’s one thing. … Whatever their personal reasons are [to carry] they don’t usually flaunt it or expose it. There’s no need to.”

At a September 2010 BFPE hearing, denials in four of six contested cases were based on “suitability.” All the denials and revocations heard that day were overturned, including a case from New Fairfield. No one showed up to argue against giving the guy a gun.

In the silliest case of the day, a man in his 70s appealed the denial of his application by Easton police. On his application, the man said he’d never been arrested, but a background check revealed otherwise. In 1959, at age 19, he was charged with something called “lascivious carriage,” a catchall offense defined as “conduct which is wanton, lewd or lustful and tending to produce voluptuous emotions.” The crime was removed from the books in 1971.

The man had been at the drive-in with a girl. “There was some partial nudity,” explained his lawyer to chuckles from board and audience members.

Lying on a permit application is deemed unsuitable. But after 19 months of waiting for a hearing and a few minutes of discussion, the man was deemed suitable.

It’s not always so cut and dry.

In Hamden, police chief Thomas Wydra denied a man’s pistol permit for two reasons: He lied on the application by not disclosing a 2006 conviction for disorderly conduct, and he’d been arrested on a domestic violence incident but pled guilty to the lesser charge of disorderly conduct. According to police, the man had a pattern of domestic violence. According to the man, his ex-girlfriend would often call the police on him and make false reports against him.

The board ruled in his favor and now Chief Wydra is suing the board.

BFPE chairman Joe Corradino, a New Haven Republican who works as a prosecutor in Bridgeport, says he doesn’t see any of these cases as black and white. That’s why suitability is an important decision-making tool: “You really have to size each person up on their own merits.”

Corradino gives a few examples of people who wouldn’t automatically be disqualified, like someone who hasn’t been committed to a mental institution but is diagnosed with bipolar disorder and isn’t seeking treatment. If that person had a gun, he or she might not pose a danger to others, but maybe he or she is a danger to themselves since bipolar people are more likely to commit suicide. “Would you give that person a gun? No, of course not,” Corradino says. “It would be unreasonable.”

Local police departments are in an awkward position: Charged with protecting a town, they’re also in charge of handing out pistol permits. Sometimes they find themselves giving permits to people who probably shouldn’t have one.

“It’s frustrating,” New Haven Detective Annmarie Laporta says.

A short while ago, Laporta gave a pistol permit to a guy who, four years earlier, had a gun but no permit. At the time, cops saw him shoot the gun and take off running. Police chased and arrested him. At court, he was given “accelerated rehabilitation,” a jail diversion program that lets people avoid prison by going through counseling. He completed the program and the gun charge was wiped from his record.

Police departments are not allowed to base decisions on arrests or convictions that have been erased from someone’s record.

“I had to give him the permit,” Laporta says. “What are the activists gonna say to that? Did I want to give him that permit? No. Is he the same person he was four years ago? He might be. He might not be.”

Laporta sees about 30 pistol permit applications a month and rarely issues denials. She says the state police have told her not to base decisions on suitability since the board will overturn those decisions.

“I can’t tell you how many times I’ve given [a permit] out and then I’m taking it back because of what they’ve done with it,” she says.

She also sees six or seven people a month whose guns have been stolen from their unlocked cars. DPS has just started keeping statistics on reports of stolen guns: So far this year there have been 84.

What frustrates her most are the people who’ve been arrested several times for domestic violence but never convicted. People in abusive relationships are more likely to return to abusive partners than pursue a criminal case.

“If you have someone constantly in domestic violence situations but not getting convicted, you want to deny, but you can’t because there’s no conviction,” she says.

And when she denied a permit based on a pattern of domestic violence arrests without a conviction, the board overruled her and gave the guy a gun.

Laporta firmly believes in the right to bear arms. She even echoes a line Ed Peruta is fond of using: The government can’t protect you.

“I enjoy when I read something in the paper about a citizen not being taken advantage of. In New Haven, [police] can’t be everywhere all the time. These guys [with pistol permits] aren’t vigilantes. They’re protecting themselves.”

But when I ask if she thinks the permitting process should be more lax or more tough, she sighs. “I don’t know,” she says. “I just don’t know.”

In Bridgeport, Kim Nikola walks that same fine line.

“Every time you give somebody a permit you’re like, ‘Aw man, maybe I’m gonna go to their house [on a call] and they’ve got a gun now.’ A lot of people you’ll see have lots of minor issues and now he’s got a gun,” says Nikola, who supervises Bridgeport’s pistol permit department. “There’s nothing we can do. We just cross our fingers.”

Logically, she knows most people with pistol permits aren’t committing crimes. She sees a lot of business owners applying for permits and assumes they think they’ll feel safer with a gun.

Like Laporta, Bridgeport’s Nikola says she tries to follow the law and only deny permits when she can defend the logic behind her decision. But there have been cases, she says, when she doesn’t feel good about issuing a permit.

“This is not about guns,” Peter Kuck tells me when I ask about the class-action lawsuit he’s filed against the Department of Public Safety and the Board of Firearms and Permit Examiners. Kuck, 64, sits on the BFPE as a representative of Ye Connecticut Gun Guild.

Kuck grew up in Stratford where he learned to shoot guns with the Stratford Police Athletic League. “I can remember in the late ’50s when kids would take their shotguns to school on their bikes and put them in their locker and go hunting after school,” he says.

Kuck’s been on the BFPE for 11 years “and for the majority of time I had blinders on,” he says.

A hearing in 2006 struck a nerve. The DPS had revoked a person’s pistol permit, because he’d been charged with drunk driving and had his gun in the car. That’s unsuitable and therefore cause for revoking a pistol permit. Kuck had recently read Attorney General Richard Blumenthal’s report from 2006 on DPS’s Internal Affairs unit, which found that state police had been competing for membership into the “100 Club” by completing 100 or more DUI arrests. In the competition, the report says, many drivers were arrested for drunk driving without actually being drunk. “I decided I wouldn’t take the police’s word for it, but I would ask for blood alcohol tests,” Kuck says.

That’s when Kuck says he realized the DPS was wrongly revoking pistol permits. Those revocations added to a backlog of cases that has steadily grown so that now it is common for someone to wait nearly two years to receive a hearing.

Kuck says he “made a pain in the ass” of himself about the blood tests. He thinks that’s why BFPE members tried to get him kicked off the board (internal e-mails cited in his lawsuit support that claim). He also thinks that’s why his pistol permit wasn’t renewed the following year.

Pistol permits are valid for five years, and in 2007, when Kuck applied for a renewal, DPS told him to submit a birth certificate or passport, neither of which are required under the law. (DPS spokesman Lt. Vance says DPS still asks for those IDs and, “No one has any difficulty providing that information when asked for it.”) Kuck refused on principle and was denied.

The previous year the DPS tried to pass legislation to require a birth certificate or passport to get a pistol permit. Kuck sees this as proof that DPS enforces gun laws that it wishes existed. (Similarly, DPS will propose legislation this year to make it illegal to openly carry a gun. In paperwork submitted when a state agency proposes legislation, DPS writes: “Recently citizens have taken it upon themselves to test our statutes by carrying openly. In doing so, several arrests have been made under the Breach of Peace statutes …” Those charges were dismissed, “proving that these laws are inadequate in their detail.”

Kuck’s pistol permit expired and he appealed to the BFPE. After his October 2008 hearing he got his permit back. At the time, the BFPE’s backlog was so large, there was an average wait time of 18 months to get a hearing.

Before Sept. 11, the wait for a hearing was three months. In 2002, the number of pistol permit applications (and application denials) skyrocketed by 60 percent. Those numbers have held steady since then.

According to a report by the state Auditors of Public Accounts (which periodically reviews all state agencies), the BFPE’s backlog can be blamed on both the BFPE and DPS. After an initial denial, DPS does not review the cases until the month of the scheduled hearing. The report also says the BFPE needs to hold more hearings. (They will have had 17 meetings this year and are scheduling 24 for 2011, up from 12 in 2009.) That’s why Kuck filed a class action lawsuit. His lawsuit claims the long wait for a hearing violated his constitutional right of due process and that if DPS would review cases more quickly there wouldn’t be a wait. His lawsuit was dismissed and he appealed it to the Second Circuit Court of Appeals in New York.

The Second Circuit Court ruled that Kuck’s case should not have been dismissed, adding that “The State gives no account of how or why public safety requires unsuccessful applicants to wait a year and a half for an appeal hearing.”

Kuck’s case will now have a chance to be heard in Connecticut and a judge may decide how long is too long to wait for a hearing and whether or not DPS is arbitrarily revoking or denying pistol permits and creating the backlog.

“Having read a lot of history, I know one of the worst things that any society can do is allow the police to make up their own laws as they go along,” Kuck says. “I understand there are some people who should not have guns, but even the police should follow the law.”

Copyright © 2015, The Baltimore Sun
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