Wednesday, May 16, 2012

The Police Officer Standards and Training Council: A Failure to Train

Summary of the Case
James F. Goldberg entered a Chili's Restaurant in Glastonbury, Connecticut, on the night of June 21, 2007, to place an order for food to take with him from the restaurant. The Chili's manager, Laura Smith, noticed that Mr. Goldberg carried a handgun into the restaurant on his side secured in a holster. Ms. Smith called 911 emergency dispatch and inquired whether it is legal in Connecticut to openly carried a firearm. Ms. Smith did not complain during the call that Mr. Goldberg acted in a threatening manner and no complaint followed from Ms. Smith or anyone else that Mr. Goldberg acted in a threatening manner. Mr. Goldberg presented a valid state permit to carry pistols and revolvers upon the arrival of the responding police officers. The officers seized Mr. Goldberg's handgun and state permit and and placed Mr. Goldberg under arrest for the criminal offense of Breach of Peace in the Second Degree. A summary of the issues and the facts of this case are described further in a Request for Assistance submitted to the National Rifle Association Civil Rights Defense Fund. The NRA responded to Mr. Goldberg's request on May 9, 2011.

Federal Trial Court Decision
Mr. Goldberg filed a federal complaint in 2007 alleging violations of his Fourth Amendment right to be free from unreasonable search and seizure. As a result of a September 17, 2010, decision by federal district court Judge Stefan R. Underhill finding that Mr. Goldberg's mere act of lawfully bearing a pistol in a public place constituted per se reckless conduct, the government was granted apparent authority in Connecticut to detain and arrest individuals based on lawful conduct when that conduct involves the exercise of a Second Amendment right. This exception created by the district court and termed in Mr. Goldberg’s Brief to the appellate court as the “Goldberg exception” to the Fourth Amendment grants unfettered authority to the government to detain any individual exercising his or her Second Amendment right to bear arms absent any indicia of criminal conduct. Judge Underhill issued his decision from the bench on September 17, 2010, following oral argument by the parties.

Appeal to the United States Court of Appeals
Mr. Goldberg presented two issues in his appeal: (1) Was the investigatory stop conducted by the three Town of Glastonbury police officers justified at its inception and, if so, reasonably related in scope to the circumstances which justified the interference in the first place? (2) Did the three police officers have probable cause to arrest Mr. Goldberg? Mr. Goldberg filed a Brief and Special Appendix with Volume One and Two of a Joint Appendix on March 24, 2011. The Joint Appendix contains three-hundred-thirty pages of documents relevant to the appeal including police reports and deposition transcripts. Oral argument was held on November 21, 2011, in New York before The Honorable Jon O. Newman, The Honorable Ralph K. Winter, and The Honorable Robert A. Katzmann. The appellate court issued a decision on December 13, 2011, affirming the federal district court opinion of Judge Underhill. In the appellate decision, the court did not decide whether there was probable cause to arrest Mr. Goldberg because it concluded that the Town of Glastonbury and its officers were entitled to qualified immunity. According to the court, "[o]n these facts, and given the lack of settled Connecticut law on the issue, we conclude that reasonable officers could, at minimum, disagree on whether there was probable cause to arrest plaintiff for breach of the peace in the second degree, and accordingly the district court's qualified immunity determination ought to be affirmed."

Peruta v. Commissioner of Public Safety
In a state court case, Edward A. Peruta had attempted prior to the December 13, 2011, federal appellate court decision in Goldberg v. Glastonbury to settle the law in Connecticut by asking: "Whether a Connecticut state permit holder has the right in Connecticut to carry a pistol or revolver openly, without concealing the pistol or revolver, in any location where carrying a pistol or revolver is not otherwise prohibited by the premises' owner or by law." The appellate court decided on May 24, 2011, that "depending on the specific circumstances, a person who openly carries a pistol conceivably may be subject to arrest for violating several statutes, even if section 29-35 does not prohibit a permit holder from carrying a pistol openly." The court avoided the issue by placing the burden upon Mr. Peruta to supply the Department of Public Safety with specific factual circumstances to determine if the open carry of a firearm is lawful.

In Goldberg v. Glastonbury the federal appellate court determined that the law in Connecticut is not settled. This resulted in a finding that the Glastonbury police officers would not be held liable for any infringement of Mr. Goldberg's Fourth Amendment rights. In Peruta v. Commissioner of Public Safety state appellate court placed the burden on individuals such as Mr. Peruta to use private funding and resources to settle the law by thinking of every conceivable set of circumstances under which an individual may engage in the lawful open carry of a handgun and then filing a petition to the Department of Public Safety requesting a ruling on whether or not under the circumstances described an individual would be placed under arrest.  The Torrington Police Department and the Wethersfield Police Department have issued training memorandums addessing and clarifying this issue since it was raised in Goldberg v. Glastonbury.

But the same cannot be said for the Police Officer Standards and Training Council (POST Council). As recently as April 12, 2012, a Norwalk Police Department officer and 2010 graduate of the training academy, testified that Connecticut state statutes specify a permit that allows for only the concealed carry of a pistol or revolver by permit holders while open carry requires no permit at all. As long as the law remains unsettled and police officers remain untaught and confused, arrested individuals bear the burden of the unsettled law. Courts will find, as the courts did in Goldberg v. Glastonbury, that the unsettled status of the law provides an excuse for law enforcement, relieving law enforcement of accountability for violations of individual rights. 

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