MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART DEFENDANTS’ [Doc. #70] and [Doc. #86] MOTIONS TO DISMISS
The Plaintiffs, M. Peter Kuck (“Kuck”) and James F. Goldberg (“Goldberg”) bring this action individually and on behalf of others similarly situated alleging that (i) they were denied the right to keep and bear arms in violation of the Second and Fourteenth Amendments in count one; (ii) that they were denied procedural due process in connection with the revocation of a gun permit and the denial of a gun permit renewal in counts two, three and four; (hi) that they were denied substantive due process in connection with the revocation of a gun permit and the denial of a gun permit renewal in count five; (iv) that Goldberg’s right to free speech under the First Amendment was violated when his gun permit was revoked in retaliation for the exercise of his First Amendment rights in count six; and (v) that the seizure of Goldberg’s gun permit was an illegal seizure of property in violation of the Fourth Amendment in count seven. Defendants have moved to dismiss Plaintiffs’ complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R.Civ.P. 12(b)(6) as well as based on sovereign immunity under the Eleventh Amendment pursuant to Fed.R.Civ.P. 12(b)(1). In addition, Defendants assert that they are entitled to qualified and quasi-judicial immunity in connection with Plaintiffs’ allegations. For the reasons set forth below, Defendants’ motions to dismiss are granted in part and denied in part.
Background
i Procedural History and Background
The Court recently granted Defendants’ motion to consolidate two separate actions that were pending before the Court which were Goldberg v. Danaher et al., 3:07-cv-1911 and Kuck v. Danaher et al., 3:07-cv-1390. The allegations and claims between the two actions were substantially similar, both Goldberg and Kuck have sued the same Defendants and were represented by the same counsel. Goldberg filed his original complaint on December 12, 2007 which the Court dismissed on July 22, 2008 based on Plaintiffs failure to submit a memorandum in opposition to the motion to dismiss
Kuck filed his original complaint on September 17, 2007 which the Court dismissed on July 25, 2008,
On September 3, 2010, Kuck filed an amended complaint, which Defendants have mоved to dismiss. On August 17, 2011, the Court consolidated both actions. Since the allegations and claims in the amended complaints filed in Kuck and Goldberg’s separate actions are substantially identical, the Court will consider both amended complaints in its opinion.
Plaintiffs have sued the following five Connecticut State Department of Public Safety (“DPS”) officers in their individual capacities: Alaric Fox, Albert Masek, Barbara Mattson, Thomas Karanda, and Ronald Bastura. Plaintiffs have also sued the Commissioner of DPS James Thomas in his official capacity (collectively referred to as the “DPS Defendants”). In addition, former Connecticut Governor Jodi Rell is sued in her individual and official capacities. Lastly, Plaintiffs have sued two individuals associated with the Board. They have brought suit against the sole employee of the Board, Susan Mazzoccoli, in her individual and official capacities as well as the former chairman, Christopher Adams, in his individual capacity (collectively referred to as the “Board Defendants”).
ii. Statutory Framework
In order to obtain a permit to carry a pistol or revolver in Connecticut, a person must apply to a local authority, either the chief of police, warden or selectman, in the jurisdiction in which he resides or maintains a place of business. Conn. Gen.Stat. §§ 29-28(a)-(b). No permit may be issued if the applicant falls under one of ten statutory exclusions. Conn. Gen.Stat. § 29-28(b). The exclusions are and in 2007 were as follows: (1) the applicant has failed to successfully complete a pistol and revolve safety or training course; (2) the applicant has been convicted of a felony or of certain enumerated misdemeanors;
Within eight weeks after an application for a temporary permit has been made, the local authority must inform the applicant whether the temporary permit has been approved or denied. Conn. Gen.Stat. § 29-28a(b). The local authority then sends the application indicating approval or denial to the Commissioner of DPS (the “Commissioner”). Id. If the local authority has denied the application for a temporary state permit, no state permit may be issued. Id. Within eight weeks after receiving an application indicating approval from the local authority, the Commissioner must inform the applicant in writing whether his application for a state permit has been approved or denied. Conn. Gen. Stat. § 29-28a(b).
State permits to carry a pistol or revolver expire after five years. Conn. Gen.Stat. § 29-30(c). Within ninety days before expiration, the issuing authority must send a notice and renewal form to the holder of the permit. Conn. Gen.Stat. § 29 — 30(f). Unless a permit has been revoked or revocation is pending, the permit remains valid for a period of ninety days after the expiration date. Id. The Commissioner must “investigate each applicant for renewal for a state permit to ensure that such applicant is eligible under state law.” Conn. Gen.Stat. § 29-29(d).
The Commissioner may revoke a state permit or temporary state permit “for cause,” and “shall” revoke a permit
upon conviction of the holder of such permit of a felony or of any misdemean- or specified in subsection (b) of section 29-28 or upon the occurrence of any event which would have disqualified the holder from being issued the state permit or temporary state permit pursuant to subsection (b) of section 29-28.
Conn. Gen.Stat. § 29-32(b). In addition, the Commissioner “may revoke the state permit or temporary permit based on the Commissioner’s own investigation or upon the request of any law enforcement agency.” Id. Any person aggrieved by the revocation of a pistol permit may bring an administrative appeal to the Board. Conn. GemStat. § 29-32b(b).
Conn. GemStat. § 29-32b provides the statutory framework for the appeals process and the Board. The Connecticut Legislature recently amended Conn. Gen. Stat. § 29-32b which became effective July 1, 2011. Before the statute provided that “[tjhere shall be established a Board of
The Board is “comprised of seven members appointed by the Governor to serve during his term and until their successors are appointed and qualify. With the exception of public members, the members shall be appointed from nominees of the Commissioner of Public Safety, the Connecticut State Association of Chiefs of Police, the Commissioner of Environmental Protection, The Connecticut State Rifle and Revolver Association, Inc., and Ye Connecticut Gun Guild, Inc., and each of said organizations shall be entitled to representation on the board. At least one member of the board shall be a lawyer licensed to practice in this state, who shall act as chairman of the board during the hearing of appeals brought under this section.” Id. The only powers which the Governor has with respect to the Board is the appointment of Board members.
The statute further provides that any person aggrieved by any refusal to issue, renew, or the revocation of a permit may within ninety days after receipt of notice and “without prejudice to any other course of action open to such person in law or in equity, appeal to the board. On such appeal the board shall inquire into and determine the facts, de novo, and unless it finds that such a refusal, limitation or revocation, or such refusal or failure to supply an application, as the case may be, would be for just and proper cause, it shall order such permit or certificate to be issued, renewed or restored, or the limitation removed or modified, as the case may be.” Conn. Gen.Stat. § 29-32b(b).
The statute also provides that the Board shall schedule a hearing or an appeal within ten days of receipt of the appeal. It further provides that “[t]he board shall hold hearings at such times and places as it in its discretion reasonably determines to be required, but not less than once every ninety days, and shall give reasonable notice of the time and place of the hearing to the appellant and to the issuing authority. The board shall have the power to compel attendance at its sessions.” Conn. Gen.Stat. § 29-32b(d). In addition,
[a]ll appeals hearings shall be conducted in an informal manner, but otherwise according to the rules of evidence, and all witnesses shall be sworn by the chairman. The board shall cause a verbatim transcript of the hearing to be kept in such manner as it may determine, and shall furnish such transcript to any party appealing its decision as hereinafter set forth. The statements of witnesses made under oath shall be privileged. Decisions of the board shall be by majority vote and shall be communicated in writing to the appellant and to the issuing authority within twenty days after the rendering of the decision. If any issuing authority neglects or refuses to comply with a decision of the board within ten days after notice of the board’s decision has been given to such issuing authority, the board shall apply to the superior court for a writ of mandamus to enforce the board’s decision.
Conn. Gen.Stat. § 29~32b(e). Lastly, any person who has been aggrieved by the decision of the Board may appeal that decision in state superior court. Conn. Gen.Stat. § 29-32b(f).
The Board maintains an office for conducting its day-to-day business and Conn. Agencies. Regs. § 29-32b-4 provides that
Hi Facts as Alleged in the Amended Complaints
The following relevant facts are taken from Goldberg and Kuck’s amended complaints. [Doc. # 67, 3:07-cv-1911, Goldberg Compl. and Doc. # 60, 3:07— cv1390, Kuck Compl.]. Goldberg applied in April 2007 for a temporary state permit to carry a pistol or revolver with the local authority which was shortly approved. [Doc. # 67, Goldberg Compl. at ¶ 37]. DPS then approved and issued a non-temporary permit to Goldberg on May 17, 2007. [Id. at ¶¶ 37-40]. One month later on June 21, 2007, Goldberg was arrested by the Glastonbury Police Department (“GPD”) for breach of the peace in the second degree. [Id. at ¶¶ 41-40]. Goldberg had entered a Chili’s restaurant while wearing his firearm in a holster which was visible. See James F. Goldberg v. Town of Glastonbury, et al., Docket No. 3:07-cv-01733 (SRU). The manager at Chili’s called 911 to report that a man with a firearm had entered the restaurant which resulted in the Glastonbury Police Officers arriving on the scene and arresting Goldberg for breach of the peace in the second degree. During the arrest, the GPD seized Goldberg’s pistol and his gun permit. Goldberg has sued the GPD in a separate action alleging that his Fourth Amendment rights were violated when he was arrested and his property seized. See James F. Goldberg v. Town of Glastonbury, et al., Docket No. 3:07-cv-01733 (SRU).
On June 25, 2007, GPD Lieutenant Dennis Woessner forwarded a letter to Defendant DPS Officer Detective Mattson consisting of one-sentence “[e]nclosed is the case we spoke about on the phone. Thanks for all yоur help.” [Doc. # 67, Goldberg Compl. at ¶ 48]. Defendant Mattson then sent Goldberg a letter dated June 27, 2007 notifying him that his permit had been revoked as a “result of your involvement in an incident investigated by: Glastonbury Police Department, Case Number: 07-009576, date 6/27/2001.” [Id. at ¶¶ 49-50]. Goldberg alleges that this letter did not reference whether DPS’s revocation was based on either an investigation by DPS or upon the request of any law enforcement agency as is required under Conn. Gen.Stat. § 29-32(b). [Id. at ¶¶ 51-52], Goldberg timely appealed DPS’s revocation of his permit and was scheduled for a hearing before the Board on May 14, 2009 which was twenty-two months after the revocation of his permit. [Id. at ¶ 62].
On July 30, 2007, the charges for breach of the peace against Goldberg were nolled. [Id. at ¶¶ 57-61]. On January 29, 2008, Goldberg then re-applied for a temporary state permit with the local authority to carry a pistol before his earlier permit was reinstated and where his appeal on his prior permit was still pending. [Id. at ¶¶ 64-71], The temporary permit was approved on February 4, 2008. On February 21, 2008, Goldberg received notice from DPS that his temporary permit was also revoked for cause. The notice informed Goldberg that this second revocation was also based on his breach of peace arrest and the fact that his prior permit had been revoked and was currently under appeal with the Board. [Id.]. Goldberg alleges that DPS violated Conn. Gen.Stat. § 29-32(b) as it did not conduct an investigation prior to revoking either of his permits nor did it receive requests for revocation from any law enforcement agency. [Id. at ¶¶ 87-89].
On March 19, 2007, Kuck submitted an application for renewal of his state gun permit prior to its expiration. [Doc. # 60, Kuck Compl. at ¶ 37]. DPS demanded that Kuck submit a birth certifícate or United States Passport for renewal. [Id. at ¶ 38]. Kuck was informed that since September 11, 2001 it was DPS policy to require a birth certifícate or passport for renewal. [Id. at ¶ 41]. When Kuck had originally applied for his gun permit, he was not required to provide such identification. [Id. at ¶ 44]. Kuck alleges that the submission of a United States passport or birth certificate is not a requirement under Conn. Gen.Stat. §§ 29-28(b), 29-30 for state permit renewal. On April 16, 2007, Kuck’s state permit expired. [Id. at ¶ 51]. Kuck filed a timely appeal to the Board and the Board heard the appeal on October 9, 2008. [Id. at ¶¶ 60-61]. DPS renеwed Kuck’s permit following the October 9, 2008 hearing. [Id. at ¶¶ 66-67].
As the Second Circuit noted in Kuck, both Goldberg and Kuck allege that “DPS frequently denies permit applications for bogus or frivolous reasons, thereby subjecting qualified applicants to a lengthy appeals process, only to grant the permit months or years later, just before the appeal hearing.” Kuck v. Danaher,
Plaintiffs also allege that the Board’s appeals process was audited sometime pri- or to May, 2007 by the Auditors of Public Accounts which found that the backlog of appeals “had been a concern for at least two years and during this time had increased from an estimated wait time for hearing from fourteen to sixteen months.” [Doc. # 67, Goldberg Compl. at ¶¶ 100-109]. Plaintiffs further allege that the Auditors’ findings were reported to the Governor and therefore Governor Rell was notified that “DPS contributed to the backlog of the appeals waiting for hearing before the Board by not reviewing and then settling the majority of the cases until the month of the scheduled hearing.” [Id.].
Legal Standard
The standards of review for a motion to dismiss under Rule 12(b)(1) for lack of
The Court’s review on a motion to dismiss pursuant to Rule 12(b)(6) is generally limited to “the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference.” McCarthy v. Dun & Bradstreet Corp.,
Analysis of Plaintiffs’ Count One Claim that his Second Amendment Rights were Violated
i. Analysis of whether the Connecticut Statute violated Plaintiffs’ Second Amendment Rights
In count one of Ruck’s amended complaint, he alleges that DPS denied him a permit renewal based on a finding of unsuitability. DPS denied his permit renewal because Ruck had failed to demonstrate that he was not an illegal alien when he refused to provide a passport or birth certificate pursuant to one of the ten specific “eligibility” factors enumerated in Section 29-28(b). Therefore, DPS’s decision was based on their determination that Ruck was unsuitable based on one of the specific eligibility categories enumerated in the statute. The Supreme Court in Heller held that reasonable prohibitions on the possession of firearms are permissible under the Second Amendment. District of Columbia v. Heller,
In count one of Goldberg’s Amended Complaints, Goldberg claims that the DPS Defendants violated his right to bear arms under the Second Amendment by revoking his pistol permit based uрon a determination that he was not “suitable” to hold a
The Second Amendment provides that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend II. In Heller, the Supreme Court held that the Second Amendment protects the individual right to keep and bear arms for self-defense. Heller,
In Heller, the Supreme Court addressed whether several District of Columbia statutes, which generally prohibited the possession of handguns and required any other lawful firearms in the home to be kept inoperable, violated the Second Amendment. Heller,
The Supreme Court in Heller did not decide the appropriate level of constitutional scrutiny to be used in reviewing restrictions upon a person’s right to bear arms. Id. at 624,
The Second Circuit has not yet weighed in on the appropriate level of scrutiny to apply to firearms restrictions. The Circuit Courts of Appeal that have addressed the issue have generally concluded that intermediate scrutiny should be applied to the firearms restrictions they considered. For
Similarly, in United States v. Masciandaro,
The Ninth Circuit, by comparison, has adopted a “substantial burden” framework for the analysis of firearm regulations, under which “heightened scrutiny does not apply unless a regulation substantially burdens the right to keep and to bear arms for self-defense.” Nordyke v. King,
Most district courts to have addressed the issue have also applied intermediate scrutiny to challenged firearms regulations. See, e.g., Osterweil v. Bartlett, No. 1:09-cv-825,
This Court follows the approach taken by the majority of other courts to have confronted the issue and applies intermediate scrutiny to Section 29-28(b). The Court is persuaded by the reasoning of other courts that strict scrutiny should not apply to firearm regulations that restrict the right to bear arms outside the home. See, e.g., Masciandaro,
In addition, this Court is mindful of the Heller Court’s warning that lower courts should not interpret its decision so broadly as to invalidate all existing firearm regulations. Heller,
Accordingly, the Court must consider whether the state has an important interest in regulating the carrying of firearms in public and whether Section 29-28(b) is substantially related to that interest. As the Second Circuit has recognized, “Connecticut clearly has a strong and compelling interest in ensuring that firearm permits are not issued to those ‘lacking the essential character or temperament necessary to be entrusted with a weapon.’ ” Kuck v. Danaher,
The Connecticut Supreme Court recognized the unworkability of the approach advocated by Goldberg more than a century ago in Smith’s Appeal from County Commissioners,
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 character — his 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 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.
Id.
Later, in Dwyer v. Farell, the Connecticut Supreme Court observed that the legislative intent underlying the scheme for issuance of firearm permits set forth in Sections 29-28 through 29-38 was “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.”
Furthermore, DPS does not exercise unbridled discretion to deny or revoke a person’s firearm permit. The principle of “ejusdem generis” mandates that where a general term follows an enumeration of terms with specific meaning, the general term is expected to apply to matters similar to the specifically enumerated terms. diLeo v. Greenfield,
For these reasons, the Court holds that the statute at issue is substantially related to Connecticut’s compelling interest in protecting the public from persons who could potentially pose a dangerous if entrusted with a firearm. Section 29-28(b) enumerates categories of individuals who are ineligible to hold a firearm permit, and affords DPS discretion to determine whether denial or revocation of a permit in particular circumstances not covered by the express statutory grounds is warranted, subject to review by the Board as well as the Superi- or Court. In this case, Goldberg’s permit was revoked by DPS based upon his arrest for breach of peace in connection with an
ii Analysis of Whether the Connecticut Statute is Unconstitutionally Void for Vagueness
As the Defendants acknowledge, count one of the Amended Complaints may also be construed to assert a void for vagueness challenge to Section 29-28(b) under the Second and Fourteenth Amendments. See [Doc. # 67, Goldberg Compl. at ¶ 243] (alleging that the policy choices exercised by the state legislature and the DPS Defendants in interpreting Section 29-28(b)’s “vague principle of suitability” are “now subject to limitations necessitated by an individual’s fundamental right to keep and bear arms”). Plaintiffs do not specify whether they challenge Section 29-28(b) facially or as applied. Therefore, the Court will analyze both types of challenges.
A Facial Challenge
“Facial challenges are generally disfavored.” Dickerson v. Napolitano,
Nevertheless, facial challenges have been permitted in certain rare circumstances when the claims were based on the assertion of a First Amendment right. Id. In such cases, a plaintiff was “allowed to challenge a law that may be legitimately applied to his or her own expressive conduct if the law has the potential to infringe unconstitutionally on the expressive conduct of others.” Id.
Neither the Supreme Court nor the Second Circuit has definitively decided whether a facial void for vagueness challenge can be maintained where, as here, the challenge is not properly based on the First Amendment. Id. at 743. In Dickerson, the Second Circuit identified two possible standards that may govern non-First Amendment vagueness challenges. Id. The Dickerson Court did not, however, resolve which standard should apply, or
The first possible standard is that such challenges are permitted only when “no set of circumstances exists under which the [law] would be valid.” Id. (quoting United States v. Salerno,
The second possible standard is derived from the Supreme Court’s plurality opinion in City of Chicago v. Morales,
This is not an ordinance that simply regulates business behavior and contains a scienter requirement. It is a criminal law that contains no mens rea requirement, and infringes on constitutionally protected rights. When vagueness permeates the text of such a law, it is subject to facial attack.
Id. at 55,
However assuming that Morales does not involve any First Amendment implications and that the Morales plurality’s decision suggests that a facial vagueness challenge can apply outside the First Amendment context, the approach of the Morales plurality has not been adopted by a majority of the Supreme Court as a whole. Therefore, the Second Circuit has recognized that it is not required to apply the Morales plurality’s approach. Rybicki,
Applying the Salerno/Hoffman Estates standard, Section 29-28(b) clearly survives Goldberg’s facial void for vagueness challenge. There are innumerable factual circumstances in which invocation of the suitability standard to revoke a person’s pistol permit on the basis that he poses a danger to the public, even though he does not fall within one of the express statutory grounds for revocation, would be constitutionally valid. For instance, it could not possibly be unconstitutional for the state to revoke a person’s pistol permit after he develops incurable dementia, is diagnosed with paranoid schizophrenia and makes threats to harm others, repeatedly shoots himself, or has an alcohol or drug addiction and repeatedly engages in reckless activity with his firearm while intoxicated.
As the Second Circuit has acknowledged, the standard applied in Morales is not binding because it was not endorsed by a majority of the Supreme Court. Rybicki,
Were the Morales plurality’s approach applicable however, the statute would not be vague because the statute’s enumerated basis for denial of a permit in light of the fundamental principle of statu
Moreover, in Rybicki the Second Circuit suggested that the Morales standard might apply only in the limited circumstances where the “law is ‘permeated’ with vagueness, and, perhaps, that it infringes on a constitutional right and has no mens rea requirement!!]” Rybicki,
B. A.s Applied Challenge
In order to survive an as applied vagueness challenge under the Due Process Clause, a law must be “crafted with sufficient clarity to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited and to provide explicit standards for those who apply [it].” Perez v. Hoblock,
“Even if a person of ordinary intelligence has notice of what a statute prohibits, the statute nonetheless may be unconstitutionally vague ‘if it authorizes or even encourages arbitrary and discriminatory enforcement.’ ” Dickerson,
Thus, the Court must decide whether Section 29-28(b) as a general matter provides sufficiently clear standards to provide persons of ordinary intelligence notice of what conduct it prohibits and to eliminate the risk of arbitrary enforcement, and if not, whether the conduct at issue in this case falls within the core of the statute’s prohibition.
Applying these standards, the Court holds that Goldberg’s as applied vagueness challenge cannot succeed. As previously discussed, Section 29-28(b) enumerates certain categories of individuals who are automatically ineligible to hold a pistol permit. However, the legislature cannot possibly be expected to anticipate in advance every circumstance in which a person could potentially pose a danger to the public if entrusted with a firearm. Thus, the statute requires a discretionary “suitability” determination to be made by DPS before issuing a pistol permit in order to determine whether the applicant possesses the “essential character and temperament necessary to be entrusted with a weapon.” Dwyer,
In addition, the statute provides sufficient guidance to DPS in the circumstances of this case to eliminate the risk of arbitrary enforcement in its enumerated qualifications. The nature of the state interest at issue requires that DPS have the flexibility to determine on a case-by-case basis whether a particular applicant would pose a danger to the public if entrusted with a firearm. The factors which would make a person unsuitable are many and evanescent. However, the Board’s discretion is adequately circumscribed by the enumerated factors for determination of an applicant’s qualifications. Further, the
Finally, the conduct at issue in this ease falls within the “core” of the statute’s prohibition. Goldberg was arrested for breach of the peace after an incident at Chili’s involving his carrying of a pistol. An arrest for conduct involving one’s firearm could certainly be indicative of that person’s potential danger to the public, and preventing danger to the public is the core purpose of the statute. The Court’s analysis assumes that Goldberg’s arrest for breach of the peace in the second degree was supported by probable cause.
Goldberg appears to be alleging in count seven that his arrest and the seizure of his gun permit were not supported by probable cause and has initiated a separate lawsuit challenging the alleged violations of his Fourth Amendment rights against GPD which has yet to be resolved in his favor.
However, Plaintiffs void for vagueness challenge should not be affected by the allegation that Goldberg was arrested without probable cause as the heart of the void for vagueness as-applied challenge is whether the statute provides sufficient notice that a person of ordinary intelligence would understand that his permit would be revoked had he engaged in conduct which would have supported an arrest for breach of the peace in the second degree. In Connecticut, a person is guilty of breach of the peace in the second dеgree when:
with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or such other person’s property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public and hazardous or physically offensive condition by any act which such person is not licensed or privileged to do.
Conn. Gen.Stat. § 53a-181. If an individual had engaged in such conduct while carrying a firearm, particularly an unconcealed firearm, a person of ordinary intelligence would understand that his gun permit would be subject to revocation based upon the enumerated bases for disqualification for the issuance of a permit set forth in the subject statute. Conn. Gen.Stat. § 29-28(b). Consequently, Goldberg would have notice that if he committed an offense involving a firearm such as breach of peace in the second degree that his gun permit would be subject to revocation.
To the extent that Kuck is also alleging that the statute is void for vagueness as applied to him, the Courts finds that the statute would not be void for vagueness as applied to him as the requirement that the applicant not be an illegal alien is expressly enumerated in the statute. Conn. Gen.Stat. § 29-28(b). Therefore, a person of ordinary intelligence would understand that his or her permit would be denied if he or she did not produce documentation demonstrating United States citizenship.
For the foregoing reasons, count one of Goldberg’s Amended Complaint and count
iii Analysis of Whether Defendants are Entitled to Qualified Immunity in connection with Plaintiffs’ Count One Claim
Defendants argue that they are entitled to qualified immunity in connection with Plaintiffs’ count one claim. The Court notes that “claims asserted against a government official in his official capacity is essentially a claim against the governmental entity itself, the defense of qualified immunity, which may be available to individual defendants as they are sued in their individual capacities, is not applicable to claims against them in their official capacity.” Jackler v. Byrne,
Here, it was not clearly established in 2007 that the Connecticut statutory regime would be subject to the Second Amendment. It was not until the following year that the Supreme Court held that the Second Amendment protects the individual right to keep and bear arms for self-defense. Heller,
Analysis of Plaintiffs’ Count Two Claim that Procedural Due Process was Violated by the Delay in Appeals
In both Amended Complaints in count two, Plaintiffs’ allege that DPS Defendants created a backlog of cases which required “aggrieved individuals to wait between fourteen and twenty-two months for a hearing, have denied aggrieved individuals the opportunity to be heard at a meaningful time and in a meaningful manner.” [Doc. # 67, Goldberg Compl. at ¶ 248 and Doc. # 60, Kuck Compl. at ¶ 106]. Plaintiffs also allege that “in failing to exercise independence and authority over the DPS Defendants’ revocation decision, Chairman Adams and Mazzoccoli violated Plaintiffs due process rights.” [Doc. # 67, Goldberg Compl. at ¶ 256 and Doc. # 60, Kuck
The Defendants concede that Plaintiffs have plausibly pled at the motion to dismiss stage that the twenty-two month delay between the revocation of his permit and his appeals hearing violated procedural due process based on the Second Circuit’s analysis in Kuck. In Kuck, the Second Circuit applied the three-factor test prescribed in Mathews v. Eldridge,
Lastly, the Second Circuit concluded that while “Connecticut clearly has a strong and compelling interest in ensuring that firearm permits are not issued to those ‘lacking the essential character or temperament necessary to be entrusted with a weapon,’ ” the State had failed to explain “why it requires up to twenty months to address appeals. For the purposes of a due process analysis, the state must articulate some reason, tied to this interest, that justifies the lengthy period necessary to resolve these appeals.” Id. at 166 (quoting Dwyer,
i Analysis of Whether Plaintiff Alleged Sufficient Personal Involvement and Standing of DPS Defendants, Governor Rell and Mazzoccoli
Defendants argue that Plaintiffs have failed to adequately allege that the
First, Defendants argue that the DPS Defendants could not have been personally involved in a due process violation in connection with the appeals hearing backlog as the Board is vested with total discretion and authority to schedule and address appeals and DPS has no control or authority over the Board during the appeals process under Conn. Gen.Stat. § 29-32b. While Plaintiffs stylize the allegations in this count as premised on DPS’s conduct and allege that DPS created the backlog by denying and revoking permits for essentially frivolous reasons, the Court agrees that the statutory framework establishes that the Board has the sole authority and discretion to address any backlog not DPS. In particular, the statutory framework provides that “[t]he board shall hold hearings at such times and places as it in its discretion reasonably determines to be required, but not less than once every ninety days.” Conn. Gen.Stat. § 29-32b(d). Moreover, as the Second Circuit stated the “viability of Kuck’s due process claim does not turn on the merits of his initial challenge; rather, it concerns whether he received the process he was due.” Kuck,
Further, to the extent that Plaintiffs are moving for prospective injunctive relief with regard to the backlog the only party in a position to execute a grant of such relief is the Board since the Board is the only authority vested with power to schedule more hearings more frequently. Under the statutory framework, DPS does not have the power to direct the Board to schedule hearings. See Saar v. United States Dep’t of Justice,
Defendants also characterize this argument in terms of standing and argue that Plaintiffs’ injuries are likewise not fairly traceable to the challenged action of the DPS Defendants citing Friends of the Earth v. Laidlaw Environmental Services, Inc.,
Second, Defendants argue that Plaintiffs have failed to allege the personal involvement of former Governor Rell in the alleged due process violation.
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference ... by failing to act on information indicating that unconstitutional acts were occurring.
Id.
The Court notes that the recent Supreme Court decision in Ashcroft v. Iqbal,
Plaintiffs have alleged that the Governor appoints the members of the Board from the nominees of several organizations. In addition, Plaintiffs have alleged that an audit was prepared by the Auditors of Public Account which “found that the backlog had been a concern for аt least two years and during this time had increased from an estimated wait time for hearing from fourteen to sixteen month” and that the Auditors’ findings are reported to the Governor. [Doc. # 67, Goldberg Compl. at ¶¶ 101-109]. While at first blush, it would seem that Plaintiffs’ allegations could satisfy Colon factors 2, 4, or 5. However, Plaintiffs have failed to allege that the audit report put the Governor on notice that constitutional violations were occurring. If the Governor had no reason to believe that the delays resulted in unconstitutional conduct, the Governor could not have been deliberately indifferent or grossly negligent with respect to such constitutional violations. See Bordas v. Payant,
Moreover, even assuming the Governor was on notice of unconstitutional conduct, Plaintiffs have not alleged that the Governor has any power over the Board’s decisions and activities. Beyond the power to appoint Board members, the statutory framework does not reference the Governor anywhere else nor does it suggest that the Governor has any supervisory duties with respect to the Board. See Suarez v. Keiser, No. 04-cv-6362,
Defendants also argue that the Plaintiffs have failed to plausibly allege that Mazzoccoli as the Board’s sole employee was personally involved in the alleged constitutional violation. Mazzoсcoli is the Board’s sole employee and Conn. Agencies. Regs. § 29-32b-4 provides that the Board “shall be staffed by a manager and other personnel as needed. Such manager shall serve as its executive head for routine administrative and operational matters.” After reviewing the specific allegations regarding Mazzoccoli’s conduct in both Kuck and Goldberg’s complaints, the Court finds that Plaintiffs have not plausibly alleged that Mazzoccoli had any discretion regarding scheduling decisions or that she was performing anything other than purely ministerial and administrative duties. Ashcroft,
Defendants argue that the Eleventh Amendment bars Plaintiffs’ § 1983 claims insofar as it seeks damages against certain Defendants in their official capacities. By virtue of sovereign immunity state employees are immune from suits against them in their official capacities. Respass v. Murphy, No. 3:10-cv-318,
However the Elеventh Amendment does not preclude suits against state officials acting in their official capacity that seek prospective injunctive relief. See Ex parte Young,
First, Plaintiffs have failed to demonstrate that DPS Defendant Commissioner Thomas has a special connection to the enforcement of or any authority over the appeals process before the Board. As discussed above, statutorily the Board and not DPS is vested with total discretion, authority and control over the appeals process. Notably, the Connecticut Legislature recently amended Conn. Gen.Stat. § 29-32b to place the Board under the Office of Governmental Accountability. See 2011 Conn. Legis. Serv. P.A. 11-48 (H.B.6651). Before the Board was placed within DPS for administrative purposes only. [Id.]. Moreover as discussed above, DPS Defendant Thomas would not have the authority to require the Board to schedule more frequent appeal hearings. See Hall v. Marshall,
Second, Plaintiffs have also failed to demonstrate that Defendant Mazzoccoli has any authority over the enforcement of the appeals process. As discussed above, Mazzoccoli is the Board’s sole employee and Conn. Agencies. Regs. § 29-32b-4 provides that the Board “shall be staffed by a manager and other personnel as needed. Such manager shall serve as its executive head for routine administrative and operational matters.” While Mazzoccoli might administratively calendar appeals on behalf of the Board, the statutory framework establishes that as an employee Mazzoccoli has no authority or discretion over the activities оf the Board. In fact, the statutory framework provides that it is the Board’s Secretary, not Mazzoccoli, who is responsible for scheduling appeals:
After receipt of the appeal the Secretary reserves the right to make a thorough inquiry of the facts of the appeal. When the Secretary determines that the information obtained relative to the appeal is sufficient to permit the conduct of a fair and impartial hearing, he shall set a date for a hearing and give reasonable notice of the time and place of the hearing to the appellant and to the issuing authority-
Conn. Agencies Regs. § 29-32b-7. Accordingly, Mazzoccoli would not have the authority to enforce an injunction against the Board based on her position as the employee in charge of routine administrative and operational matters. See Duncan v. Nighbert, No. 3:06-34,
Lastly, Plaintiffs have failed to demonstrate that the Governor has a special connection to the enforcement of the appeals process before the Board as required under Ex parte Young. First, courts in the Second Circuit have not extended the exception under Ex parte Young on the basis that a state official has a general duty to execute and enforce state laws. See Connecticut Ass’n of Health Care Facilities, Inc. v. Rell,
In addition, Plaintiffs have not alleged that the Governor had any control, authority or discretion over the appeals process or the day to day functioning of the Board. The only connection that Plaintiffs have alleged between the Governor and the Board is the fact that the Governor appoints the seven members of the Board from the nominees of the Commissioner of Public Safety, the Connecticut State Association of Chiefs of Police, the Commissioner of Environmental Prоtection, The Connecticut State Rifle and Revolver Association, Inc., and Ye Connecticut Gun Guild, Inc. Conn. Gen.Stat. § 29-32b(a). While courts in the Second Circuit have not yet addressed the question of whether
Plaintiffs cannot obtain prospective injunctive relief from the Defendants sued in their individual capacities as such Defendants would not have the authority to provide such relief in their individual capacities. See DeLoreto v. Ment,
Hi Analysis of Defendants Assertion of Qualified Immunity in connection with Plaintiffs’ Count Two Claim
Defendants argue that they are entitled to qualified immunity in connection with Plaintiffs’ count two claims. Defendants argue that at the time it was not clearly established that an 18-20 month delay in the scheduling of appeals before the Board was a violation of procedural due process as the caselaw that the Second Circuit relied upon in its decision in Kuck would not lead an objectively reasonable public official to believe his conduct was in violation of a plaintiffs federal rights. At the onset, the Court notes that the Second Circuit’s opinion in Kuck did not hold that the delay was a violation of procedural due process, but rather that “for the purpose of the рresent motion to dismiss, we find that Kuck has stated a procedural due process claim. Whether discovery will bear out his claim is a matter for the district court to determine on remand.” Kuck,
However, the second case that the Second Circuit relied upon should have put the Defendants on notice that their conduct could be unconstitutional. This second case was Krimstock v. Kelly,
Moreover, the statutory regime clearly contemplated that hearings would occur promptly as it requires that the Board within ten days of receipt of the appeal schedule a hearing and mandates that the Board hold hearings as it reasonably determines to be required but not less than once every ninety days. Conn. GemStat. § 29-32b(b)-(c). In addition, the statutory regime requires that DPS submit information justifying its revocation and failure to do so within 10 days of the scheduled hearing “shall be cause for the Board to grant the relief sought without further hearing.” Conn. Gen.Stat. § 29-32b(c). The statute does not grant the Board discretion to extend the time to file. Taken together, the decision in Krimstock and the statutory regime itself provided the Board with sufficient notice that the delay violated gun permit holders constitutional right to procedural due process. Accordingly, the individual capacity defendants are not protected by the doctrine of qualified immunity in connection with Goldberg and Kuck’s count two claims.
iv. Analysis of Defendants Assertion of Quasi-judicial Immunity in connection with Plaintiffs’ Count Two Claim
Lastly, Defendants argue that they are entitled to quasi-judicial or absolute immunity since the Board is a performing an essentially judicial function. In deciding whether an actor is entitled to quasi-judicial immunity on the basis that his role is analogous to that of a judge or
(a) the need to assure that the individual can perform his functions without harassment or intimidation; (b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal.
Cleavinger v. Saxner,
“Absolute immunity is less likely to attach when the official function involved is less adjudicative, such as when the officer acts under his own initiative rather than that of the court.” Trueluck v. New York State Bd. of Parole, No. 9:08-cv-1205,
Here, Defendants have argued that the Board is required to exercise discretionary judgment that is not purely ministerial or administrative in nature and therefore should be extended protection under the doctrine of absolute or quasi-judicial immunity. From a review of the statutory scheme in Conn. Gen.Stat. § 29-32b, the Board’s function in the appeals process appears to satisfy many of the Butz factors. For example, there is a need to assure that the Board members can perform their functions in appeals hearing without harassment or intimidation as well as the need to insulate the Board members from political influence to ensure that the Board is making appropriate determinations on who should be allowed to carry a firearm in light of the compelling state interest in ensuring the public safety. Further, precedence is of critical importance in ensuring consistency in the standards used to determine who should obtain a firearm permit. In addition, precedence is particularly important in light of the fact that the Board is vested with the discretion to make a fact specific determination of suitability under the statute. In fact,
Moreover, the adjudicative nature of the Board’s role is underscored by the fact that the statute provides for some of the same hallmarks found in the judicial process. For example, “appeals hearings shall be conducted in an informal manner, but otherwise according to the rules of evidence, and all witnesses shall be sworn by the chairman” and the “statements of witnesses made under oath shall be privileged.” Conn. Gen.Stat. § 29-32b(e). In addition, the statute provides “that at least one member of the board shall be a lawyer licensed to practice in this state, who shall act as chairman of the board during the hearing of appeals brought under this section.” Conn. Gen.Stat. § 29-32b(a).
In addition, other courts have found quasi-judicial immunity to be appropriate in connection with the revocation decisions of medical and other state licensing board regimes. See e.g., O’Neal v. Mississippi Board of Nursing,
However, the heart of Plaintiffs’ due process claim is that the Board failed to schedule appeals hearings in a timely fashion. It is arguable that the scheduling of appeals is more of an administrative rather than a judicial function. However, it is well established that scheduling is recognized as an integral part of the adjudicative process in connection with a court’s function. Rodriguez v. Weprin,
However, as discussed above the statutory regime governing the Board and the appeals process unquestionably instructs that gun permit holders be provided with a timely appeal. Considering that the statute mandates the Board to schedule timely appeals, the Court questions whether it is appropriаte to extend quasi-
Quasi-judicial immunity should only extend to claims against defendants sued in their individual and not official capacities. See Tomlins v. Village of Wappinger Falls Zoning Bd. of Appeals, No. 08-cv-9813,
Since Plaintiffs have sued nine defendants each in different capacities and the fact that Defendants have raised various immunities and defenses which impact the ability to bring suit based on these different capacities, the Court will address each Defendant separately to clarify whether Plaintiffs’ claims in count two may proceed against that particular Defendant.
The count two claim against the five DPS officers, Fox, Masek, Mattson, Karanda, and Bastura in their individual capacities is hereby dismissed. Plaintiffs have failed to plausibly allege these Defendants were personally involved in the alleged due process violation as DPS had no authority or control over when and how the Board scheduled appeals hearings. Ashcroft,
The count two claim against Defendant DPS Commissioner James Thomas in his official capacity is also dismissed. The Eleventh Amendment bars the claims against Defendant Thomas in his official capacity for monetary and prospective injunctive relief as Plaintiffs have not demonstrated that the exception under Ex parte Young should apply to Defendant Thomas.
The count two claim against Former Governor Rell in her individual and official capacities to which the current Governor Malloy succeeds is likewise dismissed. First, Plaintiffs have failed to allege that Governor Rell was personally involved in
The count two claim against Defendant Former Board Chairman Christopher Adams in his individual capacity remains as Defendants has not demonstrated that Defendant Adams is entitled to qualified immunity. In addition, for purposes of the motion to dismiss, the Court has not yet determined whether Defendant Adams is entitled to quasi-judicial immunity. The Plaintiffs would not be able to obtain prospective injunctive relief from the former chairman in his individual capacity. Even if Plaintiffs had sued the former Board chairman in his official capacity, Plaintiffs would not be able to obtain prospective injunctive relief as Adams is no longer the acting Chairman of the Board and would have no authority to provide such relief.
The count two claim against Defendant Mazzoccoli in her official capacity is hereby dismissed on the basis of the Eleventh Amendment. The Court notes that Plaintiffs could not obtain prospective injunctive relief from Mazzoccoli as they have not demonstrated that the exception under Ex parte Young should apply to her. The count two claim against Mazzoccoli in her individual capacity is also dismissed as Plaintiffs have not plausibly alleged that Mazzoccoli was personally involved in the alleged constitutional violation.
For the reasons set forth above, Plaintiffs have failed to name a proper defendant who would be able to provide prospective injunctive relief in connection with the appeals backlog since Plaintiffs cannot obtain prospective injunctive relief from individual capacity defendants. Plaintiffs could only obtain рrospective injunction relief if they sued an official capacity defendant who could meet the requirements under Ex parte Young. For example, if Plaintiffs sued any of the current Board members in their official capacities and in particular the Board Secretary who is statutorily vested with scheduling appeals for prospective injunctive relief, the exception in Ex parte Young exception would apply as the Board members would have a connection to the enforcement of the appeals process and would have the authority to provide such injunctive relief. Plaintiffs may therefore amend their complaint to bring this claim against a current Board member in his or her official capacity for prospective injunctive relief within fourteen days of this Order.
Analysis of Plaintiffs’ Count Three Claim that Procedural Due Process was Violated When DPS Revoked His Permit in Violation of Conn. GenStat. § 29-S2b(b)
Only Goldberg has brought this claim which is alleged in count three of his amended complaint and not Kuck. Under Conn. Gen.Stat. § 29-32b(b), DPS “may revoke the state permit or temporary permit based on the Commissioner’s own investigation or upon the request of any law enforcement agency.” Plaintiffs allege that Goldberg was deprived of procedural due process when DPS revoked his permit “without conducting an investigation to determine if the facts and circumstances warranted revocation.” [Doc. # 67, Goldberg Compl. at ¶ 262]. They also allege that DPS did not receive a request from any law enforcement agency for revocation of Goldberg’s permit. [Id. at ¶ 88]. In addition, Plaintiffs allege that DPS De
In particular, Defendants have moved to dismiss count three on the basis that DPS revoked Goldberg’s permit based on a request from the GPD. Defendants argue that several allegations in the complaint can be interpreted to suggest that DPS revoked Goldberg’s permit based on a request from the GPD. Defendants note that Plaintiffs have alleged that “DPS received a telephone call and a letter from the Glastonbury Police Department that plaintiffs permit and handgun had been seized by the GPD. GPD is a law enforcement agency, and based on the phone call and letter, DPS revoked the permit.” [Doc. # 75, Goldberg Def. Mem. at 25]. Defendants further argue that “[w]hile not clear from the complaint, it may be that the plaintiff is claiming that the letter from GPD to DPS did not include a specific written request to revoke the permit. In response, the statute does not require the local officers to frame a revocation request in any particular words. In this case, the local officers arrested the plaintiff, confiscated the firearm and permit and then called the state revocation authority to notify them of these events and sent along the police report. It is difficult to imagine what else the local officers intended DPS todo.” [M].
The Court disagrees with the Defendants’ reading of Plaintiffs’ amended complaint and finds that Plaintiffs plausibly have alleged there was no request from any law enforcement agency for revocation of Goldberg’s permit. In particular, Plaintiffs alleged that GPD Lieutenant Dennis Woessner forwarded a letter to Defendant DPS Officer Detective Mattson consisting of one-sentence “[e]nelosed is the case we spoke about on the phone. Thanks for all your help.” [Doc. # 67, Goldberg Compl. at ¶ 48]. They then alleged that Goldberg received a revocation letter from DPS which “did not reference any investigation by DPS Commissioner Danaher or any request by the GPD for revocation of Goldberg’s state permit.” [Id. at ¶ 67], Lastly, Plaintiffs specifically alleged that the GPD “did not request the June 27, 2007, or February 21, 2008, revocations of Goldberg’s state permit and temporary state permit, respectively.” [Id. at ¶ 88]. Further, these allegations are well-pleaded factual allegations and not conclusory which are entitled to the assumption of truth. Iqbal,
Further, the Defendants have not moved to dismiss this claim on the basis that the alleged violation of statutory procedures rose to the level of a procedural due process violation. However the Court is mindful that procedural due process “is flexible and calls for such procedural protections as the particular situation demands” and notes that a failure to
Defendants once again argue that Plaintiffs cannot maintain this cause of action since Plaintiffs have failed to name a proper Defendant and are protected under the doctrines of sovereign immunity under the Eleventh Amendment as well as qualified and quasi-judicial immunity.
i. Analysis of Whether Plaintiff Alleged Sufficient Personal Involvement and Standing of Board Defendants
Defendants argue that Plaintiffs have not alleged sufficient personal involvement of Defendant former Board Chairman Adams or Defendant Mazzoccoli in connection with Goldberg’s count three claim as both Adams and Mazzoccoli played no role whatsoever in DPS’s decision to revoke Goldberg’s permit in the first place. The Court agrees that the amended complaint is devoid of any facts that would suggest that Defendants Adams or Mazzoccoli personally contributed to DPS’s decision to revoke Goldberg’s permit or that they instructed DPS to revoke permits in violation of Conn. Gen. Stat. § 29-32(b). See Matagrano v. New York State Dept. of Correctional Services, No. 98CIV428,
Defendants also characterize this argument in terms of standing and argue that Goldberg’s injury is likewise not fairly traceable to the challenged action of the Board Defendants. Friends of the Earth v. Laidlaw Environmental Services, Inc.,
ii. Analysis of Defendants Assertion of Sovereign Immunity under the Eleventh Amendment in connection with Plaintiffs’ Count Three Claim
As discussed above, the Eleventh Amendment would bar all claims brought against Defendants in their official capacities for monetary damages and for prospective injunctive as long as the Ex parte Young exception did not apply.
Since Plaintiffs have sued DPS Commissioner Thomas in his official capac
Plaintiffs have also sued Defendant Mazzoccoli in her official capacity. The Eleventh Amendment would bar the claims against her in her official capacity for monetary relief as well as for prospective injunctive relief. As discussed above, Mazzoccoli as the sole employee of the Board had no involvement in DPS’s decision to revoke Goldberg’s permit in the first place and therefore the exception in Ex parte Young would not apply to her as she has no connection to the enforcement of the unconstitutional act.
Hi. Analysis of Defendants Assertion of Qualified Immunity in connection with Plaintiffs’ Count Three Claim
Defendants argue that the DPS Defendants are entitled to qualified immunity in connection with count three since the DPS Defendants “could obviously reasonably rely, upon a facially valid arrest report documenting an incident involving a pistol. No reasonable public official in the DPS defendant’s positions would have any reason to believe that the revocation of the newly-minted pistol permit for displaying the weapon at a public restaurant would violate anyone’s constitutional rights.” [Doc. # 75, Goldberg Def. Mem. at 36]. The Court disagrees with Defendants’ analysis as the statutory framework in Conn. Gen.Stat. § 29-32(b) establishes that DPS may only revoke a permit based on its own investigation or upon the request of any law enforcement officer. Therefore, it was clear that if DPS revoked Goldberg’s permit without doing either of these two things as Goldberg claims аnd the Court accepts as true for purposes of this motion to dismiss, DPS deprived Goldberg of the process to which he was statutorily entitled.
iv. Analysis of Defendants Assertion of Quasi-judicial Immunity in connection with Plaintiffs’ Count Three claim
Defendants argue that the DPS Defendants are entitled to the protection of quasi-judicial immunity as they were performing prosecutorial functions. In particular, Defendants argue that DPS acted “in a quasi-prosecutorial capacity and not only investigates the case initially, it presents the case for revocation to the Board in the same manner as a prosecutor in a conventional action.” [Id. at 33]. Plaintiffs argue that the conduct at issue in count three “does not concern the DPS Defendants’ appearances before the Board in the capacity of an advocate or attorney” but rather relates to the conduct of processing firearms permits which are investigatory and administrative functions. [Doc. # 84, Goldberg Mem. in Opp. at 24], The statutory regime provides that DPS make the initial decision based upon its investigation and its discretion to deny or revoke per
Analysis of Plaintiffs’ Count Four Claim that Procedural Due Process was Violated When DPS did not Reinstate Goldberg’s Permit When his Criminal Charges were Nolled
Goldberg alone has brought this claim which is alleged in count four of his amended complaint and not Kuck. Plaintiffs allege that on July 30, 2007, Goldberg’s criminal charges for breach of the peace in the second degree against him were nolled and therefore all records pertaining to his arrest would be statutorily erased. [Doc. # 67, Goldberg Compl. at ¶ 72]. In particular, Goldberg alleges that “despite knowing on July 30, 2007, that it had no diselosable evidence to present to the Board at the time of hearing, the DPS Defendants did not reinstate Plaintiffs state permit until September 22, 2008 nearly fifteen months after revocation.” [Id. at ¶ 270], Further, he alleges that he was deprived of due procеss when “the DPS Defendants relied on information pertaining to statutorily erased information as grounds for revocation, knowing that such information could not lawfully be disclosed to the Board at the hearing.” [Id. at ¶ 271]. While it is not clearly alleged in the amended complaint, Goldberg seems to be suggesting that when his criminal charges were nolled the basis for DPS’s decision to revoke Goldberg’s permits was essentially eliminated and therefore DPS should have automatically or shortly thereafter reinstated his permit upon the entry of the nolle prosequi. It appears that the process Goldberg is alleging that he was denied was reinstatement of his permit by DPS based on the entry of the nolle prosequi. In addition, Plaintiffs have only sued the DPS Defendants in connection with this claim and not the Board Defendants. The Court therefore construes the allegations in count four to be limited to DPS’s role in the firearm permitting process.
The Defendants argue that the claim should be dismissed on the basis that the “[plaintiff filed an appeal of his permit revocation. The Board defendants cannot rescind the revocation until the Board as a whole hears the merits. The DPS defendants are under no obligation to restore the permit, and are entitled to have Board hear the appeal and adjudicate the issues.” [Doc. # 75, Goldberg Def. Mem. at 26], The Court agrees with Defendants that Plaintiffs have failed to state that Goldberg was deprived of due process. Under Conn. Gen.Stat. § 29-32b the only way to appeal a decision to revoke a permit is through appeal to the Board and not DPS. The statutory framework laid out in Conn. Gen.Stat. § 29-32 and § 29-32b authorizes DPS to revoke a permit based on certain criteria as enumerated in the statute. All revocation decisions made by DPS are then subject to an appeal before the Board. The statutory framework does not include a reinstatement process through application to DPS and therefore Goldberg is not statutorily entitled to the process that he claims he was denied.
Since the Court has granted Defendants’ motion to dismiss count four on substantive grounds, the Court need not address Defendants’ arguments that the claim should also be dismissed based on the state’s sovereign immunity under the Eleventh Amendment or based on the Defendants assertion of qualified or quasi-judicial immunity.
Analysis of Plaintiffs’ Count Five Claim that They Were Denied Substantive Due Process
Goldberg and Kuck have brought nearly identical claims alleging they were denied substantive due process. Goldberg’s claim is alleged in count five of his amended complaint whereas Kuck’s claim is alleged in count three of his amended complaint. They allege that the DPS Defendants imposition of arbitrary barriers to “gun possession in contravention of representative legislation” in combination with the “unreasonable wait period” for an appeal denied them of substantive due process. [Doc. # 67, Goldberg Compl. at ¶¶ 274, 275]. Plaintiffs have sued all of the Defendants in connection with count five.
“For state action to be to be taken in violation of the requirements of substantive due process, the denial must have occurred under circumstances warranting the labels ‘arbitrary’ and ‘outrageous.’ ” Natale v. Town of Ridgefield,
First, the Second Circuit has already addressed Kuck’s substantive due process claim and held that “DPS’s alleged misconduct was not so ‘egregious, outrageous, or shocking to the contemporary conscience that it violated substantive due process.’ ” Kuck,
The Second Circuit’s reasoning in Kuck is also applicable to Goldberg’s substаntive due process claim. The fact that state officials revoked Goldberg’s gun per
Since the Court has granted Defendants’ motion to dismiss count five on substantive grounds, the Court need not address Defendants’ arguments that the claim should also be dismissed based on the state’s sovereign immunity under the Eleventh Amendment or based on the Defendants assertion of qualified or quasi-judicial immunity.
Analysis of Plaintiffs’ Count Six Claim for First Amendment Retaliation
Only Goldberg has brought this claim which is alleged in count six of his amended complaint and not Kuck. Goldberg alleges that he was “deprived of his state permit in retaliation for the interviews rendered to the media concerning his arrest” when DPS revoked and then refused to reinstate his permit after the entry of the nolle prosequi on his criminal charges. [Doc. # 67, Goldberg Compl. at ¶¶ 285-287], Goldberg alleges that he spoke with the media after his criminal charges were nolled on July 30, 2007. [Id. at ¶ 285], Goldberg has sued all of the Defendants in connection with count six. In order to state a retaliation claim, a private citizen must show that: “(1) he has an interest protected by the First Amendment; (2) defendants’ actions were motivated or substantially caused by his exercise of that right; and (3) defendants’ actions effectively chilled the exercise of his First Amendment right.” Curley v. Village of Suffern,
Goldberg like Kuck has adequately alleged that he engaged in protected speech, however he has not pleaded facts that suggest that the Defendants’ adverse actions were motivated by the exercise of his First Amendment rights. As Defendants point out, Goldberg’s alleged protected speech occurred after the initial decision to revoke his permit was made and therefore based on Goldberg’s pleadings the decision to revoke his permit could not have been made in retaliation. In addition, as discussed above, Goldberg was not statutorily entitled to have his permit reinstated by DPS in the first place when his nolle prosequi was entered in his criminal case and therefore could not have suffered any adverse action by the Defendants when they did not reinstate his permit or give his permit back after the nolle. Even assuming arguendo that DPS’s failure to reinstate his permit was an adverse action, Goldberg has not alleged any facts demonstrating that such action was motivated by retaliation. For example, Goldberg has not alleged that the DPS defendants who refused to return his permit were even aware of his protected speech. Pavone v. Puglisi,
Since the Court has granted Defendants’ motion to dismiss count six on substantive grounds, the Court need not address Defendants arguments that the claim should also be dismissed based on the state’s sovereign immunity under the Eleventh Amendment or based on the Defendants’ assertion of qualified or quasi-judicial immunity.
Analysis of Plaintiffs’ Count Seven Claim for Illegal Seizure of Goldberg’s Property in violation of the Fourth and Fourteenth Amendments
Only Goldberg has brought this claim which is alleged in count seven of his amended complaint and not Kuck. Goldberg alleges that “by means of the unlawful receipt of Plaintiffs valid state permit between June 21, 2007 and June 27, 2007, the DPS Defendants conspired with Glastonbury Police Department to commit the criminal act of larceny and condoned the GPD seizure of property that the GPD had not right to take or withhold from Plaintiff’ and violated Goldberg’s right to be free of unreasonable and unlawful seizures of property in violation of the Fourth and Fourteenth Amendments. [Doc. # 67, Goldberg Compl. at ¶¶ 293-294]. In addition, Goldberg alleges that GPD illegally took and withheld Goldberg’s gun permit in violation of the Fourth Amendment and that the “DPS Defendants maintain a practice and procedure of receiving from municipal police agencies unlawfully taken and withheld state permits.” [Id. at ¶¶ 304-307]. Plaintiffs have sued only the DPS Defendants in connection with count seven.
Defendants move to dismiss count seven on the basis that Plaintiffs have failed to demonstrate standing and in particular that Goldberg’s injury is not fairly traceable to the challenged actions of the DPS Defendants as “there are absolutely no factual allegations to support a claim that [ ] the DPS defendants had any role in the Glastonbury Police Department’s decision [to seize Goldberg’s permit] whatsoever. These defendants simply had absolutely nothing to do with the underlying action.” [Doc. # 75, Goldberg Def. Mem. at 30].
Plaintiffs have alleged that “GPD Lieutenant Dennis Woessner forwarded a letter to [DPS Defendant] Detective Mattson dated June 25, 2007, consisting of one sentence in its body: ‘Enclosed is the case we spoke about on the phone. Thanks for all your help.’ ” [Doc. #67 at ¶ 48]. They have therefore alleged that at least one DPS Defendant spoke with the GPD regarding the seizure of Goldberg’s permit and drawing all inferences from these allegations in the light most favorable to the Plaintiffs, the Court concludes that Plaintiffs have plausibly alleged that DPS did have a role in the GPD’s decision to seize Goldberg’s permit. Plaintiffs have therefore alleged that his injury was fairly traceable to the DPS Defendants’ conduct.
In order to prove a conspiracy claim under § 1983, a plaintiff must demonstrate: “(1) an agreement between two or more state actors or a state actor and a private party[;] (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.” Bussey v. Phillips,
Defendants argue that they are entitled to qualified immunity in connection with count seven on the basis that “there is no reason for any of the defendants [to] believe that they were violating plaintiffs constitutional rights because none of them played any role in the confiscation.” [Doc. # 75, Goldberg Def. Mem. at 36]. However as discussed above, Plaintiffs have plausibly alleged that at least one DPS Defendant spoke with GPD and therefore DPS might have played a role in the GPD’s decision to seize Goldberg’s permit. Accordingly, Defendants have not demonstrated on the motion to dismiss that they are entitled to qualified immunity in connection with Plaintiffs’ count seven claim.
Lastly, the Court notes that the Eleventh Amendment would bar Plaintiffs’ count seven claim against Defendant DPS Commissioner Thomas as Plaintiffs have sued Thomas in his official capacity.
Conclusion
Based upon the above reasoning, the Defendants’ [Doc. # 70] and [Doc. # 86] motions to dismiss are GRANTED IN PART and DENIED IN PART. Plaintiffs’ counts one, four, five and six claims are hereby dismissed. The following claims survive the motion to dismiss. Plaintiffs count two claim remains extant against Defendant Adams in his individual capacity only and the Court grants Plaintiffs leave to amend their complaint within fourteen days of this Order to name an official capacity defendant who could provide prospective injunctive relief under count two. Plaintiffs’ count three claim remains extant against the DPS Defendants only and Plaintiffs’ count seven claim remains extant against the DPS Defendants sued in their individual capacities only. All other Defendants are hereby dismissed from the action.
IT IS SO ORDERED.
Notes
. The enumerated misdemeanors are illegal possession of narcotics in violation of Conn. Gen.Stat. § 21a-279(c), criminally negligent homicide in violation of Conn. Gen.Stat. § 53a-58, third degree assault in violation of Conn. Gen.Stat. § 53a-61, assault of an elderly, blind, disabled, pregnant or mentally retarded person in violation of Conn. Gen.Stat. § 53a-61 a, second degree threatening in violation of Conn. Gen.Stat. § 53a-62, first degree reckless endangerment in violation of Conn. Gen.Stat. § 53a-63, second degree unlawful restraint in violation of Conn. Gen. Stat. § 53a-96, first degree riot in violation of Conn. Gen.Stat. § 53a-175, second degree riot in violation of Conn. Gen.Stat. § 53a-176, inciting to riot in violation of Conn. Gen.Stat. § 53a-178, and second degree stalking in violation of Conn. Gen.Stat. § 53a-181d.
. If a local authority issued a temporary permit and the Commissioner denies the permit, the temporary permit is immediately revoked. Conn. Gen.Stat. § 29-28a(b).
. These examples are intended for illustrative purposes only and are not meant to provide an exhaustive list.
. As noted above, Plaintiffs have sued the following five DPS officers in their individual capacities: Alaric Fox, Albert Masek, Barbara Mattson, Thomas Karanda, and Ronald Bastara. Plaintiffs have also sued the Commissioner of DPS James Thomas in his official capacity only. In addition, former Connecticut Governor Jodi Rell is sued in her individual and official capacities. Lastly, Plaintiffs have sued the sole employee of the Board, Susan Mazzoccoli, in her individual and official capacities as well as the former chairman, Christopher Adams, in his individual capacity.
. The Court notes that Governor Rell is the former Governor. However in an official capacity action in federal court "death or replacement of the named official will result in automatic substitution of the official’s successor in office.” See generally Kentucky v. Graham,