Opinion
HHBCV165017807S
08-31-2017
David Godbout v. Board of Firearms Permit Examiners et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Sheila A. Huddleston, Judge.
The plaintiff, David Godbout, appeals pursuant to General Statutes § 4-183 from the decision of the defendant Board of Firearms Permit Examiners (board), which affirmed the decision of the defendant East Lyme Police Department (department) denying his application for a permit to carry a pistol or revolver. The plaintiff contends that the board improperly upheld the department's denial because the department failed to furnish him with the application form required by the Department of Emergency Services and Public Protection, and that, pursuant to General Statutes § 29-28a(a), the department's failure rendered his application " sufficient." He also contends that under District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008); McDonald v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010); and Ezell v. Chicago, 651 F.3d 684 (7th Cir. 2011), Connecticut's law requiring him to have a permit to carry a handgun violates his rights under the second amendment to the United States Constitution. He also claims that the board was not entitled to question him at its hearing in his appeal from the department's denial and that the department or the board bore the burden of proving that he had not presented himself for fingerprinting or otherwise complied with the requirements for the issuance of a permit.
The board's counsel conceded, at oral argument, that the board rejected the plaintiff's appeal on the ground that he had not submitted a proper application and it therefore did not afford him a de novo hearing on the issue of suitability, as required under General Statutes § § 29-28a(b) and 29-32b. The board argued, nevertheless, that it exercised its discretion properly under General Statutes § 29-32b(b) in light of the plaintiff's history of refusing to provide necessary information for investigation of his suitability.
To prevail in an appeal brought pursuant to General Statutes § 4-183, a plaintiff bears the burden of showing that " substantial rights of the person appealing have been prejudiced" by improper agency action. The court concludes, in this case, that the plaintiff's substantial rights were not prejudiced by the board's failure to afford him a de novo hearing because the plaintiff had refused to comply with the board's request to provide his arrest history. Because no carry permit can be issued unless the applicant's national criminal history has been reviewed, the plaintiff's request for a carry permit was necessarily denied.
The court further concludes that the second amendment, as construed by the United States Supreme Court and our own Supreme Court, does not guarantee a person the right to carry a handgun in public based solely on that person's claim that he lawfully owns a handgun. To protect the public safety, states are permitted to impose conditions on the right of individuals to carry guns in public. The plaintiff has not shown that Connecticut's law improperly infringes upon his rights under the second amendment. Accordingly, his appeal is dismissed.
I
FACTS AND PROCEDURAL HISTORY
On October 29, 2014, the plaintiff sent a one-page letter to Paul Formica, first selectman of the town of East Lyme. The letter stated:
Dear First Selectman,
As you are likely aware current law in this state requires a carry permit or allows a citizen to perform the following tasks:
1) transport a handgun outside the 4 walls of my dwelling;
2) purchase a firearm;
3) to acquire and maintain proficiency with a handgun;
4) to carry a handgun upon one's person outside the 4 walls of a citizen's dwelling.
I have a handgun and am legally allowed to possess it; therefore, a carry permit is desired to allow me to perform the tasks noted above.
Currently, I am unable to transport my handgun to a range to acquire and maintain proficiency with the firearm.
Please process this application for a permit and call me when it is ready to be picked up.Supplemental Record (S.R.), § 17.
The board initially filed the administrative record on November 10, 2016. See Docket Entry #107. The plaintiff thereafter moved to correct the record as to certain entries. The court granted his motion in part and the board thereafter filed a supplemental record on January 30, 2017. See Docket Entry #117.
The plaintiff's letter was forwarded to the department, which denied the plaintiff's application on November 18, 2014, on two grounds. First, the plaintiff failed to complete the application form required by the Department of Emergency Services and Public Protection [DESPP], which requires information such as an applicant's arrest record, work history, and proof of completion of a firearms safety course. Second, the plaintiff failed to present himself for fingerprinting as required by General Statutes § 29-29(b). The department concluded that the plaintiff's failure to present himself for fingerprinting was, by itself, " just and proper cause" for denying the application. S.R., § 18.
On December 14, 2014, the plaintiff filed an appeal with the board. In it, he asked the board to take " judicial notice" of the complete pleadings and exhibits contained in a prior appeal he had presented to the board, designated as Case No. 12-356D, which contained the plaintiff's objections to questions in the DESPP questionnaire. Record (R.), § 1; see also S.R., § 8. The plaintiff's new appeal was assigned Case No. 15-232D.
Before the hearing of the plaintiff's appeal on August 16, 2016, the board sent questionnaires both to the department, as the local issuing authority, and to the plaintiff. The department responded to the board's questionnaire. Item 8 directed the department to " [s]tate the reasons (a) for your refusal or failure to furnish the appellant with an application, or (b) for your refusal or failure to issue the requested permit to the appellant, or (c) for your revocation of the appellant's permit. The department responded: " The applicant did not submit an application on a prescribed DESPP form, and the applicant's letter of October 29, 2014 did not contain the statutorily required information, including but not limited to employment history, place of birth, social security number, and proof of firearms safety course. The applicant also did not present himself for fingerprinting as mandated by C.G.S. 29-29(b). To the extent that the applicant's letter constituted a request to issue a permit to carry a pistol, that request was denied for cause." R., § 9.
In response to a question that requested any other information that should be considered at the board's hearing, the department stated: " On December 8, 2012, the Board of Firearms Permit Examiners (" Board") upheld the issuing authority's denial of the applicant's permit in case #12-356D. The Board found that the applicant's refusal to provide fingerprints or employment history, providing false information concealing military service and refusal to submit a DD-214 constituted just and proper cause to deny the application. The Board further found in #12-356D that the applicant's failure to answer questions on the application fully and accurately was intentional and evidence of a contempt for lawful authority and indicated that the applicant was not suitable. A copy of that decision is attached hereto. The current application contains even less information than was provided in #12-356D, it is not on the mandated DSP form and states only the applicant's name and address and contains no other information about the applicant." R., § 9.
In advance of the hearing, the department also sent the plaintiff a letter stating its intention to introduce several documents into evidence at the de novo hearing. See S.R. § 8. These included a letter apparently written by the plaintiff to the town of East Lyme, warning that any employee of the town who entered the plaintiff's property would be trespassing (S.R. § 8, p. 2); a proposed decision by the Freedom of Information Commission, dated July 20, 2016, documenting the plaintiff's history of filing excessive and harassing complaints with the Freedom of Information Commission (S.R. § 8, pp. 3-6); a copy of an application for a carry permit submitted by the plaintiff in 2012 (S.R., § 8, pp. 7-10); and a copy of the decision by the board, in its Case No. 12-356D, upholding the denial of the plaintiff's 2012 application for a carry permit (S.R., § 8, pp. 11-20). These documents were never formally introduced into evidence at the hearing. The plaintiff, however, expressly moved to have these documents made part of the record in this administrative appeal, and he had previously asked the board to take judicial notice of the entire record of his prior application in Case No. 12-356D.
In its preparation for the hearing, the board also sent the plaintiff a questionnaire. R., § 10. The plaintiff supplied his name, address, and telephone number. R., § 10. He stated that he was a United States citizen and provided responses to questions about the dates he applied for and was denied a permit. He did not respond to question 18, which directed him to " [s]tate here any additional facts which would support your case. State what you want the Board to do and why do you feel the Board should grant your request." R., § 10, p. 3. He left blank the sections for " Arrest History" and " Motor Vehicle Driving History." R., § 10, p. 3. He did not sign the acknowledgment, at the end of the questionnaire, that stated: " The foregoing information is full and complete. I understand that Section 29-[29] of the Connecticut General Statutes, as amended, provides that no permit shall be issued unless full information concerning my criminal record (if any) has been given to the issuing authority." R., § 10, p. 4.
The plaintiff also attached to the board's questionnaire documents related to the denial of his application in 2012 in Case No. 12-356D. These documents included a series of objections he had made to the board regarding his refusal to provide certain information requested on the DESPP questionnaire, including information concerning his criminal history and his motor vehicle driving history. His primary argument to the board, in 2012, was that under the second amendment he has a right to own a handgun, which includes the right to maintain proficiency in its use. He contended that the right to maintain proficiency, which requires that he be able to transport his handgun to a practice range, means that a carry permit must be issued to anyone who can lawfully own a handgun. R., § 10, pp. 7-10. He asserted that under the second amendment, " suitability inquiries are simply not relevant to this issuance of a permit." R., § 10, p. 10.
The record in the plaintiff's current appeal includes the memorandum of decision issued by the board in the plaintiff's prior appeal, Case No. 12-356D. In that case, the board found that issuing authority properly denied the plaintiff's application for failure to provide mandatory information and for failure to provide his fingerprints to the issuing authority. R., § 11.
The board held a hearing on August 16, 2016, on the plaintiff's current appeal. In an opening statement, the department's counsel indicated that the plaintiff's application had been denied because his application was insufficient and because he failed to present himself for fingerprinting. S.R., § 15, p. 3. The department's counsel also identified other issues of suitability for which the department was prepared to present evidence. S.R., § 15, pp. 4-6. The plaintiff then made an opening statement in which he declared that the questionnaire " shows a complete lack of understanding of the statutes related to the application for pistol permits, what the requirements are." S.R., § 15, p. 6. He also argued that General Statutes § 29-32b does not authorize the board to question witnesses, and he objected to the board questioning any witnesses. S.R., § 15, pp. 7-14.
The board's secretary then asked him if he had completed the application form prescribed by the Commissioner of Emergency Services and Public Protection. S.R., § 15, p. 16. The plaintiff said that the department had never provided the form to him. Id. He also argued that a bill proposed in the 2016 legislative session was " telling the people what applicants must submit to get a pistol permit." S.R., § 15, p. 18. Ultimately, however, when asked again if he had filled out the prescribed application form, the plaintiff admitted: " I did not fill out the application. I was not provided an application by the issuing authority. I did file an application for a pistol permit . . . That's all I need to do." S.R., § 15, p. 19. He contended that he was entitled to have his application deemed " sufficient" because the department had not sent him the proper form. He admitted that he knew the prescribed form was available online but said that he did not search for it. S.R., § 15, pp. 20-21.
The board's secretary moved that the board find for the issuing authority because the plaintiff had not submitted the prescribed application. The motion was approved without opposition. S.R., § 15, pp. 22-23. On August 18, 2016, the board notified the plaintiff in writing that the department's decision had been upheld. R., § 14. This appeal followed.
II
SCOPE OF REVIEW
This appeal is brought pursuant to the Uniform Administrative Procedure Act, General Statutes § 4-183. Judicial review of the commissioner's action is very restricted. Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000). " [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . Neither [the Supreme Court] nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Id.; see also Hogan v. Dept. of Children & Families, 290 Conn. 545, 561, 964 A.2d 1213 (2009).
Section 4-183(j) provides in relevant part: " The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law: (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings."
" Even as to questions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts . . . Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes." Palomba-Bourke v. Commissioner of Social Services, 312 Conn. 196, 203, 92 A.3d 932 (2014).
III
DISCUSSION
A
The Statutory Framework
Subject to certain exceptions, Connecticut law provides that " [n]o person shall carry any pistol or revolver upon his or her person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same issued as provided in section 29-28." General Statutes § 29-35(a). The term " pistol or revolver" is defined to include " any firearm having a barrel less than twelve inches in length." General Statutes § 29-27. In this decision, the term " handgun" is used colloquially, as the plaintiff used it in his brief, to refer to pistols and revolvers.
The principal statutory requirements for a permit to carry a handgun (carry permit) are set out in General Statutes § § 29-28 through 29-32b. The process for applying for a carry permit may be summarized generally as follows: Using a form prescribed by the Commissioner of Emergency Services and Public Protection (commissioner), a person applies to a local issuing authority, such as a police chief or selectman, for a temporary state permit. General Statutes § 29-28a(a). If a request for a permit is submitted without use of the prescribed form, the issuing authority is directed to send the prescribed form to the requester within one week. If the issuing authority fails to send the prescribed form to the requester within that time limit, the application is deemed " sufficient." Within eight weeks after receiving a " sufficient" application, the local issuing authority must determine whether a temporary state permit should be issued to the applicant. In making that determination, it must also consider, pursuant to General Statutes § 29-28(b), whether the applicant intends to make only lawful use of a handgun and is a " suitable" person to receive such a permit. The issuing authority must notify both the applicant and the board as to its approval or denial of the request. If a temporary state permit is issued, the applicant may appear before the commissioner within sixty days to receive a state permit. General Statutes § 29-28(b).
If the issuing authority fails to provide the prescribed form or denies the request, the applicant may appeal to the board pursuant to General Statutes § 29-32b. 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 . . . as the case may be." General Statutes § 29-32b(b). While an appeal is pending, " the board . . . may request such additional information from the appellant and from the issuing authority as it deems reasonably necessary to conduct a fair and impartial hearing." General Statutes § 29-32b(c). After a hearing, the board shall decide the issue by majority vote and shall communicate the vote in writing. General Statutes § 29-32b(d). Pursuant to General Statutes § 29-32b(f), any person aggrieved by the board's decision may appeal in accordance with General Statutes § 4-183.
General Statutes § § 29-28a and 29-32b are primarily procedural statutes. Substantive requirements for a carry permit are found in General Statutes § § 29-28(b) and 29-29(a), (b), and (e). General Statutes § 29-28(b) expressly prohibits the issuance of a state or a temporary state permit if the applicant has failed to successfully complete a course, approved by the commissioner, in the safety and use of handguns. It also prohibits issuance of a carry permit to any person who comes within certain categories, which, generally speaking, include but are not limited to convicted felons, persons convicted as delinquent for a serious juvenile offense, persons whose mental disease or disorders have resulted in involuntary or voluntary hospitalization within certain time frames, and persons who are subject to restraining orders or protective orders. See General Statutes § 29-28(b). In addition to the requirements of § 29-28(b), General Statutes § 29-29(a) prohibits the issuance of a temporary state permit " unless the applicant for such permit gives to the local authority, upon its request, full information concerning the applicant's criminal record." General Statutes § 29-29(b) further requires the issuing authority to take the fingerprints of an applicant or conduct any other method of positive identification. General Statutes § 29-29(e) unequivocally provides that " [n]o state permit may be issued unless either the local authority or the commissioner has received the results of the national criminal history records check."
In construing a statute, the court must consider both its text and its relationship to other statutes. General Statutes § 1-2z. Accordingly, both the procedural and the substantive provisions of the statutes governing carrying permits must be considered together in determining the plaintiff's appeal. Moreover, the court " must, if possible, construe two statutes in a manner that gives effect to both, eschewing an interpretation that would render either ineffective. In construing two seemingly conflicting statutes, we are guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law . . . [i]f two statutes appear to be in conflict but can be construed as consistent with each other, then the court should give effect to both." Rainforest Café, Inc. v. Dept. of Revenue Services, 293 Conn. 363, 378, 977 A.2d 650 (2009). A statute should not be construed in a manner that yields an " absurd and unworkable result." General Statutes § 1-2z.
B
The Plaintiff's Claims
On appeal, the plaintiff claims that the board erred in (1) overruling his objection to the board asking any questions of witnesses during the hearing, (2) rejecting his appeal on the ground that he never submitted an application to the issuing authority, and (3) violating his rights under the second amendment by failing to give him a carry permit based solely on the fact that he lawfully owns a handgun and needs a carry permit to maintain proficiency in its use. The court will address each issue in turn.
The plaintiff initially filed a motion for summary judgment. At a pretrial conference, the court (Levine, J.) informed the plaintiff that hearings on motions for summary judgment are not scheduled in administrative appeals. In response to a subsequent motion by the plaintiff, the court (Huddleston, J.) informed the plaintiff that he could incorporate the arguments made in his summary judgment motion into his brief on the merits of the administrative appeal. The court has accordingly considered the plaintiff's arguments in all of his briefs, including his summary judgment brief, his merits brief, and his reply brief.
1
Board's Right to Examine Witnesses
The plaintiff contends that the board is not statutorily authorized to examine witnesses in a de novo appeal under General Statutes § 29-32b. He bases this argument on the fact that some statutes, such as the Freedom of Information Act, expressly state that an agency may " examine witnesses"; see General Statutes § 1-205(d); while the board's enabling statute does not contain such specific language.
While the court agrees with the plaintiff's general argument that an administrative agency has only those powers conferred on it by statute, it does not agree with the plaintiff's reading of the relevant statutes here. General Statutes § 29-32b(b) expressly authorizes the board to " inquire into and determine the facts, de novo . . ." General Statutes § 29-32b(c) further provides that the board " may request additional information" from the parties while the appeal is pending. Moreover, the proceeding before the board is a contested case proceeding under General Statutes § 4-166(4). Pursuant to General Statutes § 4-177b, " [i]n a contested case, the presiding officer may administer oaths, take testimony under oath relative to the case, subpoena witnesses and require the production of records . . . If any person disobeys the subpoena or, having appeared, refuses to answer any question put to him . . . the agency may apply to the superior court . . . for an order to show cause . . . why a question put to him should not be answered." The court concludes that the board's authority to question witnesses is implied by its authority, under § 29-32b, to " inquire into and determine the facts, de novo, " and by its authority to subpoena and question witnesses under § 4-177b.
General Statutes § 4-166(4) defines " contested case, " for the purposes of an appeal under General Statutes § 4-183, in relevant part as " a proceeding . . . in which the legal rights, duties or privileges of a party are required by state statute or regulation to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held . . ."
Even if there was merit to the plaintiff's claim, which there is not, it would not affect the outcome of this appeal. The board rejected his appeal because it determined that he had not actually applied for a carry permit as required by law. The board did not hear any testimony or examine any witnesses under oath. The court concludes that the plaintiff has not shown that substantial rights were prejudiced by the board's rejection of his argument that it lacked authority to question witnesses.
2
Denial for Insufficient Application
The plaintiff argues that the one-page letter he submitted to the department on October 29, 2014 was a " sufficient application" under the following terms of General Statutes § 29-28a(a): " Upon written request by any person for a temporary state permit not on a prescribed application form . . . the local authority shall supply such application forms . . . not later than one week after receiving such request. If such application is not supplied within the time limits required by this section, the request therefore shall constitute a sufficient application."
The department and the board argue that the above-quoted language does not mean that a carry permit must be issued if a local authority fails to provide the prescribed application form, but only that the failure to provide such form to the requester within the time required by the statute starts the clock running on the time to inform the applicant whether his application has been approved or denied. They point to General Statutes § 29-28a(b), which provides that " [t]he local authority shall, not later than eight weeks after a sufficient application for a temporary permit has been made, inform the applicant that such applicant's request for a temporary state permit has been approved or denied."
The plaintiff's construction of " sufficient application" in General Statutes § 29-28a(a) is unreasonable. The plaintiff argues, in effect, that if a person were to send a one-sentence letter to the local issuing authority saying: " Please send me a permit to carry my lawful handgun, " the local authority would be required to approve the application, without further inquiry, if it failed to send him the application form approved by the Commissioner of Emergency Services and Public Protection within one week. This construction would nullify the prohibitions in General Statutes § 29-28(b) and the requirements for a criminal records check and fingerprinting in General Statutes § 29-29(a), (b), and (e).
The defendants argue that the " sufficient application" language is intended to prevent a " pocket veto" by the local issuing authority. Without such language, a local issuing authority could prevent a person from obtaining a permit simply by never acting on it. With the language deeming the application to be " sufficient" if the local issuing authority fails to provide the appropriate application, the applicant then has the right, under General Statutes § 29-32b(b), to appeal to the board, which must " inquire into and determine the facts, de novo . . ." (Emphasis added.) The board is required, upon appeal, to issue a permit " unless it finds that . . . such . . . failure to supply an application . . . would be for just and proper cause." General Statutes § 29-32b(b). As construed by the defendants, failure to supply an application or to issue a temporary state permit does not require the board to issue a state permit if such failure " would be for just and proper cause."
The plaintiff, to the contrary, makes three somewhat diffuse and related procedural arguments. First, he argues that he does not bear the burden of doing anything other than asking for a permit; the department, he contends, bears the burden of providing him with the proper form and requesting his fingerprints. Second, he argues that the department's failure to provide the proper form to him and to request his fingerprints requires that a carry permit be granted to him. Third, he argues generally that the defendants bear the burden of proving that he is disqualified from receiving a carry permit.
The plaintiff's first argument is unsupported and insupportable. An applicant for a government permit, license, or benefit generally bears the burden he is qualified for the permit, license, or benefit he is seeking. See, e.g., Statewide Grievance Committee v. Ganim, 311 Conn. 430, 454, 87 A.3d 1078 (2014) (attorney seeking readmission to bar after serving criminal sentence bore burden of proving " good character"); Finley v. Inland Wetlands Commission, 289 Conn. 12, 40, 959 A.2d 569 (2008) (applicant for inland wetlands permit bears burden of proving compliance with statutory requirements); State v. Flemming, 116 Conn.App. 469, 481, 976 A.2d 37 (2009) (applicant for public defender services bears burden of proving indigency). Requiring an applicant for a permit, license, or other benefit to prove that he meets the statutory requirements is both logical and fair because the applicant is the person most likely to have all relevant information concerning his ability to satisfy such statutory requirements.
The plaintiff's second argument comports with a literal reading of General Statutes § 29-28a(a) but takes it out of its statutory context. Section 29-28a(a) does provide that " [u]pon written request by any person for a temporary state permit not on a prescribed application form . . . the local authority shall supply such forms." It further provides that " [i]f such application form is not supplied within the time limits required by this section, the request therefore shall constitute a sufficient application." That language, however, must be read in conjunction with General Statutes § 29-28a(b), which requires the local authority, not later than eight weeks after a " sufficient application" for a temporary state permit has been made, to " inform the applicant that such applicant's request for a temporary state permit has been approved or denied." If receipt of a " sufficient application" alone were sufficient to mandate the issuance of temporary state permit, the local authority could not deny such a permit under § 29-28a(b). The court therefore construes the reference to a " sufficient application, " as used in § 29-28a, to mean an application that is sufficient to obligate the local authority to consider and decide the applicant's request for a carry permit within eight weeks.
In this case, the department did issue a notice, within eight weeks of the plaintiff's written request, notifying him that his application was denied both for failure to submit a sufficient application and his failure to present himself for fingerprinting, which was, in and of itself, " just and proper cause" for denial of the permit. The plaintiff exercised his right to appeal from the department's denial of the permit.
The board's consideration of an appeal from the denial of a carry permit is not merely a review of whether the local authority properly denied the permit, but a de novo consideration of whether such a permit should issue. See General Statutes § 29-32b(b). In Commissioner of Public Safety v. Board of Firearms Permit Examiners, 129 Conn.App. 414, 421, 21 A.3d 847 (2011), when the Appellate Court upheld the board's reversal of the revocation of a carry permit, it observed that § 29-32b " does not direct the board to determine whether the [revocation] 'was' for just and proper cause but, rather, to find whether the action `would be' for just and proper cause. In other words, the statute plainly provides for a present determination and not merely a historical review of the . . . action." It observed: " It is, therefore, logical that § 29-32b directs the board to find facts de novo, given that a hearing in which aggrieved parties may present evidence and argument was not available to the issuing authority when it denied or revoked a firearms permit. It also follows logically that the legislature intended for the board to be able to draw its own conclusions as to whether the denial or revocation of a permit 'would be for just and proper cause' from this more developed record. We conclude, therefore, that § 29-32b(b) plainly and unambiguously does not limit the board to a deferential review of the judgment of the issuing authority." Id., 421-22.
In this case, after receiving the plaintiff's appeal, the board sent questionnaires to the department and to the plaintiff pursuant to General Statutes § 29-32b(c), which provides in relevant part that " [t]he board, while such appeal is pending, may request such additional information from the appellant and from the issuing authority as it deems reasonably necessary to conduct a fair and impartial hearing . . ." The department responded fully to the board's request; the plaintiff did not. Although he returned the board's questionnaire with minimal personal information included, he did not provide any information regarding his arrest history or his motor vehicle driving history. R., § 10, pp. 3-4. Nor did he state what he wanted the board to do or why. R., § 10, pp. 2-3.
In his opening statement to the board, the plaintiff argued that the current statute does not describe what constitutes a " sufficient" application. In support of that argument, he pointed to language in a report by the Office of Legislative Research (OLR) concerning a bill in the 2016 legislative session. The proposed bill, House Bill No. 5409, would have amended General Statutes § 29-28a to require an applicant to submit, in addition to completed and notarized application forms, two sets of fingerprints, a certificate of successful completion of an approved safety training course, and proof of citizenship or legal presence in the United States. The OLR report describing the purpose of the bill commented that " [c]urrent law does not specify what applicants may submit." OLR Bill Analysis, sHB 5409 (2016). The bill was never adopted.
The plaintiff's reliance on the OLR report and the proposed bill is misplaced. In General Statutes § 29-28a(a), current law requires an application on a form prescribed by the commissioner. A copy of the plaintiff's 2012 application on such form is in the record and reflects that the form itself requires an applicant to submit fingerprint cards, a firearms safety certificate, and proof of citizenship or legal presence in the United States. S.R., § 8, p. 7. Had the proposed bill been enacted, it would merely have directly codified the requirements already reflected in the commissioner's prescribed application form.
At the hearing, the department's attorney reminded the board that it had previously rejected an application from the plaintiff because he refused to provide information required by statute and refused to present himself for fingerprinting. He commented that the current application contained even less information than the application rejected in 2012, calling it " essentially an application on a cocktail napkin." S.R., § 15, p. 4.
The secretary of the board asked the plaintiff if he had submitted an application on the form prescribed by the Commissioner of Emergency Services and Public Protection. After pulling up the statute on his iPad, the plaintiff argued that the language of General Statutes § 29-28a(a) required the issuing authority to supply him with such application. S.R., pp. 15-16. In a further colloquy, the plaintiff stated: " I did not fill out the application. I was not provided an application by the issuing authority. I did file an application for a pistol permit." S.R., § 15, p. 19. He subsequently admitted that he knew that the prescribed application form is available online, but claimed that he had no obligation to look for it because it was supposed to be provided by the issuing authority. S.R., § 15, p. 21. The board then voted to uphold the decision of the department because the plaintiff had not met the condition precedent of submitting an application. S.R., § 15, pp. 21-22.
At oral argument in this court, counsel for the board candidly acknowledged that, under the literal language of General Statutes § 29-32b, the board was required to provide a de novo hearing for the plaintiff, and acknowledged that a remand for such a hearing might be appropriate. She further argued, however, that the board had just and proper cause for denying the permit, and that the board did not act arbitrarily and capriciously in doing so.
After considerable reflection, the court agrees with the board's position. A purely literal reading of § 29-32b(b) would suggest that the board was required to conduct a de novo hearing and allow both the department and the plaintiff to present evidence. However, the plaintiff had previously demonstrated, in his application in Case No. 12-356D, that he did not believe that he was required to provide the information required by the prescribed form. The board had previously determined, in a comprehensive and thoughtful decision in Case No. 12-356D, that a permit should not be issued to the plaintiff. In that decision, it found that the plaintiff had failed to answer many of the questions on the prescribed form and had answered at least one of the questions falsely. The board found that the plaintiff's failure to answer the questions on the prescribed application fully and accurately " was intentional and is evidence of a contempt for lawful authority that indicates he is unsuitable and that he would not confine himself to lawful use of a firearm which he would be permitted to carry." R., § 11, p. 9.
As the department's opening statement and advance submission of documents indicated, the department was fully prepared to present evidence as to why it believed the plaintiff was not a " suitable" person to whom a carry permit should be issued. See R., § 9; S.R., § 8; and S.R., § 15, pp. 2-6.
On the DESPP form the plaintiff filled out in 2010, he represented that he had never served in the armed forces. S.R., § 8, p. 9. At his hearing, he testified that he had been in the Air Force. R., § 11, p. 8.
At the hearing in 2016, in Case No. 15-232D, the plaintiff made it clear that he continued to believe that the board could not properly inquire into his suitability. He argued that his lawful possession of a handgun gives him the right, under the second amendment, to carry that handgun so that he can maintain proficiency in its use. See R., § 10 (incorporating plaintiff's arguments from Case No. 12-356D).
Even if the board had afforded the plaintiff a de novo hearing, it could not have issued a state permit to him. The plaintiff refused to provide his arrest history in response to the board's questionnaire, just as it had refused to provide that information on the DESPP form in 2012. See R., § 10, pp. 2-4; S.R., § 8, pp. 7-10. General Statutes § 29-29(e) prohibits the issuance of a state permit " unless either the local authority or the commissioner has received the results of the national criminal history records check." Having refused to provide any information to the board about his arrest history that would allow the board to initiate a national criminal history records check, the plaintiff could not be issued a state permit under § 29-29(e). The court concludes that the board's refusal to conduct a de novo hearing, in the singular circumstances of this case, was not arbitrary and capricious. It further concludes that no substantial rights of the plaintiff were prejudiced, because under § 29-29(e), the plaintiff had no right to a carry permit until and unless he provided the relevant authorities with the information needed to undertake a national criminal history records check. Accordingly, under the limited review afforded by General Statutes § 4-183(j), the plaintiff's appeal lacks merit insofar as it's based on General Statutes § § 29-28 through 29-32b.
3
Second Amendment Claims
Finally, the plaintiff claims that the state cannot lawfully impose a " suitability" requirement of any kind on any person who lawfully possesses a handgun because the second amendment guarantees his right to maintain proficiency in its use. Putting aside the issue as to whether the plaintiff lawfully possesses a handgun, a fact he has asserted but not proven, the plaintiff's claim has no legal merit.
The plaintiff relies on three cases in support of his argument. In District of Columbia v. Heller, supra, 554 U.S. 628, the United States Supreme Court held that the second amendment to the United States Constitution precluded the District of Columbia from enacting a total ban of possession of handguns in the home. In McDonald v. Chicago, supra, 561 U.S. 742, the Supreme Court further held that the second amendment is made fully applicable to the states through the fourteenth amendment. Finally, in Ezell v. Chicago, supra, 651 F.3d 684, the Court of Appeals for the Seventh Circuit held that the city of Chicago could not, by ordinance, simultaneously mandate firing range training as a prerequisite for lawful gun ownership and prohibit the establishment of firing ranges within the city. From these cases, the plaintiff argues that he has a second amendment right to possess a handgun in his own; that right encompasses the right to maintain proficiency in its use, which requires access to a firing range; that Connecticut law prohibits from carrying a gun without a permit; and that, therefore, he must be issued a permit, without regard to " suitability, " so that he can maintain proficiency. The law is not so simple as he claims.
It is undisputed that a citizen's right to bear arms is guaranteed under the second amendment, which has been extended to the states by the Supreme Court in McDonald . But neither the United States Supreme Court nor our own appellate courts have held that this second amendment right is utterly unfettered. In Heller, the Supreme Court observed: " Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatsoever purpose . . . For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues . . . Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings . . ." District of Columbia v. Heller, supra, 554 U.S. 626.
In State v. DiCiccio, 315 Conn. 79, 105 A.3d 165 (2014), our Supreme Court examined certain of Connecticut's firearms restrictions and concluded that, under the second amendment, the state could not prohibit a person in lawful possession of certain weapons from transporting those weapons while moving from one residence to another. In its lengthy decision, the court observed that " [p]ost- Heller case law supports the commonsense conclusion that the core right to possess a protected weapon in the home for self-defense necessarily entails the right, subject to reasonable regulation, to engage in activities necessary to enable possession in the home. Thus, the safe transportation of weapons protected by the second amendment is an essential corollary of the right to possess them in the home for self-defense when such transportation is necessary to effectuate that right. Conversely, in rejecting second amendment challenges to measures prohibiting the possession of handguns outside the home, courts have deemed it significant that those regulatory schemes contained provisions including, in addition to the right to possess handguns in the home, limited exceptions permitting the transportation of handguns between homes, or between home and dealer or repairer." (Footnotes omitted.) Id., 145-46.
General Statutes § 29-35(a) provides in relevant part: " No person shall carry any pistol or revolver upon his or her person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same issued as provided in section 29-28. The provisions of this subsection shall not apply . . . to any person transporting a pistol or revolver in or through the state for the purpose of . . . taking part in formal pistol or revolver training . . . For the purposes of this subsection, 'formal pistol or revolver training' means pistol or revolver training at a locally approved or permitted firing range or training facility . . . Nothing in this section shall be construed to prohibit the carrying of a pistol or revolver during formal pistol or revolver training or repair."
The plaintiff attempted to offer evidence that public and private firing ranges do not allow persons without carry permits to use those ranges for firing practice. Such evidence, however, would not compel the conclusion that Connecticut's law prevents a person in lawful possession of a handgun from maintaining proficiency, because the plaintiff did not offer evidence that formal training programs, approved by the Department of Emergency Services and Public Protection for applicants for carry permits, require a person to have a carry permit to participate in such programs. If the plaintiff has successfully completed such a course already, he can present a certificate showing his completion with a proper application for a carry permit. If he has not, he can enroll in such a course and both maintain proficiency and complete a prerequisite for a carry permit.
The court notes that the website of the Department of Emergency Services and Public Protection provides a link to approved firearm safety training programs for pistol permit applicants. See http://www.ct.gov/despp/cwp/view.asp?a=4213& q=494620 (Last viewed August 31, 2017).
Moreover, the plaintiff did not present any authority suggesting that the state cannot refuse a carry permit to a convicted felon or a person with a mental illness that may present a danger to the public. Heller itself stated that the government can preclude felons and the mentally ill from possessing or carrying firearms. That necessarily implies that the government can require a person to present information that allows the government to investigate his past history for disqualifying circumstances. The plaintiff, as discussed above, refused to provide such information upon request by the board.
The plaintiff has accordingly failed to establish that the board denied his request for a carry permit in violation of constitutional requirements.
IV
CONCLUSION
To prevail in an administrative appeal pursuant to General Statutes § 4-183, the court must affirm the decision of the agency unless it finds that " substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; . . . (3) made upon unlawful procedure; . . . or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Upon close review of the record in this appeal, and considering all the constitutional and statutory arguments made by the plaintiff in the light of that record, the court concludes that the plaintiff has failed to meet his burden of proving that substantial rights were violated by the board's decision. It was his own refusal to provide the information reasonably required by the relevant authorities that led to the denial of his permit. Accordingly, his appeal is dismissed.