10-4215-cv
Goldberg v. Town of Glastonbury


                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 13th day of December, two thousand eleven.

Present: JON O. NEWMAN,
         RALPH K. WINTER,
         ROBERT A. KATZMANN,
                           Circuit Judges.
____________________________________________________________

JAMES F. GOLDBERG,

                                  Plaintiff-Appellant,

                                  -v-                                      No. 10-4215-cv

TOWN OF GLASTONBURY, MICHAEL FURLONG,
Sgt. I/O, KENNETH LEE, Officer, I/O, and
SIMON BARRATT, Officer, I/O,

                                  Defendants-Appellees.

____________________________________________________________

For Plaintiff-Appellant:                 RACHEL M. BAIRD, Law Office of Rachel M. Baird,
                                         Torrington, Conn.

For Defendants-Appellees:                THOMAS R. GERARDE (Beatrice S. Jordan, on the brief), Howd
                                         & Ludorf, LLC, Hartford, Conn.
          Appeal from the United States District Court for the District of Connecticut (Underhill,
J.).
          ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

          Plaintiff-Appellant James F. Goldberg appeals from a September 20, 2010 judgment of

the United States District Court for the District of Connecticut (Underhill, J.) granting summary

judgment to defendants on plaintiff’s § 1983 claims, and in the alternative, concluding that

defendants are entitled to qualified immunity. We assume the parties’ familiarity with the facts

and procedural history of the case.

          “We review a district court’s grant of summary judgment de novo, construing the

evidence in the light most favorable to the nonmoving party and drawing all reasonable

inferences in that party’s favor.” Kuebel v. Black & Decker Inc., 643 F.3d 352, 358 (2d Cir.

2011). “Summary judgment is appropriate only if ‘there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P.

56(a)).

          For the first time on appeal, plaintiff argues that his rights under the Second Amendment

have been impermissibly infringed. “Although we may exercise discretion to consider waived

arguments where necessary to avoid a manifest injustice,” In re Nortel Networks Corp. Sec.

Litig., 539 F.3d 129, 133 (2d Cir. 2008) (per curiam), we conclude that the circumstances of this

case do not warrant such an exercise of discretion. Plaintiff contends that this “did not become a

Second Amendment case until the district court held tantamount to its decision the involvement

of a firearm.” Pl. Br. 20 Plaintiff, however, had sufficient notice and ample opportunity to

assert below the rights that he now claims are implicated, which he explicitly declined to do


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when his counsel conceded at oral argument before the district court that a Second Amendment

claim was not raised.

        Turning next to the issue of whether there was reasonable suspicion supporting

defendants’ initial stop of plaintiff, see Terry v. Ohio, 392 U.S. 1 (1968), we conclude that there

was. “In reviewing the reasonableness of a Terry stop, we ask whether there was a

‘particularized and objective basis’ for suspicion of legal wrongdoing under the ‘totality of the

circumstances.’” United States v. Simmons, 560 F.3d 98, 103 (2d Cir. 2009) (quoting United

States v. Arvizu, 534 U.S. 266, 273 (2002)). “Terry requires that a police officer have only

reasonable suspicion that criminal activity may be afoot to justify an investigatory stop.

Reasonable suspicion requires considerably less of a showing than probable cause.” United

States v. McCargo, 464 F.3d 192, 197 (2d Cir. 2006) (internal citations and quotation marks

omitted). In the instant case, defendants were responding to a 911 call reporting that an

individual had entered the Chili’s waiting area with an exposed firearm, and the manager was

sufficiently alarmed to clear the immediate area and contact the police. Upon entering the

restaurant, defendants observed that plaintiff had a holstered handgun visible on his hip. Under

these circumstances, sufficient reasonable suspicion justified defendants’ investigative stop of

plaintiff.

        Finally, we assess defendants’ arrest of plaintiff for breach of the peace in the second

degree.1 We need not decide whether there was probable cause to arrest plaintiff, because we


        1
             Connecticut's breach of the peace statute in the second degree provides in relevant part
that:
        A person is guilty of breach of the peace in the second degree when, with intent to
        cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof,
        such person: (1) Engages in . . . threatening behavior in a public place . . . . For

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conclude that defendants are entitled to qualified immunity on plaintiff’s false arrest claim. “In

determining whether an officer is entitled to qualified immunity for a false arrest claim in the

absence of probable cause, we examine whether there was ‘arguable probable cause.’” Amore v.

Novarro, 624 F.3d 522, 536 (2d Cir. 2010) (quoting Walczyk v. Rio, 496 F.3d 139, 163 (2d Cir.

2007)). “Arguable probable cause exists if either (a) it was objectively reasonable for the officer

to believe that probable cause existed, or (b) officers of reasonable competence could disagree

on whether the probable cause test was met.” Id. (quoting Walczyk, 496 F.3d at 163) (internal

quotation marks omitted). “In deciding whether an officer’s conduct was ‘objectively

reasonable’ for purposes of qualified immunity, we look to the information possessed by the

officer at the time of the arrest, but ‘we do not consider the subjective intent, motives, or beliefs’

of the officer.” Id. (quoting Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84, 106 (2d Cir.

2003)). Prior to his arrest, plaintiff had entered the Chili’s restaurant wearing an exposed

firearm, which the officers observed upon their arrival in response to the 911 call. Defendant

Furlong observed that the manager, Laura Smith, appeared to be nervous, and she reported that

she was alarmed over the handgun and had cleared the area as a result. On these facts, and given

the lack of settled Connecticut law on the issue, we conclude that reasonable officers could, at

minimum, disagree on whether there was probable cause to arrest plaintiff for breach of the

peace in the second degree, and accordingly the district court’s qualified immunity determination

ought to be affirmed.

       We have considered plaintiff’s remaining arguments and find them to be without merit.



      purposes of this section, "public place" means any area that is used or held out for
      use by the public whether owned or operated by public or private interests.
Conn. Gen. Stat. § 53a-181(a).

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Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, CLERK




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