13-2369-cv
Burgess v. Town of Wallingford

                           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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
12th day of June, two thousand fourteen.

PRESENT:          BARRINGTON D. PARKER,
                  DEBRA ANN LIVINGSTON,
                  CHRISTOPHER F. DRONEY,
                                     Circuit Judges.

RICHARD E. BURGESS,
                                        Plaintiff-Appellant,

        -v-                                                                   No. 13-2369-cv

TOWN OF WALLINGFORD, DOUGLAS L. DORTENZIO, Chief,
in his Individual and Official Capacities, ANTHONY
MARTINO, Lieutenant, in his Individual and Official
Capacities, MICHAEL COLAVOLPE, Sergeant, in his Individ-
ual and Official Capacities, GABRIEL GARCIA, Officer, in
his Individual Capacity, DEVIN FLOOD, Officer, in his
Individual Capacity,
                                    Defendants-Appellees,

MARK VANAMAN,
                                        Defendant.*



        *
            The Clerk of the Court is directed to amend the caption as set forth above.

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                                               RACHEL M. BAIRD, Rachel M. Baird & Associate,
                                               Torrington, CT, for Plaintiff-Appellant.

                                               THOMAS R. GERARDE (Kristan M. Maccini, on the
                                               brief), Howd & Ludorf, LLC, Hartford, CT, for
                                               Defendants-Appellees.

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Richard E. Burgess appeals from a judgment of the United States District

Court for the District of Connecticut (Melançon, J.), entered May 15, 2013. The district court

granted summary judgment in favor of all of the defendants named in Burgess’s complaint.

Burgess’s suit brought claims against the Town of Wallingford and police officers Douglas L.

Dortenzio, Anthony Martino, Michael Colavolpe, Gabriel Garcia, and Devin Flood (collectively,

the “Defendants-Appellants”) under 42 U.S.C. § 1983, alleging violations of his constitutional rights

stemming from Burgess’s arrest on charges of disorderly conduct.1 We assume the parties’

familiarity with the underlying facts and the procedural history of the case.

                                                   I.

       “The doctrine of qualified immunity protects government officials from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(internal quotation marks omitted). This standard is “forgiving and protects all but the plainly

       1
          Burgess’s complaint also contained a malicious prosecution claim against Mark Vanaman,
a private individual. The district court, acting sua sponte but after requesting a response from
Burgess, granted summary judgment in Vanaman’s favor on that claim. Burgess has not appealed
this portion of the judgment, and accordingly we do not address this claim. We also do not address
Burgess’s First Amendment claim or his claim against the Town of Wallingford for failure properly
to train its police officers, as Burgess has chosen not to pursue those claims on appeal.

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incompetent or those who knowingly violate the law.” Amore v. Novarro, 624 F.3d 522, 530 (2d

Cir. 2010) (internal quotation marks omitted). “A police officer who has an objectively reasonable

belief that his actions are lawful is entitled to qualified immunity.” Okin v. Village of Cornwall-on-

Hudson Police Dep’t, 577 F.3d 415, 433 (2d Cir. 2009); see also Saucier v. Katz, 533 U.S. 194, 202

(2001) (stating that qualified immunity attaches unless “it would be clear to a reasonable officer that

his conduct was unlawful in the situation he confronted”), overruled in part on other grounds by

Pearson, 555 U.S. 223 (2009). A police officer is also entitled to qualified immunity if “officers of

reasonable competence could disagree on the legality of the action at issue in its particular factual

context.” Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007) (internal quotation marks omitted).

        The qualified immunity analysis has two portions. First, we inquire whether, “[t]aken in the

light most favorable to the party asserting the injury, . . . the facts alleged show the officer’s conduct

violated a constitutional right.” Saucier, 533 U.S. at 201. The second question is whether the right

was “clearly established,” which must be determined “in light of the specific context of the case, not

as a broad general proposition.”2 Id. In the course of this inquiry, “[o]nly Supreme Court and

Second Circuit precedent existing at the time of the alleged violation is relevant in deciding whether

a right is clearly established.” Moore v. Vega, 371 F.3d 110, 114 (2d Cir. 2004).

                                                   II.

        The first issue Burgess raises on appeal concerns his claim that his arrest on charges of

disorderly conduct violated his right to bear arms under the Second Amendment. We need not reach




        2
         Although the Supreme Court formerly required lower courts to examine these questions in
order, the Court has since ruled that the sequence is no longer mandatory. See Pearson, 555 U.S.
at 236.

                                                    3
the merits of this question, however, because even if a right of Burgess’s was violated, it was not

clearly established.

       In District of Columbia v. Heller, the Supreme Court held that the Second Amendment

conferred an individual right to keep and bear arms for self-defense sufficient to invalidate a law that

prohibited keeping firearms in one’s home. 554 U.S. 570, 628-30 (2008). But as the Court also

said, the right protected by the Second Amendment “is not unlimited.” Id. at 626. Even at present,

we are unsure of the scope of that right. See Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 89 (2d

Cir. 2012) (“[W]e do not know . . . the scope of [the Second Amendment] right beyond the home

and the standards for determining when and how the right can be regulated by a government. This

vast ‘terra incognita’ has troubled courts since Heller was decided.”), cert. denied sub nom.

Kachalsky v. Cacace, 133 S. Ct. 1806 (2013). Thus, the protection that Burgess claims he deserves

under the Second Amendment – the right to carry a firearm openly outside the home – is not clearly

established law. See Saucier, 533 U.S. at 201. And as of Burgess’s arrest on May 16, 2010, this

right was even less concrete, as the Supreme Court had not yet held that the Second Amendment

right in Heller applies to state governments; it did so shortly thereafter in McDonald v. City of

Chicago, 561 U.S. 742 (June 28, 2010). Given this legal ambiguity, Defendants-Appellants were

entitled to qualified immunity, and the district court correctly granted summary judgment in their

favor on Burgess’s Second Amendment claim.

                                                  III.

       Burgess also brought a claim in the district court for false arrest and unreasonable seizure

of a handgun. He contends that at the time of his arrest, Connecticut law clearly entitled him to

carry his firearm openly, and that the defendant officers’ decision to stop him and subsequently



                                                   4
arrest him on charges of disorderly conduct was unreasonable in the circumstances of this case. We

disagree.

       Connecticut statutory law governing the possession of handguns does not expressly prohibit

or endorse the open carry of properly licensed firearms, and Burgess has not cited any legal decision

clearly establishing that Connecticut handgun permit-holders can openly carry their weapons.

Moreover, Connecticut courts have confirmed that carrying a permitted firearm openly can lead to

arrest when circumstances warrant. See Peruta v. Comm’r of Pub. Safety, 20 A.3d 691, 702 & n.16

(Conn. App. Ct. 2011) (stating that “[d]epending on the specific circumstances, a person who openly

carries a pistol conceivably may be subject to arrest for violating several statutes,” including the

disorderly conduct statute, even if the statute governing handgun licenses may “not prohibit a permit

holder from carrying a pistol openly” (footnote omitted)).

       In this case, Burgess was arrested outside Yale Billiards, a pool hall that serves liquor, when

the defendant police officers responded to the establishment after a verbal altercation between

Burgess and Mark Vanaman, another patron, that arose as a result of Burgess’s open carry of his

firearm and refusal to conceal it upon request. Vanaman called 911 and reported that Burgess was

then outside the establishment with a handgun and two magazines of ammunition. Robert Hilton,

the owner of Yale Billiards, also called 911 and stated that he had asked Burgess to leave because

“he made some customers uncomfortable.” The dispatcher told responding officers that Burgess had

an exposed firearm and was pacing back and forth in front of the billiards hall. Officer Devin Flood

stated in a subsequent memorandum that he “believed . . . based upon the initial dispatch [that] there

was a possibility that patrons at Yale Billiards were in danger of serious physical injury from a

suspect pacing back and forth with an exposed firearm,” and once he reached the scene, he



                                                  5
understood based on his on-scene investigation that Burgess “carried his unconcealed weapon into

a pool hall crowded with patrons with the intention of causing a disturbance.” Sergeant Michael

Colavolpe said that he saw the firearm on Burgess’s person upon approaching him, as well as the

two magazines on his waist. In a radio transmission during police response to the scene, Sergeant

Colavolpe reported to another officer that Burgess had “caused a disturbance” at the pool hall and

that people were “freaking out” after the incident.

       As in Goldberg v. Town of Glastonbury, 453 F. App’x 40 (2d Cir. 2011) (summary order),

a prior nonprecedential order in which we concluded that a claim similar to Burgess’s was barred

by qualified immunity, we cannot conclude that the defendant officers acted unreasonably in

believing that they could stop and arrest Burgess. Burgess, like the plaintiff in Goldberg, was

wearing an exposed firearm in an establishment open to the public. He engaged in a verbal

altercation with a customer inside, which resulted in two separate 911 calls reporting a disturbance.

As in Goldberg, “we conclude that reasonable officers could, at minimum, disagree on whether there

was probable cause to arrest plaintiff . . . , and accordingly the district court’s qualified immunity

determination ought to be affirmed.” Id. at 42.

       Moreover, because we conclude that “officers of reasonable competence could disagree on

the legality” of the police conduct here, Walczyk, 496 F.3d at 154 (internal quotation marks omitted),

we decline to address the merits of Burgess’s Fourth Amendment claim. In sum, the district court

properly granted summary judgment to Defendants-Appellants on the claim of false arrest and

unlawful seizure because the officers are entitled to qualified immunity.3

       3
          Burgess’s complaint also claimed a violation of the right to bear arms under the
Connecticut Constitution. The district court declined to exercise supplemental jurisdiction on this
claim after dismissing his causes of action brought under federal law. See 28 U.S.C. § 1367(c). We
detect no abuse of discretion in the district court’s dismissal of these claims without prejudice. See
Oneida Indian Nation of N.Y. v. Madison Cnty., 665 F.3d 408, 437 (2d Cir. 2011).

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       We have considered all of Burgess’s remaining arguments and find them to be without merit.

For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

                                                   FOR THE COURT:
                                                   Catherine O’Hagan Wolfe, Clerk




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