Conn. Citizens Def. League, Inc. v. Lamont

• Decision Date: 08 June 2020
• Docket Number: No. 3:20-cv-00646 (JAM),3:20-cv-00646 (JAM)
• Citation: 465 F.Supp.3d 56
• Court: U.S. District Court — District of Connecticut
• Parties: CONNECTICUT CITIZENS DEFENSE LEAGUE, INC. et al., Plaintiffs, v. Governor Ned LAMONT et al., Defendants.

465 F.Supp.3d 56

CONNECTICUT CITIZENS DEFENSE LEAGUE, INC. et al., Plaintiffs,

v.Governor Ned LAMONT et al., Defendants.

No. 3:20-cv-00646 (JAM)

United States District Court, D. Connecticut.

Signed June 8, 2020

Craig C. Fishbein, Fishbein Law Firm, LLC, Wallingford, CT, for Plaintiffs.

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

Jeffrey Alker Meyer, United States District Judge

In Connecticut, you cannot acquire, possess, or carry a handgun without a state permit or certificate. To get a permit or certificate, you must go to the local police or the Connecticut Department of Emergency Services and Public Protection ("DESPP") to have an officer there collect your fingerprints for purposes of a criminal background check.

Under Connecticut law, employees for the local police and DESPP may not refuse to collect the fingerprints of a person who seeks to apply for a handgun permit or certificate. In light of the exigencies of the COVID-19 pandemic, however, the Governor of Connecticut issued an executive order nearly three months ago that indefinitely suspends this law for so long as the COVID-19 emergency may continue. The executive order leaves it to the discretion of state and local police whether to conduct fingerprinting, thus empowering the police to functionally deny the right of new applicants to acquire, carry, and possess a handgun. Consistent with the Governor's order, DESPP and some unknown number of police departments have suspended all fingerprint collection activities that the law used to require them to do.

The Connecticut Citizens Defense League and several of its members have sued the Governor and the Commissioner of DESPP, claiming that the indefinite suspension of fingerprinting violates their rights under the Second Amendment and other federal constitutional provisions. They have moved for a preliminary injunction to require the resumption of fingerprinting or some alternative means of acquiring a handgun permit pending the final resolution of their constitutional claims.

I will grant the motion for a preliminary injunction. As an initial matter, I find no merit to any of the Governor and Commissioner's threshold jurisdictional arguments: that they are entitled to Eleventh Amendment immunity, that plaintiffs have no standing, or that plaintiffs’ request for injunctive relief is moot. On the merits, I conclude that plaintiffs have demonstrated irreparable harm, that they have a clear and substantial likelihood of success on the merits of their Second Amendment claim, and that the balance of equities and public interest weighs in favor of a grant of preliminary injunctive relief.

All in all, I can well understand why the Governor's order and Commissioner's actions were justified at the outset of the COVID-19 pandemic. But with the passage of time it is clear that a categorical ban on the collection of fingerprints no longer bears a substantial relation to protecting public health consistent with respecting plaintiffs’ constitutional rights. Accordingly, I will enter a preliminary injunction to require the Governor and the Commissioner to take the necessary steps to allow for the resumption of fingerprint collection activities not later than one week from now on June 15, 2020.

BACKGROUND

Connecticut's handgun permit and certificate requirements

Like many states, Connecticut has a permit system that regulates the possession and transfer of firearms. Under Connecticut law, subject to certain exceptions, no person shall carry a pistol or revolver ("a handgun") upon his or her person outside the dwelling place or place of business unless the person has a permit. See Conn. Gen. Stat. § 29-35(a) ; see also Conn. Gen. Stat. § 29-36f (prescribing requirements for handgun eligibility certificate); Conn Gen. Stat. § 29-27 (defining terms "pistol" and "revolver" to mean "any firearm having a barrel less than twelve inches in length"). It is generally a crime for a person to purchase or receive a handgun unless the person holds a valid handgun permit or certificate. See Conn. Gen. Stat. § 29-33(b), (i) ; see also Conn. Gen. Stat. § 29-38m (sale of ammunition to an unpermitted or uncertificated person is a Class D felony).

Connecticut law prescribes a two-step process to obtain a handgun permit. See Kuck v. Danaher , 822 F. Supp. 2d 109, 119-21 (D. Conn. 2011) (describing permitting requirements). First, one must file an application for a temporary permit in the town or city in which the applicant resides. See Conn. Gen. Stat. §§ 29-28(b) 29-28a. Unless the applicant's fingerprints are already on file, the applicant must show up in person to the local town hall or police station to have his or her fingerprints taken. See Conn. Gen. Stat. § 29-29(b). Fingerprinting may be done by DESPP if an applicant lives in one of the approximately eighty towns without a local police force that provides fingerprinting services.¹ These fingerprints are then used to conduct a criminal background check. See Conn. Gen. Stat. §§ 29-17a, 29-29(b).

Similarly, a person who is applying for a handgun eligibility certificate must apply directly to DESPP, and DESPP in turn requires the applicant to submit to fingerprinting. See Conn. Gen. Stat. § 29-36g ; Doc. #58-16 (Giannone affidavit). The holder of a handgun eligibility certificate may acquire a handgun but is not authorized to carry the handgun off his residential or business premises as may the holder of a handgun permit. See Conn. Gen. Stat. 29-36g(f).

Regardless whether an applicant seeks a handgun permit or a handgun eligibility certificate, state law prohibits state or local law enforcement officials from refusing to collect fingerprints when needed by an applicant for a criminal background investigation:

No employee of a municipal police department or the Division of State Police within the Department of Emergency Services and Public Protection shall refuse to collect the fingerprints of a person requesting such fingerprinting for the purposes of a criminal history records check in accordance with section 29-17a, or other noncriminal purposes, provided (1) such employee's duties include fingerprint collection, and (2) the person requesting such fingerprinting works or resides in the municipality where such department or division is located.

Conn. Gen. Stat. § 29-17c(a) ; see also id. , § 29-17c(b) ("The provisions of this section shall not be construed to prohibit a municipality from establishing a limited period of hours during which such fingerprints may be collected").

Connecticut law imposes time limits to require prompt consideration of an application for a handgun permit or a handgun eligibility certificate. A local authority has a maximum of eight weeks after receipt of a "sufficient application" to either approve or deny a temporary permit. See Conn. Gen. Stat. § 29-28a(b). Temporary permits are, as the name suggests, temporary, with a sixty-day expiry date. See Conn. Gen. Stat. § 29-30(c). For a permanent state permit, the local authority must forward the temporary permit application to DESPP, the applicant must appear at a DESPP location, and DESPP must act upon the application within eight weeks of its receipt. Conn. Gen. Stat. §§ 29-28(b), 29-28a(b). For handgun eligibility certificate applicants, DESPP must act on an application within 90 days. See Conn. Gen. Stat. § 29-36g(b)(2). The applicant may appeal a denial of a temporary or permanent permit or certificate to the Board of Firearms Permit Examiners. See Conn. Gen. Stat. § 29-32b(b).

Executive Order No. 7E and the suspension of fingerprinting

On March 10, 2020, Governor Lamont declared a public health emergency in light of the COVID-19 pandemic. Doc. #58-1 at 1. The Governor declared that the emergency "shall remain in effect through September 9th, 2020, unless terminated earlier by me." Ibid. The Governor's declaration invokes his statutory authority under Conn. Gen. Stat. § 19a-131a and Conn. Gen. Stat. § 28-9. Among the powers of the Governor under section 28-9 is to "modify or suspend in whole or in part, by order as hereinafter provided, any statute ... whenever the Governor finds such statute ... is in conflict with the efficient and expeditious execution of civil preparedness functions or the protection of the public health." Conn. Gen. Stat. § 28-9(b)(1).

The Governor has since issued dozens of executive orders setting forth protective measures to reduce the threat to Connecticut from COVID-19.² As relevant here, the Governor issued Executive Order No. 7E on March 17, 2020. Doc. #58-4. Among other things, Executive Order No. 7E suspends the requirement of Conn. Gen. Stat. § 29-17c(a) that local and state police employees may not refuse to collect fingerprints for background checks. The Governor's order leaves it to the "discretion" of these officials whether to "limit or eliminate fingerprinting hours to limit the transmission of COVID-19 or focus resources on critical public safety needs." Ct. Exec. Order No. 7E (March 17, 2020), available at Doc. #58-4 (emphasis added).³

The order further states that it "shall take effect immediately and shall remain in effect for the duration of the public health and civil preparedness emergency, unless earlier modified by me." Ibid.

On the same day that the Governor issued Executive Order No. 7E, DESPP Commissioner James Rovella issued a memorandum to the public advising that "[i]n accordance with Governor Lamont's Executive Order No. 7E, I hereby order a suspension of all fingerprinting services at DESPP Headquarters in Middletown and all State Police Barracks pursuant to Section 27-17c(a) for up to ninety (90) days." Doc. #58-3 at 1; see also Doc. #58-2 at 1 (Connecticut State Police posting on Facebook stating that "all criminal background fingerprinting at State Police Troops and Headquarters will be suspended" and that "[b]ased upon close face to face contact, the suspension of services is intended to limit the transmission of COVID-19").

In addition to suspending...