Kuck v. Danaher

• Decision Date: 29 September 2011
• Docket Number: Civil Action No. 3:07cv1390(VLB).
• Citation: 822 F.Supp.2d 109
• Parties: M. Peter KUCK, Plaintiff, v. John A. DANAHER et al., Defendants.
• Court: U.S. District Court — District of Connecticut

822 F.Supp.2d 109

M. Peter KUCK, Plaintiff,

v.John A. DANAHER et al., Defendants.

Civil Action No. 3:07cv1390(VLB).

United States District Court, D. Connecticut.

Sept. 29, 2011.

Rachel M. Baird, Law Offices of Rachel M. Baird, Torrington, CT, for Plaintiff.

Clare E. Kindall, Attorney General's Office, New Britain, CT, Robert J. Deichert, Robert D. Snook, Attorney General's Office, Hartford, CT, for Defendants.

MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART DEFENDANTS' [Doc. # 70] and [Doc. # 86] MOTIONS TO DISMISS

VANESSA L. BRYANT, District Judge.

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; (iii) 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in count five; (iv) that Goldberg's right to free speech under the First Amendment was violated when his gun permit was revoked in retaliation for the exercise of his First Amendment rights in count six; and (v) that the seizure of Goldberg's gun permit was an illegal seizure of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.

Backgroundi. 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 Plaintiff's failure to submit a memorandum in opposition to the motion to dismiss under Local Rule 7(a)(1). Goldberg appealed the dismissal on November 3, 2001. On April 30, 2010, the Second Circuit vacated the Court's judgment and remanded the case back to the Court. On September 3, 2010, Goldberg filed an amended complaint which Defendants have moved to dismiss.

Kuck filed his original complaint on September 17, 2007 which the Court dismissed on July 25, 2008, 2008 WL 2902032. Kuck then appealed the dismissal to the Second Circuit. The Second Circuit vacated and remanded the Court's ruling on the motion to dismiss and held that at the motion to dismiss stage the plaintiff had plausibly pled that procedural due process was violated when his appeal hearing regarding the denial of his gun permit renewal before the Connecticut Board of Permit Examiners (the “Board”) was scheduled eighteen months after the denial. Kuck v. Danaher, 600 F.3d 159 (2d Cir.2010).

On September 3, 2010, Kuck filed an amended complaint, which Defendants have moved 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; ¹ (3) the applicant has been convicted as a delinquent for the commission of a serious juvenile offense; (4) the applicant has been discharged from custody within the preceding twenty years after having been found not guilty by reason of mental disease or defect; (5) the applicant has been confined in a hospital for persons with psychiatric disabilities within the preceding twelve months by order of a probate court; (6) the applicant is subject to a restraining or protective order issued by a court in a case involving the use, attempted use or threatened use of physical force against another person; (7) the applicant is subject to a firearms seizure order issue; (8) the applicant is prohibited by federal law from shipping, transporting, possessing or receiving a firearm; (9) the applicant is an illegal alien; and (10) the applicant is less than twenty-one years of age. Conn. Gen.Stat. § 29–28(b). In addition, before a temporary permit is issued, the local authority must find that the applicant intends to use the pistol or revolver for a lawful purpose and that the applicant is a “suitable person” to receive such a permit. Id. The statute does not define the term “suitable.”

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).² When an application is denied, the applicant has the right to appeal the denial to the Board of Firearm Permit Examiners (the “Board”). Conn. Gen.Stat. § 29–32b(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 misdemeanor 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. Gen.Stat. § 29–32b(b).

Conn. Gen.Stat. § 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 “[t]here shall be established a Board of Firearms Permit Examiners, within the Department of Public Safety for administrative purposes only.” See 2011 Conn. Legis. Serv. P.A. 11–48 (H.B.6651). Now the statute provides that “[t]here shall be established a Board of Firearms Permit Examiners, within Office of Governmental Accountability established under Section 58 of this act.” Conn. Gen.Stat. § 29–32b(a).

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...