Stratford Police Dept. v. Bd. of Firearms Permit Exam'rs

• Decision Date: 26 April 2022
• Docket Number: SC 20580
• Parties: STRATFORD POLICE DEPARTMENT v. BOARD OF FIREARMS PERMIT EXAMINERS ET AL.
• Court: Connecticut Supreme Court

STRATFORD POLICE DEPARTMENT
v.
BOARD OF FIREARMS PERMIT EXAMINERS ET AL.

No. SC 20580

Supreme Court of Connecticut

April 26, 2022

Argued December 16, 2021.

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Procedural History

Appeal from the decision of the named defendant ordering the issuance of a temporary pistol permit to the defendant Anthony Leo, brought to the Superior Court in the judicial district of Fairfield and transferred to the judicial district of New Britain, Tax and Administrative Appeals Session, where the case was tried to the court, Cordani, J.; judgment for the plaintiff, from which the defendant Anthony Leo appealed. Reversed; judgment directed.

C. Christian Young, for the appellant (defendant Anthony Leo).

Alfred P. Bruno, for the appellee (plaintiff).

Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.

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OPINION

McDONALD, J.

General Statutes § 29-28 (b) prohibits the issuance of a permit to carry a pistol or revolver if the applicant has been convicted of a felony or certain enumerated offenses under the Connecticut General Statutes but contains no language prohibiting the issuance of a permit on the basis of out-of-state, nonfelony convictions. See General Statutes § 29-28 (b) (2). The applicant in the present case had been convicted in New York of a misdemeanor crime that, had it been committed in Connecticut, would have been among the enumerated offenses precluding him from obtaining a permit. In this appeal, we must decide whether § 29-28 (b) prohibits the issuance of a permit for a pistol or a revolver to an applicant under these circumstances. In light of the fact that the legislature has previously used explicit language in other Connecticut statutes to incorporate equivalent out-of-state convictions, we conclude that the absence of such language in § 29-28 (b) (2) (B) indicates that the legislature intended only for the enumerated Connecticut offenses to operate as a per se bar to obtaining a state pistol permit.

The defendant Anthony Leo, ^[1] appeals from the judgment of the trial court, which reversed the decision of the named defendant, the Board of Firearms Permit Examiners, ordering the issuance of a pistol permit to the defendant. On appeal, the defendant claims that the trial court erroneously read § 29-28 (b) (2) (B) to include extraterritorial misdemeanor convictions, in contravention of the statute's clear language and enumeration of specific offenses that constitute a per se bar to obtaining a pistol permit in Connecticut. The defendant also claims that the trial court improperly substituted its own judgment for the board's judgment when it overturned the board's determination that the defendant was of suitable character to obtain a pistol permit. We agree with the defendant and, accordingly, reverse the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. In 2016 or 2017, the defendant applied for a state pistol permit. The plaintiff, the Stratford Police Department, denied the defendant's application on the basis of his conviction of criminal possession of a controlled substance, ketamine, ten years prior, in New York.^[2] Specifically, the police department concluded that the "New York charge for criminal possession of ketamine is equivalent to [the] Connecticut charge of [General Statutes §] 21a-279 (c), possession of [a] controlled substance." Pursuant to § 29-28 (b), "[n]o state or temporary state permit to carry a pistol or revolver shall be issued under this subsection if the applicant ... (2) has been convicted of (A) a felony, or (B) on or after October 1, 1994, a violation of section 21a-279 . . . ." (Emphasis added.) Thus, according to the police department, the defendant's conviction for

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possession of ketamine in New York was an automatic disqualifier for a pistol permit in Connecticut. The defendant timely appealed from this denial to the board pursuant to General Statutes § 29-32b.

In 2018, the board held an administrative hearing, in which it considered the defendant's appeal de novo. Detective Michael Panton, on behalf of the police department, reiterated the department's position that the defendant was automatically disqualified from receiving a pistol permit in Connecticut based on his New York conviction. A member of the board informed Detective Panton that the defendant's New York conviction "is not an automatic disqualifier in Connecticut. . . . [F]or it to be an automatic disqualifier [in Connecticut], it has to be the exact statute number. Even though it may be an equivalent charge in another state, it's not an automatic disqualifier in Connecticut unless it's a felony." Detective Panton represented that he was "not aware of that." The chairman of the board went on to add: "We're restricted to the specific expressed language of the statute, and the language of the statute does not say if you committed one of these misdemeanors or [its] equivalent . . . and specifically identifies Connecticut penal code sections. So, we're restricted to those being automatic disqualifiers."

The police department then changed its position and argued, instead, that, although not a per se bar, the defendant's New York conviction rendered him unsuitable to receive the permit under § 29-28 (b). As a result, the police department argued, the defendant did not satisfy this separate statutory requirement, and, therefore, the board should still decline to order the issuance of the permit. See General Statutes § 29-28 (b). The only evidence the police department relied on to establish that the defendant was unsuitable for the permit was his prior New York conviction. The board proceeded to question the defendant regarding his suitability. Board members asked questions about the circumstances surrounding the defendant's arrest and subsequent conviction in New York, the defendant's history of ketamine use, and the defendant's use of other drugs and alcohol. The board also questioned the defendant regarding the answers he provided in his appellant questionnaire.^[3]The police department had the opportunity to cross-examine the defendant. Ultimately, at the close of the hearing, the board, having rejected the police department's interpretation of § 29-28 (b) (2) (B) and having concluded that the defendant was suitable to receive the permit, reversed the police department's decision and ordered the issuance of a pistol permit to the defendant.

Pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., the police department appealed from the board's decision to the trial court, which, following a hearing, rendered

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judgment sustaining the police department's appeal. Ultimately, the trial court rejected the board's interpretation of § 29-28 (b), concluding that "§ 29-28 (b) (2) (B) prohibits the issuance of a pistol permit to a person convicted of possession of controlled substances as provided for under § 21a-279 and equivalents thereof." (Emphasis added.) The trial court also held that "the board abused its discretion in finding that [the defendant] was suitable to receive a Connecticut pistol permit . . . ." The court specifically faulted the board for its failure to consider certain "factors," including "the legislative intent, the danger posed by providing pistol permits to persons known to abuse controlled substances, and the inappropriate differentiation between similarly situated applicants." The defendant appealed from the judgment of the trial court to the Appellate Court, and the appeal was thereafter transferred to this court.

On appeal to this court, the defendant argues that the trial court improperly wrote an "equivalency test" into § 29-28 (b) (2) (B), requiring the issuing authority to compare any out-of-state misdemeanor to the automatic disqualifiers enumerated in the statute. The defendant argues that the plain and unambiguous language of § 29-28 (b) (2) (B) and the legislature's failure to include out-of-state equivalency language in the statute, when it has done so in other statutes, demonstrate that the legislature did not intend for out-of-state misdemeanor convictions to constitute a per se bar to the issuance of a pistol permit. Thus, the defendant contends, pursuant to § 29-28 (b) (2) (B), his misdemeanor conviction in New York is not a per se bar to obtaining a pistol permit in Connecticut. The defendant also contends that the trial court improperly substituted its judgment for that of the board in determining that the defendant was unsuitable to obtain his pistol permit under § 29-28 (b).

The police department argues that the trial court properly rejected the board's interpretation of § 29-28 (b) (2) (B) as precluding only those persons convicted of the offenses enumerated in the statute, and not their out-of-state equivalents, from obtaining a pistol permit in Connecticut. The police department argues that, "[w]hen read in context ... § 29-28 (b) is decidedly not plain and unambiguous . . . but instead requires a fair and reasonable interpretation that avoids absurd and unworkable results." (Internal quotation marks omitted.) The defendant's interpretation, according to the police department, would lead to bizarre and unworkable results, as it would create "two classes of defendants with regard to the issuance of a state permit for the carrying of a pistol or revolver," namely, "those with out-of-state convictions and those with in-state convictions." The police department further argues that the trial court correctly concluded that the board abused its discretion in determining that the defendant

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was suitable to receive a Connecticut pistol permit, as "[i]t is clear from the hearing transcript that the defendant should not be entrusted with a weapon . . . ." We agree with the defendant and reverse the judgment of the trial court.

I

We begin with the defendant's claim that the trial court erroneously interpreted §...