1

1 No. CV07-4015984 : STATE OF CONNECTICUT

2 EDWARD A. PERUTA : SUPERIOR COURT

3 V. : JUDICIAL DISTRICT OF

4 CONNECTICUT DEPARTMENT : NEW BRITAIN AT NEW BRITAIN

5 OF PUBLIC SAFETY, et al : March 12, 2009

6 _________________________:

8 B E F O R E:

9 The Honorable Henry S. Cohn, Judge

11 A P P E A R A N C E S:

12 On behalf of the Plaintiff:

13 Rachel M. Baird

14 379 Prospect Street

15 Torrington, CT 06790

16 BY: Rachel Baird, Esquire

17 On behalf of the Defendant:

18 Attorney General - Public Safety

19 110 Sherman Street

20 Hartford, CT 06106

21 BY: Matthew Beizer, AAG

24 DONNA L. PELUSO

25 COURT REPORTER/MONITOR

1 (In open court).

2 THE COURT: Good morning, everyone. Let's see. Are

3 you on your own? Is your client here?

4 MS. BAIRD: No, my client is not present. He's in

5 California, Your Honor.

6 THE COURT: Oh, okay. All right. May I have your

7 name, please?

8 MR. BEIZER: Matthew Beizer, Assistant Attorney General

9 on behalf of the respondent.

10 MS. BAIRD: And Rachel Baird, on behalf of Edward

11 Peruta.

12 THE COURT: Okay. I wanted to ask you a question, Ms.

13 Baird. You brought your case under -- it's the declaratory

14 judgment statute, which is 52-29.

15 MS. BAIRD: Yes.

16 THE COURT: But since it involves an administrative

17 agency, most likely 4-180 -- 176 also applies, which

18 requires you to ask for a declaratory ruling.

19 And I noticed that in your complaint, I think it's

20 paragraph 18, was it? You alleged that you did that. But

21 none of that is attached, and I wondered if you brought that

22 with you today?

23 MS. BAIRD: I did not bring that with me today, Your

24 Honor.

25 THE COURT: Can you describe what happened? Because I

26 think there are cases that say -- I know you only alleged

27 52-29, but I'm pretty convinced that in this kind of

1 situation where an agency is involved you have to start with

2 4-176.

3 Now you did say you did, but I think it's important to

4 see exactly what it is that you asked and what exactly it is

5 that the agency replied, if they did reply. Can you do that

6 from your memory?

7 MS. BAIRD: This is what occurred: My client pro se

8 requested declaratory judgment regarding these issues.

9 THE COURT: Okay. But just let's step back then. Did

10 he put that in writing or was it oral or how did it take

11 place?

12 MS. BAIRD: Both. He put it in writing, and then he

13 attended a Board of Firearms Permit Examiners meeting --

14 THE COURT: Okay.

15 MS. BAIRD: -- and he stated it orally.

16 THE COURT: And you don't have with you today the

17 document --

18 MS. BAIRD: I believe that --

19 THE COURT: -- that was the writing?

20 MS. BAIRD: I believe that I could get it.

21 THE COURT: How soon would it take you to get it?

22 MS. BAIRD: Probably about 45 minutes maybe less. I

23 could call my client in California; I could go to the

24 Court's Operations Services Center downstairs, and we could

25 arrange for him to fax it. Or I could get my laptop from my

26 car, bring it in and he could e-mail it to me.

27 THE COURT: Mr. Beizer, do you have a copy of it?

1 MR. BEIZER: I do not have a copy. And what's an

2 important point, I think on this issue is that the request

3 was made or whatever was made for a declaratory ruling or

4 judgment was made to Board of Firearms Permit Examiners and

5 not to the Public Safety.

6 It's our position that any request to be properly made

7 would have had to be made to the Department of Public Safety

8 it should be made to the Department of Public Safety. The

9 Board of Firearms has very, very limited jurisdiction. In

10 fact, if you look at their six or eight claims that they

11 make in here, they're all directed to the Department of

12 Public Safety not to the Board of Firearms. So any

13 declaratory request --

14 THE COURT: Whose -- now that gets me to -- and both of

15 you can help me on this. If I understand it correctly, the

16 issue here is that in a statute your contention is that it's

17 vague as to whether you have to conceal the firearm.

18 MS. BAIRD: Yes --

19 THE COURT: Is that right? While the -- which agency

20 has said that you cannot display it that it has to be

21 concealed?

22 MS. BAIRD: We allege that the Department of Public

23 Safety and then the POST Officer Training and Standards

24 Council, through its teaching of municipal police officers,

25 teaches that a weapon cannot be carried openly.

26 THE COURT: In other words, explain that to me. If I

27 legitimately have a permit, and I go to a gun shop and I buy

1 a pistol, does it apply to that? Is it a pistol? I mean I

2 can -- you see people carrying rifles and shotguns around

3 all the time, don't you?

4 MS. BAIRD: No, the statute in question 29-35 only

5 involves pistols or revolvers, and we --

6 THE COURT: What's the different between a pistol and a

7 revolver?

8 MS. BAIRD: The length of the barrel, I believe.

9 THE COURT: Okay. But these are smaller items.

10 Smaller items?

11 MS. BAIRD: Yes. Yes, smaller items.

12 THE COURT: And so in other words, your claim is that

13 under 29-35 Connecticut does not require, the statute does

14 not require concealment, but somehow in the enforcement from

15 DPS, the bottom line and what this other group is telling

16 the people they train and so forth and so on, is that they

17 must be concealed.

18 MS. BAIRD: Yes, and --

19 THE COURT: And so your issue is can they legitimately

20 -- in other words, can the agency require this when the

21 statutory authority for it is weak or nonexistent. Is that

22 basically your claim?

23 MS. BAIRD: Yes, Your Honor. And I should provide the

24 court notice that this matter is before the legislature as

25 we speak. It's Raised House Bill No. 64-57 --

26 THE COURT: 64-57?

27 MS. BAIRD: Oh, I'm sorry. Raised House Bill No. 6457.

1 THE COURT: Fifty-seven. And what does that do?

2 MS. BAIRD: It seeks to amend General Statutes 29-35.

3 THE COURT: Which is your statute?

4 MS. BAIRD: Yes.

5 THE COURT: To do what?

6 MS. BAIRD: To require concealment.

7 THE COURT: Oh, in other words, there is a pending

8 legislation that may perhaps add that to the statute?

9 MS. BAIRD: That was the Raised bill. Since then --

10 THE COURT: Okay.

11 MS. BAIRD: There has been a substitute bill --

12 THE COURT: Okay.

13 MS. BAIRD: -- I believe dated --

14 THE COURT: The same number?

15 MS. BAIRD: Yes. Substitute bill -- ah, here it is.

16 Substitute Bill No. 64-57.

17 THE COURT: Well, it's probably 6457.

18 MS. BAIRD: 6457 --

19 THE COURT: -- usually, they don't use dashes.

20 MS. BAIRD: Yes.

21 THE COURT: Yes.

22 MS. BAIRD: Which does not include, it drops that

23 proposed amendment, the 29-35.

24 THE COURT: Well, what are they -- what are they

25 accomplishing without having it in there?

26 MS. BAIRD: Oh, it's --

27 THE COURT: What's their purpose now?

1 MS. BAIRD: It's an act concerning the regulation of

2 firearms and the licensing of bail enforcement agents,

3 professional bondsmen and surety bail bond agents.

4 THE COURT: So as the bill reads now, it has nothing to

5 do with the issue?

6 MS. BAIRD: It has nothing to do with the issue.

7 THE COURT: Okay.

8 MS. BAIRD: And there was -- one of my arguments with

9 regard to the need for -- the need to go to an agency for

10 declaratory judgment to exhaust administrative remedies

11 first is that it would be futile because in the course of

12 submitting --

13 THE COURT: Well, let me ask you this. I didn't notice

14 that issue in your brief.

15 MS. BAIRD: Yes, but this is -- in the course of

16 raising House Bill No. 64-57, the commissioner has stated on

17 the record that Section 8 of the Bill, which would have

18 required concealment provides clarification and removes any

19 ambiguity in the statutes regarding the carrying of pistols.

20 So based on this February 24, 2009 statement of the

21 commissioner --

22 THE COURT: I don't know if we're ready for this case

23 yet. Because there's two things that you're telling me, No.

24 1, we've got to see just what the Board of Firearms was

25 asked; and, No. 2, you haven't really briefed the issue of

26 futility.

27 MS. BAIRD: Well, this just came up on February --

1 THE COURT: I know. But I'm saying that maybe we're

2 not quite there yet.

3 What do you think your client asked -- if your client

4 asked the Board of Firearms whether or not this statute

5 could be interpreted the way -- is that what he basically

6 did? Did he say it could be interpreted --

7 MS. BAIRD: Can you openly carry a firearm?

8 THE COURT: Right. And if they said: No, of course

9 not. We interpret 29 and 35 to say absolutely not, under no

10 circumstances. Is that enough to satisfy 4-176 when it's

11 the Department of Public Safety?

12 I mean can you -- I don't know what your contention is,

13 but suppose you asked the Department of Consumer Protection

14 or you asked the Library Board or something like that, and

15 they said: Well, you know, I guess the answer is that you

16 can't carry it. Does that satisfy the statute which says a

17 person may petition an agency for a declaratory ruling, the

18 validity of the any regulation or applicability of, you

19 know, some statute to its functions or something? What do

20 you say the law might be on that?

21 Can you, can you ask -- in other words, suppose it

22 turns out -- No. 1, you have to. Let's assume we get around

23 the futility issue. That's another thing, which is still

24 going to have to be briefed. But let's, lets say that you

25 must go to an agency and ask them a question. And you go to

26 the Board of Firearms, or you go to some other agency, you

27 go to the State Library or you go to Liquor Control or

1 something like that, and you ask them the question and they

2 say of course you do. That's what the statute says.

3 Have you exhausted? Or do you have to go to Public

4 Safety, because they're the guys that are the actual agency

5 that enforces this kind of thing?

6 MS. BAIRD: Well, I guess in this case that's quite a

7 burdensome requirement for, for the -- for the plaintiff to

8 do because not only is it the Department of Public Safety

9 that enforces criminal statutes in Connecticut, it's every

10 municipal police department that enforces them would we have

11 to go to each town and seek a declaratory judgment.

12 Certainly, even if the Commissioner of Public Safety says

13 one thing the -- each municipal police department doesn't

14 follow it. Whereas, the Board of Firearms and Permit

15 Examiners they, they were the proper agency to go to.

16 THE COURT: Why, why do you say that? That's what I'm

17 getting at.

18 MS. BAIRD: Because they -- because what happens when

19 your pistol, when -- when you're arrested, and usually it's

20 for breach of peace. What the police will argue when you're

21 openly carrying a pistol or revolver is that it's a breach

22 of peace because other people see you and become alarmed.

23 And when you are arrested for that, then you get your

24 pistol permit revoked, and then you go to the Board of

25 Firearms Permit Examiners --

26 THE COURT: So you say that they have some sufficient

27 connection to it?

1 MS. BAIRD: Yes.

2 THE COURT: It isn't like going to the Department of

3 Liquor Control, and -- it's something, it's an agency which

4 is intimately rated to the issue?

5 MS. BAIRD: No, the board -- yes. The Board of

6 Firearms would then sit some months later after you were

7 arrested and your permit was revoked, and they would decide

8 whether there was just and proper cause. And I'm talking

9 about General Statutes 29-32(b) that pertains to the Board

10 of Firearms --

11 THE COURT: (b) in parenthesis?

12 MS. BAIRD: Yes.

13 THE COURT: Okay. And they, they do have a function

14 that relates --

15 MS. BAIRD: Yes --

16 THE COURT: -- to this?

17 MS. BAIRD: -- they, they determine whether there was

18 just and proper cause for the action of revoking somebody's

19 pistol permit. And in cases where it's revoked because the

20 person was arrested for carrying it openly. Which, by the

21 way, has happened in Connecticut, and there, there is --

22 there is a federal case pending with regard to that.

23 THE COURT: With regard to what now?

24 MS. BAIRD: With regard to a person who was arrested

25 simply because --

26 THE COURT: All right. And where does that case stand?

27 MS. BAIRD: It went before the Board of Firearms Permit

1 Examiners. He was -- the Board determined that his pistol

2 permit should be returned.

3 THE COURT: Okay. All right. But --

4 MS. BAIRD: And so his permit was returned. The

5 federal case --

6 THE COURT: The federal case.

7 MS. BAIRD: That's on appeal to the second circuit.

8 THE COURT: What did that hold?

9 MS. BAIRD: Actually Judge Bryant dismissed it at its

10 pleading stage saying -- well, she dismissed it at its

11 pleading stage.

12 THE COURT: Was that a challenge again to something

13 similar to what you're challenging?

14 MS. BAIRD: Yes.

15 THE COURT: Oh, and she, and she -- was it a case you

16 had?

17 MS. BAIRD: Yes, and it was brought -- yes, it was

18 brought under the Fifth and Fourteenth Amendments to the

19 Constitution saying that when you get your permit revoked

20 you have to wait 20 months to have a hearing before the

21 Board and --

22 THE COURT: So you were --

23 MS. BAIRD: -- that's a violation of due process.

24 THE COURT: -- doing it more on a procedural?

25 MS. BAIRD: Yes. Yes.

26 THE COURT: And when Judge Bryant dismissed it, you

27 took an appeal to the second circuit?

1 MS. BAIRD: Yes. And that case did not involve this

2 particular issue of the openly carrying statute.

3 THE COURT: So it wasn't openly carrying.

4 MS. BAIRD: Well, that --

5 THE COURT: It's more of a procedure: the 20 days and

6 things of that -- 20 months rather --

7 MS. BAIRD: Right.

8 THE COURT: -- and things of that nature.

9 MS. BAIRD: Right. The original arrest involved opened

10 carrying.

11 THE COURT: Okay. But, and --

12 MS. BAIRD: And the issue became --

13 THE COURT: -- and where does the second circuit case

14 stand at this point?

15 MS. BAIRD: There are two tandem cases, and a brief was

16 filed last week in one of them. And the brief for Goldberg

17 is due next week, March 15.

18 THE COURT: All right. We know that at least it could

19 be argued that -- well, do you know if your client, when he

20 made this written motion to the Board of Firearms, said

21 specifically do I have the right under the statute to -- did

22 he, do you think he asked the specific question that's

23 before us?

24 MS. BAIRD: I'm very sure it was something very close

25 to that, yes. I can't imagine --

26 THE COURT: So it was a close question. It wasn't

27 something where he was on the wrong tangent or something?

1 MS. BAIRD: No.

2 THE COURT: Close to issue. So a state agency, it's

3 your position that a state agency, which has some authority

4 related to the revocation of the permit end, to this open

5 issue, was asked the question. And the agency replied how?

6 Do you recall?

7 MS. BAIRD: It did not reply.

8 THE COURT: Oh, it didn't reply.

9 MS. BAIRD: No.

10 THE COURT: Okay. Well, that -- if it didn't reply,

11 then under, I believe it's 4-175 that would give you the

12 right to bring a declaratory judgment action.

13 MS. BAIRD: Yes.

14 THE COURT: All right. Okay. Well, in any event,

15 that's one issue. And then, of course, you're also making a

16 further issue that it would be futile to make the claim?

17 MS. BAIRD: Yes, I mean, I mean based on, it's almost

18 -- I was, I was thinking this morning driving here it's

19 almost, assuming we get past the motion to dismiss ripe for

20 summary judgment, given what's going on in the legislature

21 because, of course, under our laws criminal statutes have a

22 strict construction. And if you have a commissioner saying

23 the statute is ambiguous, then -- then that is an admission

24 that 29-35 doesn't require concealment.

25 THE COURT: Now the next question, which gets into the

26 other aspect, which Mr. Beizer raises is you say that your

27 client has been told that if he carries this -- if he

1 doesn't conceal the weapon, then what, what happens? What

2 happens to him if he doesn't and what? If the police see

3 him, he's subject to something like a breach of peace?

4 MS. BAIRD: Well, he'll be arrested, yes.

5 THE COURT: All right. Probably breach of peace?

6 MS. BAIRD: Right. That's, that's the usual -- that's

7 the usual charge, yes.

8 THE COURT: And in addition, he has to go before the

9 Board of Firearms. Right?

10 MS. BAIRD: Yes.

11 THE COURT: And he attended a meeting and they told him

12 that?

13 MS. BAIRD: At the Board of Firearms?

14 THE COURT: Yes.

15 MS. BAIRD: No, actually, we have e-mails from --

16 THE COURT: Oh.

17 MS. BAIRD: -- the -- well, I should say one particular

18 e-mail from the Special Licensing Firearm Unit --

19 THE COURT: Is that part of the Board of Firearms?

20 MS. BAIRD: No, that's part of the Department of Public

21 Safety. That's this -- that's the unit that is tasked with

22 enforcing the firearms statutes in Connecticut. They,

23 they're the ones that revoke pistol permits. They issue

24 them. They deny them.

25 THE COURT: What do they say?

26 MS. BAIRD: We, we have --

27 THE COURT: How does that relate to the Board of

1 Firearms? I thought they were the ones that called you in

2 if you got arrested.

3 MS. BAIRD: No. No. No, what happens is let's say

4 you're arrested by a municipal police department for breach

5 the peace because you're carrying your pistol openly. What,

6 what that department will do is it will confiscate your

7 pistol permit if you have it on you. Which you should,

8 because you have to if you're carrying your pistol. And

9 they'll send it to the Department of Public Safety the

10 Special Licensing Firearms Unit.

11 You'll then get a letter maybe five days later saying:

12 due to your arrest, we are officially revoking your pistol

13 permit. You have 90 days to request a hearing before the

14 Board of Firearms Permit Examiners. And so within 90 days,

15 you then contact the Board of Firearms Permit Examiners,

16 request a hearing. And then maybe, you know, a week or two

17 later, you'll get a date some 20 months in the future to

18 have a hearing.

19 THE COURT: So his letter, it's written, the item went

20 the Board of Firearms Hearing Examiners? Is that where Mr.

21 Peruta sent his inquiry?

22 MS. BAIRD: Yes.

23 THE COURT: In writing?

24 MS. BAIRD: Yes.

25 THE COURT: Okay. But your e-mail is from the Special

26 Licensing Unit of the Public, of Public Safety?

27 MS. BAIRD: Right. But I --

1 THE COURT: And what does that say?

2 MS. BAIRD: I was responding to your question about why

3 he thought he might be arrested or who had told him he might

4 be arrested.

5 THE COURT: Okay. And did they tell him he might be

6 arrested?

7 MS. BAIRD: Basically, it said -- and I want to get the

8 e-mail, which I will be able to do off my laptop before I

9 represent exactly what it said. But basically it said you

10 have to conceal in Connecticut. It's not an open-carry

11 state.

12 THE COURT: Is there something else you want to say?

13 Well, actually, it's Mr. Beizer's motion to dismiss. We

14 probably should let him go ahead.

15 The only other thing I want to point out is this money

16 damages claim. You have a claim for money damages at the

17 end of your claim. And it says -- see, I think you're right

18 that if you have the right to bring a declaratory judgment

19 action, then one is okay as a claim for relief, prayer for

20 relief. And two is all right too. It's in the nature of a

21 declaratory judgment.

22 Three and four are your problems because three is

23 punitive damages. Punitive damages in Connecticut are the

24 same thing as attorney's fee. So it's really superfluous,

25 don't you agree? I mean you should have the right, if you

26 get your declaratory judgment in your favor, to ask

27 subsequently for attorney's fees and costs. But the

1 punitive damages would be the same thing as that anyway. So

2 I don't know why you need them there.

3 If it were a CUTPA case, you could get punitive damages

4 in addition, double, trouble that kind of thing. But with

5 the type of case you have here now, I just don't see why you

6 need it. You probably can't get any damages in the sense of

7 an injunctive type of thing. There's probably sovereign

8 immunity for it. The only thing you probably could get is

9 attorney's fees at some point after the case if you are

10 successful. So I just call that to your attention. I think

11 Mr. Beizer is right on that point. That you probably --

12 that sovereign immunity would bar the word punitive damages,

13 but you're going to get them anyway under attorney's fees if

14 your successful. So I don't know why you need them.

15 MS. BAIRD: I agree, Your Honor, with -- that is the

16 posture of the law.

17 THE COURT: All right. Well, we're --

18 MS. BAIRD: I guess my reason for throwing that in was

19 just in case a new case came out and changed it. Because I

20 know it has been an issue before the relationship. So as it

21 stands now, yes.

22 THE COURT: Okay. All right. Mr. Beizer, why

23 shouldn't this case be a declaratory judgment action? It's

24 specific to the issue of open. He's been told that it could

25 subject him to arrest or to losing his permit. It's not

26 just speculative. We want an answer. They're entitled to

27 -- how do they go about getting an answer to this question?

1 I mean they've -- all right. Of course, I can see what

2 you're saying that they've got to either have futility or

3 they've got to ask and maybe they didn't ask the right

4 place. But getting around that why shouldn't the case go

5 forward as a legitimate type of issue where a court decides

6 what the statute means and what the, what the commissioner

7 -- can the commissioner say this under the statute.

8 MR. BEIZER: I don't necessarily argue that it

9 shouldn't go forward as long as procedurally it's pursued in

10 the appropriate fashion, and it was not in this case. We're

11 talking about these e-mails and a request to a board that's

12 not an agency.

13 THE COURT: All right. So that's why I think may be we

14 need further -- because when I read your brief -- when I

15 read your brief, most of it is spent on what I'm talking

16 about here, the first part which says the plaintiff's claim

17 for declaratory judgment is nonjusticiable, and you cite

18 this Milford case and Nardini and things of that nature,

19 hypothetical injury.

20 Here they're pretty concrete on what their injury is.

21 They're walking around with a gun on their hip, and they're

22 being told you'll be arrested for breach of peace. I mean,

23 again, I don't know -- I agree with you completely maybe we

24 have a procedural flaw here, but the, but if they, if -- if

25 they've met the procedural steps, I think they might be

26 entitled to get an answer from a court as to whether

27 Connecticut is an open state or a concealed state.

1 MR. BEIZER: Well, I would -- again, I would think at

2 some point as long as they followed the proper procedure,

3 then this court would have jurisdiction. And they haven't

4 followed the proper procedure so --

5 THE COURT: All right. So tell me why they haven't

6 followed the proper procedure?

7 MR. BEIZER: Because, as the court said, 4-176 requires

8 that the person petition the agency not a board. And it

9 goes on to say on a matter within the jurisdiction of the

10 agency.

11 We don't have in front of us the request allegedly made

12 to this board, the Board of Firearms. I don't know what it

13 says or what the response was. But even if it was perfectly

14 done procedurally, it's the wrong entity. As Your Honor

15 said, you could submit a request to the Department of

16 Consumer Protection or some other agency. Their main

17 claim here is that you may be subject to arrest if you, if

18 you don't conceal your gun. The issue of arrest has to do

19 with the Department of Public Safety. And as counsel points

20 out, perhaps the POST Council, who instructs municipalities

21 how to enforce the criminal laws, has nothing to do with the

22 Board of Firearms Permit Examiners. They have a very, a

23 very limited jurisdiction after --

24 THE COURT: How about -- the claim is that I'm arrested

25 because I'm carrying the gun for breach of peace, and some

26 group sends it, probably the police in town, send it off to

27 this Special Firearms Unit of the Department of Public

1 Safety. And then that department gives notice to the permit

2 holder that they've got to make a protest to the Board of

3 Firearms Hearing Examiners, and that's where the request

4 came in. You don't think that's tied in enough?

5 MR. BEIZER: Absolutely not. Absolutely not. I mean

6 the issue they're raising and which may be a viable issue

7 down the road if they satisfy the jurisdictional

8 requirements, is the fact that you're arrested, that you may

9 be arrested for carrying non-concealed. That's the issue.

10 THE COURT: Now suppose -- all right. Let's get to the

11 other --

12 MR. BEIZER: The --

13 THE COURT: Oh, excuse me. Go ahead.

14 MR. BEIZER: Okay. Well, the permit is, it necessarily

15 flows -- the revocation of the permit may or may not flow

16 from arrest for any, any number of things. That's a whole

17 separate issue as to whether you lose your pistol permit or

18 not and whether you want to appeal to the Board.

19 If someone does not appeal to the Board on the

20 revocation of a permit, the Board is not even involved in --

21 THE COURT: Well, let's say -- now, just so we can play

22 this out.

23 Okay. I'm not in court. I know of the issue. I'm a

24 plaintiff and I want to have this issue come before the

25 court. And I say: Okay. I'm going to go to the Department

26 of Public Safety, and I'm going to ask them are we a state

27 where, which you must conceal or not. And they would send

1 it into the Department of Public Safety or would they have

2 to send it into the special licensing?

3 MR. BEIZER: You can send it to the Commissioner of the

4 Department of Public Safety.

5 THE COURT: Suppose they send it to the Special

6 Firearms Unit --

7 MR. BEIZER: That's ultimately, probably where the

8 request may or may not end up. I don't know the difference

9 to --

10 THE COURT: And then suppose they look at it, the

11 group, the agency looks at it, are they going to -- they're

12 going to, I suppose have to interpret the law? Is that what

13 their function would be? They'd sit down and look at what

14 the law says: X. And look and see what their own documents

15 had been saying as to whether it's concealed or not. And

16 they'd come up and they'd say, would they -- I mean are they

17 going to say in light of what's in all this legislative

18 history that we've been hearing about today; of course,

19 we're a counseled (transcription error should say concealed?) state. We've said that before or

20 something like that?

21 MR. BEIZER: Frankly, I don't know exactly what they,

22 what they would say. I don't know exactly what the question

23 that would be posed.

24 But the way the whole, this whole system is set up is

25 they're entitled to that first bite of the apple. And if

26 we're going to litigate the issue, it would seem a very

27 important first step procedurally to give them that bite of

1 the apple, to offer their interpretation of the statute.

2 THE COURT: And they -- and the fellow went to the

3 legislature and said don't put it in there, don't say that

4 we're a counseled (transcription error should say concealed?) state. And they dropped it from the

5 proposed law, the RAISED bill because they said, well, it

6 was just clarifying it anyway.

7 MR. BEIZER: Actually, I was just handed this by

8 Attorney Baird, but my reading of it, of this -- what I'm

9 reading right here: From substitute for Raised House Bill

10 6457. The last line of it says: And to require the

11 concealment of a pistol or revolver when carried upon the

12 person.

13 THE COURT: Is that the raised bill?

14 MR. BEIZER: Yeah.

15 THE COURT: Because she thought maybe subsequent to the

16 raised bill there was like an amended bill and, therefore,

17 it was dropped from the...

18 MR. BEIZER: Again, she just handed me all this stuff.

19 My reading of this is that it wasn't dropped, and that it is

20 part of the...

21 MS. BAIRD: I may be able to clarify. It was dropped.

22 I'm not sure what you're looking at, but it was section --

23 it was Section 8, and Section 8 of 50 -- and this was a

24 matter of public record. It's on the internet. Is Raised

25 House Bill No. 6457, and it, and it has been dropped.

26 MR. BEIZER: Well, I'm looking at Substitute for Raised

27 House Bill 6457, and I just read the line to the court. It

1 doesn't look like it has been dropped.

2 THE COURT: Well, maybe, maybe we have to have that

3 further --

4 MS. BAIRD: Oh, no. No. You know what he's looking

5 at. He's looking at the cover page that lists what the

6 original bill was. That's what he's looking at. Whenever

7 there's a -- whenever there's a raised bill, it will -- it

8 will review what it originally was, but then you have to go

9 and click on the pdf below it to see the progress of what

10 happens to it.

11 THE COURT: How do you -- how do you think just in

12 general it would cut? Suppose they you put it in the bill

13 or suppose they didn't put it in. If they put it in the

14 bill, that is to make it concealed, then you'd have to talk

15 about whether it was retroactive or not --

16 MR. BEIZER: Right.

17 THE COURT: -- or whether it was clarifying or what

18 have you.

19 MR. BEIZER: Right.

20 THE COURT: If they didn't put it in, although they had

21 the opportunity to, maybe it means the legislature is aware

22 of the state's interpretation or something of that nature.

23 MR. BEIZER: That's our -- frankly, the judicial or the

24 legislative process is out of, out of my realm, and it has

25 -- frankly, it has nothing to do with this case.

26 THE COURT: Well, the case -- if they had already

27 passed it, maybe it would.

1 MR. BEIZER: Yeah. Oh, oh, sure.

2 THE COURT: If not -- if not, then it's just nothing

3 really at this point.

4 MR. BEIZER: Right.

5 THE COURT: But, all right. Well, what else did you

6 want to say, because I had some --

7 MR. BEIZER: I don't have anything to add unless the

8 court has specific questions.

9 THE COURT: Well, the only thing I'm thinking of is

10 that I think we ought to give Ms. Baird the opportunity to

11 provide these documents that she's talking about. I think I

12 should at least look at them. The e-mails that you're

13 talking about, the requests that your client made. I guess

14 there's no response?

15 MS. BAIRD: No.

16 THE COURT: And anything you can find out at the -- now

17 you have printouts from the internet?

18 MS. BAIRD: Yes, I could --

19 THE COURT: There is a further step you can take. If

20 you go to ct.gov, I believe it is and go on, click on

21 legislative. And you've got the bill number, you can go

22 there and there's -- the actual draft is there.

23 MS. BAIRD: I have those. I have those.

24 THE COURT: All right. But we can look and see -- and

25 you can even see what's happened in the last few days. I

26 would imagine there's a cutoff.

27 MS. BAIRD: No, I looked this morning, Your Honor. And

1 I --

2 THE COURT: All right. I'm just interested in --

3 MS. BAIRD: Yeah.

4 THE COURT: -- looking at the cutoff. It's probably

5 the end of this month.

6 MS. BAIRD: I have copies for the court, if you'd --

7 THE COURT: Oh, let's wait.

8 MS. BAIRD: Okay.

9 THE COURT: And you can submit them with all the other

10 things. When the last day for them to raise the bill.

11 Maybe it will die. Who knows. I mean they've got --

12 they've got to vote it out of committee at some time at the

13 end of the month probably.

14 MS. BAIRD: Well, in my interpretation, if the

15 legislature were to have passed the concealment amendment,

16 then this issue might be moot for this court.

17 THE COURT: It might be.

18 MS. BAIRD: Right.

19 THE COURT: Or it might mean that the current -- well,

20 it doesn't -- in effect until October 1st. So maybe it's

21 still opened before then. Who knows.

22 MS. BAIRD: But if they don't pass it, it definitely

23 leaves the issue open for the court --

24 THE COURT: It does.

25 MS. BAIRD: -- because the same ambiguity applies.

26 THE COURT: Well, how long is it going to take you to

27 get these materials that you're --

1 MS. BAIRD: If I could just respond to two quick

2 things?

3 THE COURT: Oh, certainly.

4 MS. BAIRD: -- to clarify? I include a Footnote 4 in

5 my memorandum. 4-166 subsection (1) defines agency as each

6 state board. So this Board of Firearms Permit Examiners is

7 an agency as defined by state statute.

8 THE COURT: There's no question about that. I think

9 Mr. Beizer is citing this particular validity of any

10 regulation or applicability of specific circumstances of a

11 provision of general statutes so forth and so on, on a

12 matter within the jurisdiction of the agency.

13 And so his claim is that this Board of Firearms, to

14 which the request was made in writing, doesn't have

15 jurisdiction over such issues.

16 MS. BAIRD: Okay. And --

17 THE COURT: I mean that's his claim. You're claiming,

18 as I understand it, they do have a remote or, you know,

19 somewhat -- not completely remote, but some --

20 MS. BAIRD: And they also --

21 THE COURT: -- sufficiently --

22 MS. BAIRD: -- have regulations.

23 THE COURT: -- close connection to it. Therefore,

24 you've asked the right group, and they didn't respond. But,

25 well, that's, that's why I have to see the e-mail.

26 MS. BAIRD: And also with regard to what would DPS say

27 if we had asked them. At these Board of Firearms Permit

1 Examiners Hearing, the person who is contesting the

2 revocation of their pistol permit, goes before the board.

3 And the other side is the Department of Public Safety.

4 That's their attorney representing them there.

5 And so with regard to these cases, the Department of

6 Public Safety is on record as opposing appeals of people who

7 have had their pistol permits revoked for openly carrying,

8 for being arrested for openly carrying. So they're a party

9 to the action before the Board of Firearms Permit Examiners.

10 THE COURT: Although, they may not -- but they may be

11 entitled to have this unit that we were talking about, the

12 Special Licensing Unit have a chance at making their comment

13 and if you didn't make it to them. But that's something

14 I'll have to consider.

15 So how much time -- do you need a couple weeks to pull

16 it together? I think I'm going to go, let -- if you want to

17 make an argument based on futility, I'll let you --

18 MS. BAIRD: Thank you.

19 THE COURT: -- write that up too. Of course, Mr.

20 Beizer is going to have an opportunity to reply to that.

21 So that might delay things. I don't know. If you want

22 to put together something which should deal with the

23 futility of asking, in any event. And then provide the

24 court with the e-mails, and your request to this Board of

25 Firearms, anything you know more about the legislation.

26 MS. BAIRD: Yes, Your Honor.

27 THE COURT: Pending legislation. So there are four

1 things you'd have to do. If you want me to list them

2 again --

3 MS. BAIRD: Yes, thank you.

4 THE COURT: You're going to give me the e-mails that

5 you say you received. Maybe e-mails going to. I don't

6 know. Any e-mails that relate to this issue between

7 Department of Public Safety and the response from Department

8 of Public Safety that your client sent out or you sent out

9 or they sent back to you. You know, it could be five of

10 them, it could be one. Whatever you want to -- you think is

11 relevant. You know, I'll leave it up to you to decide.

12 MS. BAIRD: Okay.

13 THE COURT: All right. Then you also said you

14 certainly do have the opportunity to get a request from the,

15 that your client made to the Board of Firearms. What did he

16 say in the request. The written requests what we're really

17 after. I suppose if you want to put an affidavit as to his

18 oral request, you could do that too if you want.

19 And then, finally, anything that you have on the

20 legislation, pending legislation, what -- if you have a copy

21 of the actual -- you can check maybe a couple weeks from now

22 too and get the actual text of what they're looking at, if

23 it even goes anywhere.

24 And then the final thing is the futility argument. If

25 you want to make an argument that to -- assuming you had to

26 go to Public Safety, that it would be futile to do so. And

27 then we're going to give Mr. Beizer a chance to reply.

1 MS. BAIRD: Okay.

2 THE COURT: So how long is it going to take you to pull

3 those things together?

4 MS. BAIRD: If I could have two weeks. I do have that

5 brief I was referring to due next week. So if I could have

6 two.

7 THE COURT: Okay. So today is the 12th. Right?

8 MS. BAIRD: Yes.

9 THE COURT: Do you want to make it April 1st?

10 MS. BAIRD: Okay. Thank you.

11 THE COURT: April 1st. And then how long do you think

12 you'll need?

13 What you're doing is -- well I, suppose you're

14 commenting on these documents that you're going to get, as

15 well as maybe replying to the futility argument. Do you

16 need like until April 15th, something like that?

17 MR. BEIZER: Sure.

18 THE COURT: Okay. All right. Good. Okay. Then we'll

19 look into it further. All right. Thank you.

20 Mr. BEIZER: Thank you for your time, Your Honor.

21 (Recess.)

5 C E R T I F I C A T E

7 I hereby certify that the foregoing is, to the best of

8 my ability, a true and accurate phonetic transcription of the

9 hearing held on March 12, 2009, before The Honorable Henry S.

10 Cohn, Judge.

15 _______________________________

16 Donna L. Peluso

17 COURT REPORTER/MONITOR