Opinion
HHBCV166032798S
10-27-2016
Gaetano Bramato v. Board of Firearms Permit Examiners et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Carl J. Schuman, Judge
The plaintiff, Gaetano Bramato, appeals from the final decision of the defendant board of firearms permit examiners (board) affirming the decision of the defendant Middletown Police Department (Middletown) denying him a firearms permit. For the following reasons, the court affirms the board's decision and dismisses the appeal.
The board of firearms permit examiners is an agency within the office of governmental accountability. See General Statutes § 29-32b(a).
I
The procedural history of the case is undisputed. The plaintiff was arrested as a result of an incident in Berlin in November 2012. The charges were nolled in January 2013. The plaintiff applied for a pistol permit in Middletown in March 2014. The Middletown police chief denied the application in a letter dated September 10, 2014.
The plaintiff in the meantime had filed an appeal with the board on the ground that Middletown had constructively denied his application by not acting on it in a timely fashion. In his appeal application, the plaintiff indicated that he had no arrest history or history of motor vehicle charges. There is no dispute that this information was legally accurate.
As mentioned below, records of the November 2012 arrest have become erased. General Statutes § 54-142a(e)(3) provides: " Any person who shall have been the subject of such an erasure shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath." There is no dispute that the plaintiff has no other arrest history.
The board conducted a hearing on October 23, 2014. At the hearing, the board heard and received evidence based on various written police reports of the November 2012 incident. At the conclusion of the hearing, the five board members present voted unanimously to affirm Middletown's decision to deny a permit.
Three members of the board were not present.
The plaintiff appealed to this court. After a hearing, the court held that the " police and court records" pertaining to the November 2012 incident had become erased because of the subsequent nolle pursuant to General Statutes § 54-142a(c)(1); that the police reports from the incident constituted " police records" pursuant to the same statute; and that the board had erroneously relied upon these reports. The court accordingly sustained the plaintiff's appeal, reversed the board's decision, and remanded the matter to the board for a new hearing. See Bramato v. Bd. of Firearms Permit Examiners, No. HHB CV14 6027600S, 2015 WL 12602113 (Conn.Super.Ct. June 9, 2015).
Section 54-142a(c)(1) provides as follows: " [w]henever any charge in a criminal case has been nolled in the Superior Court, or in the Court of Common Pleas, if at least thirteen months have elapsed since such nolle, all police and court records and records of the state's or prosecuting attorney or the prosecuting grand juror pertaining to such charge shall be erased . . ."
The board conducted new hearings on January 14, 2016 and March 3, 2016. At the conclusion of the second hearing, the board orally voted 4-2 to affirm Middletown's decision denying a permit. The board did not issue a memorandum of decision. The plaintiff again appeals to this court.
II
Under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., judicial review of an agency decision is " very restricted." (Internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136-37, 778 A.2d 7 (2001). Section 4-183(j) of the General Statutes provides as follows: " The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
Stated differently, " [r]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . Neither [the appellate] court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Okeke v. Commissioner of Public Health, 304 Conn. 317, 324, 39 A.3d 1095 (2012). " It is fundamental that a plaintiff has the burden of proving that the [agency], on the facts before [it], acted contrary to law and in abuse of [its] discretion." (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).
III
The court first examines the statutory scheme. On an appeal to the board from a decision of a local police authority refusing to issue a firearms permit, the board " shall inquire into and determine the facts, de novo, and unless it finds that such a refusal . . . would be for just and proper cause, it shall order such permit or certificate to be issued . . ." General Statutes § 29-32b(b). Although the statutes do not define " just and proper cause, " General Statutes § 29-28(b) does provide that the local chief of police may issue a temporary state permit to any person " having a bona fide residence or place of business" in the state, " provided such authority shall find that such applicant intends to make no use of any pistol or revolver which such applicant may be permitted to carry under such permit other than a lawful use and that such person is a suitable person to receive such a permit." The remainder of the statutory subsection lists certain training requirements as well as ten specific disqualifying events such as conviction of a felony or certain misdemeanors.
Not later than sixty days after issuance of a temporary permit by the local authority, the " commissioner [of emergency services and public protection] may then issue, to any holder of any temporary state permit, a state permit to carry a pistol or revolver within the state." General Statutes § 29-28(b).
In pertinent part, § 29-28(b) provides: " Upon the application of any person having a bona fide permanent residence within the jurisdiction of any such authority, such chief of police, warden or selectman may issue a temporary state permit to such person to carry a pistol or revolver within the state, provided such authority shall find that such applicant intends to make no use of any pistol or revolver which such applicant may be permitted to carry under such permit other than a lawful use and that such person is a suitable person to receive such permit. No state or temporary state permit to carry a pistol or revolver shall be issued under this subsection if the applicant (1) has failed to successfully complete a course approved by the Commissioner of Emergency Services and Public Protection in the safety and use of pistols and revolvers including, but not limited to, a safety or training course in the use of pistols and revolvers available to the public offered by a law enforcement agency, a private or public educational institution or a firearms training school, utilizing instructors certified by the National Rifle Association or the Department of Energy and Environmental Protection and a safety or training course in the use of pistols or revolvers conducted by an instructor certified by the state or the National Rifle Association, (2) has been convicted of (A) a felony, or (B) on or after October 1, 1994, a violation of subsection (c) of section 21a-279 or section 53a-58, 53a-61, 53a-61a, 53a-62, 53a-63, 53a-96, 53a-175, 53a-176, 53a-178 or 53a-181d, (3) has been convicted as delinquent for the commission of a serious juvenile offense, as defined in section 46b-120, (4) has been discharged from custody within the preceding twenty years after having been found not guilty of a crime by reason of mental disease or defect pursuant to section 53a-13, (5)(A) has been confined in a hospital for persons with psychiatric disabilities, as defined in section 17a-495, within the preceding sixty months by order of a probate court, or (B) has been voluntarily admitted on or after October 1, 2013, to a hospital for persons with psychiatric disabilities, as defined in section 17a-495, within the preceding six months for care and treatment of a psychiatric disability and not solely for being an alcohol-dependent person or a drug-dependent person as those terms are defined in section 17a-680, (6) 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) is subject to a firearms seizure order issued pursuant to subsection (d) of section 29-38c after notice and hearing, (8) is prohibited from shipping, transporting, possessing or receiving a firearm pursuant to 18 U.S.C. 922(g)(4), (9) is an alien illegally or unlawfully in the United States, or (10) is less than twenty-one years of age."
Because there is no disagreement that the plaintiff is not disqualified under any of the ten specific disqualifying factors, Middletown's authority to deny a permit focuses on whether the plaintiff " [intended] to make no use of any pistol or revolver which such applicant may be permitted to carry under such permit other than a lawful use and that such person is a suitable person to receive such a permit." But because there is also no dispute in this case that the plaintiff did not use, or intend to use, a handgun for " other than a lawful use, " the focus of the case further reduces to the question of whether the plaintiff is " a suitable person to receive such a permit."
The statutes also fail to define " suitable." Our appellate courts have observed that the term reveals a " legislative intent to protect the safety of the general public from individuals whose conduct has shown them to be lacking the essential character or temperament necessary to be entrusted with a weapon." (Internal quotation marks omitted.) Dwyer v. Farrell, 193 Conn. 7, 12, 475 A.2d 257 (1984); Comm'r of Pub. Safety v. Bd. of Firearms Permit Examiners, 21 A.3d 847, 129 Conn.App. 414, 423, cert. denied, 302 Conn. 918, 27 A.3d 369 (2011).
IV
The plaintiff raises two issues on appeal. First, the plaintiff argues that the board again erroneously relied on the erased records to reach its conclusion. Second, the plaintiff contends that there is insufficient evidence to support the board's conclusion that the plaintiff is not a suitable person for a firearms permit.
On the first issue, the plaintiff focuses on the fact that one of the principal witnesses, Theodore Fuini, a Berlin police detective, testified at the 2016 hearing that, prior to his testimony at the 2014 hearing, he " probably looked . . . over" his police report on the November 2012 Berlin incident. (Supplemental Return of Record (Dkt. #120 (ROR)), Tab C, p. 52.) Because the court ruled that this report had become legally erased, the plaintiff contends that all of Fuini's testimony became " tainted" and the " fruit of the poisonous tree."
The plaintiff also cites testimony from the 2014 hearing in which Fuini stated that he would have to refer to his notes to confirm the date of the incident. That testimony, however, is not in the record of the present appeal. In addition, the plaintiff claims that Middletown learned the identity of the Berlin officers by relying on an erased police report, which report the plaintiff attached as Exhibit 6 to his brief. After the plaintiff filed his brief, however, the court granted the defendants' motion to strike Exhibit 6 from the plaintiff's brief (Dkt. #110.10) and denied the plaintiff's motion to add the report to the record. (Dkt. #155.10.) The court premised both rulings on the fact that the plaintiff did not attempt to introduce Exhibit 6 at the 2016 board hearings. Therefore, the plaintiff's reliance on these additional items is improper at this point.
There are several valid defenses to the plaintiff's first issue. First, the plaintiff did not plead it in his complaint. Instead, in the paragraphs labeled 19 (there are two), which contain the plaintiff's ultimate claims of error, the plaintiff specifically alleges only that the board erred in finding that the plaintiff was not a suitable candidate for a firearm permit. Because the court " is not permitted to decide issues outside of those raised in the pleadings . . ." (internal quotation marks omitted.) Russell v. Russell, 91 Conn.App. 619, 634, 882 A.2d 98, 109, cert. denied, 276 Conn. 924, 888 A.2d 92 (2005); the plaintiff's claim is not properly before the court.
The fact that the plaintiff's complaint includes the request that the court " grant such other relief as may be deemed equitable and appropriate" does not change the matter. This sort of boilerplate request is present in most complaints and thus, in itself, cannot negate the rule that a plaintiff must identify his principal claims in his complaint. Further, even if the plaintiff's catchall request for any relief available might excuse him from specifying a particular remedy, it does not provide any notice of what claims he has raised on the merits.
Second, there is no indication that the board relied, directly or indirectly, on any erased reports to reach its decision. By agreement of the parties, none of the police reports came into evidence. (ROR, Tab C, pp. 7, 22.) Further, Fuini stated that he was " testifying solely from [his] memory." When asked why he remembered the case, Fuini responded: " This is actually one of the first major cases I ever worked on so I was only [on] the job for a little over a year. I had been off FTO [field training] for probably a few months so it was my first really major case that I've been involved in so it's something that just kind of stuck with me through the years." (ROR, Tab C, pp. 46.) Such testimony does not violate the erasure statute, as the latter " was not intended to obliterate memory or to exclude any testimony not shown to have been derived from erased records." Rado v. Board of Education, 216 Conn. 541, 548-52, 583 A.2d 102 (1990). See id. (permitting testimony of prosecutor's inspector, among others); State v. Morowitz, 200 Conn. 440, 450-51, 512 A.2d 175 (1986) (permitting testimony of crime victim). Thus, the plaintiff has not established that the board improperly relied on any erased records.
Detective Fuini: " I am." (ROR, Tab C, p. 31.) Ms. Wisneski (counsel for Middletown): " Are you testifying solely from your memory?"
Finally, even without Fuini's testimony, there was ample, indisputably untainted evidence to support the board's decision that the plaintiff was not a suitable person for a firearms permit. This evidence came primarily from the civilian victim of the November 2012 incident, who testified without any reliance on police reports. The victim stated that she was in her home in the evening when the plaintiff, his mother, and his sister barged in uninvited through the back door. They were looking for the plaintiff's father, who was in fact present in the victim's home. The plaintiff's mother got in the victim's face and screamed " are you having an affair with my husband?" The mother and sister pushed the victim, pulled her hair, and punched her. They then grabbed her by her sweater and shoved her head first into the refrigerator. (ROR, Tab D, pp. 7-9.)
Meanwhile, according to the victim, the plaintiff screamed at his father. The plaintiff then shoved his father against the granite kitchen counter so hard that the seam of the counter cracked. When the father yelled that he was going to call the police, the three intruders pulled a mirror off the wall in the victim's dining room and crashed it, causing damage to a chair and the hardwood floor. According to the victim, the intruders caused more than $8,000 damage to her home. (ROR, Tab D, pp. 9-10, 14.)
The victim then heard screaming and crashing outside her home. She later observed that the car of the plaintiff's father had moved from the middle to the front of the driveway, that there was glass all over, and that the car was damaged. (ROR, Tab D, pp. 12-13.)
The plaintiff testified that he drove a Ford F-350 truck to the scene. Although the plaintiff testified that he was sorry for any role he played in the incident, he also denied physically attacking his father or damaging the victim's home and claimed that he did not know when someone damaged his father's car. (ROR, Tab D, pp. 58, 64, 73, 92-98.)
From this evidence, derived wholly from sources other than police records, the board could readily have found that the plaintiff was not a suitable person. Essentially, the evidence established that the plaintiff participated in a conspiracy to burglarize the victim's home, physically assault the victim and the plaintiff's father, and damage their property. Further, rather than show true remorse, the plaintiff remained in denial of responsibility for the incident. Given this compelling independent evidence, the board's conclusion that the plaintiff was not suitable was certainly a reasonable one, thus satisfying the standard of review on appeal. Okeke v. Commissioner of Public Health, supra, 304 Conn. 324. Accordingly, the plaintiff cannot show even assuming that Fuini's testimony was somehow tainted, that " substantial rights of the person appealing have been prejudiced" by the admission of Fuini's testimony. General Statutes § 4-183(j).
IV
The plaintiff's alternate claim is that the evidence was insufficient to support the board's conclusion that the plaintiff was not a suitable person. The discussion in the previous section has shown that the victim's personal recollections, combined with certain aspects of the plaintiff's testimony, supplied ample evidence for the board to conclude that the plaintiff was not suitable. In addition, the board had before it testimony from Fuini that the plaintiff, his mother, and his sister used a " find my iPhone app" to track the father's whereabouts to the victim's home in Berlin. Fuini also testified that there was front end damage to the plaintiff's Ford truck consistent with the damage to the father's vehicle. (ROR, Tab C, pp. 43-44, 48.)
Based on this evidence, one member of the board summarized the case in favor of denial of a permit as follows: " [T]here is overwhelming evidence that the appellant participated in this preplanned, premeditated violent home invasion and assault. The appellant still does not accept responsibility even though his counselor says he showed remorse here. I didn't--I didn't see any remorse. I saw a lot of I don't remember, I didn't see it, and a lot of denials. This goes way beyond any simple [lapse] of judgment that we routinely deny permits for. I think we're--everyone involved, it's very fortunate that a gun was not involved in this case and I don't think we should allow one to be involved in the next incident." (ROR, Tab D, p. 175.)
Based on the evidence, the board could reasonably and logically have agreed with this reasoning and found that the plaintiff's conduct has shown him " to be lacking the essential character or temperament necessary to be entrusted with a weapon." (Internal quotation marks omitted.) Dwyer v. Farrell, supra, 193 Conn. 12. Accordingly, the board's conclusion that the plaintiff was not suitable for a firearm meets the standard of review.
The board need not have placed any reliance on testimony from the Middletown police chief concerning the plaintiff's nightclub business.
V
The court affirms the board's decision and dismisses the appeal. It is so ordered.