Commissioner, Department of Public Safety v. Board of Firearms Permit Examiners et al

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Superior Court of Connecticut.

Commissioner, Department of Public Safety v. Board of Firearms Permit Examiners et al

HHBCV094021751

    Decided: July 13, 2010

Memorandum of Decision

The plaintiff, commissioner, department of public safety (commissioner), appeals from the final decision of the defendant board of firearms permit examiners (board) reversing the commissioner's revocation of a handgun permit issued to defendant Griffess McWhorter.   For the following reasons, the court affirms the board's action and dismisses the appeal.

I

The record reveals the following facts.  (Return of Record (ROR), Exhibit 11, Memorandum of Decision (Mem.) pp. l-4.) 1  McWhorter first received a firearms permit in 2003 and, until the events of this case, had never had his permit revoked or confiscated.   On August 12, 2007, Windsor police arrested McWhorter for operating a motor vehicle under the influence, carrying a firearm while under the influence, and illegal possession of a weapon in a motor vehicle.   The firearm was a .32 caliber handgun loaded with two .32 caliber bullets.2  McWhorter had the gun in his front pants pocket but did not use or display it in any manner.

On September 24, 2007, the commissioner revoked McWhorter's permit.   McWhorter appealed to the board.   While the appeal was pending, McWhorter successfully completed the pretrial alcohol education program;  General Statutes § 54-56g;  and the court dismissed all charges against him.

In its memorandum of decision on the appeal, the board found that McWhorter “did not display, brandish, or use the firearm in any manner while intoxicated.”   The board observed that McWhorter was responding to a family emergency in the middle of the night and that “he did not recognize that the Derringer was in his pant's front pocket until he was already driving to assist his son.”   It added that “McWhorter responded appropriately in alerting the officer to his possession of a firearm when he left his car, responded appropriately to the officer's commands and instructions at the scene, and was cooperative at the scene of the car stop.”   The board found that “[b]efore the date of his arrest, McWhorter [led] a law-abiding life, was married, and raised three children.”   The board observed that McWhorter appeared “contrite, sincere, candid, and apologetic.”   In conclusion, the board stated that “McWhorter's arrest on August 12, 2007 while possessing a firearm was a single, isolated incident and that, notwithstanding that arrest, McWhorter is a suitable person under Connecticut law to possess a firearms license.”   For those reasons, the board reversed the commissioner's decision to revoke the permit.  (Mem., pp. 6-7.)

The commissioner has appealed to this court.

II

Under the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., judicial review of an agency decision is very restricted.   See 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, “[j]udicial review 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.”  (Internal quotation marks omitted.)  Schallenkamp v. DelPonte, 229 Conn. 31, 40, 639 A.2d 1018 (1994).  “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 commissioner's principal argument on appeal is that the board's decision is contrary to the statutory scheme.   On an appeal to the board from a decision of a local authority or the commissioner to refuse to issue or renew a firearms permit, to limit a permit, or to revoke one, the statutes provide that the board “shall inquire into and determine the facts, de novo, and unless it finds that such a refusal, limitation or revocation, or such a refusal or failure to supply an application, as the case may be, would be for just and proper cause, it shall order such permit or certificate to be issued, renewed or restored, or the limitation removed or modified, as the case may be.”  General Statutes § 29-32b(b).  Logically, the determination of whether there is ‘lust and proper cause” in a revocation case focuses on the commissioner's statutory authority to revoke a permit in the first place.   Pursuant to General Statutes § 29-32(b), the commissioner may 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.”

The commissioner argues that, although McWhorter was not convicted of any charges, his revocation authority stems from the “occurrence of [an] 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.”   Under § 29-28(b), the commissioner may issue a 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.3

The commissioner contends that, notwithstanding the fact that McWhorter is not disqualified under any of the ten specific disqualifying factors, it could refuse to issue, and therefore could revoke, a permit because McWhorter used the pistol for “other than a lawful use” by carrying the pistol in a car when he was intoxicated.   The board responds that, given that McWhorter does not fit within the ten disqualifying factors, the commissioner could only refuse to issue a permit only if McWhorter were not “a suitable person to receive such a permit.”   The board's argument, however, overlooks the plain language of the statute.   Subsection (b) of Section 29-28 provides that the commissioner may issue a permit under certain conditions “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.”  (Emphasis added.)   The use of the word “and” puts the phrase in the conjunctive and means that both criteria must be satisfied.   See State v. Bell, 283 Conn. 748, 796, 931 A.2d 198 (2007).   The requirement that the permit applicant intend to make no use “other than a lawful use” of the firearm states an independent test-one that is not identical to conviction of a felony or any of the other specific disqualifying factors.   The “other than lawful use” test focuses directly on use of the firearm, whereas felony convictions or the other disqualifying status factors, while perhaps predictive of unlawful use, do not necessarily involve any actual use.   The “other than lawful use” test also gives the commissioner the important authority to deny a permit when he becomes aware of conduct that is relevant to handgun possession but did not result in a conviction or even an arrest.   Thus, the court agrees that the commissioner has the authority to deny, and thus to revoke, a permit when he finds that the applicant intends to make a “use of any pistol or revolver which such applicant may be permitted to carry under such permit other than a lawful use,” regardless of whether the commissioner could nonetheless deem the applicant a “suitable person.”  General Statutes § 29-28(b).

IV

The commissioner submits that McWhorter intended “other than lawful use” of the pistol because he was carrying a firearm while under the influence of alcohol, which is conduct that constitutes a class B misdemeanor under General Statutes § 53-206d(a).4  Section 53-206d(a) provides that “[n]o person shall carry a pistol, revolver, machine gun, shotgun, rifle or other firearm, which is loaded and from which a shot may be discharged, upon his person (A) while under the influence of intoxicating liquor or any drug, or both or (B) while the ratio of alcohol in the blood of such person that is ten-hundredths of one per cent or more of alcohol, by weight.”   The board found that McWhorter was carrying a loaded pistol and, at the time, the arresting officer reasonably believed that McWhorter was intoxicated.  (Mem., p. 4.) The board also found that, shortly after his arrest, McWhorter's blood alcohol content was .238, which substantially exceeds the state limit.  (Mem., p. 4.) Thus, most of the elements of the statute appear readily satisfied.5

The parties do not brief the question, however, of whether the record supplies proof of the remaining element that the pistol must be one “from which a shot may be discharged.”  General Statutes § 53-206d(a).   Although frequently the state in a criminal case satisfies the element of operability by test firing the gun;  see State v. Bradley, 39 Conn.App. 82, 91-92, 663 A.2d 1100 (1995), cert. denied, 236 Conn. 901, 670 A.2d 322 (1996);  the trier can also infer operability by circumstantial evidence.   See State v. Carpenter, 19 Conn.App. 48, 59-60, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989) (son asked mother to purchase bullets for gun.)   See also State v. Manley, 195 Conn. 567, 573-74 n.8, 489 A.2d 1024 (1985) (operability may be proven by eyewitness testimony without recovery and admission into evidence of weapon).   In the present case, McWhorter's gun was loaded with two bullets of the same .32 caliber.   However, it is unknown how long the bullets had been in the gun.   The gun could have been in a state of disrepair or it could have jammed upon firing.   In short, it would be speculative to conclude on this record that the gun was operable.   Accordingly, the commissioner has not established that McWhorter's use of the gun was in violation of § 53a-206d(a).

V

Relying on the language of § 29-28(b), the commissioner alternatively argues that McWhorter was not “a suitable person to receive such a permit.”   Initially, the commissioner contends that a person who carries a loaded pistol while operating a motor vehicle under the influence of alcohol is not a suitable person as a matter of law.   There is, to be sure, a strong argument that a person whose misconduct specifically relates to the use of his handgun necessarily is not a “suitable person” to have a handgun permit.6  On the other hand, the statute does not contain any definition of the phrase “suitable person.”   Nor have our appellate courts precisely defined the phrase “suitable person” under the firearms statutes.   Instead, they have held only generally that the purpose of the firearms permit statutes is to determine whether the applicant lacks “the essential character or temperament necessary to be entrusted with a weapon.”  Dwyer v. Farrell, 193 Conn. 7, 12, 475 A.2d 257 (1984).   Thus, while an applicant's improper use of a firearm is undoubtedly a factor to consider in the permit process, neither the legislature nor the appellate courts have made it a disqualifying factor as a matter of law.7

The commissioner contends that the board, in finding McWhorter a suitable person despite his carrying a firearm while under the influence, departed from a long line of its own precedents and therefore acted in an arbitrary and capricious manner.   The commissioner's authority for his contention, however, stems from cases from other state and federal jurisdictions.   See, e.g., Andrzejewski v. FAA, 563 F.3d 796, 799 (9th Cir.2009).   The Connecticut appellate courts have not yet adopted a rule requiring administrative agencies to follow their own prior decisions.   It is uncertain, at best, whether they would do so.   In many cases, an agency may not have the resources or ability to compare prior decisions.   See also General Statutes § 4-180a(b).8  Many administrative decisions are heavily fact-bound or dependent on first-hand observation of the witnesses, making comparison with prior cases especially difficult.   Further, an agency may have good reasons to change its course and depart from prior precedent.9  Thus, in the absence of a clear direction from our own appellate courts, the court is reluctant to adopt the rule proposed by the commissioner.

The remaining question, then, is simply whether the conclusion of suitability drawn by the board from the basic facts is a reasonable one.   See Schallenkamp v. DelPonte, supra, 229 Conn. 40.   Without question, the board could reasonably have found McWhorter unsuitable based on his disregard for the law and misuse of a firearm.   But the court cannot second guess the board, which heard the testimony and saw the witnesses.   See Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 593, 590 A.2d 447 (1991).   The board could reasonably have found that the incident was an isolated one, that McWhorter possessed the firearm somewhat unwittingly and not for any violent purpose, and that McWhorter was contrite and sincere.   For those reasons, the board could have found McWhorter a suitable person to regain a firearms permit.   The court cannot say that that conclusion was unreasonable either.10

VI

The plaintiff having failed to sustain its grounds for appeal, the appeal is dismissed.

It is so ordered.

Carl J. Schuman

Judge, Superior Court

FOOTNOTES

FN1. The board of firearms permit examiners is an agency within the department of public safety for administrative purposes only.   See General Statutes § 29-32b(a)..  FN1. The board of firearms permit examiners is an agency within the department of public safety for administrative purposes only.   See General Statutes § 29-32b(a).

FN2. See also ROR, Exhibit 10, police report..  FN2. See also ROR, Exhibit 10, police report.

FN3. General Statutes § 29-28(b) provides in pertinent part:  “Upon the application of any person having a bona fide residence or place of business 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 Public Safety 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 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 felony or of a violation of subsection (c) of Section 21a-279, 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) has been confined in a hospital for persons with psychiatric disabilities, as defined in Section 17a-495, within the preceding twelve months by order of a probate court, (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 USC 922(g)(4), (9) is an alien illegally or unlawfully in the United States, or (10) is less than twenty-one years of age..  FN3. General Statutes § 29-28(b) provides in pertinent part:  “Upon the application of any person having a bona fide residence or place of business 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 Public Safety 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 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 felony or of a violation of subsection (c) of Section 21a-279, 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) has been confined in a hospital for persons with psychiatric disabilities, as defined in Section 17a-495, within the preceding twelve months by order of a probate court, (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 USC 922(g)(4), (9) is an alien illegally or unlawfully in the United States, or (10) is less than twenty-one years of age.

FN4. The commissioner properly does not argue that McWhorter's conduct was in violation of General Statutes § 29-38, prohibiting possession of a weapon in a motor vehicle.   The statute prohibits knowing possession in a vehicle of a pistol “for which a proper permit has not been issued.”   Because McWhorter had a permit at the time, his conduct did not violate the statute..  FN4. The commissioner properly does not argue that McWhorter's conduct was in violation of General Statutes § 29-38, prohibiting possession of a weapon in a motor vehicle.   The statute prohibits knowing possession in a vehicle of a pistol “for which a proper permit has not been issued.”   Because McWhorter had a permit at the time, his conduct did not violate the statute.

FN5. The board, in its brief, does not dispute or even address the question of whether there was sufficient evidence to substantiate a violation of the statute.   There is also no dispute that, if McWhorter actually carried a handgun in violation of § 53-206d(a), then the commissioner could properly reject the conclusion that the “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.”   (Emphasis added.)  General Statutes 29-28(b).  McWhorter's actual carrying of a handgun in other than a lawful manner provides proof that he intended to do so..  FN5. The board, in its brief, does not dispute or even address the question of whether there was sufficient evidence to substantiate a violation of the statute.   There is also no dispute that, if McWhorter actually carried a handgun in violation of § 53-206d(a), then the commissioner could properly reject the conclusion that the “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.”   (Emphasis added.)  General Statutes 29-28(b).  McWhorter's actual carrying of a handgun in other than a lawful manner provides proof that he intended to do so.

FN6. The term “misconduct” refers to the fact that, although McWhorter technically may not be in violation of § 53-206d(a) because the record does not establish the operability of the firearm, there can be no question that McWhorter's actions in carrying a loaded handgun while driving a vehicle under the influence of alcohol are highly improper and dangerous to the public..  FN6. The term “misconduct” refers to the fact that, although McWhorter technically may not be in violation of § 53-206d(a) because the record does not establish the operability of the firearm, there can be no question that McWhorter's actions in carrying a loaded handgun while driving a vehicle under the influence of alcohol are highly improper and dangerous to the public.

FN7. The commissioner points to the comments of several legislators in enacting § 53-206d as supportive of the notion that a person who violates that statute should not have a handgun.   Of course, caution must be exercised in equating the statements of individual representatives with the will of the legislature.   See Sillman v. Sillman, 168 Conn. 144, 148, 358 A.2d 150 (1975).   Further, these comments did not directly address the permitting statutes in Title 29.   In any event, as a technical matter, as explained above, the evidence does not prove that McWhorter was in violation of § 53-206d(a)..  FN7. The commissioner points to the comments of several legislators in enacting § 53-206d as supportive of the notion that a person who violates that statute should not have a handgun.   Of course, caution must be exercised in equating the statements of individual representatives with the will of the legislature.   See Sillman v. Sillman, 168 Conn. 144, 148, 358 A.2d 150 (1975).   Further, these comments did not directly address the permitting statutes in Title 29.   In any event, as a technical matter, as explained above, the evidence does not prove that McWhorter was in violation of § 53-206d(a).

FN8. Section 4-180a(b) provides:  “No written order or final decision may be relied on as precedent by an agency until it has been made available for public inspection and copying.   On and after October 1, 1989, no written order or final decision, regardless of when rendered, may be relied on as precedent by an agency unless it also has been indexed by name and subject.”.  FN8. Section 4-180a(b) provides:  “No written order or final decision may be relied on as precedent by an agency until it has been made available for public inspection and copying.   On and after October 1, 1989, no written order or final decision, regardless of when rendered, may be relied on as precedent by an agency unless it also has been indexed by name and subject.”

FN9. Even in D'Auria v. Danaher, Board of Firearms Permit Examiners Case No. 04-252-R (Nov. 13, 2008), heavily relied upon by the commissioner as a case similar to the present one, the board stated that its formulation of reasons for affirming the commissioner's revocation of a permit did “not attempt to pre-judge a future application.”.  FN9. Even in D'Auria v. Danaher, Board of Firearms Permit Examiners Case No. 04-252-R (Nov. 13, 2008), heavily relied upon by the commissioner as a case similar to the present one, the board stated that its formulation of reasons for affirming the commissioner's revocation of a permit did “not attempt to pre-judge a future application.”

FN10. The commissioner also alleges that one member of the board, Peter Kuck, based his decision on the improper factor that the police stop of McWhorter lacked a sufficient basis or was pretextual in nature.   While Kuck did voice such a concern, he also added, in essence, that he thought McWhorter to be a suitable person to hold a firearms permit.  (ROR, Ex. 21 (transcript), pp. 32-33.)   None of the other members of the board echoed Kuck's concern about the nature of the stop.   Further, the vote of the board was 4 to 2 in favor of McWhorter and thus, even if Kuck's vote were not counted, a majority of the board still favored reinstatement of the permit.  (ROR, Ex. 21, pp. 32-34.)   Thus, the comments of Kuck in question did not affect the result of the proceedings..  FN10. The commissioner also alleges that one member of the board, Peter Kuck, based his decision on the improper factor that the police stop of McWhorter lacked a sufficient basis or was pretextual in nature.   While Kuck did voice such a concern, he also added, in essence, that he thought McWhorter to be a suitable person to hold a firearms permit.  (ROR, Ex. 21 (transcript), pp. 32-33.)   None of the other members of the board echoed Kuck's concern about the nature of the stop.   Further, the vote of the board was 4 to 2 in favor of McWhorter and thus, even if Kuck's vote were not counted, a majority of the board still favored reinstatement of the permit.  (ROR, Ex. 21, pp. 32-34.)   Thus, the comments of Kuck in question did not affect the result of the proceedings.

Schuman, Carl J., J.

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