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Second Amendment Experts Say Lawyer's Arrest Illustrates Misunderstood Gun Laws

on . Posted in Gun News

Immediately after New Haven immigration attorney Sung-Ho Hwang was arrested with a gun tucked in his waistband at a theater showing 'Dark Knight Rises,' his lawyer derided the actions of police officers as "baseless."
Tensions were high from the start; especially since the incident occurred two weeks after a man shot and killed a dozen people and injured 58 at a showing of the same movie in Colorado. The officers had responded to the Criterion-Bow Tie Cinemas in New Haven shortly after 10 p.m on a call about a man inside with a gun. When the police officers arrived, they said, Hwang was talking on his cell phone. Police said because Hwang did not stand up and put his arms up when initially asked, he was arrested on charges of breach of peace and interfering with police officers.
Now, the case is drawing attention to a conflicted understanding of Connecticut's gun laws.
Gun law experts say it is rare to see law-abiding citizens openly carrying guns in public as well as getting arrested for it.
"I think these instances are exceedingly rare," said Danbury attorney Andrew Buzzi, Jr., whose practice includes gun-related issues. "For 40 years or so I can't recall many incidents, if any, of real open carry issues here in Connecticut. This isn't something that's been an issue."
However, other second amendment experts say when incidents do happen, the charges are typically breach of peace stemming from the lawful carrying of a gun. Those misdemeanors are tough to prove and prosecutors usually drop the charges.
Whether that happens in Hwang's case remains to be seen. He was arraigned last week and the prosecution agreed to turn over evidence to Hwang's defense lawyer, Hugh Keefe, prior to the next scheduled court date Sept. 5.
"I can tell you in my experience, I've had cases where people have not been charged at all, or people have been charged with breach of peace," said Craig C. Fishbein, of the Fishbein Law Firm in Wallingford. "I've never seen one of those cases prosecuted. They've all been dismissed."
Fishbein explained that Connecticut is not a conceal carry state, meaning a person with a permit in the state is not required to keep the weapon hidden from view, despite what many people mistakenly think. He said some municipalities, including New Britain, have enacted their own ordinances banning the carrying of guns in plain view.
Torrington attorney Rachel Baird said, in her view, police are not knowledgeable enough about the gun laws in the state.
"I think it's fair to say most people just assume this is a conceal carry state," said Baird. "…But the law doesn't say that. If you have a valid permit to carry you can carry."
"I do depositions with police officers and some say it's legal, some do not," continued Baird, noting that she's even considered bringing a lawsuit against the Police Academy. "Someone needs to teach police officers what the laws are. Every time they do something like this, they can always fall back on qualified immunity and say [the law's] confusing in Connecticut."
Baird said the Torrington Police Department was the first in the state to send out a memo to its officers reminding them that Connecticut is an open carry state and arrests should not be made solely on that basis. She said a similar memo was later issued in Wethersfield.
A few years ago, Baird filed a civil lawsuit in U.S. District Court in Connecticut on behalf of a client who was charged with breach of peace after openly carrying a gun into a Chili's restaurant.
James F. Goldberg had the gun on his waist out in the open on June 21, 2007 at the Glastonbury Chili's. The restaurant manager called police and began moving patrons away from where Goldberg was sitting.
Similar to Hwang's arrest, police ordered Goldberg to stand and raise his hands above his head. An officer seized the weapon.
"Because of the large commotion created and distress to staff and customers" read the police report, Goldberg was arrested for breach of peace. Baird said the charge was dropped at the first court hearing after the arraignment; though court documents indicate that Goldberg agreed to pay a $500 charitable donation in exchange for the dismissal of charges.
Baird filed a civil lawsuit on Goldberg's behalf against the town of Glastonbury and the police officers for false arrest and unreasonable search and seizure. Defense lawyer Thomas Gerarde, of Howd & Ludorf in Hartford, represented the town of Glastonbury and filed a motion for summary judgment, citing qualified immunity. Judge Stefan R. Underhill granted the motion. Baird appealed but the ruling was upheld.
"It's not against the law to carry a handgun out in the open but those who carry handguns out in the open should realize that if they recklessly create the risk of alarm, they've committed a breach of the peace," Gerarde told the Law Tribune at the time. "The average citizen who sees a man in a uniform with a handgun doesn't think anything about it…you see an everyday guy with everyday clothes on carrying a weapon, that tends to scare them."
Underhill's decision, however, certainly did not curtail the debate on the issue. Fishbein noted that police officers can arrest someone for just about anything. But if it's ultimately not illegal, the case won't go anywhere.
"Prosecutors in general don't want to prosecute things that are not crimes," Fishbein said. "When someone is a lawful permit holder and in a structure or property that doesn't bar them from exercising their rights, it's not a crime no matter how others perceive it."
Fishbein noted another case, Richard Burgess, who was arrested for disorderly conduct after openly carrying a gun while inside a Wallingford pool hall. That charge was dismissed at the arraignment. Burgess has a pending federal lawsuit stemming from his arrest.
Fishbein said there's a downside even if the criminal charges ultimately get dismissed.
"The collateral situation that happens however is that people's pistols permits are revoked upon the arrest," said Fishbein.
If a person wants to apply to get their permit back, they must go before the Board of Firearms Permit Examiners, which meets at either State Police headquarters in Middletown or at the Wethersfield Police Department on the second Thursday of each month, Fishbein said.
"There's quite a backlog," said Fishbein. "I had one client who I got his charges dismissed and they still made him wait the three years to get a hearing on the pistol permit." Fishbein said the last he had heard the backlog was down to about a year.
Buzzi, the Danbury lawyer, said despite the recent scares in movie theaters, it may not be wise for private property owners to ban guns, though they have the right to do so.
"Are you making the theater safer by saying you don't want your patrons carrying guns?" said Buzzi. "Is the person intent on going in and creating a crime in a movie theater going to listen to that sign out in front of the movie theater? No. The law abiding citizens will see that and respect the wishes of the private owner. So what you're doing is making them less safe."

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