BREACH OF PEACE LOVE AND UNDERSTANDING: HOW CAN THE LEGAL CARRYING OF A FIREARM BE A CRIME?

Connecticut law is relatively clear on the legality of carrying firearms. A permit is required to carry a pistol on the person and in a motor vehicle. No permit is required to carry a rifle or shotgun (provided the weapon is not one prohibited by state or federal law–e.g. a sawed-off shotgun). With a permit, a pistol may be carried concealed or openly–there is no law against openly carrying a pistol. Yet, as occasionally reported in the newspaper, people who were legally and openly carrying weapons have been arrested and charged not with weapons possession but with Breach of Peace. The Register published an article today on this phenomenon.

In the article Paul Vance of the State Police and Michael Lawlor, the governor’s criminal justice adviser, both state that a person can openly carry a firearm as long as it does not cause “annoyance or alarm.” Rich Burgess of the organization Connecticut Carry disagrees, saying, “The very premise of breach of peace is ‘violent or tumultuous behavior. Since carrying a weapon in public is legal, doing so is exempted from the breach-of-peace statute.”

Since we’re talking about Breach of Peace, let’s take a look at the actual statute: Sec. 53a-181 – Breach of Peace in the 2nd Degree. The statute reads in its entirety (with the most relevant language bolded):

(a) A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or such other person’s property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public and hazardous or physically offensive condition by any act which such person is not licensed or privileged to do. For purposes of this section, “public place” means any area that is used or held out for use by the public whether owned or operated by public or private interests. (b) Breach of the peace in the second degree is a class B misdemeanor.

Breach of Peace and its cousin Disorderly Conduct are among the broadest, open-ended statutes (along with Risk of Injury and a few others). It does not take much beyond being rowdy to get hit with this charge. Although Sec. 53a-181(a)(1) is the subsection that is applicable for weapons, it neither mentions nor excludes firearms or any kind of weapon. Mr. Burgess is incorrect is saying that carrying firearms is exempted from the statute because it is a legal activity. Many activities that are in themselves legal, such as speaking, are Constitutionally-protected until they are used in a threatening manner.

I know what you’re thinking: what if someone is just carrying a weapon and minding his or her own business and someone who is extra-sensitive to guns sees it and calls the police? Many other people might’ve seen it and not cared a lick. Whether the act constitutes a breach of peace is a question of fact: it is up to a judge or jury to decide the intent of the defendant and if the alleged activity constitutes violent, threatening or tumultuous behavior. So, how does a fact-finder do that? Time to pull up the jury instructions for 53a-181(a)(1). Here is what the State must prove beyond a reasonable doubt:

Element 1 – Intent

The first element is that the defendant

-acted with the intent to cause inconvenience, annoyance or alarm. The predominant intent must be to cause what a reasonable person operating under contemporary community standards would consider a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm.

-recklessly created a risk of causing inconvenience, annoyance or alarm. A person acts “recklessly” with respect to a result or circumstances when (he/she) is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstances exist.

The words “inconvenience, annoyance or alarm” refer to what a reasonable person operating under contemporary community standards would consider a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm.

Element 2 – Conduct

The second element is that the defendant engaged in fighting or in violent, tumultuous or threatening behavior that actually involved physical violence or portended imminent physical violence.2 The defendant’s conduct must be more than a display of mere bad manners. It must cause or create a risk of causing inconvenience, annoyance or alarm among members of the public.

Element 3 – Public Place

The third element is that the conduct took place in a public place. “Public place” means any area that is used or held out for use by the public whether owned or operated by public or private interests.

The above-bolded language specifies that whether behavior is violent etc. is based on an objective standard–not the subjective feelings of an actual person (such as the one who witnessed the event, a police officer or Mr. Lawlor). The question is essentially would an ordinary person feel threatened by this? Context and circumstances are always key. Carrying a holstered handgun on your belt while you buy a sandwich? Probably not objectively threatening. Walking around pointing at your weapon and winking at people? Possibly threatening. Carrying your hunting rifle into the woods? Seems reasonable and non-threatening to me. Walking near a school with a rifle? I’ll let you think about that one.

Is Breach of Peace overused, often as a fallback to make an arrest? I think it is and have had the clients that demonstrate that idea. But it’s hard to say that weapons should be exempt from Breach of Peace because one can–and I’ve had the clients to prove this too–be charged with Breach of Peace without having any weapons. I don’t write the laws but I defend people who are charged with breaking them and it’s tough to defend something as open as Breach of Peace.