United States District Court, D. Connecticut
Kevin R. BURKE, Plaintiff,
VISION GOVERNMENT SOLUTIONS, INC., Town of Fairfield, Donald Ross, June Perry, Mary Kate Moody, and Anna M. Dlugosz, Defendants.
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[Copyrighted Material Omitted]
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M. Baird, Attorney Rachel M. Baird, Harwinton, CT, for
T. Giaimo, William Bohonnon, Halloran & Sage LLP, New
Haven, CT, Andrew M. McPherson, Dennis M. Laccavole,
Goldstein & Peck, Bridgeport, CT, for Defendants.
AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT
A. BOLDEN, UNITED STATES DISTRICT JUDGE.
R. Burke ("Plaintiff") sued the Town of Fairfield,
Donald Ross, Vision Government Solutions, Inc.
("Vision"), June Perry, Mary Kate Moody, and Anna
Dlugosz under 42 U.S.C. § 1983 for alleged violations of
his Second Amendment and Fourteenth Amendment rights, as well
as under Connecticut law for defamation, and intentional
infliction of emotional distress.
the following reasons, Defendants' motion for summary
judgment is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
Town of Fairfield and Donald Ross
April 30, 2015, Mr. Burke lived at 2425 Merwins Lane,
Fairfield, Connecticut with his wife, Maura Lee Wahlberg.
Defs.' Town of Fairfield and Donald Ross Statement of
Material Facts, ECF No. 68-2 ¶ 1 (Aug. 8, 2019)
("Fairfield/Ross SMF"); id. ¶ 15;
see also Fairfield/Ross Ex. A — Burke Dep.,
ECF No. 68-3 (Aug. 8, 2019) ("Burke Dep.").
Burke has had "a pistol permit from the State of
Connecticut" since 2011 or 2012. Fairfield/Ross SMF
or about July 2, 2014, [Fairfield] contracted with Vision to
assist the Town with the revaluation of real
property[.]" Vision Defs. — Additional Material
Facts, ECF No. 70 ¶ 1 (Aug. 9, 2019) ("Vision
MF"). June Perry worked for Vision "as the project
manager of the Fairfield Revaluation." Id.
¶ 2. Mary Kate Moody worked for Vision "as a crew
chief who oversaw the data collectors." Id.
¶ 3. Aaron Goldberg and Anna Dlugosz worked for Vision
"as data collectors, hired for the Fairfield
Revaluation." Id. ¶ 4. Data collectors
visit properties and update property field cards; they
"physically measure the exterior or each building."
Id. ¶¶ 5-6.
Ross worked for the Town of Fairfield for forty-one years
before his retirement. Fairfield/Ross SMF ¶¶ 7-8.
From October 2011 until December 15, 2016, Mr. Ross served as
the Town Assessor. Id. He retired in 2016.
Id. ¶ 29.
November 19, 2014, Mr. Goldberg and Ms. Dlugosz "visited
[Mr. Burke's p]roperty" as part of their job as data
collectors. Vison MF ¶ 7. "At some point after
[Mr.] Goldberg and [Ms.] Dlugosz began their exterior
inspection, [Mr. Burke] exited the front door of his house
and walked across his lawn with his handgun holstered and
called out to [Mr.] Goldberg." Id. ¶ 9.
Burke asked Mr. Goldberg to identify himself, id.
¶ 10; Mr. Goldberg "produced his Vision
identification card and Mr. Burke told him to leave the
property[,]" id. ¶ 11. Mr. Burke mentioned
"he was licensed to carry a handgun and had been
burglarized in the past." Id. ¶ 12;
Pl.'s Statement of Material Facts in Opp'n to
Fairfield/Ross, ECF No. 84 ¶ 12 (Sept. 29, 2019)
("Pl. SMF Opp'n Fairfield/Ross"). Apparently,
as Mr. Burke turned away from Mr. Goldberg, "he saw
[Ms.] Dlugosz approaching from the driveway."
Id. ¶ 13. At this time, Mr. Burke told her not
to "worry about the gun [because he is] licensed to
carry." Id. ¶ 14. Mr. Burke told Ms.
Dlugosz "to get off his property" and returned
inside. Id. ¶ 15. Mr. Burke reiterates he never
unholstered or pointed a gun at anyone. Pl.'s Additional
Material Facts, ECF No. 84 ¶ 1 (Sept. 28, 2019)
("Pl. Additional Facts"). Although they were not on
the property, Ms. Moody and Ms. Perry believe the gun was
pointed at Mr. Goldberg. Id. ¶ 2.
the visit to Mr. Burke's property, Mr. Goldberg and Ms.
Dlugosz returned to Town Hall to the makeshift Vision office,
Vision MF ¶ 16, and spoke to Mr. Ross about the
incident. Fairfield/Ross SMF ¶ 9. According to Mr. Ross,
"both Mr. Goldberg and Ms. Dlugosz were visibly
shaken." Id. ¶¶ 9, 25. "Mr. Ross
contacted the Fairfield Police to report what occurred and to
document the incident." Fairfield/Ross SMF ¶ 10.
Mr. Ross also "notified his supervisor, Robert Mayer,
about the incident." Fairfield/Ross SMF ¶ 26.
Goldberg and Ms. Dlugosz spoke with Mr. Ross and later
"went to the Fairfield Police Department to `give a
statement to have a record of what had taken
place.'" Vision MF ¶ 17.
on November 7, 2017, someone, a non-party to this action sent
"a copy of a printout from Fairfield's CAMA
system" for the property to Mr. Burke's counsel.
Vision MF ¶ 19; Fairfield/Ross SMF ¶ 16 ("One
member of the public, Tom Curran, was able to obtain a copy
of the alleged defamatory statement sometime in November
2017."). CAMA refers to "Vision's Computer
Assisted Mass. Appraisal software system[.]" Vision
Defs.' Mem. in Support, ECF No. 71 at 3 (Aug. 8, 2019)
person "testified that he obtained the printout ...,
which included the visit line history notes, from an employee
working behind the desk at Fairfield Town Hall because of a
`printing issues [sic] with the public terminals.'"
Id. ¶ 20. He also acknowledged that he was told
the visit line history notes were not public information.
Id. ¶ 21. "The alleged defamatory
statement stated "NO CALLBACK LETTER — OWNER CAME
OUT WITH GUN POINTED AT DATA COLLECTORS POLICE REPORT
FILED." Fairfield/Ross SMF ¶ 12; Pl. SMF Opp'n
Fairfield/Ross ¶ 12.
parties also dispute the availability of the note to the
public. Vision MF ¶ 18; Pl. Statement of Material Facts
in Opp'n to Vision Defendants, ECF No. 86 ¶ 18
(Sept. 30, 2019) ("Pl. SMF Opp'n Vision"). Mr.
Burke relies on expert testimony to demonstrate that the
statement "is public and that no would know who had
accessed it and obtained a copy." Pl. SMF Opp'n
Fairfield/Ross ¶ 30; see also Pl. SMF Opp'n
Fairfield/Ross ¶ 11 (Mr. Burke's counsel discovered
the "allegedly defamatory statement on the land
Burke argues that the statement on the record was defamatory
"because it stated the owner pointed a gun at data
collectors." Fairfield/Ross SMF ¶ 13; Pl. SMF
Opp'n Fairfield/Ross ¶ 13; Burke Dep. 59:11-23
("It's first of all, false. Second of all, it has no
business being put in writing especially when it is false ...
it specifically states I pointed the gun at them.").
Ross denies inputting the allegedly defamatory statement into
the CAMA system. Fairfield/Ross SMF ¶ 14; Fairfield/Ross
Ex. B — Ross Dep. 102:21-103:9, ECF No. 68-4 (Aug. 8,
2019) ("Fairfield/Ross — Ross Dep.")
("Q: Who entered that information [the statement]? A: I
can say I did not not. Q: And how do you know you did not? A:
Because I didn't—I never entered that kind of
information onto a property record."). In addition,
"Vision is unable to determine who entered the visit
history note in the CAMA system." Vision MF ¶ 24.
Mr. Ross's actions after the incident have been
scrutinized by Mr. Burke. Mr. Burke also claims that Mr. Ross
took a number of steps after the incident, including;
"calling the police 3 times, driving to the police
station, [ ] interacting with [Ms.] Dlugosz about her
reported trauma[,] ... request[ing] a list of property owners
in Fairfield who owned firearms after the incident on
November 19, 2014, ... [and] [seeking] a list of Fairfield
resident pistol permit holders...." Id. Mr.
Ross also sought "a list of persons who had firearms in
their home[,]" but "never received such a
list." Fairfield/Ross SMF ¶ 23. Mr. Ross also
claims to have been "unaware that the identifies of
persons who have pistol permits was not public record,"
id. ¶ 27, and to have not been "aware of
the existence of the alleged defamatory statement until after
[Mr. Burke] initiated the present action."
Fairfield/Ross SMF ¶ 18.
Burke claims that Mr. Ross is biased toward Ms. Dlugosz and
unsympathetic to Mr. Burke's concerns about burglary. Pl.
SMF Opp'n Fairfield/Ross ¶ 18. He insists Mr.
Ross's actions indicate his bias and support the
inference that Mr. Ross inputted the statement. Mr. Burke
considers that Mr. Ross's attempt "to compile a list
of permit holders for handguns[,]" Burke Dep. 29:6-7,
"combined with his other behavior," id.
29:10, lead Mr. Burke to believe Mr. Ross intended to have
him arrested, id. 29:11. Neither Ms. Perry or Ms.
Moody "received a gun permit list from the Fairfield
police department, and never disseminated such information to
any other individuals." Vision MF ¶ 23.
March 6, 2019, Mr. Burke had no "direct or
circumstantial evidence," Pl. SMF Opp'n
Fairfield/Ross ¶ 19, which supported "his claim
that Mr. Ross inputted the alleged defamatory
statement[,]" Fairfield/Ross SMF ¶ 19.
Burke is "unaware of a single person" who now knows
he "has a pistol permit because of" Mr. Ross or
anyone hired by the Town of Fairfield. Fairfield/Ross SMF
¶ 21; Burke Dep. 100:6-16. His "ability to have a
pistol permit has not been affected in any manner."
Fairfield/Ross SMF ¶ 28.
Burke claims "his livelihood has been damaged"
because "a background check may discover the police
report" and, after reading it, a potential employer
could "conclude that [Mr. Burke] pointed a gun at the
date lister" and "would then decide not to offer
[Mr. Burke] a job because of the statement."
Fairfield/Ross SMF ¶ 32. The Town of Fairfield believes
that this claim is speculative and unfounded, id.,
while Mr. Burke contends his "concerns are not unfounded
but based on experience[,]" Pl. SMF Opp'n
Fairfield/Ross ¶ 32 (citing Burke Decl. ¶¶
he seeks damages for emotional distress, Mr. Burke "has
never been treated for his emotional distress claim[.]"
Fairfield/Ross SMF ¶ 41. Mr. Burke stated that the
emotional distress "ruins dinners with his wife when the
topic is raised and that it impacts [his] sleep ...