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.
RULING AND ORDER ON MOTIONS FOR SUMMARY
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.
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.
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. ¶
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
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 records
. . . .”).
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
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 ¶
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 and
causes [stress] nightmares.” Id.; Burke Dep.
April 2018, the current tax assessor removed the
“allegedly defamatory notation.” Vision MF ¶
Court assumes familiarity with the procedural history before
these motions for summary judgment. See Order, ECF
No. 46 (Mar. 12, 2019) (granting in part and denying in part
Defendants' motion to dismiss for lack of prosecution);
Order, ECF No. 57 (Mar. 12, 2019) (“Order Mot. to
Dismiss”) (dismissing all federal constitutional claims
against the Town of Fairfield in Counts One and Two of the
April 22, 2019, the Town of Fairfield and Donald Ross
submitted an Answer to the Complaint. Answer, ECF No. 58
(Apr. 22, 2019).
August 8, 2019, the Town of Fairfield and Ross moved for
summary judgment. Mot. for Summary ...