Burke v. Vision Government Solutions, Inc.

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          Rachel M. Baird, Attorney Rachel M. Baird, Harwinton, CT, for Plaintiff.

          Gerald T. Giaimo, William Bohonnon, Halloran & Sage LLP, New Haven, CT, Andrew M. McPherson, Dennis M. Laccavole, Goldstein & Peck, Bridgeport, CT, for Defendants.

         RULING AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT

         VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE.

         Kevin 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.

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          For the following reasons, Defendants' motion for summary judgment is GRANTED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Background

         1. Town of Fairfield and Donald Ross

         Until 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.").

         Mr. Burke has had "a pistol permit from the State of Connecticut" since 2011 or 2012. Fairfield/Ross SMF ¶ 5.

         "On 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.

         Mr. 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.

         On 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.

         Mr. 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.

         After 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.

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          Mr. 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.

         Later, 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) ("Vision Mem.").

         This 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.

         The 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....").

         Mr. 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.").

         Mr. 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.

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          Mr. 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.

         As of 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.

         Mr. 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.

         Mr. 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. ¶¶ 14-19).

         Although 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 ...