Denial of Pistol Permit Based on Allegedly “Unsubstantiated” Past Allegations of Sexual Misconduct and Child Abuse

An excerpt from McWilliams v. Costa, decided Wednesday by Judge Stefan Underhill (D. Conn.):

This civil rights action under 42 U.S.C. § 1983 and Connecticut law challenges Defendants’ unconstitutional denial of Plaintiff Michael McWilliams’ pistol permit application ….

[As alleged in the Complaint,] McWilliams was a “secondary school teacher, a single homosexual male, and an adoptive parent.” McWilliams “has no criminal record and has never been arrested or charged with any crime.” McWilliams previously owned firearms, including a handgun from 2022-2023 and a long gun from 2010-2015.

From 2018 to 2024, allegations regarding McWilliams’s behavior as a foster parent followed him as he moved to and resided in several different states. Those allegations resulted in investigations by both federal, state, and local authorities. McWilliams maintains that none of the allegations was ever substantiated and that no investigating authority ever found evidence of McWilliams’s wrongdoing. I now summarize each of the allegations that McWilliams cites in his complaint.

First, McWilliams provided housing to Tyler Joseph, an 18-year old male, in Marshfield, Wisconsin, but later asked Joseph to leave the home due to behavioral issues. Joseph’s friend Hunter Mattheisen then accused McWilliams of engaging in sexual misconduct with Joseph and of distributing psilocybin mushrooms. McWilliams claims that the Marshfield Chief of Police wrote a letter in November 2022 stating that the department “had not established any probable cause to arrest [McWilliams].” McWilliams further maintains that Marshfield police investigated those claims and “concluded they were baseless.”

Second, McWilliams fostered two boys when he lived in Cortland County, New York in 2022. In April of that year, one of the boys “absconded” from McWilliams’s home after McWilliams confiscated the boy’s phone. Police picked up the boy and the boy made claims that McWilliams choked him and gave him “whoopings.” When police took the boy to a hospital, McWilliams maintains that hospital staff found no evidence of abuse and that the boy “admitted he was just upset about losing his phone” and said that McWilliams had not abused him. Police returned the boy to McWilliams’s home that same evening.

McWilliams claims that Kelley Thomsen, a Cortland County CPS caseworker, began “pursuing the matter aggressively” after that allegation of abuse. As a result of Thomsen’s “defamatory assertions,” the two boys were removed from McWilliams’s home. McWilliams maintains that “both boys disclosed no criminal conduct by [McWilliams].”

Third, McWilliams adopted a son through West Virginia’s child welfare system in 2021. After the Cortland County abuse allegations, McWilliams alleges that Thomsen contacted the West Virginia State Adoption Program Director and characterized McWilliams as a “pedophile” and a “sexual predator.” Even after those assertions, McWilliams kept custody of his adopted son. Thomsen continued to encourage investigations of McWilliams’s treatment of his adopted son. McWilliams maintains that “all investigations across the various jurisdictions (Wisconsin, New York State, and FBI) were closed with no action taken against [him].” …

In June 2024, McWilliams applied to the City of Middletown for a pistol and revolver permit. The police chief is responsible for issuing that permit and he “must determine if the applicant is a ‘suitable’ person.” White, the MPD police officer, investigated McWilliams’s background in connection with the gun permit application. During that investigation, White learned of prior investigations and allegations involving McWilliams from state agencies in Wisconsin and New York.

The defendants used those prior investigations and allegations to justify the denial of McWilliams’s gun permit application. Costa, the Middletown chief of police, issued a formal denial letter, stating “over the course of several years you have been investigated by multiple different agencies, to include Marshfield Wisconsin Police, SUNY Police, Cortland Police, the FBI, and NY Child Protective Services, for crimes related to sexual assault and exploitation of juveniles.” The letter also stated that McWilliams “had two foster children revoked from [his] home,” placed “surveillance cameras in their bedrooms,” and was “accused by multiple foster children … of choking or assaulting them.” Costa concluded the letter by stating “[a]t this time we feel that you are not a suitable candidate to obtain a pistol permit.” …

(McWilliams alleges in his Complaint that “The [denial] letter’s claims are not only factually untrue, they also omit the exculpatory context: that Plaintiff was cleared of all such allegations, and that critical evidence (like the foster boys’ own statements) contradicted the accusations.”)

The court held that the pistol permit denial didn’t violate the Second Amendment:

The Supreme Court has endorsed Connecticut’s suitability regime. N.Y. State Rifle & Pistol Ass’n v. Bruen (2022) (explaining that “although Connecticut officials have discretion to deny a concealed-carry permit to anyone who is not a ‘suitable person,’ see Conn. Gen. Stat. § 29-28(b), the ‘suitable person’ standard precludes permits only to those individuals whose conduct has shown them to be lacking the essential character of temperament necessary to be entrusted with a weapon.”).

Because the Supreme Court has endorsed the relevant regulatory regime, McWilliams is implicitly asking me to determine whether Chief Costa’s denial of his firearm permit was arbitrary and capricious, in violation of McWilliams’s Second Amendment rights. “Under the arbitrary-and-capricious standard, judicial review of agency action is necessarily narrow. A reviewing court may not itself weigh the evidence or substitute its judgment for that of the agency.”

Balancing my mandates to treat all McWilliams’s allegations as true and to defer to the judgment of the Middletown Police Department, I hold that the defendant “acted within a zone of reasonableness and, in particular, [have] reasonably considered the relevant issues and reasonably explained the decision.” Through the course of their background investigation to determine McWilliams’s suitability for a pistol permit, the defendants unearthed unsubstantiated past allegations of sexual and physical misconduct toward minors and investigations of that misconduct by federal, state, and local authorities. The defendants weighed those allegations and investigations in evaluating McWilliams as a permit applicant and explained how that history affected their suitability determination.

Although McWilliams argues that the defendants should not have denied his permit application based on allegations that had been “investigated and dropped without charges,” the Connecticut Supreme Court has held that the suitability determination can rely on factors outside of criminal conduct and convictions, including the applicant’s character and “reputation in the community.” Stratford Police Dep’t v. Bd. of Firearms Permit Exam’rs (2022).

By evaluating McWilliams’s personal history and background, the defendants effectively examined his character and reputation in the community. It is not my place to conduct a post hoc analysis of their judgment. I therefore hold that the defendants did not act in an arbitrary and capricious manner in denying McWilliams’s permit application based on those past allegations and investigations….

As best I can tell from the motion to dismiss and the reply to the response to that motion, the government’s key argument was:

The denial was not arbitrary but based on documented allegations, even if unsubstantiated.

Dennis M. Durao and Abraham John Schwimmer (Karsten & Tallberg LLC) represent defendants.