Cab Driver’s Gun Charge Dropped; Taxi Ruled to Be Business

Kellie A. Wagner
The Connecticut Law Tribune
07-29-2002

John Lutters’ “place of business” may be his taxicab. But just like the owner of a bricks-and-mortar company trying to foil a robbery attempt, he is exempt from felony charges of carrying a handgun without a permit, New Haven, Conn., Superior Court Judge Lubbie Harper Jr. ruled recently in a case of first impression.

In leading to the dismissal of a weapons charge lodged against Lutters after he shot and killed an armed passenger in an attempted robbery, Harper’s decision is a good bet to survive on appeal, Lutters’ defense counsel, Robert Berke, said last week.

“Judge Harper’s decision didn’t leave a lot of ends untied. I think it will be difficult for [the Appeals Court] to overturn it,” said Berke, of Photos & Almodovar in Bridgeport, Conn.

‘PROPRIETY INTEREST’

Prosecutors, however, plan to challenge the judge’s interpretation of Connecticut General Statute ? 29-35(a), which they claim was never intended by state lawmakers to apply to motor vehicles. The exception makes it legal to carry a pistol or revolver without a license in a person’s “dwelling house or place of business.”

Travis Hazelwood was killed last year after cutting Lutters in the throat during an attempted robbery. Lutters, who leases the cab, turned himself into police a few hours after the incident. He was charged with carrying a handgun without a permit, after police determined he acted in self-defense in shooting Hazelwood.

In January, Berke filed a motion to dismiss, stating that Lutters was statutorily exempt from prosecution under the statute because his client’s taxicab was considered a “place of business.”

In his May decision, in which Harper extensively compared the law to related statutes and case law in other states, he ruled that the exception applies to Lutters because he had a “propriety interest” in his taxicab as a business.

Harper didn’t dismiss the case until last month. He initially found the motion to dismiss to be premature and afforded the state more time to prove that Lutters carried his gun outside of his taxicab without a permit. When the state could not do so, Harper granted Lutters’ motion.

UNINTENDED CONSEQUENCES?

In his 22-page ruling in State v. John Lutters, Harper considered whether the Legislature had intended to include taxicabs as a “place of business” under the state law.

The state countered that the court should not consider taxicabs as a place of business, because the statute should be deciphered in conjunction with another state law that specifically bars any weapon, including a pistol or revolver from being transported in “any vehicle” without the possession of a permit.

Assistant State’s Attorney John Doyle tried to persuade Harper that the Legislature specifically meant to make carrying weapons in a motor vehicle illegal and intended to treat vehicles differently from stationary places of business.

The judge disagreed. “The Connecticut legislature could have specified, as have a number of state legislatures, that persons carrying handguns in their fixed places of business are excepted from the requirements of the [statute], but it did not,” Harper wrote.

Harper added the Legislature, although obviously concerned with the possession of handguns in vehicles, did not specify that the court should read a “motor vehicle exception” into the place of business. He said the “including of an exception for places of business” under the statutes in question indicated the legislative intent “that business owners should have the freedom to protect their property.”

Doyle could not be reached for comment by the Law Tribune. But according to Executive Assistant State’s Attorney Judith Rossi, he has filed an appeal. The case, she noted, will be assigned to appellate lawyers in the chief state’s attorney’s office.

Rossi said the state’s gun law carries a mandatory maximum sentence and that Lutters would have faced a $1,000 fine and one to five years in jail.

“I couldn’t imagine that we wouldn’t want to get a higher court’s view on the construction of the [statute],” Rossi added. “I think [prosecutors] are always concerned, especially in cases of first impression like this, which may have ramifications beyond this one case.”

Harper cited three reasons why he found that a taxicab in this instance could be considered a place of business under the statute, including policy reasons researched under California and New York law. The court also “must construe the ambiguity created by the [state] statutes in favor of the defendant,” he wrote.

In addition, the judge cited the recent Connecticut Supreme Court ruling in State v. Vickers, where the court affirmed that the place of business exception did not apply to an employee who has no ownership or proprietary interest in his/her place of work.

However, Harper noted, because Vickers was concerned with only a fixed place of business, it provided “some precedential value, but not a dispositive analytic framework for the issue in the present case.”

“I was surprised that [Harper] provided a multi-state, jurisdictional analysis. I think it surprised everyone,” Berke said of the decision. “You don’t see many 22-page trial court decisions like this. Well, except maybe in Judge [Jon] Blue’s court.”

“Ultimately, there will be some [bearing] on a public policy argument — that would be the only way it might be overturned,” Berke said. “But that would be legislating from the bench.”