Former SEAL retains right to carry handgun while with his 3-year-old daughter

From Higbie v. Higbie (Conn. Super. Ct. Apr. 15, 2016), a family court case stemming from a divorce:

The parties . . . have one child; Mackenzie, age three. . . .

The plaintiff/father (age 32) is a former Navy SEAL. At the time of the parties' marriage in 2008, he was on active duty. He was twice deployed to Iraq and was a firearms safety instructor with a perfect safety record. His firearms training and experience far exceeds that of an ordinary citizen as well as that of local law enforcement officials.

It is clear from the evidence presented that the plaintiff now takes the necessary safety precautions for the appropriate storage and possession of his firearms at all times, including using a gun safe and an appropriate procedure for unloading his firearms as necessary. He possesses a valid state permit and has no criminal record. The [father] receives disability benefits as a result of his military experience. . . . Currently, the [father] is the operations director of a media company. . . .

The defendant/mother (age 31) is a hospital emergency room nurse who has experience with firearms as well. When the parties lived together in Virginia, during the early years of their marriage, she was trained in firearms and obtained a concealed carry permit. She testified that she never carried a firearm on her person but she did participate in the activity of shooting with her husband and others. During the marriage, the parties would together go to the gun store to make purchases. It is obvious from the evidence presented that the collection and use of firearms was an activity important to the [father]; that this was well known to the [mother] from the beginning of the marriage (and likely before); and that both parties participated in the activity together at various times. . . .

The [father] objects to any restrictions being placed on his ability to carry a gun (other than his being required to comply with all federal and state laws) for two primary reasons: (1) he wants the ability to protect himself and his daughter, particularly in his own home; and (2) he claims that such a restriction would violate his constitutional right to bear arms under both the federal and state constitutions.

While the parties lived together in Virginia, there was an incident where the [father] was forced to confront a group of six youths who were intruding on the parties' home. The [father] defused the situation without the use of his weapon. He apprehended some of the youths until law enforcement arrived while others escaped. He cites this incident in support of his position on gun possession and the right to defend himself and his home.

The [mother] cites this incident in support of her position that he does not need a firearm to protect himself due to his size, strength and military training. The [father] claims that, prior to the commencement of this divorce action, his wife never objected to his carrying of his pistol (he has other firearms as well) while in the presence of the child. The [mother] disputes this and claims that she did object on more than one occasion. . . .

The [father] cites the second amendment to the United States constitution and article first, § 15 of the Connecticut constitution ["Every citizen has a right to bear arms in defense of himself and the state"] in support of his argument that the court cannot and should not impose any restrictions on his ability to possess firearms. . . . Section 29-37i of the Connecticut General Statutes is also relevant because it sets forth the law in Connecticut for the storage of loaded firearms. It provides:

No person shall store or keep any loaded firearm on any premises under such person's control if such person knows or reasonably should know that (1) a minor [under the age of sixteen years] . . . unless such person (A) keeps the firearm in a securely locked box or other container or in a location which a reasonable person would believe to be secure, or (B) carries the firearm on his or her person or within such close proximity thereto that such person can readily retrieve and use the firearm as if such person carried the firearm on his or her person. . . .

In this case, while the parties have stipulated to joint legal custody, the [mother] seeks an order that either grants her final decision making authority on the issue of the presence of firearms, concealed or otherwise, during parenting time, or that all firearms shall be secured in a locked container when either party exercises their parenting time. Thus, the [mother] is essentially asking this court to remove subsection (B) of § 29-37i as an option available to each party in determining how to store loaded firearms. . . .

Had the [mother] presented any credible or convincing evidence that the [father] is a danger to himself or others, or engaged in dangerous, reckless or negligent behavior with his firearms or other weapons, or exhibited any significant mental health or substance abuse issues or concerning behaviors, or that there occurred domestic violence between the parties, this court might very well have considered imposing restrictions greater than that currently imposed by federal or state law in order to serve the best interests of the parties' child.

However, that did not happen. There was no credible evidence presented that the [father] brandished his firearm in a reckless or negligent manner or that the parties' child was ever in danger of gaining access to a loaded firearm. No credible evidence was presented to establish that the [father] is predisposed toward committing a crime or that he has any criminal record of any kind. To the contrary, the evidence establishes that the [father], a former firearms instructor, has a clean firearms safety record and served in combat as a Navy SEAL.

The court finds the [father]'s testimony more credible than the [mother]'s testimony in many respects. The [mother]'s financial affidavit understated her income and overstated her expenses. She exaggerated the details of an argument that occurred between the parties in their car while driving from Virginia to Connecticut. She described incidents in support of her present concerns that date back to the [father]'s attendance at elementary school.

These examples of inaccurate or exaggerated testimony and of such remote events all lead the court to question the credibility of other portions of her testimony including, but not limited to, her alleged concerns about the [father]'s anger or possession of a firearm. As a result, it is unnecessary for the court to now engage in an analysis of the [father]'s right to bear arms in the context of this case since this court will not impose any restrictions on either party other than those already imposed by federal and state law.

If, at some point in the future, either party has a concern about the other party's use or possession of a firearm, they are free to contact the appropriate authorities for intervention, which may include the seeking and obtaining by law enforcement of a warrant to seize firearms under General Statutes § 29-38c. That section provides that a warrant to seize firearms may be obtained upon a finding of probable cause to believe that a person who possesses one or more firearms poses a risk of imminent personal injury to himself or herself or to others and that the firearm(s) are within or upon any place, thing or person. See Hope v. State, 163 Conn. App. 36 (2016) (holding that § 29-38c does not violate the second amendment).

Simply put, this court now concludes, based on the totality of the evidence presented over the course of the four-day trial, that there is an insufficient evidentiary basis for the imposition of restrictions upon either party that are greater than those otherwise provided by law. . . .

The father is a political commentator, the co-author of "Battle on the Home Front: A Navy SEAL's Mission to Save the American Dream" and "Enemies, Foreign and Domestic: A SEAL's Story."