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Fed Judge rules police cannot detain for open carry

Discussion in 'Legal & Political Archive' started by Blackfeather7, Sep 18, 2009.

  1. Blackfeather7

    Blackfeather7 Oregon Member

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    http://www.examiner.com/x-2782-DC-Gun-Rights-Examiner%7Ey2009m9d9-Federal-judge-rules-police-cannot-detain-people-for-openly-carrying-guns[/url]Federal judge rules police cannot detain people for openly carrying guns
    September 9, 10:16 PMDC Gun Rights ExaminerMike Stollenwerk

    Open carriers (courtesy Oleg Volk)

    On September 8, 2009, United States District Judge Bruce D. Black of the United States District Court for New Mexico entered summary judgment in a civil case for damages against Alamogordo, NM police officers. The Judge's straight shootin' message to police: Leave open carriers alone unless you have "reason to believe that a crime [is] afoot."

    The facts of the case are pretty simple. Matthew St. John entered an Alamogordo movie theater as a paying customer and sat down to enjoy the movie. He was openly carrying a holstered handgun, conduct which is legal in 42 states, and requires no license in New Mexico and twenty-five other states. Learn more here.

    In response to a call from theater manager Robert Zigmond, the police entered the movie theater, physically seized Mr. St. John from his seat, took him outside, disarmed him, searched him, obtained personally identifiable information from his wallet, and only allowed him to re-enter the theater after St. John agreed to secure his gun in his vehicle. Mr. St. John was never suspected of any crime nor issued a summons for violating any law.

    Importantly, no theater employee ever ordered Mr. St. John to leave. The police apparently simply decided to act as agents of the movie theater to enforce a private rule of conduct and not to enforce any rule of law.

    On these facts, Judge Black concluded as a matter of law that the police violated Matthew St. John's constitutional rights under the Fourth Amendment because they seized and disarmed him even though there was not "any reason to believe that a crime was afoot." Judge Black's opinion is consistent with numerous high state and federal appellate courts, e.g., the United States Supreme Court in Florida v. J.L. (2000) (detaining man on mere report that he has a gun violates the Fourth Amendment) and the Washington Appeals Court in State v. Casad (2004) (detaining man observed by police as openly carrying rifles on a public street violates the Fourth Amendment).

    Mr. St. John's attorney, Miguel Garcia, of Alamogordo, NM was pleased with the ruling and look forward to the next phase of the litigation which is a jury trial to establish the amount of damages, and possibly punitive damages. Garcia said that

    "t was great to see the Court carefully consider the issues presented by both sides and conclude that the U.S. Constitution prohibits the government from detaining and searching individuals solely for exercising their rights to possess a firearm as guaranteed by our state and federal constitutions."

    Notably, Judge Black denied the police officers' requested "qualified immunity," a judicially created doctrine allowing government officials acting in good faith to avoid liability for violating the law where the law was not "clearly established." In this case, Judge Black concluded that

    "[r]elying on well-defined Supreme Court precedent, the Tenth Circuit and its sister courts have consistently held that officers may not seize or search an individual without a specific, legitimate reason. . . . The applicable law was equally clear in this case. Nothing in New Mexico law prohibited Mr. St. John from openly carrying a firearm in the Theater. Accordingly, Mr. St. John's motion for summary judgment is granted with regard to his Fourth Amendment and New Mexico constitutional claims. Defendants' motion for summary judgment is denied with regard to the same and with regard to qualified immunity."

    Judge Black's opinion and order is welcome news for the growing number of open carriers across the United States. Though police harassment of open carriers is rare, it's not yet as rare as it should be - over the last several years open carriers detained without cause by police have sued and obtained cash settlements in Pennsylvania, Louisiana, Virginia (see additional settlement here), and Georgia. More cases are still pending in Ohio, Wisconsin, Michigan, and Pennsylvania.

    Judge Black's opinion and order can be read here.

    NOTE: Mathew St. John's attorney, Miguel Garcia, is an associate at John R. Hakanson PC, 307 11th St., Alamogordo, NM 88310 and can be reached at Miguelo.Garcia AT gmail.com.
  2. eriknemily

    eriknemily Tillamook County (Cheese!) Member

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    Sweet! Cops should be informed on laws. They need to keep their bubblegumming hands off the law abiding citizens. I generally support LE but not when they are ignorant or defiant of laws.
  3. Leif Runenritzer

    Leif Runenritzer Kernilyis Active Member

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    Great news. I wish i'd heard about this last month when i was detained on my way back from my gunsmith on foot. I was stopped by the sheriff with my rifle-case in hand. I must have consented to something in my effort to be cool because i ended up disarmed and waiting for checks to be done on my guns. He assured me i did nothing wrong and they were just having a slow day. A week later, i mentioned this to a policeman i know and he set me straight on why none of that should have happened, and either i consented to something, or i should be filing a complaint. I feel pretty dumb now.
  4. Contract_Pilot

    Contract_Pilot Vancouver, Washington Active Member

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    Never ever consent to a search and protest any search...
  5. Cougfan2

    Cougfan2 Hillsboro, OR Well-Known Member

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    Never ever consent to a search and protest any search...

  6. fromotoc

    fromotoc Downtown Portland, OR Member

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    And if you are ever arrested invoke your right to remain silent.
  7. michaels

    michaels oregon Active Member

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    First I would like to give appreciation to LE out there.

    Thank you for the job you do.

    Next I would like to tell my fellow members here of
    Three phrases to remember when dealing with LE.

    1) am I free to go?

    2) I do not consent to a search.

    and if 1 and 2 didn't work for whatever reason....

    3) I would like to speak with an attorney.

    Keep it respectfull, and I am sure the respect will come back.
  8. eriknemily

    eriknemily Tillamook County (Cheese!) Member

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    +1 for Michaels' post. In order to be respected you need to be respectful even if the cop (or anybody for that matter) is not.
  9. badclam

    badclam willapa bay Sunny SW WA Active Member

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    Very good statement.Very good advice.
  10. smithmax

    smithmax here Member

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    My wife worked with a group called Juvenile Rights Project a few summers ago. They dealt with a lot of "troubled" youth. One thing that they gave the kids was a business card to remind them what to say to LEO "I will not waive my constitutional right to not speak without an attorney present. I do not consent to any searches."

    Not that the kids followed the advice, but it never hurts to try.
  11. Sawdust

    Sawdust Bull Mountain(Tigard), OR Gold Supporter Gold Supporter

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    Just two weeks ago I was pulled over by the State Police for speeding (first time in over 15 years :banghead:) -70mph in a 55 oops! There were three of us in the burb, I was carrying concealed (as always) and there were approximately 30 other weapons in cases in the back - yes it was crowded. Anyway, the trooper was very polite, as were we. He ran my info and asked us what are plans were with all the weapons. He asked us to make sure we clean our area up when finished, be safe and to have a nice day.

    So back to my point.

    This was an experienced trooper who knew the laws, was not overly paranoid about "men with guns" and was a very polite person. He did not even ask about my carry permit, which I know he knew about as soon as he confirmed my ID. He had not been brainwashed. We had a nice chat about hunting in the Tilly then he sent us on our way(with a warning to slow down :)) This sure could have ended differently if we had started out with an attitude or he, the Trooper, was ignorant of the gun laws.

    Last bit of advice..............watch out for forward facing laser/radar that can calculate your rate of closer based on the officers speed in those state cars. :D
  12. wakejoe

    wakejoe Beaverton, OR Well-Known Member

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    State Trooper got me that same way. :D He was playing with my son in the back window, making jokes about him shooting the 12ga. He's three. :D

    Troopers and Sheriffs I will stand by and support. I refuse to deal with City police, however.
  13. motohead185

    motohead185 Portland, OR Member

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    Nothing against city police, but i think a lot of them are too hot headed. at least some the officers that have only been on the force for under 5 years. I have noticed the difference between sheriff and city officers. By far the sheriff deputies are more community policing based then city officers which i think is a little backwards.
    But maybe it is just me being :paranoid:. :thumbup: