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Federal judge rules police cannot detain people for openly carrying guns
Federal judge rules police cannot detain people for openly carrying guns
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 "[i]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. http://www.examiner.com/x-2782-DC-Gu...-carrying-guns |
Re: Federal judge rules police cannot detain people for openly carrying guns
Bravo! As a NM resident, I heartily applaud Judge Black's decision.
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Re: Federal judge rules police cannot detain people for openly carrying guns
In reality this means nothing.
Since when we do we care about the law in this country? |
Re: Federal judge rules police cannot detain people for openly carrying guns
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The problem is they do not care. This is why this is good news when a judge enforces the law. |
Re: Federal judge rules police cannot detain people for openly carrying guns
"qualified immunity,"
That only works when the 'corporate' officers of the law are acting withing the statutes. Anything outside of the statues would be considered fraud. Fraud pierces the corporate veil nullifying any protection/immunity. |
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Re: Federal judge rules police cannot detain people for openly carrying guns
Here's the problem that most Americans do NOT understand when it comes to Federal rulings...
There are three levels of Federal review: 1) District Level...The lowest and most meaningless 2) The Federal Appellate level...May mean a little something if they and the district agree and it's not too far out in left field. 3) The US Supreme Court...Final say or "law of the land"...All appeals at this level are strictly discretionary and at will. This was a single district court case in obscure New Mexico. It means nothing to anyone outside of this district, much less the appellate region that will review it. Ill informed people often get worked up when they hear that, "..A Federal judge ruled so-and-so"...The problem is that that "Federal Judge" only has jurisdiction in his district. You should read some of the ludicrous rulings I have read by Federal District Judges...:4_1_72: |
Re: Federal judge rules police cannot detain people for openly carrying guns
OK, here's a question.
What are the legal issues if an individual attempts make a citizens arrest to arrest a law enforcement officer? Yes, I know. There will be a flurry of people saying, "Oh yeah. Go ahead and try it. Let me know how that turns out for you." I'm not asking about the PRACTICAL issues. I think I and everyone else on the forum can figure that out. Say you witness someone committing a crime like breaking the glass on a jewelry store and grabbing some jewels. Say it's your property and your store so you draw you gun and hold the guy. He says he's a cop. You say you don't care. A scuffle ensues and you have him hog tied before the "on duty" cops arrive. You say, I'm making a citizens arrest. Please wait peacefully until the police arrive. He swears he's a cop. "Look at the badge" etc.. You do and sure enough the guy is detective sergeant schmedlap of your local police. The cops show up, arrest you, let him go and Oh, fiddlesticks, Johnnie Cochran is already dead. Eventually it all gets around to being discussed in court whether you have the right/authority to make a citizens arrest against an LEO. And please, can we discuss the legal issues and not what the cops will try to do? We are pretty sure we know what they will try to do (we don't need that BLINDING FLASH OF THE OBVIOUS). Let's assume that for whatever reason the issue is discussed in a court that allows all arguments. And then for the LEO's on the forum, here's a question for you. You get a call where a retailer is holding a burgler/robber at gunpoint (or has him tied up for you). You arrive at the scene and the store owner says, "Thank GOD you're here! He tried to rob my store! Arrest him! The guy who's hog-tied says, "Thank GOD you're here! I told this moron I'm a COP. Will you let me go now please? It turns out to be a cop you know. Citizen calls to make a complaint. Catches the accused, calls 9-1-1, and holds him for you. You arrive and the "suspect" is a cop you know. What's next? |
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I'm all for the ruling though, strap it on and go into town... |
Re: Federal judge rules police cannot detain people for openly carrying guns
Simple question, simple answer...he ("the cop") gets arrested. He's not acting in any official capacity when he robs a store.
Only question is...does he work for my department? If not, I arrest him myself. If so, I request an officer from another jurisdiction to handle the arrest. It avoids any type of conflict with reports, evidence, etc. I've handled both situations before, and assume I will again. Most cops are good people, but as with any vocation, you get your turds... I have no problem flushing them from the system... |
Re: Federal judge rules police cannot detain people for openly carrying guns
Sorry you feel that way. I'm not going to argue with you, you have your mind made up, and some internet forum banter is not about to change it.
I can, however, tell you this. I have been a cop for 23 years. During that time, I have personally come in contact with a total of 5 cops who have committed crimes while off duty (as this question suggested). The outcome? 2 charged with summary offenses, pled guilty, paid fines and served departmental suspensions (which cost a lot more than the fines). 2 charged with misdemeanors, both pled guilty, paid fine and costs and were relieved of duty. 1 charged with a felony (rape). He's still sitting in state prison, right where he belongs. Shouldn't have gotten past the background investigation inthe first place, but that's a different story... I'm not out here trying to make friends...not with the public, not with co-workers, and not with other forum members. If you like me, fine. If not, deal with it, I don't care. I have a job to do, I do it to the best of my ability, and I go home at the end of my shift. 2 years until retirement. I'm just trying to make it without getting shot so I can spend time with my girls. OK...I'm starting to ramble...good night, all... |
Re: Federal judge rules police cannot detain people for openly carrying guns
the key to this ruling will be the amount of the damages the judge awards........if its 5 thousand..it just gets paid and goes away......if it is significant say 5mil dollars etc.....
then #1 the police depts insurance policy pays up and raises rates on the PD forcing them to change mode of practice etc etc or #2 the insurance company bumps it up to the next court level etc....the higher it goes the more precidence setting it is... |
Re: Federal judge rules police cannot detain people for openly carrying guns
Pssst, Real Money Now , shhh, dont tell anyone, but there Are people who actually dont take SHIT off cops.
Here is one example, where the city of Tampa , Fla. gets their ass handed to them...... this case , If you choose to read it will show you that some people look at cops with disdain. Disdain:a feeling of contempt for someone or something regarded as unworthy or inferior. Trezevant v. City of Tampa, 741 F.2d 336 (11th Cir. 1984). http://bulk.resource.org/courts.gov/...8.83-3370.html Dont quote me , however I think this guy was awarded $1000.00 for every minute that he was held What gets me personally , is these municipalities send out cops with bullet proof vests and loaded weapons and dont know jack about the law............ Try this in your state , Its the easiest money you could make......... |
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"Feeling that such a procedure deprived him of his civil rights (to remain at liberty), he brought this action. The jury agreed with his contentions and we affirm." |
Re: Federal judge rules police cannot detain people for openly carrying guns
[quote=Real Money Now;1933526]FEDERAL court, as I would expect. I imagine no relief whatsoever was forthcoming from Florida state courts.
Who gives a crap.....he knew what he was doing, and set them up to take the fall... besides, one should never expect to get relief from a local court. Your remedy is at the federal level anyway. Duh |
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