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Thread: Issued Citation for OC'ing In My Driveway Tonight... 5 Squad Cars Necessary?

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    Regular Member MainelyGlock's Avatar
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    Issued Citation for OC'ing In My Driveway Tonight... 5 Squad Cars Necessary?

    This is going to come out as a jumbled mess at first, just so I can write everything down. I'll organize it later. I stupidly did not record any of this.

    At 9:49PM today, I called 911 because I noticed there was a man asleep in my driveway while I was taking out the trash. I tried speaking to him, and gently moving his shoulder to see if he would wake up. When he didn't respond, I went inside and called 911 asking if they would come remove him. I told the dispatcher to please advise any officers that would be on scene that I was carrying a holstered handgun (first mistake?) and would be at the end of my driveway waiting for them. He told me that he was only going to send the EMTs, but if I wanted officers there then he would send some. (second mistake). Roughly 4 minutes later, a firetruck showed up, then an ambulance, and about 20 seconds later two squad cars. I led the EMTs towards the end of my driveway, and went back towards the entrance of it to greet the officers. Let me pause to say that the first two officers handled my OC'ing VERY well. They asked if I was the one with the gun, and I replied yes. When they asked why, I told them it was because there was a stranger blacked out in my driveway and I had no idea what he could and would do, so I felt the need to protect myself. They responded and said that "oh, the dispatcher told us the man in your driveway was the one with the gun." One of them asked if I OC a lot, and I said it's about 50/50 with CC, and he said "that's cool, it is your right and you're allowed to."

    As my uninvited guest was being dealt with and dragged out of my driveway by other officers who had shown up (totaling 4 or 5), a Sgt. by the name of Calloway approached me and asked for I.D. I told him it was in my house, and he asked me to leave my firearm outside. I told him I was not comfortable doing so, and he said "Ok, I will have an officer escort you inside to grab it". I told him that I did not give permission for any of them to enter my household. This seemed to aggravate him, and he told me I was violating a city ordnance by open carrying after dark. I asked him which one, and he replied that he didn't know it off the top of his head, but if I let an officer hold onto my gun he would take me into his squad car to show me. I told him no thank you, and that I would just Google it later. He said that if I don't comply with one of the orders gave me, I would be issued a citation. I told him that if he felt it was necessary to write one that he should, and that as soon as the man in my driveway was removed from my property (who was being restrained and cuffed) I would be more than glad to go inside with my firearm, but that I would keep it on me while I was outside for my protection. He continued to lecture me on not cooperating with him and the other officers (5 of which were standing around me by now, blocking me from entering my driveway and forcing me to stand on public property), jeopardizing their safety, how this was his first "open carry advocate call", how he was trying to "Educate me" and didn't understand why I didn't want to learn the laws, why was I being difficult, how I was making people around me unsafe and uncomfortable, yada yada yada. Also told me how bad of an idea it was to have a gun when I knew cops would be coming, and I told him that I had no idea long it would take for them to arrive. I told him that it took 3 or 4 minutes for them to arrive, and a lot could have happened in that time. He made a remark about how hurt he was that I didn't have faith in the police (with much sarcasm) and I asked him where they were when I got stabbed. (sarcasm on my part). I nodded my head and stayed silent through most of this, though. He said since i was being issued a citation that I would need to give him ID, so I provided him with my name, DOB, and license number.

    While he went back to one of the 5 squad cars now parked on my street, another Sgt. (harris, jarris?) started talking to me about how that man could have taken my gun away from me, and how an officer with a level III retention holster had his gun wrestled away from him just yesterday before being tazed. I told him that I had read about that, and he put a lot of emphasis on how I didn't have any training, and how if it happened to someone who had a lot more training than I have had in my entire life then it could definitely happen to me. A lot of rude undertones were given off from both of these officers. He told me that if ANYTHING came back on my license or record or I provided them false information, I would be arrested on the spot. I told him (third time) that if I was a felon, I would have no been able to buy the firearm I was carrying nor would I have been approved for my CCP. After he had left, the third Sgt. and I had a very civilized discussion about open carrying, where I was in school, WHY I carried a firearm, stuff like that. No hint of an attitude which was nice.

    After about a half hour of standing around, speaking with a few of the officers, Officer Callway came back over and told me "because he was such a nice guy, he would show me the ordnance anyways" and invited me over to look at the computer in his cruiser. I told him that I would not be disarming myself for this, and he replied "I never askjed you to". I went over, circled by 4 officers, and read through it twice. It is Portland City Ordnance number 17-42 that I am being accused of violating. I thanked him for letting me read it, and he once again mentioned that he was only trying to educate me and didn't know why I was being so uncooperative. We all walked back over to the sidewalk, where he once again asked me where I lived because a different address was coming up. I told the officers (again) I was house sitting for my mother, and gave them the address that matched my license. Officer Callway started to fill out the citation book, and asked another officer for his light because "he couldn't see in the dark with his old eyes". he then proceeded to turn the light on, and said "I'll shine it at you to see how you like it" before shining it into my eyes. Super mature for a 46-year old man. I said "that's almost as bright at the one I have", trying to make light of the CLEAR abuse that was occuring, and he said "I bet you'll like this one" and turned the strobe on. In my eyes again. The female officer (one of the initial two nice ones) looked like she was about to say something, but didn't. He went over the citation with me, told me how unhappy the chief would be when he saw this on his desk, and I signed it. I thanked them for coming out to take care of the man in my driveway and Officer Callway said "that's what we're here for. see you in court.''

    EDIT: While he was filling out the citation, Officer Callway asked me if I was still recording with my phone. I remained silent, and he said "you're not recording? this is one of my finer moments! Maybe I wanted to end up on YouTube." To me, this suggests that after the video one of our members took in Portland of his illegal search that the officers were made aware of it. Which is good if you ask me. But clearly not enough.

    I now have a court date set in November for violating a city ordnance. What started as getting a drunk man removed from my driveway turned into an whole ordeal that lasted an hour.

    Do I need a lawyer? Should I delete this immediately and call one? As a full time student, I definitely do NOT have the funds for one, so hopefully I won't. I don't want this on my record, though. It's already going to be in public record which sucks enough. Any advice is greatly appreciated.
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    Regular Member MainelyGlock's Avatar
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    Sec. 17-42. Same--Carrying at nighttime prohibited; exception.
    (a) No person shall have in his possession in or on any street, way, sidewalk, park or other public place, or in any motor vehicle on or in any street, way, sidewalk, park, or other public place between the time of sunset of any day and sunrise of the following day any loaded BB gun, air gun of any kind, gas pellet gun of any kind, firearm of any kind or description or any other such weapon.
    (b) This section shall not apply to any law enforcement official in the performance of his or her official duties or to any person defending himself or herself or his or her property.
    (Code 1968, § 703.6; Ord. No. 155-72, 5-15-72)


    This is the ordnance I am accused of violating. I initially asked if it included private property, and was told that it "didn't matter". Before Officer Callway let me near his computer to read it, he mentioned twice that I was NOT "defending my property". I really should of asked how I wasn't defending my property by arming myself in case the blacked out stranger in my driveway came at me.
    Once more into the fray.
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    Well as I read the ordanince it is for loaded and on "public" land as you were on your property don't know how well that will hold up

    Sec. 17-42. Same--Carrying at nighttime prohibited; exception. (a) No person shall have in his possession in or on any street, way, sidewalk, park or other public place, or in any motor vehicle on or in any street, way, sidewalk, park, or other public place between the time of sunset of any day and sunrise of the following day any loaded BB gun, air gun of any kind, gas pellet gun of any kind, firearm of any kind or description or any other such weapon. (b) This section shall not apply to any law enforcement official in the performance of his or her official duties or to any person defending himself or herself or his or her property.

    Don't see drive way listed in there

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    Regular Member MainelyGlock's Avatar
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    Quote Originally Posted by Zdoom View Post
    Well as I read the ordanince it is for loaded and on "public" land as you were on your property don't know how well that will hold up

    Sec. 17-42. Same--Carrying at nighttime prohibited; exception. (a) No person shall have in his possession in or on any street, way, sidewalk, park or other public place, or in any motor vehicle on or in any street, way, sidewalk, park, or other public place between the time of sunset of any day and sunrise of the following day any loaded BB gun, air gun of any kind, gas pellet gun of any kind, firearm of any kind or description or any other such weapon. (b) This section shall not apply to any law enforcement official in the performance of his or her official duties or to any person defending himself or herself or his or her property.

    Don't see drive way listed in there
    Exactly. I was initially on my property, in my driveway, until the officers blocked my way and made it very clear I was not allowed in my house until the citation was handed to me and they had left, thus forcing me onto the sidewalk which is public property I believe.
    Once more into the fray.
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    Regular Member twoskinsonemanns's Avatar
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    It sounds like you left your property to greet the cops.
    But I would still hire a lawyer and fight it. There was a trespasser of unknown threat on your property. Beside this city ordnance being completely asinine you were armed as a precaution of a possible threat.
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    Regular Member MainelyGlock's Avatar
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    Quote Originally Posted by twoskinsonemanns View Post
    It sounds like you left your property to greet the cops.
    But I would still hire a lawyer and fight it. There was a trespasser of unknown threat on your property. Beside this city ordnance being completely asinine you were armed as a precaution of a possible threat.
    I greeted them at the entrance to my driveway. I was beckoned out to the sidewalk by Officer Gallway to talk to him, and was not allowed to step onto my property until the situation had ended.

    I would love to hire a lawyer, but I'm broke! Unfortunately the court date is in a month, which is rather soon for Portland. What chances would I have fighting this on my own? It's essentially 5+ cops and their story against mine. Even though I have nothing on my record besides a speeding ticket, guess who the judge is most likely to side with?
    Last edited by MainelyGlock; 10-02-2012 at 12:02 AM.
    Once more into the fray.
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    If you went out onto the public highway to look at the cruiser's computer then you likely went on public land. You have a very hard case other than a 2nd amendment claim (which I would make to preserve the issue).

    Lesson is never call the cops I guess ... its a sad story.

    Do you think it will weigh on your permit?
    Last edited by davidmcbeth; 10-02-2012 at 12:06 AM.

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    Also add that you called 911 due to an intruter on your land I would have been armed as would most I would think which covers you on the exemptein at least that is my. .02

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    Regular Member MainelyGlock's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    If you went out onto the public highway to look at the cruiser's computer then you likely went on public land. You have a very hard case other than a 2nd amendment claim (which I would make to preserve the issue).

    Lesson is never call the cops I guess ... its a sad story.
    I was trying to do the right thing by alerting those on scene to my firearm so as to not freak them out... and look what happened ha. Very sad indeed. The attitudes of the majority of the officers were concerning, but not what I'm focused on. I was told I was violating a city ordnance while I was still on private property, then was led onto the sidewalk. Does that make a difference?
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    Regular Member MainelyGlock's Avatar
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    Quote Originally Posted by Zdoom View Post
    Also add that you called 911 due to an intruter on your land I would have been armed as would most I would think which covers you on the exemptein at least that is my. .02
    That's what I was thinking as well. I told the dispatcher that he was unresponsive, which means he was probably drunk or on drugs. Combine that with being an unknown person on my property, and you have a potential threat in my book. Guess next time I'll just bring him some water and a pillow.
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    Regular Member Fallschirmjäger's Avatar
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    IF the law means, you can't carry unless you are defending yourself, then how are you supposed to carry to Where you are defending yourself? Is is expected that your firearm will somehow magically teleport itself into your waiting hands when and only when you are actually engaged in defending yourself?

    Either the law is making some pretty wild assumptions, or the law doesn't mean what the officer thinks it means.
    Of course, he's "operating with good faith" so if he's wrong no one's been harmed (except for the thousands of dollars you are out defending against this nonsense.)

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    Quote Originally Posted by Fallschirmjäger View Post
    IF the law means, you can't carry unless you are defending yourself, then how are you supposed to carry to Where you are defending yourself? Is is expected that your firearm will somehow magically teleport itself into your waiting hands when and only when you are actually engaged in defending yourself?

    Either the law is making some pretty wild assumptions, or the law doesn't mean what the officer thinks it means.
    Of course, he's "operating with good faith" so if he's wrong no one's been harmed (except for the thousands of dollars you are out defending against this nonsense.)
    Very good point. How is it that city ordnances like this can overrule the Constitution? It seems to me that they are illegal in the first place, and should hold no weight.
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    How? Man that is a question people all over the country are asking... The answer is the man with the biggest gun makes the rules.
    Last edited by twoskinsonemanns; 10-02-2012 at 12:29 AM.
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    Regular Member david.ross's Avatar
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    While I'm not a Maine resident, I thought they had complete state preemption?

    http://www.mainelegislature.org/legi...25sec2011.html
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    Regular Member MainelyGlock's Avatar
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    Quote Originally Posted by david.ross View Post
    While I'm not a Maine resident, I thought they had complete state preemption?

    http://www.mainelegislature.org/legi...25sec2011.html
    Would you mind explaining what that means? Maybe it's the adrenaline wearing off, but I'm having trouble absorbing information like that right now.
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    Quote Originally Posted by MainelyGlock View Post
    Would you mind explaining what that means? Maybe it's the adrenaline wearing off, but I'm having trouble absorbing information like that right now.
    I sent you a PM, check your messages please.
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    I've gone to 3 City Hall meetings to try and get that ordinance removed. That ordinance is in violation of Maine's Preemption law. The charge will never stick. The City of Portland CANNOT enforce that ordinance. You have a great opportunity for suit here.

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    http://www.mainelegislature.org/legi...25sec2011.html

    Maine created this statute specifically because of this ordinance in Portland. Back in like 1989 or 1991 or something there was a man cited for violating this ordinance in Portland. He won his case in court and shortly afterward, the Maine legislature created the preemption statute. The statute basically says that Portland CANNOT enact any ordinance regarding anything to do with firearms. They can regulate the discharge of firearms within city limits, but they cannot regulate the sale or carry of any firearm, ammo, or component of firearms.

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    Regular Member WalkingWolf's Avatar
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    Check with your state AG, if this is a criminal offense, and you can't afford an attorney, I believe they have to provide you with one at city expense.

    I hope you fight and win this, and remember never talk to the police. Report the incident, and leave it at that, the officers could have found the man on their own. Classic lesson, not all cops are butt wipes, but you can't tell which ones are or are not.
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    Quote Originally Posted by boyscout399 View Post
    I've gone to 3 City Hall meetings to try and get that ordinance removed. That ordinance is in violation of Maine's Preemption law. The charge will never stick. The City of Portland CANNOT enforce that ordinance. You have a great opportunity for suit here.
    Thank you for your posts. I am going to call the PD tomorrow and ask to speak with the Captain on educating his employees. When the time for court comes, should I try to hire an attorney to make the points about pre-emption for me? I feel as though it will not go as well if I go in alone, even if I'm armed with the same information. Then again, I cannot afford a lawyer or the money it takes for a lawsuit.

    Quote Originally Posted by WalkingWolf View Post
    Check with your state AG, if this is a criminal offense, and you can't afford an attorney, I believe they have to provide you with one at city expense.

    I hope you fight and win this, and remember never talk to the police. Report the incident, and leave it at that, the officers could have found the man on their own. Classic lesson, not all cops are butt wipes, but you can't tell which ones are or are not.
    I believe it is a civil offense, so no lawyer needs to be provided by the state unfortunately.

    Thank you for the encouragement, I hope I win it as well. I'm very very glad to have the members of this forum and all of their knowledge, too.
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    Personally, I would go in and file a complaint. Bring the state preemption statute with you and ask to speak with the captain. I would also seriously consider filing suit. Because you were issued a citation you now have clear grounds for the suit.

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    Quote Originally Posted by boyscout399 View Post
    Personally, I would go in and file a complaint. Bring the state preemption statute with you and ask to speak with the captain. I would also seriously consider filing suit. Because you were issued a citation you now have clear grounds for the suit.
    Ok, I will go in instead of calling. It would have to wait until a week from now when it's my day off though, because of my class and work schedule. If the Captain is not available to speak with, should I file with whomever is next in command?

    How would I go about filing a lawsuit?
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    Regular Member david.ross's Avatar
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    Quote Originally Posted by MainelyGlock View Post
    Ok, I will go in instead of calling. It would have to wait until a week from now when it's my day off though, because of my class and work schedule. If the Captain is not available to speak with, should I file with whomever is next in command?

    How would I go about filing a lawsuit?
    Don't wait to call, speak with the captain today when you have a few moments.
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    Regular Member MainelyGlock's Avatar
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    Quote Originally Posted by david.ross View Post
    Don't wait to call, speak with the captain today when you have a few moments.
    I work 5AM-1PM, then have class from 2:30PM to 8:45PM. I wish I had time to do it today. Wednesday I have a few hours between work and class, but it makes me nervous not knowing how long it's going to take because I am not allowed to miss any classes.
    Once more into the fray.
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    Quote Originally Posted by MainelyGlock View Post
    I was trying to do the right thing by alerting those on scene to my firearm so as to not freak them out... and look what happened ha. Very sad indeed. The attitudes of the majority of the officers were concerning, but not what I'm focused on. I was told I was violating a city ordnance while I was still on private property, then was led onto the sidewalk. Does that make a difference?
    I would think that unless they commanded you onto public land your view may not prevail; if they did then estoppel may attach.

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