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Thread: News Article Documents Successful Suit Against Gonzales, LA for Police Harassment of Open Carrier!

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    Somebody please figure out if LA FOIA requires City to provide docs on the settlemet figure.

    --

    http://www.2theadvocate.com/news/277...wALL=y&c=y

    Gonzales settles gun-carrying man’s lawsuit


    LIZ CONDO
    Mark Marchiafava wears his gun Friday near a mall where he was arrested by Gonzales police in 2006. The charge for illegal carrying of a weapon later was dismissed. City officials recently paid Marchiafava an undisclosed amount to settle his civil rights suit. Marchiafava continues to carry his pistol in a holster on his hip.



    • By BILL LODGE
    • Advocate staff writer
    • Published: Aug 31, 2008 - UPDATED: 12:05 a.m.

    Mark Marchiafava says he’s earned the right to wear his .357-caliber Magnum pistol in a hip holster in Gonzales.

    And, he says at a local mall, city residents paid him to demonstrate that right.

    “I wish the taxpayers of Gonzales knew just how much money it is,” the 55-year-old Marchiafava adds.

    In January 2006, the longtime Baton Rouge resident was at the same mall, wearing the same pistol, when a Gonzales police officer asked him why he was carrying a gun.

    Marchiafava says he told the officer that non-felons can legally carry firearms that are not concealed.

    That exchange led to Marchiafava’s arrest on a count of illegal carrying of a weapon. The arrest led to an hours-long stay at the Ascension Parish Prison.

    But the case later was dismissed, and Marchiafava’s bond and weapon were returned to him.

    Marchiafava didn’t let the dispute fade away. He sued for violation of his constitutional right to bear arms. The city recently settled the case by paying Marchiafava an undisclosed amount of money.

    “I can’t disclose any client confidences,” said Bradley C. Myers, a Baton Rouge attorney for the Gonzales Police Department. “The details are confidential, not the fact of the settlement.”

    So why pay Marchiafava?

    “It was just a business decision that everybody makes during a civil suit,” Myers said.

    “There are risks in all litigation and costs to defend litigation,” Myers said, adding that city officials weighed those risks and costs before opting for a settlement.

    Marchiafava won’t talk dollars and cents, either.

    “The confidentiality agreement prevents me from disclosing that amount,” Marchiafava said.

    But he said the settlement would “buy someone a brand-new motorcycle.”

    “All of this could have been avoided,” Marchiafava said. “I kept telling them: ‘Don’t arrest me.’”

    After his arrest, Marchiafava said, Police Chief Bill Landry told other people: “‘We have a policy of arresting anybody carrying any type of firearm without a concealed-gun permit.’

    “It’s not the people who are openly carrying weapons that you need to worry about,” Marchiafava said. “It’s the people who carry concealed guns that you need to be concerned about.”

    Marchiafava said he remains concerned that someone else may someday be arrested under similar circumstances because: “In Gonzales, the law is whatever the cops say it is.”

    That’s not correct, Chief Landry said.

    “We will follow the law as prescribed,” Landry said, adding that the law permits carrying a firearm in an unconcealed holster. But Landry will not discuss the case further.

    “I’ve got no comment on that,” Landry said. “I’ve got no comment.”

    Donald North, a professor at Southern University Law Center, said Marchiafava has the legal right to carry a firearm in a holster on his hip.

    North says carrying the firearm in that manner falls under the same law that requires hunters to keep their shotguns and rifles on gun racks visible through the rear windows of their vehicles.

    “If you’re not concealing it, the statute does not prohibit your carrying of that weapon,” North explained.

    “This only applies to law-abiding citizens,” the professor said. “Convicted felons can’t do this.”

    North adds that he is merely explaining the law, not advocating a particular behavior.

    “I’m not trying to suggest we should go back to the days of the Wild West,” North said.

    Marchiafava says he does not regret carrying the pistol — even when it draws unwelcome attention from police officers.

    He says other people should exercise their right to lawfully carry firearms.

    “When they (police officers) shoved a gun in my face, I was thinking: ‘These guys are dangerous.’

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    Mike wrote:
    “When they (police officers) shoved a gun in my face, I was thinking: ‘These guys are dangerous.’
    Right on !


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    http://www.legis.state.la.us/lss/lss.asp?doc=99632
    RS 44.1

    TITLE 44

    PUBLIC RECORDS AND RECORDERS

    CHAPTER 1. PUBLIC RECORDS

    PART I. SCOPE

    §1. General definitions

    A.(1) As used in this Chapter, the phrase "public body" means any branch, department, office, agency, board, commission, district, governing authority, political subdivision, or any committee, subcommittee, advisory board, or task force thereof, or any other instrumentality of state, parish, or municipal government, including a public or quasi-public nonprofit corporation designated as an entity to perform a governmental or proprietary function.

    (2)(a) All books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state, are "public records", except as otherwise provided in this Chapter or the Constitution of Louisiana.

    (b) Notwithstanding Subparagraph (a), any documentary material of a security feature of a public body's electronic data processing system, information technology system, telecommunications network, or electronic security system, including hardware or software security, password, or security procedure, process, configuration, software, and code is not a "public record".

    (3) As used in this Chapter, the word "custodian" means the public official or head of any public body having custody or control of a public record, or a representative specifically authorized by him to respond to requests to inspect any such public records.

    B. Electrical well surveys produced from wells drilled in search of oil and gas located in established units and which are filed with the assistant secretary of the office of conservation shall be placed in the open files of the office of conservation. Any party or firm shall have the right to examine or reproduce, or both, at their own expense, copies of said survey, by photography or other means not injurious to said records. All other electric logs and other electronic surveys, other than seismic data, produced from wells drilled in search of oil and gas which are filed with the assistant secretary of the office of conservation shall remain confidential upon the request of the owner so filing for periods as follows:

    For wells shallower than fifteen thousand feet a period of one year, plus one additional year when evidence is submitted to the assistant secretary of the office of conservation that the owner of the log has a leasehold interest in the general area in which the well was drilled and the log produced; for wells fifteen thousand feet deep or deeper, a period of two years, plus two additional years when evidence is submitted to the assistant secretary of the office of conservation that the owner of the log has such an interest in the general area in which the well was drilled and the log produced; and for wells drilled in the offshore area, subsequent to July 1, 1977, regardless of depth, a period of two years from the filing of the log with the office of conservation, plus two additional years where evidence is submitted to the assistant secretary of the office of conservation that the owner of the log has such an interest in the general area in which the well was drilled and the log produced and has immediate plans to develop the said general area, unless a shorter period of confidentiality is specifically provided in the existing lease.

    At the expiration of time in which any log or electronic surveys, other than seismic data, shall be held as confidential by the assistant secretary of the office of conservation as provided for above, said log or logs shall be placed in the open files of the office of conservation and any party or firm shall have the right to examine or reproduce, or both, at their own expense, copies of said log or electronic survey, other than seismic data, by photography or other means not injurious to said records.

    Amended by Acts 1973, No. 135, §1; Acts 1973, Ex.Sess., No. 4, §1; Acts 1978, No. 686, §1; Acts 1979, No. 691, §1; Acts 1980, No. 248, §1; Acts 2001, No. 707, §1, eff. June 25, 2001; Acts 2001, No. 882, §1.
    You tell me, Mike. I'm no lawyer, but it looks to me as if it should fall under this law and the several subsections which follow it. After a brief glance at them, it appears that ANY citizen of legal age may ask to see the records, and the custodian of such records must IMMEDIATELY make them available for viewing. The applicant need not buy copies of the document, but must be shown the original in the file. the applicant may ask for copies, but must pay for them. If there's a valid reason that the records are not available at the time of request, the custodian has 3 days to produce them. If this does not happen, the applicant may petition in Court for them.

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    Mike wrote:
    Somebody please figure out if LA FOIA requires City to provide docs on the settlemet figure.
    A public body must disclose the amount of the settlement when a proper request is made pursuant to the Louisiana open records statute. Times Picayune Pub. Corp. v. Board of Sup'rs of Louisiana State University, 845 So.2d 599 (La.App. 1 Cir. 2003), writ denied, 852 So.2d 1044 (La. 2003) (also mentioned in another thread).
    James M. "Jim" Mullins, Jr., Esq.
    Admitted to practice in West Virginia and Florida.

    Founder, Past President, Treasurer, and General Counsel, West Virginia Citizens Defense League, Inc.
    Life Member, NRA

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    So.... Who knows how to make the request? What are we waiting for?


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    Anyone know if this gentleman is an OCDO member?

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    HungSquirrel wrote:
    Anyone know if this gentleman is an OCDO member?
    You mean User 2038? 651 Posts and joined Fri May 18th, 2007.

    Congrats MEM. Izzat your new glide ride in the background?

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    Donald North said:
    This only applies to law-abiding citizens,” the professor said. “Convicted felons can’t do this.
    Bad guys and felons will not 'do this'.

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    WVCDL wrote:
    Mike wrote:
    Somebody please figure out if LA FOIA requires City to provide docs on the settlemet figure.
    A public body must disclose the amount of the settlement when a proper request is made pursuant to the Louisiana open records statute. Times Picayune Pub. Corp. v. Board of Sup'rs of Louisiana State University, 845 So.2d 599 (La.App. 1 Cir. 2003), writ denied, 852 So.2d 1044 (La. 2003) (also mentioned in another thread).
    I love you guys!

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    Pa. Patriot wrote:
    So.... Who knows how to make the request? What are we waiting for?
    This is being looked into by the reporter.



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    Doug Huffman wrote:
    HungSquirrel wrote:
    Anyone know if this gentleman is an OCDO member?
    You mean User 2038? 651 Posts and joined Fri May 18th, 2007.
    Ah, many thanks. Congrats indeed. This case inspires confidence. Perhaps in my open carry excursions in Louisiana I should keep a printout of this article (and the implied threat of a lawsuit) handy. Don't know if that would be enough to stop the gun-grabbing jack-booted thugs running New Orleans, but I imagine most of the rest of the state would be unwilling to harass me on my visits.

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    Congratulations on a successful defense and civil suit outcome, Mark!!
    Bob Owens @ Bearing Arms (paraphrased): "These people aren't against violence; they're very much in favor of violence. They're against armed resistance."

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    HungSquirrel wrote:
    This case inspires confidence. Perhaps in my open carry excursions in Louisiana I should keep a printout of this article (and the implied threat of a lawsuit) handy. Don't know if that would be enough to stop the gun-grabbing jack-booted thugs running New Orleans, but I imagine most of the rest of the state would be unwilling to harass me on my visits.
    This article is now part of the collection of laws and court rulings I carry in a folder in my car for informational purposes. Didn't have it with me when I had my little run-in with NOPD however. They will be getting a copy via the US Postal Service very shortly.

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    Has anyone obtained the settlement documents from the authorities there? Is anyone still working on that?

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    Thx for sending the message about OC'ing and the financial ramifications for PD's who ignore the y law!

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    mvpel wrote:
    Has anyone obtained the settlement documents from the authorities there? Is anyone still working on that?
    the reporter was going to try if his editor gave him time - can you take this on?

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    Yeah, it's no problem, just a certified one-page letter, I expect. I'll get it out the door this week. Just didn't want to jump in if someone was already working on it.

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    North says carrying the firearm in that manner falls under the same law that requires hunters to keep their shotguns and rifles on gun racks visible through the rear windows of their vehicles.
    Wait, wait....What???? There's a law requiring you to keep your rifles and shotguns visible in the rear window? My BS meter is going off. In this State, Louisiana, your vehicle is considered an extension of your home. There is no requirement to keep your weapons visible here. ALERT. ALERT. BS DETECTED. BS DETECTED.
    President/ Founding Member
    Louisiana Open Carry Awareness League
    www.laopencarry.org

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    Congrats on winning this case Mark... no matter the recompense. (Altho that's a nice bone to chew...) Maybe the LEO's in LA and elsewhere will take note of this. Maybe?

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    Yea Mark i was told this also, and guess what ? they did. Thanks for standing up. Mtn Jack

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    I've sent the public records request to the Gonzales PD records division, including the court case cite. It should arrive there by Friday or Monday, certified mail with return receipt. We'll see what they do with it.

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    mvpel wrote:
    I've sent the public records request to the Gonzales PD records division, including the court case cite. It should arrive there by Friday or Monday, certified mail with return receipt. We'll see what they do with it.
    I recommend you send a new request to the City Manager - the police don't keep records of civil litigation.

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    Probably a lot to assume that they'll be sensible enough to forward the request to the person who actually has the record, eh?

    I'll give 'em a couple of days after I get the return receipt back, and if I don't hear anything I'll follow up.

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    Good win!

    Hows the Marine doing on Oceanside, CA.
    Im proudly straight. I'm free to not support Legalization, GLBT, Illegal Aliens, or the Islamization of America.

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    mvpel wrote:
    Probably a lot to assume that they'll be sensible enough to forward the request to the person who actually has the record, eh?
    No. Most FOIA laws I've read only obligate the person to whom you directed the request to provide the record if they actually have it and do not obligate them to tell you how to get it if someone else has it (even if they have actual personal knowledge of where it is, if it's outside their control). You have to identify the correct custodian of records and make a proper request of the actual custodian.
    James M. "Jim" Mullins, Jr., Esq.
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    Founder, Past President, Treasurer, and General Counsel, West Virginia Citizens Defense League, Inc.
    Life Member, NRA

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