Georgia Federal Court Rules No PC for OC Arrest

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http://www.examiner.com/x-5619-Atlanta-Gun-Rights-Examiner~y2009m7d24-Federal-court-rules-no-probable-cause-in-arrest-for-openly-carried-firearm



No probable cause or arguable probable cause for the concealed carry arrest (the gun was openly carried). No probable cause for the disorderly conduct arrest, either, but arguable probable cause because it was reasonable for the officer to be mistaken.

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"He was charged with carrying a concealed weapon, even though hewas carrying openly, anddisorderly conduct".

Now, was that plain stupid, ignorance of the law or wanton disregard for the law?

"On the concealed carry charge, the court held that there was not even arguable probable cause.

This should have been clear from the get-go, is it not?

"Although the officers did not have facts to support the necessary elements of a disorderly conduct claim, the court was willing to accept that the officers may have had facts to support two of the three elements, and "a reasonable officer could have concluded" that the missing element was present".

"Thelegal doctrineof qualified immunity protects officers who were "reasonable but mistaken." Only one mistaken charge needs to be reasonable for the entire damages claim to be thrown out, so the fact that the concealed carry charge was unreasonable for any officer "with an adequate understanding of the law" ends up meaning nothing in terms of damages".

Aagghhh.

"Officers who spot people openly carrying should not, however, believe that the result of this case would be the same for them should they detain a person merely for legally carrying a gun openly and exposed. The court emphasizedthat merely carrying a gun is not"violent and tumultuous." The court held:

Hoping a California Court would say the same thing.

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Case shows how courts will often grant police "qualified immunity" even when they broke the law - to recover damages, plaintiffs must have extremely clear and positive facts on ther side.

In this case, gun owner allegedly touched and figited with his gun while in public view - rule of thumb is to not do this in public generally anyway, and a helpful behavior carry somthing in your carry hand to preclude you from doing it - cup of ocffee, car keys, etc.

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Mike,

Our view is that the ruling will have a positive effect anyway, given that the court clearly ruled that the arrest was illegal and wrong, and stated that merely openly carrying a pistol (Mexican carry) in the small of one's back is not disorderly conduct.

Officers around the state will see this.

We have another case pending against Marta (Metropolitan Atlanta Rapid Transit Authority) for detaining one of our members for 30 minutes because he was carrying a firearm. The police are claiming they did not detain him, so this case, combined with the other case, should really flesh out the law for Georgia officers on whetherit is permissible under the Fourth Amendment to detain somebody merely for carrying a pistol.

Of course the answer to that question is there must be a reasonable, articulable suspicion of illegal activity, at a mininimum. With this ruling from a federal court in Georgia stating clearly that carrying openly is no kind of crime in Georgia, that is a good step in the right direction.

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Malum Prohibitum wrote:

Mike,

Our view is that the ruling will have a positive effect anyway, given that the court clearly ruled that the arrest was illegal and wrong, and stated that merely openly carrying a pistol (Mexican carry) in the small of one's back is not disorderly conduct.

Officers around the state will see this.

We have another case pending against Marta (Metropolitan Atlanta Rapid Transit Authority) for detaining one of our members for 30 minutes because he was carrying a firearm. The police are claiming they did not detain him, so this case, combined with the other case, should really flesh out the law for Georgia officers on whetherit is permissible under the Fourth Amendment to detain somebody merely for carrying a pistol.

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You are correct, that part of the ruling appears to "clearly establish" that open carrying is not concealed carry - but what about the permit part - cannot the police still stop the carrier for a permit in Goergia to OC?

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Mike wrote:

You are correct, that part of the ruling appears to "clearly establish" that open carrying is not concealed carry - but what about the permit part - cannot the police still stop the carrier for a permit in Goergia to OC?

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I think not. In order to seize somebody to demand the license, there must be a reasonable, articulable suspicion of a crime. Without that, an officer may not seize a person. They can ask, and you can consent, but you must be free to ignore the officer and walk away. Where is the reasonable, articulablesuspicion of a crime? What is the suspected crime? Not having a license? Ok, articulate to me the objective facts and the inferences you draw from those facts that lead you to reaonably suspect that this man does not have a license.

That is the very issue that we think will be resolved in the Marta case. More info at the link (including a news video):

http://www.georgiacarry.org/cms/?s=Marta



Which reminds me I need to write an Atlanta GRE column about that . . .

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Malum Prohibitum wrote:

Mike,

Our view is that the ruling will have a positive effect anyway, given that the court clearly ruled that the arrest was illegal and wrong, and stated that merely openly carrying a pistol (Mexican carry) in the small of one's back is not disorderly conduct.

Officers around the state will see this.

We have another case pending against Marta (Metropolitan Atlanta Rapid Transit Authority) for detaining one of our members for 30 minutes because he was carrying a firearm. The police are claiming they did not detain him, so this case, combined with the other case, should really flesh out the law for Georgia officers on whetherit is permissible under the Fourth Amendment to detain somebody merely for carrying a pistol.

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What the hell? What did the police think they were doing, having tea and cookies & chit chat?

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Statesman wrote:

Malum Prohibitum wrote:

Mike,

Our view is that the ruling will have a positive effect anyway, given that the court clearly ruled that the arrest was illegal and wrong, and stated that merely openly carrying a pistol (Mexican carry) in the small of one's back is not disorderly conduct.

Officers around the state will see this.

We have another case pending against Marta (Metropolitan Atlanta Rapid Transit Authority) for detaining one of our members for 30 minutes because he was carrying a firearm. The police are claiming they did not detain him, so this case, combined with the other case, should really flesh out the law for Georgia officers on whetherit is permissible under the Fourth Amendment to detain somebody merely for carrying a pistol.

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What the hell? What did the police think they were doing, having tea and cookies & chit chat?

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This is the standard claim, after the fact, and after they realize that they committed a crime by detaining you, to say you were really free to go at any time, despite actions, body language and unspoken communication to the contrary.

This is why one of the most important questions you should always be prepared to ask a police officer is "Am I free to go?"

TFred

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TFred wrote:

SNIP This is why one of the most important questions you should always be prepared to ask a police officer is "Am I free to go?"

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Not to undermine you, TFred, but to strengthen.

I think one of the real issues here is the possibility of police prevarication (lies).

If they are willing to lie about the tone of voice they used, and threatening presence of multiple officers, hands on weapons, etc., then they will also be willing to lie about whether you asked if you were free to go, and whether they said no.

An important element is the voice-recorder.

Asking if you are free to go is an important point. Getting the answer on the voice-recorder is possibly more important.



PS: My plan includes not so much asking if I am free to go, but assuming I am not free to go and asking, "Why am I being detained?"

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In the Marta case, they had multiple officers, seized his gun, took his i.d., and held in in a room out of public sight for a half hour. Would YOU feel free to go?

GCO has another member who was stopped at Kroger (a GCO Corporate Sponsor!) after some hyperventilating member of the public called them. The police claim that the stop was consensual when they ordered him to accompany them outside, handcuffed him, and took his gun.

Would you feel free to leave with handcuffs on? :lol:

The surveillance video shows the officer getting out his handcuffs before they even contact the GCO member . . . That one is not a lawsuit (yet), but it just goes to show that the police will claim any encounter is consensual unless you clearly object and try to leave.

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Malum Prohibitum wrote:

In the Marta case, they had multiple officers, seized his gun, took his i.d., and held in in a room out of public sight for a half hour. Would YOU feel free to go?

GCO has another member who was stopped at Kroger (a GCO Corporate Sponsor!) after some hyperventilating member of the public called them. The police claim that the stop was consensual when they ordered him to accompany them outside, handcuffed him, and took his gun.

Would you feel free to leave with handcuffs on? :lol:

The surveillance video shows the officer getting out his handcuffs before they even contact the GCO member . . . That one is not a lawsuit (yet), but it just goes to show that the police will claim any encounter is consensual unless you clearly object and try to leave.

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I'm of the mind that if I'm ever detained or given the impression I'm detained, to insist the officer put me in handcuffs if I'm truly detained. If they refuse, I'll state "I am apparentlynot detained then"and will bid them a good day.

Of course, I could go with the smart-ass tech response I was taught too... "Officer, I'll be glad to assist you with your questions. I charge $100/hr, two hours minimum."

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darthmord wrote:

Of course, I could go with the smart-ass tech response I was taught too... "Officer, I'll be glad to assist you with your questions. I charge $100/hr, two hours minimum."

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Oh man! I gotta remember that one!!! LOL :lol:

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darthmord wrote:

I'm of the mind that if I'm ever detained or given the impression I'm detained, to insist the officer put me in handcuffs if I'm truly detained. If they refuse, I'll state "I am apparentlynot detained then"and will bid them a good day.

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Trust me... The encounter never goes like you think it will. You may not even be given the opportunity to ask, "Am I Free To Go?"

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Match10 wrote:

darthmord wrote:

I'm of the mind that if I'm ever detained or given the impression I'm detained, to insist the officer put me in handcuffs if I'm truly detained. If they refuse, I'll state "I am apparentlynot detained then"and will bid them a good day.

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Trust me... The encounter never goes like you think it will. You may not even be given the opportunity to ask, "Am I Free To Go?"

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Speak of the devil.

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Malum Prohibitum wrote:

Match10 wrote:

darthmord wrote:

I'm of the mind that if I'm ever detained or given the impression I'm detained, to insist the officer put me in handcuffs if I'm truly detained. If they refuse, I'll state "I am apparentlynot detained then"and will bid them a good day.

Click to expand...

Trust me... The encounter never goes like you think it will. You may not even be given the opportunity to ask, "Am I Free To Go?"

Click to expand...

Speak of the devil.

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...and in he walks!