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Thread: Examiner.com: Federal judge tells police: leave open gun carriers alone!

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    Folks - let's spread this story far and wide and get the word out - open carriers get fourth Amendment protection too!

    Please sign up for a DIGG.com account and DIGG this news column - REDDIT the story too if you have time.

    http://www.examiner.com/x-2782-DC-Gu...-carrying-guns

    SNIP

    examiner.com — 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.” . . .

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    Regular Member AZkopper's Avatar
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    Good article---even better federal court ruling!!

    I'm always amazed in states where open carry is legal, normalized, and generally enjoys widespread acceptance that such things still happen.

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    Founder's Club Member PrayingForWar's Avatar
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    AZkopper wrote:
    Good article---even better federal court ruling!!

    I'm always amazed in states where open carry is legal, normalized, and generally enjoys widespread acceptance that such things still happen.

    That's when having officials enforcing laws based on their own interpretation shows just how big an ugly head it has. From the officers to the prosecutors, the law allows too much of a broad application. I'm not the sharpest knife in the drawer, but it seems to me that if laws were written in common terms, it would be harder to twist them into different meanings. Just like a gun, the more moving parts, the more potential problems.

    If you ladies leave my island, if you survive recruit training. You will become a minister of death, PRAYING FOR WAR...

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    Wow! Wow! Wow!

    Great news.

    The legal research into the court cases cited within the opinion is very valuable.

    Fellas, hunt up those court cases for the federal circuitin which you live, and add them to your favorites folder. You'll be able to use them in a formal complaint later, or re-post them for someone else who has been illegally detained.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    If you live in Virginia, Maryland, West Virginia, North Carolina, or South Carolina, you are in the Fourth Circuit of the federal courts. Memorize this line:


    For example, in Sorrel v. McGuigan, 38 Fed.Appx. 970, 973 (4th Cir. 2002) (unpublished) the Fourth Circuit denied qualified immunity to an officer who seized an individual for lawfully carrying weapon. Noting that a state statute made the plaintiff'sconcealed carrying of the weapon legal, the court found that, though "[q]ualified immunity protects law enforcement officers from bad guesses in gray areas," the fact that the plaintiff's actions were clearly permissible under the statute meant that the officer "was not in a gray area."

    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  6. #6
    scubabeme
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    Citizen : +1000
    It's about time someone properly interpreted 2A/4A in the same breath at the Fed level.

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    Woohoo!!

    A federal judge agrees with something I've been saying for a long time: that armed and presently dangerous are two different things.

    Additionally, Defendants lacked any reasonable suspicion for believing that Mr. St. John was armed and dangerous, as required by Tenth Circuit jurisprudence. See Davis, 94 F.3d at 1468. Defendants ask the Court to ignore the conjunctive phrasing of the rule and find, in essence, that anyone who is armed is, by virtue of that fact, dangerous. In light of the extensive, controlling and compelling jurisprudence to the contrary, the Court declines to do so. (emphasis in the original)
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    scubabeme wrote:
    Citizen : +1000
    It's about time someone properly interpreted 2A/4A in the same breath at the Fed level.
    Oh, yes. Thank you. That was something I wanted to point out, but forgot while feeling smug about my last post.

    This opinion confirmsthat detentions of OCers, weapon seizures, pat-downs, are not just 2A issues. They area 4A issue.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Dugg!

    Great News for the folks in New Mexico. Will be looking forward to hearing about the spanking the LEO's will get.

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    Woo hoo hoo!!!

    Reading the cases cited within the above opinion is paying off, fellas!

    If you live in the 4th Circuit, save this one for apologists who say police can't know all the laws:


    McGuigan [thecop]suggests that a reasonable police officer would not necessarily know specific Maryland cases on penknives. However, a reasonable officer is presumed to know clearly established law.
    See Harlow, 457 U.S. at 818-19 ("[A] reasonably competent public official should know the law governing his conduct."). (red emphasis added)

    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Was this gentle man USAF by chance I say that because I have been to Alamagordo and the only thing there is the base.
    Another question is what did is NCOS Base Commander/Mps do when this happend and is there any protocol for when a soldier is detained by a local governing authority?

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    Regular Member Huck's Avatar
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    Citizen wrote:
    If you live in the 4th Circuit, save this one for apologists who say police can't know all the laws:
    That's something that's always pissed me off. Knowing the laws is part of their job! I was a Fireman for over30 yearsandI was expected to know my job! And the Fire Service is every bit as demanding and complicated as Law Enforcement, andI knew my job. I would'nt have been in the Fire Service aslongas I wasif I had'nt.

    "Police cant know all the laws" is nothing but a weak excuse, especially when they expect we,the general public, to know the laws.

    I aint LEO bashing, I justexpect them to know their job as I was expected to know mine and to do theirs in a professional manner as I did.
    "You can teach 'em, but you cant learn 'em."

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    What about this footnote from the decision? What an absurd argument.


    Defendants contend that Mr. St. John was about to commit a crime because, had he refused to
    comply with their request that he leave the premises, he would have been trespassing. If
    accepted, this argument would significantly erode Fourth Amendment protections. Because
    the Court finds no jurisprudential support for Defendants' novel contention, no further
    discussion of it is necessary.

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    the more of these rulings that we get the better. There needs to be real consequences for violating citizen's rights under the color of law. Such needs to be the case for bureaucrats as well as for police officers.



    There might be actual cases during a heated encounter between various parties where a policeman might have a gray area until he finds out what is going on and sorts out the situation. However, this is rarely if ever the case with bureaucrats.





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    Bustelo5% wrote:
    Was this gentle man USAF by chance I say that because I have been to Alamagordo and the only thing there is the base.
    Another question is what did is NCOS Base Commander/Mps do when this happend and is there any protocol for when a soldier is detained by a local governing authority?
    He was not charged with anything, his rights were violated, so he sued. If he was active duty military, the NCOs/Commanders have no authority to prevent an "Airman" from doing something that is entirely legal within the state. Especially since the NCOs and Commanders are acting under the authority of the Executive Branch of the Federal Government, and the 2nd Amendment definitely applies to the Federal Government.



    Decoligny, Technical Sergeant, USAF (Retired)

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    Well I just contacted my lawyer about this ruling, he is very pleased. He had not seen it yet.

    NOW.. don't say he should have seen it already... the poor guy in trying to answer a 40 page , what ever it's called, from the City of Englewood in my case. If you click on the Ohio link about open cases at the bottom of the story you'll get part of it.

    This should help some.. we filed under the 2nd, and 4th.

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    6L6GC wrote:
    the more of these rulings that we get the better. There needs to be real consequences for violating citizen's rights under the color of law. Such needs to be the case for bureaucrats as well as for police officers.



    There might be actual cases during a heated encounter between various parties where a policeman might have a gray area until he finds out what is going on and sorts out the situation. However, this is rarely if ever the case with bureaucrats.




    Alas, were this the case.

    My guess is that in many jurisdictions there is still no controlling precedent on open carry, or most situations where open carry confrontations with LEOs occur. Absentsuch precedentsthe LEOs will argue that there is no "clearly established" law, and that qualified immunity applies. They will still win those arguments most of the time . . .although the tide seems to be turning in our favor.

    If I read Mike's article correctly -- one excellent aspect of the New Mexico decision is that it relies on US Supreme Court precedent in part to establish that OC in itself does not create probable cause to search and seize.

    Hopefully the Courts in Wisconsin and elsewhere follow this example.


    Edit: OK found the link to the decision. Here is my favorite language:


    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.
    See N.M. Stat. § 30-7 et seq.

    Because both New Mexico law and the Fourth Amendment prohibition on unjustified seizure

    were clearly established, and a reasonable officer is presumed to know clearly established law,

    see, e.g., Harlow
    , 457 U.S. at 818-9, qualified immunity does not protect Defendants.

    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.



    It is significant that the Court found "clearly established law" from the lack of any statute prohibiting OC.

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    Does anyone know what sort of awards successful plaintiffs have been receiving? Have any of these cases gone to trial, or have they all settled?

    It seems to me that these cases are all about punitive damages, because the plaintiff's actual financial loss is probably pretty minimal in most cases.

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    olypendrew wrote:
    Does anyone know what sort of awards successful plaintiffs have been receiving?
    Look at the Virginia settlemtn links in the column.

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    No I was not impying his NCOS preveting him from OCing what I ment ,Is there a protcol for is some soldier gets detanied by LEOS since they work for a mayor and not the president. What are soldiers told to do in the event this happens.
    As a military kid I know you defualt to your training and shut the hell up and just give them your Mil-Id.
    Has Alamagordo released any apologies or statments?

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    Huck wrote:
    That's something that's always pissed me off. Knowing the laws is part of their job! I was a Fireman for over30 yearsandI was expected to know my job! And the Fire Service is every bit as demanding and complicated as Law Enforcement, andI knew my job. I would'nt have been in the Fire Service aslongas I wasif I had'nt.

    "Police cant know all the laws" is nothing but a weak excuse, especially when they expect we,the general public, to know the laws.

    I aint LEO bashing, I justexpect them to know their job as I was expected to know mine and to do theirs in a professional manner as I did.
    I'd probably accept that argument, IF, when they didn't know the law, they had to err on the side of the citizen, AND if they believed that a citizen unintentionally broke the law, that they would err on the side of the citizen.


    Rand Paul 2016

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    Yooper wrote:
    Huck wrote:
    That's something that's always pissed me off. Knowing the laws is part of their job! I was a Fireman for over30 yearsandI was expected to know my job! And the Fire Service is every bit as demanding and complicated as Law Enforcement, andI knew my job. I would'nt have been in the Fire Service aslongas I wasif I had'nt.

    "Police cant know all the laws" is nothing but a weak excuse, especially when they expect we,the general public, to know the laws.

    I aint LEO bashing, I justexpect them to know their job as I was expected to know mine and to do theirs in a professional manner as I did.
    I'd probably accept that argument, IF, when they didn't know the law, they had to err on the side of the citizen, AND if they believed that a citizen unintentionally broke the law, that they would err on the side of the citizen.
    It is even easier than any of those.

    If the LEO cannot say to himself that he knows with total certainty that the activity is illegal, he has no business taking compulsory action against the citizen. If he does not know with complete certainty that the observed or suspected activity is illegal, he has no authority for a compulsory encounter. (Roadblocks and perhaps a few other odds and ends, aside.)

    This ties in neatly with the court's comment in the OP matter about there being no law against OC in NM, thus the law is clear.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Well they can always just suspend the powers of alamagordo and use the SPs to patrol the city lol.
    I actually like that city alot its quite and not to much crazyness.
    To be straight up this PD station needs to slow its roll and forvige my language but **** off and stop bothers our uniformed service members and citizens in general. But respect for our unifomred service members needs to be droped by force on any people involved with this mans situation by the firing and or displinoary action from the top to the bottom and get this city High Speed. An option if the Sps are first responders for this Pd station not assisting them no longer sounds like a point made to me.

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    mark edward marchiafava wrote:
    You kids just don't get it.
    These "law enforcement officers" know quite well OC is lawful, they just don't approve of it.
    And will perjure, obstruct justice, and do whatever it takes to chill the RKBA with impunity, in most cases.

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    deanf wrote:
    What about this footnote from the decision? What an absurd argument.


    Defendants contend that Mr. St. John was about to commit a crime because, had he refused to comply with their request that he leave the premises, he would have been trespassing. If accepted, this argument would significantly erode Fourth Amendment protections. Because the Court finds no jurisprudential support for Defendants' novel contention, no further discussion of it is necessary. Footnote 5
    Mike, do you see how dangerous that LEO argument would have been had the court accepted it?

    The LEOs wanted the court to recognize fourth amendment authority to detain a person because the LEOs claim the person is 'about to commit' defiant trespass.

    Well, if any court ever allowed that power, game over. There's no such thing as 'attempted defiant trespass' -- shows how desperate cops will try just about anything to gain immunity from their misconduct.

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