don't have time to read the article yet, but wahoo just for headline ;D
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.
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 Amendmentbecause they seized and disarmed himeven 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(seeadditional 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.
don't have time to read the article yet, but wahoo just for headline ;D
The best highlight, other than allowing us to OC without challenge, was that the officer responsible for the infraction was not given immunity. This sets a prescient that if an officer is wrong when he arrests you, he can't claim he was "just doing his job".
Excellent post, thanks very much! The PDF at http://opencarry.mywowbb.com/attachment.php?id=7856 is a good read even if 16 pages long. The open carrier in the lawsuit made 3 separate claims:
4th Amendment violations
The court held that the 4th amendment was definitely violated and this was the main cause of the loss of immunity.
It was broken into two separate claims: Unreasonable seizure (of his person) and Unreasonable search. The court found in his favor on both counts.
The claim was tortious battery. I had to research this term to determine what it means. Basically, a battery upon the person that wasn't committed by a "person" but by an "official of the government".
The court found it could not enter summary judgment and deferred to a jury to decided whether such a battery occurred.
In Nevada, the related code section is NRS 41.0385 defines the various tortious acts such officials can commit. Included with battery is false arrest, negligent injury, wrongful death, and the like. NRS 41.035 limits the punitive damage for the battery claim to $75,000.
Another tort claim. In this case, the plaintiff alleges he was falsely arrested but makes no allegation he was formally or informally arrested (called "de facto arrest"). The standard for false arrest seems higher and a mere "investigatory detention" does not qualify.
Further research suggests a "de facto arrest", which by the way does not come with Miranda warnings, requires additional circumstances beyond the plaintiff's case, such as an unusually long detention, being bound in handcuffs, being transported to another location, or other circumstances which would lead the victim to believe he was not free to refuse.
Since the court found, and plaintiff failed to allege, that no arrest occurred, they sided with the police on this issue.
The post and followup research gave me a lot to think about in my own personal case regarding the June 26 stop.
I feel my case is stronger than this guy for a number of reasons.
First, I was in public. No one called the police on me. The police merely noticed me and engaged the encounter. The plaintiff in New Mexico was on private property in a movie theater and the theater manager called police. In this case, there was a thin possibility of a trespassing charge which the police argued justified their detention. Though the court disagreed, there is no similar such claim the police can make in my case.
Next, guns were pointed at me. In New Mexico, several officers entered the theater and removed the patron, but did not threaten him with the business end of their duty pistols.
Then, they removed him from the theater to the parking lot where he was relatively alone with the police. In my case, I was standing in a traffic lane of Las Vegas Blvd for the duration of my stop. There were not only numerous pedestrians passing on the sidewalks, but also hundreds, if not thousands, of vehicles and fully loaded buses passing us in the one lane not clogged with 5-6 cruisers with flashing lights. In the research of "de facto arrest", one of the contributing factors is a compromise of one's dignity. In handcuffs and on display for the thousands of people that passed me by, all curious about the police activity causing the traffic jam, was certainly degrading to say the least.
Finally, I was placed in handcuffs. I was clearly not free to leave. In New Mexico, police merely instructed the guy to put his gun in the truck before returning to the theater.
Read up on the Supreme Court case of Atwater v Lago Vista (http://www.law.cornell.edu/supct/html/99-1408.ZS.html) in which the Supreme Court ruled that police can arrest anyone suspected of any crime, including minor traffic offenses for which no jail time is a possible sentence. This opens the door for police to use ARREST as a form of PUNISHMENT. Disrespect or annoy the cops and they'll teach you a lesson. It gives new meaning to the saying "You might beat the rap, but not the ride."
Fortunately, there were absolutely no criminal violations (infractions, misdemeanors, felonies) giving cause to arrest me, but that doesn't mean the police wouldn't try to find one, such as their threatened "hindering an investigation". And for this reason, under the duress of threatened arrest and theft (confiscation as evidence) of my property, not to mention the fact that they had guns pointed at me and my life depended on cool heads prevailing, did I finally relent and offer identification, rather than be "punished" by these cops.
Under duress, I believe I was also the victim of criminal coercion (NRS 207.190) to compel my compliance.
Comments please! Do these arguments hold water? Are there holes in my thinking?
timf343 wrote:Are you sure you've got that right? I just scanned the syllabus (summary). I didn't see anything so sweeping as arrest of anyone suspected of any crime.SNIP Read up on the Supreme Court case of Atwater v Lago Vista (http://www.law.cornell.edu/supct/html/99-1408.ZS.html) in which the Supreme Court ruled that police can arrest anyone suspected of any crime, including minor traffic offenses for which no jail time is a possible sentence.
I was under the impression that arrest required a warrant or probable cause.
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.
Citizen, forgive my quick tongue. I meant a situation in which there is probable cause sufficient to justify issuing a ticket/citation. In this posted case, a mere seatbelt violation, police arrested the alleged violator.
Since only a judge or jury can adjudicate guilt, I used the term "suspected" instead of the more accurate term "accused".
Officers in traffic stops issue the standard warning of "Signing is not an admission of guilt. But if you refuse to sign (the promise to appear), you'll be arrested (to compel you to appear before the court)." I never gave it much thought the last time I got a ticket, but reading this case reinforces the fact that if I'm a jerk, and the cop has nothing better to do, I might just be booked long enough to take my fingerprints and issue a PR bond.
I find it especially important to understand and consider in this recession economy in which many police officers find themselves risking their lives to collect revenue for the struggling state budget. I maintain that I will never cooperate with police (unless required by law) under any circumstances and find myself wondering whether such a strategy might result in more than I bargained for on my next speeding ticket.
Tim, I believe there are certain instances where you should not cooperate. I hope one day you change your mind about the "under any circumstances" part. If you witnessed a store being robbed and were the only one to see what vehicle the suspects were driving, including a license plate is a perfect reason to cooperate with the police.
On the NV Shooters forum, I was presented with a scenario in which I am involved in a shooting. I refuse to say anything to police, including mentioning where the bad guys threw their weapon. Police don't find it, clean up and leave.
A few days later after I've consulted an attorney, I make a statement to police, but by now the bad guys have returned to the scene and recovered the weapon. The only evidence the police now have is three "bad guys" saying I threatened them and started shooting, and my statement that they threatened me and shot first. The only difference is the police have my weapon and the bad guys claim they never had one.
Best case scenario is the perps get away with almost killing me. Worst case scenario is I get charged with almost killing THEM!
In this case, it does make sense to make some limited statement to police -- telling them where the gun is would be a good start. Then when questions persist, tell them I'm obviously shaken up at being the victim of a violent crime and would like time to work with an attorney. I've heard of burglars suing homeowners because their family dog bit the intruder and I want to make sure these criminals can't come after me.
In your scenario, being the sole witness to a crime, I think it also makes sense to answer some very basic questions, such as the license plate of the getaway car. But what if I got the plate number wrong and police decide to suspect me as an accomplice meant to send the police in the wrong direction on a wild goose chase? Obviously this is a little off-the-wall, but since police are better at asking questions than I am at answering them, and everyone is a suspect at first, I still believe that even in these circumstances it's best to keep answers to a minimum.
I like Tim's scenarios. My brain works like that too.
Back when I had more money - I contemplated refusing to sign a ticket if I was being issued it on a day off, and getting to see the whole jail process and what not.
I disputed a ticket once for the experience. I had to go to pre trial and trial and had to take several days off work just todo it. I didn't hire an attorney or anything or know half as much as I do now about the legal process.
The whole day of cases started with "don't mess around today, the judge is pissed, and the prosecuting attorney is NOT in any mood to cut deals, so if you're guilty just recant your not guiltyplea and get going."
By the time I got called up for my case, the prosecuting attorney took me out, alone, into the hallway (I was pretty freaked,I was like 19 years old), he sits me down and says that they lost the citation and were going to drop all charges.
I imagined that after the little pep talk in the beginning that they were going to "teach me a lesson and make me pay for wasting their time" but it actually went in my favor for once.
I've gone on about a dozen ride alongs with police patrols and I've learned a great deal from them. Some good stuff, and some scary stuff. I like theseforums because there's always new cases, new legal problems, new police encounters, and it's always interesting to learn about.