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Thread: Goings On From Next Door

  1. #1
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    Apr 2009
    Chandler, AZ, ,

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    I thought I'd post this here since I spend a good amount of time over in NM, as might some others too. It's another resounding victory for Open Carriers!

    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 Amendment because they seized and disarmed him even 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, "it 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

    "relying 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, and Georgia. More cases are still pending in Ohio, Wisconsin, Michigan, and Pennsylvania.

  2. #2
    Regular Member Sonora Rebel's Avatar
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    Aug 2008

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    New Mexico Constitution: No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms. Art. II, § 6 (first sentence enacted in 1971, second sentence added 1986).
    1912: "The people have the right to bear arms for their security and defense, but nothing herein shall be held to permit the carrying of concealed weapons." Art. II, § 6.
    [Self-defense right explicitly protected.]

    Arizona and New Mexico share a common history and culture in which arms borne openly is traditional. I dunno where Alamagordo get's their cops from... but they can't be local. That theatre manager is prob'ly a California transplant dufus for even callin' the law. St John seems to be scoring $20K in the civil suite... andI hope that's against each of the 7 LEO's involved... plus the Department and City. The only way to curb this kind of abuse is to hit 'em in the wallet. I'm amazed this even happened in New Mexico. I hope 'word' gets around.

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