imported post
http://www.alamogordonews.com/ci_13441455
Landmark decision?
U.S. District Court judge rules police violated man's Fourth Amendment rights
Alamogordo Daily News
By Duane Barbati, Staff Writer
Posted: 09/29/2009 12:00:00 AM MDT
The city of Alamogordo settled a civil case Wednesday with Matthew A. St. John for $21,000 over a violation of St. John's Fourth Amendment right "against unreasonable searches and seizures," according to federal court records.
St. John, 27, also had filed a claim for false arrest and battery, but the U.S. District Court for the District of New Mexico in Las Cruces denied it.
The settlement came after U.S. District Court Judge Bruce D. Black issued his opinion and order on Sept. 8.
St. John's attorney, Miguel Garcia, said under the terms of the settlement, the parties agree that "the defendants were not admitting liability."
Garcia said the settlement awards St. John damages and covers St. John's legal fees.
According to U.S. District Court for the District of New Mexico records, St. John entered the Aviator 10 movie theater in Alamogordo to watch a film on June 27, 2008.
According to U.S. District Court records obtained by the Daily News, St. John was wearing, in plain view, a handgun that was holstered on his belt.
After the firearm was seen by other customers, a complaint was made to theater management about the presence of the firearm. The manager then contacted the Alamogordo Department of Public Safety and said that a customer was in possession of a firearm on the premises, according to records.
Officer David McColley and six other officers made contact with St. John and a friend, who were watching a movie, and confirmed St. John had a firearm.
Advertisement
St. John's friend was not carrying a gun.
Officers ordered St. John to stand up with his hands in sight, then seized St. John by his arms and physically removed him from the theater, according to records.
Once St. John was outside the building, officers conducted an invasive pat-down search of St. John and repeatedly asked him why he was in possession of a firearm.
According to court records, St. John responded that he was exercising his Second Amendment right to possess a firearm under the U.S. Constitution.
While still outside the theater, officers continued to question St. John, removed his wallet and Walther .45-caliber handgun, ran a check on his handgun and only returned the handgun to St. John at the end of their encounter.
Garcia said he is pleased with the settlement and the court's decision.
"It is legal to carry a firearm openly in New Mexico by anyone over the age of 19," Garcia said. "A person can openly carry in most places, except in a bank, bar, jail or prison, a school and other places."
He said this case was based on the Fourth Amendment and St. John's protection under Article II, Section 10 of the New Mexico Constitution "from unreasonable searches and seizures."
"I think the decision will lead to policy changes locally in Alamogordo, throughout New Mexico and elsewhere," Garcia said. "The settlement ended the case."
ADPS Director Sam Trujillo said police will abide by the court's decision.
"I do support the action of the officers who responded to a call of a man with a gun inside a movie theater," Trujillo said. "I support the officers' professionalism they displayed. I also support the ability of a property owner or manager of a business to not allow a person on their property with a gun."
Black wrote in his opinion and order, "the undisputed facts that Mr. St. John's seizure and search was unreasonable."
Black continued in his opinion that "the defendants (officers) lacked a justifiable suspicion that St. John had committed a crime, was committing a crime or was about to commit a crime."
In his written opinion, Black also stated "nor was there any reason to believe a crime was afoot."
He stated in his opinion that the defendants simply received a report that an individual was carrying a firearm in a location where individuals could lawfully carry firearms.
Black wrote, "Nor did anyone seem particularly alarmed by Mr. St. John's weapon. Indeed, the record does not reveal that anyone, including the lone customer who spoke to officer McColley about Mr. St. John's gun, was even concerned enough to have left the theater as a result."
St. John, who is a staff sergeant at Holloman Air Force Base, was off duty at the time of the incident and dressed in civilian attire.
St. John said he normally carries a handgun with him at all times, except when he's on base property.
"You shouldn't single anybody out for legally carrying a firearm," he said. "It shouldn't be any different than a pocket knife on their belt, or a watch on their belt. They're all tools. They're all there for a purpose."
St. John said he is happy with Black's decision in the case.
"I don't drink or smoke," he said. "As far as Applebee's and Chili's, I go somewhere else because you can't carry a firearm in an establishment that has consumption of alcohol on the premises."
St. John said he normally carries a Glock 10mm handgun.
"I've been around guns all my life," he said. "I do have a concealed carry permit. I choose to open carry."
St. John was watching the previews for the movie "Wanted" when ADPS officers approached him in the theater.
He said he also saw a movie prior to watching the previews for "Wanted" at the Aviator 10.
"I think it was 'Forgetting Sarah Marshall,'" St. John said. "I am not 100 percent sure about the first movie. The second movie is a little more etched into my memory. I had been at the theater for three hours with my handgun legally."
"Wanted" is a movie about a young man finding out his father is an assassin after his father is murdered. "Forgetting Sarah Marshall" is a romantic comedy about a young man trying to forget his recent break-up with his girlfriend.
Attorney Jamie Sullivan represented the city and McColley in the case.
Sullivan said it seemed logical to him that police should investigate a complaint by citizens about a man with a gun in a theater, watching a movie about assassins.
"There's a man with a loaded gun in a theater," he said. "The manager calls the police. The manager says there's a man in the theater with a gun. It turns out he had a loaded gun with a bullet in the chamber."
Sullivan said police only talked to St. John about it.
"It seems that it might be reasonable conduct to me," he said. "If my daughter were in a theater, a guy had a loaded gun and people were complaining about it, then it might be a good idea to have the police at least talk to him."
Sullivan said police knew St. John had not violated any law.
"We were just going to have a conversation with the man about a loaded gun in a crowed theater, where the movie is about assassins," he said. "I think it was a very technical decision on the Fourth Amendment."
Sullivan said he believes police officers will continue to check on calls from theater managers about people with a gun in a theater.
"I would hope the police would investigate," he said. "The police were just there for public safety, instead of after the fact if something were to happen. It was not a Second Amendment case."
Sullivan said the police simply told St. John to put the gun in his car.
"They asked him to put the gun in the car as a matter of safety," he said. "No one questioned his right to bear arms. It was a matter of circumstance and public safety."
St. John said he was frustrated with ADPS officers at the time of the incident.
"I was very frustrated with ADPS," he said. "They seemed to think that a person carrying a handgun openly would pose a threat. I wasn't acting irrationally or drawing attention to myself in any way, shape or form."
St. John said he carries a gun for personal protection and is exercising his Second Amendment right.
"No one came up to me and complained," he said. "It wasn't about the money. It is not reasonable suspicion for the simple fact that someone is openly carrying a firearm. It's not good enough probable cause to pull someone over to the side, run their serial number on a person's firearm and check their license."
Contact Duane Barbati at dbarbati@alamogordonews.com.
http://www.alamogordonews.com/ci_13441455
Landmark decision?
U.S. District Court judge rules police violated man's Fourth Amendment rights
Alamogordo Daily News
By Duane Barbati, Staff Writer
Posted: 09/29/2009 12:00:00 AM MDT
The city of Alamogordo settled a civil case Wednesday with Matthew A. St. John for $21,000 over a violation of St. John's Fourth Amendment right "against unreasonable searches and seizures," according to federal court records.
St. John, 27, also had filed a claim for false arrest and battery, but the U.S. District Court for the District of New Mexico in Las Cruces denied it.
The settlement came after U.S. District Court Judge Bruce D. Black issued his opinion and order on Sept. 8.
St. John's attorney, Miguel Garcia, said under the terms of the settlement, the parties agree that "the defendants were not admitting liability."
Garcia said the settlement awards St. John damages and covers St. John's legal fees.
According to U.S. District Court for the District of New Mexico records, St. John entered the Aviator 10 movie theater in Alamogordo to watch a film on June 27, 2008.
According to U.S. District Court records obtained by the Daily News, St. John was wearing, in plain view, a handgun that was holstered on his belt.
After the firearm was seen by other customers, a complaint was made to theater management about the presence of the firearm. The manager then contacted the Alamogordo Department of Public Safety and said that a customer was in possession of a firearm on the premises, according to records.
Officer David McColley and six other officers made contact with St. John and a friend, who were watching a movie, and confirmed St. John had a firearm.
Advertisement
St. John's friend was not carrying a gun.
Officers ordered St. John to stand up with his hands in sight, then seized St. John by his arms and physically removed him from the theater, according to records.
Once St. John was outside the building, officers conducted an invasive pat-down search of St. John and repeatedly asked him why he was in possession of a firearm.
According to court records, St. John responded that he was exercising his Second Amendment right to possess a firearm under the U.S. Constitution.
While still outside the theater, officers continued to question St. John, removed his wallet and Walther .45-caliber handgun, ran a check on his handgun and only returned the handgun to St. John at the end of their encounter.
Garcia said he is pleased with the settlement and the court's decision.
"It is legal to carry a firearm openly in New Mexico by anyone over the age of 19," Garcia said. "A person can openly carry in most places, except in a bank, bar, jail or prison, a school and other places."
He said this case was based on the Fourth Amendment and St. John's protection under Article II, Section 10 of the New Mexico Constitution "from unreasonable searches and seizures."
"I think the decision will lead to policy changes locally in Alamogordo, throughout New Mexico and elsewhere," Garcia said. "The settlement ended the case."
ADPS Director Sam Trujillo said police will abide by the court's decision.
"I do support the action of the officers who responded to a call of a man with a gun inside a movie theater," Trujillo said. "I support the officers' professionalism they displayed. I also support the ability of a property owner or manager of a business to not allow a person on their property with a gun."
Black wrote in his opinion and order, "the undisputed facts that Mr. St. John's seizure and search was unreasonable."
Black continued in his opinion that "the defendants (officers) lacked a justifiable suspicion that St. John had committed a crime, was committing a crime or was about to commit a crime."
In his written opinion, Black also stated "nor was there any reason to believe a crime was afoot."
He stated in his opinion that the defendants simply received a report that an individual was carrying a firearm in a location where individuals could lawfully carry firearms.
Black wrote, "Nor did anyone seem particularly alarmed by Mr. St. John's weapon. Indeed, the record does not reveal that anyone, including the lone customer who spoke to officer McColley about Mr. St. John's gun, was even concerned enough to have left the theater as a result."
St. John, who is a staff sergeant at Holloman Air Force Base, was off duty at the time of the incident and dressed in civilian attire.
St. John said he normally carries a handgun with him at all times, except when he's on base property.
"You shouldn't single anybody out for legally carrying a firearm," he said. "It shouldn't be any different than a pocket knife on their belt, or a watch on their belt. They're all tools. They're all there for a purpose."
St. John said he is happy with Black's decision in the case.
"I don't drink or smoke," he said. "As far as Applebee's and Chili's, I go somewhere else because you can't carry a firearm in an establishment that has consumption of alcohol on the premises."
St. John said he normally carries a Glock 10mm handgun.
"I've been around guns all my life," he said. "I do have a concealed carry permit. I choose to open carry."
St. John was watching the previews for the movie "Wanted" when ADPS officers approached him in the theater.
He said he also saw a movie prior to watching the previews for "Wanted" at the Aviator 10.
"I think it was 'Forgetting Sarah Marshall,'" St. John said. "I am not 100 percent sure about the first movie. The second movie is a little more etched into my memory. I had been at the theater for three hours with my handgun legally."
"Wanted" is a movie about a young man finding out his father is an assassin after his father is murdered. "Forgetting Sarah Marshall" is a romantic comedy about a young man trying to forget his recent break-up with his girlfriend.
Attorney Jamie Sullivan represented the city and McColley in the case.
Sullivan said it seemed logical to him that police should investigate a complaint by citizens about a man with a gun in a theater, watching a movie about assassins.
"There's a man with a loaded gun in a theater," he said. "The manager calls the police. The manager says there's a man in the theater with a gun. It turns out he had a loaded gun with a bullet in the chamber."
Sullivan said police only talked to St. John about it.
"It seems that it might be reasonable conduct to me," he said. "If my daughter were in a theater, a guy had a loaded gun and people were complaining about it, then it might be a good idea to have the police at least talk to him."
Sullivan said police knew St. John had not violated any law.
"We were just going to have a conversation with the man about a loaded gun in a crowed theater, where the movie is about assassins," he said. "I think it was a very technical decision on the Fourth Amendment."
Sullivan said he believes police officers will continue to check on calls from theater managers about people with a gun in a theater.
"I would hope the police would investigate," he said. "The police were just there for public safety, instead of after the fact if something were to happen. It was not a Second Amendment case."
Sullivan said the police simply told St. John to put the gun in his car.
"They asked him to put the gun in the car as a matter of safety," he said. "No one questioned his right to bear arms. It was a matter of circumstance and public safety."
St. John said he was frustrated with ADPS officers at the time of the incident.
"I was very frustrated with ADPS," he said. "They seemed to think that a person carrying a handgun openly would pose a threat. I wasn't acting irrationally or drawing attention to myself in any way, shape or form."
St. John said he carries a gun for personal protection and is exercising his Second Amendment right.
"No one came up to me and complained," he said. "It wasn't about the money. It is not reasonable suspicion for the simple fact that someone is openly carrying a firearm. It's not good enough probable cause to pull someone over to the side, run their serial number on a person's firearm and check their license."
Contact Duane Barbati at dbarbati@alamogordonews.com.
