imported post
chewy352 wrote:
...Even though they have qualified immunity they ought to know these laws with all of the publicity lately...
Why would they have qualified immunity? Terry v Ohio is well-settled law, and even the CA Court of Appeals stated 12031 allows only a non-intrusive examination of the firearm, not a detention (though this will not hold up under scrutiny of a higher court, nor in any federal court).
These officers are personally liable both civilly and criminally for their actions when violating settled law.
I would start with a FOIA request. This is the first step because once a complaint is filed, most the info you want will be legally off-limits due to employee privacy laws since the issue becomes disciplinary. The trick with FOIA requests is to ask for "access" to the records. They have to provide free access to records during business hours so you can determine what records you want to have copied/duplicated. They can charge you for any reasonable costs associated with copying. In my case they simply gave me copies of all records for free, rather than allowing me access to them before making copies. On the high end, I'd say I might have had to pay $75 for all the stuff they gave me, if they had chose to charge me (though I probably wouldn't have needed all the info, so I would have narrowed that down to $20-$50).
Next file a complaint with their Internal Affairs department. I don't care how much brass wants to kiss your ass, the best way to make sure your complaint is taken seriously and creates a solid paper trail is to make an IA complaint. Send copies of the complaint to the District Attorney and your nearest FBI field office. The DA is required to be involved to some degree in the investigation of possible criminal actions by officers in their jurisdiction. The FBI may or may not be obligated, but I've heard this falls under their jurisdiction as well, and at the very least you may get them to open a file, which means more paper trail in case of further issues.
As for legal options... I believe you would be within reason to file a police report. Technically the officers were acting beyond their legal authority, so some crimes did occur. The fact that you were released after 5-10 minutes, and your property was returned, doesn't negate the fact these crimes occurred. (Imagine if I were to have a half-drawn gun in my hand, order you around, take your property, confine you against your will, and then dust you off and send you on your merry way...)
I doubt the DA will ever pick up the charges in a case like this, but you could at least make them make a paper trail documenting the crimes of brandishing, kidnapping, theft, etc. This may come in handy if anything like this happens again.
Your other legal option is to file civil (tort) suit. This means claiming damages, which in your case would be pretty hard to prove, and by your own description, would be fairly minor. I suppose you could figure out what your time is worth and sue them in small claims court... but I don't think this is a viable option.
Another option is to get an attorney, fork out a bunch of cash (or get one willing to work on contingency), and drag the cop(s) into federal court. In federal court, their CA-legislated "right" to "examine" your firearm doesn't exist. The officers will have to find a different excuse for violating the 4th Amendment, or face the music. If you win, you could get a significant settlement (because they can add punitive damages - unlike a tort suit). Also, in federal court, the loser has to pay the winner's attorney fees... so if you lose you might find yourself in debt to the state to the tune of several hundreds of thousands of dollars.
You may try contacting the ACLU. They claim to be a rights advocacy litigation group. However, to date I've heard that each state has their own chapter, and CA's ACLU isn't gun-friendly. So, I wouldn't hold your breath, but if enough of us hound them, maybe when "bearing" arms is a right they'll actually support it in this state.
(Sorry for the lengthy post... I suppose I should probably make a how-to thread so I can simply say, "go to this link if you want my opinion on how to proceed and what your rights may be.")
