LovesHisXD45
Regular Member
imported post
Update...
IA says 3 weeks untill conclusion of the investigation. Report and recording sent to AG's office this morning... Contacting state bar association to attain legal council this week.
Something to chew on....
Snip from a ruling in New Mexico District Court (page 12 -13)
Quote:
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. See Terry, 392 U.S. at 21; Fuerschbach,439 F.3d at 1204-6 (holding that a
seizure without a reasonable suspicion of criminal activity "would violate the most minimal
Fourth Amendment standard"); Jones v. Hunt, 410 F.3d at 1228 ("Where no legitimate basis
exists for detaining [an individual], a seizure is plainly unreasonable."); Duran, 904 F.2d at 1378
("If there is one irreducible minimum in our Fourth Amendment jurisprudence, it is that a police
officer may not detain an individual simply on the basis of suspicion in the air. No matter how
peculiar, abrasive, unruly or distasteful a person's conduct may be, it cannot justify a police stop
unless it suggests that some specific crime has been, or is about to be, committed or that there is
an imminent danger to persons or property."); see also Lawrence Rosenthal, Second Amendment
Plumbing after Heller: Standards of Scrutiny, Incorporation, Well-Regulated Militias, and
Criminal Street Gangs, 41 Urb. Law. 1, 37 (2009) (“When applicable law does not ban carrying a
firearm, however, the Fourth Amendment does not permit a stop-and-frisk regardless of any
indication that a suspect is armed or potentially dangerous because there is no indication that the
suspect is violating the law.”). 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Cir. 2002) (unpublished) the Fourth Circuit denied qualified immunity to an officer who seized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's
Case 6:08-cv-00994-BB-LAM Document 48 Filed 09/08/2009 Page 12 of 16
13
concealed 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."
Id. at 974.
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.
End Quote:
Thought you might enjoy that little tidbit.
Kevin
Update...
IA says 3 weeks untill conclusion of the investigation. Report and recording sent to AG's office this morning... Contacting state bar association to attain legal council this week.
Something to chew on....
Snip from a ruling in New Mexico District Court (page 12 -13)
Quote:
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. See Terry, 392 U.S. at 21; Fuerschbach,439 F.3d at 1204-6 (holding that a
seizure without a reasonable suspicion of criminal activity "would violate the most minimal
Fourth Amendment standard"); Jones v. Hunt, 410 F.3d at 1228 ("Where no legitimate basis
exists for detaining [an individual], a seizure is plainly unreasonable."); Duran, 904 F.2d at 1378
("If there is one irreducible minimum in our Fourth Amendment jurisprudence, it is that a police
officer may not detain an individual simply on the basis of suspicion in the air. No matter how
peculiar, abrasive, unruly or distasteful a person's conduct may be, it cannot justify a police stop
unless it suggests that some specific crime has been, or is about to be, committed or that there is
an imminent danger to persons or property."); see also Lawrence Rosenthal, Second Amendment
Plumbing after Heller: Standards of Scrutiny, Incorporation, Well-Regulated Militias, and
Criminal Street Gangs, 41 Urb. Law. 1, 37 (2009) (“When applicable law does not ban carrying a
firearm, however, the Fourth Amendment does not permit a stop-and-frisk regardless of any
indication that a suspect is armed or potentially dangerous because there is no indication that the
suspect is violating the law.”). 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's
Case 6:08-cv-00994-BB-LAM Document 48 Filed 09/08/2009 Page 12 of 16
13
concealed 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."
Id. at 974.
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.
End Quote:
Thought you might enjoy that little tidbit.
Kevin
