Update
Someone familiar with Mounted Patrol sent me this legal analysis of NM cops v. armed citizens. It seems this guy is an MP instructor, so they ought to know how to act. I guess Spencer missed that class.
Subj: Police and the Armed Citizen in New Mexico
Abstract. Too often the phrase "armed and dangerous" seems to evoke the notion that the first characteristic subsumes the second. This is very, very wrong. One can be armed but not dangerous; one can be dangerous but unarmed. These terms do not always go together. Furthermore, under the United States and New Mexico Constitutions and New Mexico law, citizens in New Mexico have the right "to keep and bear arms" in most places. Therefore, the legal and constitutionally protected act of an individual being armed, "by itself, does not create exigent circumstances;" and "a person's admission regarding the presence of a firearm," on its own, is insufficient to justify reasonable suspicion that the person is dangerous or poses a threat to an officer or to justify a consequent intrusion on the person's "right to be left alone." Instead, we must first determine if a person is dangerous; only then is it relevant whether he is armed. If a police officer senses danger that he can and does articulate, his actions furthering "officer safety" will be honored by the courts.
Background.
This review is prompted by several embarrassing, costly and potentially dangerous missteps by police when dealing with an armed citizen. These "missteps" are not related to the officer being threatened; on the contrary, they are errors of unjustified and illegal abuses on the part of the officer because he forgot the second part of "armed and dangerous." State v. Arredondo, 1997 NMCA 81, para15. Emphasis added. Also, as I will show, the blanket, unsupported justifications of "officer safety" and "I must control the weapon" simply won't work.
Note: This study does not discuss dealing with felons, subjects of orders of protections, drunks, the insane, or others who are disenfranchised from their civil or political rights.
Introduction.
Too often the phrase "armed and dangerous" seems to evoke the notion that the first characteristic subsumes the second. This is very, very wrong. One can be armed but not dangerous; one can be dangerous but unarmed. These terms do not always go together.
The right of The People to keep and bear arms is guaranteed by both the U.S. Constitution (Amend. 2) and the New Mexico Constitution (Art II, Sec. 6). Those documents are our supreme law, and for law enforcement officers, the epitome of what we are sworn to support and defend.
Therefore, the legal and constitutionally protected act of an individual being armed, "by itself, does not create exigent circumstances;" and "a person's admission regarding the presence of a firearm," on its own, is insufficient to justify reasonable suspicion that the person is dangerous or poses a threat to an officer or to justify a consequent intrusion on the person's "right to be left alone."
How then is it reasonable for a citizen complying with the law and exercising his constitutional rights to be harassed solely for keeping or bearing a firearm? It is not, and it cannot be. Instead, we must first determine if a person is dangerous; only then is it relevant whether he is armed. If a police officer senses danger that he can and does articulate, his actions furthering "officer safety" will be honored by the courts.
But, recently in Alamogordo exactly this occurred. (I published a review of St. John v. McColley on 23 Sept 2009.) A gist follows:
Matthew St. John entered the Aviator 10 movie theater in Alamogordo as a paying customer and sat down to enjoy the movie. He was openly carrying a holstered handgun. There was no notice from the theater declaring it to be a "no gun zone." No one accosted Mr. St. John, acted alarmed, or asked him to disarm or leave. (Therefore, disturbing the peace and/or trespass were not issues.)
However, the theater manager, Robert Zigmond, summoned police and reported the armed movie patron and requested the police to remove him. The police entered the movie theater, physically seized Mr. St. John from his seat, forcefully 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.
The result, as documented in the accompanying federal court decision, Mr. St. John sued the officers under 42 USC 1983 and New Mexico torts. In federal court, summary judgment for Mr. St. John' federal and state constitutional claims was granted. A lawyer who followed the case said that, so far, Mr. St. John has received between $15,000 and $20,000 for his inconvenience.
Remember, under N.M. law, in a non-consensual encounter, you can't even ask if a person is armed unless there is a legal basis for that question. What is the threshold for such a query? At least reasonable suspicion the the individual is both armed and dangerous.
REMEMBER, armed does not equal dangerous!!! One can be armed but not dangerous, one can be dangerous but unarmed. These terms do not ALWAYS go together. Instead, we must first determine if a person is dangerous; only then is it relevant whether he is armed.
What circumstances are insufficient to show that the person is BOTH armed AND dangerous?
* No information at all that suggests that a person is dangerous. Such is the case where an officer arbitrarily asks if a person is armed or disarms him if so found. Such arbitrary justifications as "I always do it for officer safety!" are the ultimate in unreasoned justifications. "I always do it," was the discretionary, virtually capricious pseudo-reasoning of the officer in State v. Affsprung, 135 N.M. 306, paras 4 and 15 (NMCA 2004). The logic of all courts on constitutional intrusions is that they be non-discretionary and, instead, be well founded in policies and procedures.
(For your information, I personally interviewed the officer involved in the Affsprung incident. There were facts that would have supported reasonable suspicion that illegal conduct beyond a "faulty license plate light" were present. In particular, the driver said he was taking Affsprung home, but they were traveling in the opposite direction of the latter's home. However, this and other relevant facts were not in his report or entered into evidence - because the officer did as he was trained and, apparently, thought that was reason enough.)
* Next, non-individualized suspicion, such as based on the company one keeps, is insufficient. While I may disapprove of this logic, the courts make the law, not I. Consider that in State v. Jones, 114 N.M. 147 (1992), the Court of Appeals specifically condemned the detention or frisk of an otherwise "innocent gang pedestrian" who was merely in the company of known gang members.
* Likewise, being a gang member, standing alone, is insufficient to amount to reasonable suspicion. State v. Anthony L., 2009 NMCA #29,206)
What might provide such reasoned suspicion that a person is armed and dangerous? First, please remember this guidance from the most basic officer safety case: Terry v. Ohio, 392 U.S. 1 (1968). At page 30 of Terry, the USSC guidance employs three parameters: "where a police officer observes (1) unusual conduct which leads him reasonably to conclude in light of his experience that (2) criminal activity may be afoot and that the persons with whom he is dealing (3) may be armed and presently dangerous," then the officer may take reasonable steps to make "reasonable inquiries" to dispel his concerns. Should these fail, he is entitled to "conduct a carefully limited search [ ... ] in an attempt to discover weapons which might be used to assault him."
Note in particular #1, "unusual conduct." Depending on your jurisdiction/operating area, it may be more or less common to encounter armed individuals. At a police station, shooting range or hunting camp, it's expected. In rural N.M., it's pretty common. In downtown Santa Fe, unusual. In a courtroom, usually illegal.
What about #2? Can completely innocent conduct appear suspicious? Of course! Possibly the best example is someone observed shoving a coat hangar wire down a car door's window. Is this vehicular burglary? Or is this the owner trying to get into his own car? In such an incident, you see the same conduct. Unless you live in a community of dunces, this situation is unusual and consistent with criminal activity. It meets #s 1 and 2, and thus merits investigation. However, remember that under N.M. law, absent reasonable suspicion that a person is both armed and dangerous, you cannot ask if he is armed. See State v. Chapman, 1999 NMCA 106, para 13 - 18) and City of Albuquerque v. Haywood (In re $28,000.00), 1998 NMCA 29, paras 15-16).
What about #3? The courts have stated standing approval of some situations justifying a presumption of an involved individual being dangerous.
* Dealing with a known violent drug offender or an alert from Dispatch that the subject "might be armed and dangerous." (State v. Neal, 142 N.M. 176, paras 5 and 6 (NMSC 2007).
* A subject's unprovoked aggressive behavior and disobeying the officer's instructions. (State v. Garcia, 138 N.M. 1, para 32 (NMSC 2005))
* Dealing with a suspected drug trafficker who disobeys the officer's instructions. (State v. Talley, 145 N.M. 127, para 4 (NMCA 2008))
* A credible informant's warning that a drug trafficker "was always armed and dangerous." (In re One 1967 Peterbilt Tractor, 84 N.M. 652, 653 (NMSC 1973)
* Dealing with a known drug trafficker, because drug trafficking and guns go together. State v. Attaway, 117 N.M. 141, 152 (NMSC 1994))
* Dealing with a suspected burglar. "[Burglary is] an inherently dangerous crime for which officers may assume that a suspect is likely to be armed." State v. Barragan, 131 N.M. 281, 13 (NMCA 2001)
* State v. Gutierrez, 143 N.M. 522 (NMCA 2007) provides several more scenarios.
The above circumstances need only be described so far as to show they actually exist. Other, more subtle circumstances will need a fuller example of why #3 is reasonably suspected.
In the discussion that follows, these and more examples and court logic will be presented. Let me tell you that in a face-to-face, candid conversation with a judge on the N.M. Court of Appeals, I have been assured our appeals courts are privately and officially (State v. Vandenberg, 134 N.M. 566, para 34), sympathetic to officer safety issues. However, the courts cannot approve reasoning of which they are not aware; the officer involved must provide the court with the facts and his reasoning.
This is exactly what the N.M. Supreme Court said in Duran:
"Police officers should always explain with specificity how their training and experience led them to draw their conclusions when testifying at a hearing on a [constitutional intrusions]." State v. Duran, 138 N.M. 414, para 40.
That is, you should see that officer safety will not be compromised by following the law. Instead, execution of reasonable steps for officer safety require articulation of why those steps were reasonable. Even for a police officer trained merely in the basics, this ought not present a challenge.
Discussion: What to Do? The "What Ifs."
Constitutionally guaranteed rights cannot be casually ignored as they were in St. John ... and sadly, in other instances as well. The blanket, unsupported excuse of officer safety is bogus and will not fly. Why not? Consider some examples:
1. A "fellow police officer."
This is probably the best example for the cop who is "afraid of someone with a gun." To his irrational mind, the presence of a firearm in a citizen's hands is a de facto public safety emergency. This fellow needs to go back to New York or Massachusetts where such deranged, paranoia is pervasive. Such an attitude is easily shown to be irrational.
How many times are police in the company of other police? But they are armed too. As a police officer, do you assault your fellow officers, forcefully disarm them or frisk them for other weapons? Why not? They are armed. This single characteristic is not the touchstone of a threat. Instead, it is the dangerous characteristic that matters.
Presumably, your fellow officer is not a threat to you. Until that presumption is demonstrably rebutted, you cannot legally or reasonably harass him for being armed. Before the law, that same presumption exists for every citizen.
"Well," you counter, "it's part of a police officer's job to be armed." No - that's not how constitutional rights work. Neither the officer nor the citizen needs a justification for being armed, just like he needs no justification for keeping his door closed to intruders; just like he has no obligation to speak to someone on the street - including answering your questions in a consensual encounter.
Furthermore, the evaluation of a person that is based only on attire is at best shallow, at worst, thoughtless. Day in and day out, bad guys put on a good guy's clothes to deceive the unwary. You should never be in "condition white" based only on someone's attire.
Sadly, there are police officers who have gone berserk. How are you going to demonstrate that this fellow officer is dangerous? The same way you would do so for a private citizen: state the facts that you observed and how your training and experience led you to the reasoned conclusion that he is dangerous.
2. A friend or associate.
How many times are you in the company of other people ... who are armed? For example in a gun store or at a shooting range or while hunting. As a police officer, do you assault these people, forcefully disarm them or frisk them for other weapons? Why not? They are armed. Isn't that sufficient? No! This single characteristic is not the touchstone of a threat. Instead, it is the dangerous characteristic that matters. How are you going to demonstrate that these people are dangerous? Presumably, they are not. Until that presumption is demonstrably rebutted by reasoned evidence, you cannot legally or reasonably harass then for being armed.
"But I know Jim [or John or Rodrigo]." No - that's not how constitutional rights work either. It is not your knowledge that a person is safe that guarantees his right to arms. Instead it is his constitutionally guaranteed presumption of righteousness (one granted to you both), that must be rebutted by objective, individualized, articulable and persuasive facts to justify considering him a threat to the degree of intruding on his rights.
3. A citizen encountered on the street or at a DWI check point.
First, note that under the New Mexico Constitution, "the street" and a DWI check point are not the same! The street is a public place; a citizen in his car enjoys many of the same privacy protections of his home. But for this discussion, the difference is not germane.
Now, what about that handgun in the glove compartment that you see when the driver (or passenger) reaches into the glove box for registration and insurance? Yes, this person is armed. This single characteristic is not the touchstone of a threat. Instead, it is the dangerous characteristic that matters. How are you going to demonstrate that these people are dangerous? Presumably, they are not. Until that presumption is demonstrably rebutted, you cannot legally or reasonably harass them for being armed.
The same is true when the citizen in his vehicle announces to you that he is "packing" or you see an armed person on the street.
But, what of that sacred phrase, "Officer Safety!" For the benefit of the slow learners, let me repeat: Until the presumption of righteousness is demonstrably rebutted by objective, articulable and persuasive facts to justify considering this person a threat, you cannot legally or reasonably harass him for being armed.
4. A citizen encountered at a "crime scene."
What is the crime? A non-functional license light? Speeding? DWI? Domestic violence? Burglary? Murder? As shown above, it makes a difference.
A seizure of a person to enforce the less serious traffic offenses, such as equipment failures, failing to come to a complete stop at a stop sign, minor speeding, etc. do not in themselves suggest a person is dangerous. (The 66-8-122 offenses could easily contribute to such a concern.) Therefore, something more is needed to demonstrate potential danger.
(Remember that carrying a firearm concealed in one's car in New Mexico is legal (30-7-2.A.(2) NMSA), and absent unusual circumstances, if such a person is carrying on his person, ordering him out of the car ought not justify a charge for illegal carrying concealed. (See U.S. v. Henning, 906 F.2d 1392, 1396 (10th Cir. 1990)))
New Mexico courts have permitted "police officers, while conducting an investigatory stop,* to carry out a limited search of the car for weapons, if the officer has a reasonable belief the suspect may be armed and dangerous." State v. Garcia, 2005 NMSC 17, para 30. [Garcia I] Emphasis added.
* Remember, based on the degree of intrusion on the people involved, NM courts have legally equated traffic stops with investigatory detentions. See State v. Ochoa, 2008 NMSC 23 at para 14.
"An officer's reasonable belief that a suspect is armed and dangerous may follow from a reasonable suspicion that the suspect has committed, is committing, or will commit an inherently dangerous crime." State v. Garcia, 2009 NMSC 46, para 11. [Garcia II] Emphasis added.
5. What about a custodial arrest?
"An investigatory stop does not involve the procedures of taking a person into custody. When a full custodial arrest takes place, we do not require an officer to show particularized facts to support a belief that the suspect is either armed or dangerous. Given the exigencies always inherent in taking an arrestee into custody, a search incident to arrest is a reasonable preventive measure to eliminate any possibility of the arrestee's accessing weapons or evidence, without any requirement of a showing that an actual threat exists in a particular case." State v. Rowell, 144 N.M. 371, note 1 (NMSC 2008).
Discussion: What to Do? The Answers.
Given examples 1 - 3 above, what might be situations where the constitutional presumption of righteousness be overcome? How ought these be described? The NM Supreme Court's guidance in Duran is your best guide: "Police officers should always explain with specificity how their training and experience led them to draw their conclusions when testifying at a hearing on a [constitutional intrusions]."
1. As pointed out above, some otherwise stable police officers have lost their composure, usually after/during some gross emotional strain, e.g., domestic stress. If that officer demonstrates that he is not functionally sane, disarming is appropriate. Clearly, if the "officer" is not an officer but is instead impersonating one, that is a crime that is at least a misdemeanor (in your presence) or a felony in most jurisdictions. So, arrest and disarm him. See 30-27-2.1 NMSA.
2. The same logic applies here as at the end of #1 above. When a person, any person, demonstrates that he is armed and dangerous, you may and probably should disarm him. This necessary action of self-defense and/or defense of others should justify any simple battery committed in the disarming process.
3. What about on the street or at a traffic stop? Here, unlike a sobriety check point, you are dealing with a person who is a "criminal." Remember, any violation of the motor vehicle code is a misdemeanor or a felony. 66-8-7.A NMSA. So, now that you are dealing with a known criminal, if found to be armed, does this alone justify disarming? No.
a. In Garcia I at paragraph 31, the NMSC said, "An individual in a car with a weapon, by itself, does not create exigent circumstances. In New Mexico, it is lawful for a non-felon to carry a loaded handgun in a private automobile or other private means of conveyance. N.M. Stat. Ann. § 30-7-2(A)(2) (2001). Because of that, it would be anomalous to treat the mere presence of a firearm in an automobile as supporting a reasonable suspicion that the occupants are inclined to harm an officer in the course of a routine traffic stop. An admission regarding the presence of a firearm in the car, on its own, is not sufficient to justify further detention of a motorist; [ ... ] "it would be anomalous to treat the mere presence of a firearm in an automobile as supporting a reasonable suspicion that the occupants are inclined to harm an officer in the course of a routine traffic stop." That "further detention" phrase is significant in two ways:
i. How did this "admission" occur? Did you, pro forma, ask "Are there any drugs or guns in the car?" Unless based in reasonable suspicion of the presence of illegal drugs or threatening arms in the car, these are illegal questions (see State v. Taylor, 1999-NMCA-22) and the consequent extension of the traffic stop illegal (see State v. Affsprung, 2004-NMCA-038).
ii. If the driver (or a passenger) is courteous enough to tell you he's armed, you certainly don't want to offend him by punishing him for that disclosure. It's pretty clear he's trying to make your job easier and safer; don't now make him your enemy by abusing him.
iii. What if the "admission" was "display" by opening a glove box or center console? The guidance of Garcia I above still applies.
iv. So, what to do? This somewhat depends on where the firearm is.
(1) For example, if in the glove box/center console, you might say: "I see you have a handgun in there; for your safety and mine, please do not touch it while removing your documents. Then, please don't handle it; just close the (glove box/console) until we're through here."
(2) What if it's between the seats, etc. I'd say something similar to (1) above. You could ask the person to secure it in the glove box (etc.), but is that really smart? It was in view, you knew where to look to make sure it's still there and not ready to be shoved in your face. If placed in a glove box or other enclosure, on a return from 10-28/29 and ticket work, you don't know where it is.
(3) For #s (1) and (2) above, instead of moving the firearm, you could ask the driver to accompany you to your car for the standard position of subject in front of your door, you behind your door. This minor intrusion shouldn't require much justification - but remember that ANY intrusion on a citizen's right to be left alone requires justification. (Duran) And, since this is a very common tactic regardless of someone in the car being armed, your standard justification will suffice.
b. What were circumstances in Garcia I that met with the court's approval? "Defendant's aggressive behavior at the inception of the traffic stop, and his initial refusal to return to the car, led to a reasonable belief that Defendant might be dangerous, thereby causing Officer Hatch to draw his weapon almost at the outset. When the officer later saw the gun, he was entitled to a reasonable suspicion that Defendant was both armed and dangerous." Id. at para 32.
c. In State v. Vandenberg, 134 N.M. 566 (NMSC 2003), these factors were judged to justify a frisk: a BOLO from officers who had conducted a prior stop on the Vandenberg car where excessive nervousness and a canine sniff refusal caused concern; the driver "tapping his fingers on the hood of his car, glancing back at him in both the driver's side view mirror and the rearview mirror, and glancing over his shoulder" and the passenger "rolling his window up and down several times, looking back toward" the officers and "conversing with" the driver; the passenger looking around, fidgeting, and looking in the glove compartment; and finally, that both subjects "were acting in a manner more nervous than most people involved in a routine traffic stop." If such circumstances merit a frisk, they certainly justify disarming.
d. Note that Garcia I is a clear example of justification, but, in contrast, the Court said in Vandenberg at para 32 that this was a very "close case" and their holding "narrow."
e. For those who are discomforted by the above, talk with a Game and Fish Officer. On their appointed rounds during hunting season, virtually all their business interactions are with heavily armed people - frequently groups of such people. Do these officers faint away or fly into a tizzy upon seeing a highpower rifle? (Compared to a handgun, these arms are really dangerous!) Neither should you come unglued when you find an armed citizen who, like you, feels the need to be prepared for danger.
4. Crime scenes and service of search or arrest warrants already have exigency and/or a court's approval for justifiable intrusions far exceeding the securing of weapons (just one aspect of securing the scene). Thus this environment, just like #5 (custodial arrests), need not be pursued here.
CONCLUSIONS.
1. Armed does NOT imply Dangerous. This is New Mexico; unless otherwise disenfranchised, private citizens have a constitutional right to keep and openly carry firearms. There are a few restrictions on concealed carry, but they do not apply to a person's home, vehicle, the permitted actions on property of another, or most public places. We also have licensed concealed carry and honor similar licenses from other states. Such constitutionally protected or licensed acts cannot by themselves reasonably merit any government intrusion any more than saying "hello" (1st Amendment) or driving a car (66-5-2 NMSA).† There must be more: an objective, individualized, articulable reasoned suspicion that this person is dangerous.
2. There is no reason for officer safety to be compromised by honoring your oath to uphold a person's constitutional rights. As a preliminary posture on this issue, some officer's rightly say, "My first duty is to go home safely tonight." They are wrong! Their first duty and your first duty, a sworn duty, is to honor and uphold the U.S. Constitution. Be observant; act reasonably on what you observe. Document that process. Legal intrusions will be upheld by the courts.
3. Feel Threatened? Document Why! The facts you observe will dictate whether you feel threatened or not. In some irrational jurisdictions such as New York City, a citizen's mere possession of a firearm may ground reasonable suspicion that he's breaking the law and that he is dangerous. However, in New Mexico, such a conclusion is both unjustified and illegal. If a concern for your safety is based only on a person's possession of a firearm or this feeling is only based on a hunch: increase your security-awareness posture. But a compulsory intrusion is not justified. If your concern is based on objective, individualized, articulable facts, then note them and record that you have formed the requisite reasonable suspicion and act accordingly. However, absent at least reasonable suspicion of the threat of danger, you cannot legally interfere with a person's right to be left alone.
4. Cautionary Warnings OK. Here is one officer's response to an armed citizen encountered on a traffic stop. If he sees or is told of a firearm in the vehicle, he calmly and politely says: "I absolutely support your right to be armed. Now, under no circumstances will you reach there because it could have deadly serious consequences. Do you understand?" (See State v. Sanders, 2000-NMSC-032, para 10 stating that “[T]hreats that merely highlight potential real consequences [ ... ] are not characterized as impermissibly coercive.”)
5. Treat others the way you expect to be treated. The golden rule, maybe the simplest rule and best guide.
6. Timid? Find a new job. Finally, if honoring a citizen's constitutional rights is a problem for you, that is, if, ceteris paribus, you are intimidated by nothing more than another person with a firearm, you have no business being a police officer in New Mexico.
† Courts have approved various circumstances when drivers can be involuntarily stopped that do not involve them breaking the law. (Community caretaker (State v. Reynolds, 119 N.M. 383, 384 (NMSC 1995), and DWI sobriety checkpoints (Michigan Department of State Police v. Sitz, 110 S. Ct. 2481 (1990) are examples.) During such stops, checks of the driver's license to drive has been approved. It may be anticipated by analogy that a person discovered carrying a concealed firearm in public may be asked to show license for this act. 10.8.2.16.C. NMAC.
CAVEAT LECTOR: These materials have been prepared for educational, andragogic, and informational purposes only. They are not legal advice or legal opinions on any specific matters. Transmission of the information is not intended to create, and receipt does not constitute, a lawyer-client relationship between the author and you. Any views expressed in this introduction and the summaries are those of the author alone and do not express the views of the any New Mexico authority or law enforcement agency. No person should act or fail to act on any legal matter based solely on the contents of these materials. Anyone finding fault with the representations of this analysis is urged to promptly notify me for appropriate corrections.
