Open Carry Incident In Gorham, NH. Law Enforcement Involved.

[jrd929]

Well, I have been debating about whether or not to post this on here, but I suppose we all learn from our mistakes, and the mistakes of others. I'm going to recall the events of that night to the best of my ability, play by play, and in the order that they happened. I hope people can learn from my experience and that we can discuss what I should or shouldn't have done.

So it begins, I went to a fair a few weeks ago in Gorham, NH and OCed to, at (part of the time), and from the fair. I went to watch the performances that were going on and have some fried dough. I went along with some family, of which my father was wearing a shirt that said "I support the second amendment" and on the back had the amendment written out. So I stood next to him for a while with my gun on my hip. After a while I went and sat on a bench and watch the show from there. I sat there with my gun hidden from view by the bench. A lady came up to me and asked what state I was from, to which I said "NH", and she said "oh" and walked off. I don't know what that was all about, and nothing else really happen for about another 10-15 minutes. Then a officer stopped to start directing traffic and pedestrians across the road. Some guy with a bunch of bottles strapped to his waste went to the cop and told him there was a man with a gun watching the show. So 5 or 6 cops show up and start casually walking through the audience and then I was pointed out by the bottle man, but I didn't look over to see what was going on, but I could watch it out of the corner of my eye. I'm guessing he was a sargent or a supervisor of some sort because of the way he acted. He approached me from behind and said "Keep your hands where they are." So I didn't flinch, and he asked if I had a gun on me, to which I said "Yes", and then he had me stand up, put my hands on my shoulders and stand against a car on the other side of the crowd watching the show. (By now the bottle man went to my father and said "Your buddy is gett'in busted, he's go'in to jail." The officer asking most of the questions then proceded to ask, "Do you have any other guns on you?", I said, "No", and he took my gun out of it's holster and emptied the chamber and took the mag out. The officer (sargent/supervisor?) Asked one of the other officers if there were any ordnances against guns in the town park, to which the other officer said "No". While this was going on I had 4 other cops around me well within an armslength away. I showed absolutely no threathening behavior and said nothing threathening to anyone before, during, or after this ordeal. The officer doing most of the talking (sargent/supervisor?) asked "Do you have a permit?" I said "Yes". The officer said "I don't know why you have a permit if your going to open carry" I was going to respond with a barrage of reasons, but was interrupted with another officer asking for my permit and ID. I then gave him my ID and permit and the other officer went and made to see that I wasn't wanted for anything. The officer who was interrogating me, asked "Why the hell would you bring a gun to a fair where all it's going to do is cause a public disturbance?" Again, before I could spit out my answer, one of the other officers that was a foot or two away from me chimed in and said "I know it's your right, and that you can do this, but your not gaining anything by carrying openly." "If you go to the corner store and walk in on the middle of a robbery, than your going to become the target." By now my records have come back clean and my ID and Permit were handed back to me. Now the bottle man was walking away and walked within hearing distance of my father who heard him say "I can't believe they aren't taking him away." My gun and mag was then returned to me and I put the mag back in the gun and then the gun back in the holster. I covered the gun over with my shirt. One officer shook my hand, but that was about it and we went our own ways. I carried concealed for the rest of the day and then OCed again once I left the fairgrounds.

I know some of the things I could have been done better, like refuse to show my ID because they were stopping me for no reason other than I had a holstered gun. Was I somewhat overwhelmed with the show of force? Yeah, I felt rather intimidated, which had a role in how I responded. This is the first encounter I have had with law enforcement since I started OCing. I doubt it'll be my last seeing that I OC every day, everywhere I go. So feel free to pick it apart, I'd like to hear what everyone else has to say about this incident, and maybe get some useful advice that others can read and learn from. Like how I should have responded and acted. I am still irritated every time I think about that night, and that I could have done a better job at representing me and open carry.

Jon

[thebigsd]

I think you did pretty well. I would file a complaint against the department. If you are up to it, I would also FOIA all the communications related to your detainment. One good thing to ask is "why am I being detained?" This forces the officer to tell you you are not detained at which point you can leave. Otherwise he will have to come up with a bogus reason you can use against him later if needed. The only thimg I would have done differently would have been to continue open carrying. Is it legal to record in NH? If so, I would start recording whenever you carry. Good luck.

[jrd929]

I think you did pretty well. I would file a complaint against the department. If you are up to it, I would also FOIA all the communications related to your detainment. One good thing to ask is "why am I being detained?" This forces the officer to tell you you are not detained at which point you can leave. Otherwise he will have to come up with a bogus reason you can use against him later if needed. The only thimg I would have done differently would have been to continue open carrying. Is it legal to record in NH? If so, I would start recording whenever you carry. Good luck.

I don't know if it's legal to record in NH. I have not thought about filing a complaint, and have never done so before. Also excuse me if this is a dumb question but what do you mean by FOIA?

Jon

[aadvark]

jrd929:

FOID means: Freedom of Information Act Request.

aadvark

[aadvark]

jrd929:

New Hampshire Law Chapter 159 of Title XII, Section 159:26 states: Firearms and Ammunition, Authority of The State.

The Code Section can be Viewed here: http://www.gencourt.state.nh.us/rsa/...159/159-26.htm

It follows Gorham, New Hampshire, thus, is Powerless to Regulate Firearms in Parks.

aadvark

[Tactical9mm]

FOIA is the freedom of information act.

What bugs me the most after reading the synopsis of this encounter, is how law enforcement referred to the State pistol license as a "permit".

Once someone calls in a "man with a gun" to police, and police are dispatched to investigate, what happens is fairly "universal" regardless of the State/locality that you live in. Police wish to assess legality of carry by the individual (including if you are a prohibited person), as well as the state of mind that the carrier is in, before closing out the call. In your case, it wasn't called in but was verbally given to onsite police by that bottle-guy (sounds like a hardcore masshole to me).

In a fair location, where loads of people are together this becomes real high priority to them as the worst case scenario is that a massacre could occur. Aside from some personal opinions that some of the law enforcement officers offered to you during the detainment, it seems like it was handled acceptably well by them. They didn't draw on you first, you weren't cuffed, and you were treated with respect. While they were talking to you, they assessed your state of mind and realized you were just a citizen going about your business completely legally (once the Driver and Pistol license check came back).

The real villain in this seems to be the bottle-guy, who ratted on someone that was doing nothing illegal. Unfortunately, this is the risk that we all run when we OC.

I think you handled the situation really well. Good luck to you in the future.

[jrd929]

FOIA is the freedom of information act.

What bugs me the most after reading the synopsis of this encounter, is how law enforcement referred to the State pistol license as a "permit".

Once someone calls in a "man with a gun" to police, and police are dispatched to investigate, what happens is fairly "universal" regardless of the State/locality that you live in. Police wish to assess legality of carry by the individual (including if you are a prohibited person), as well as the state of mind that the carrier is in, before closing out the call. In your case, it wasn't called in but was verbally given to onsite police by that bottle-guy (sounds like a hardcore masshole to me).

In a fair location, where loads of people are together this becomes real high priority to them as the worst case scenario is that a massacre could occur. Aside from some personal opinions that some of the law enforcement officers offered to you during the detainment, it seems like it was handled acceptably well by them. They didn't draw on you first, you weren't cuffed, and you were treated with respect. While they were talking to you, they assessed your state of mind and realized you were just a citizen going about your business completely legally (once the Driver and Pistol license check came back).

The real villain in this seems to be the bottle-guy, who ratted on someone that was doing nothing illegal. Unfortunately, this is the risk that we all run when we OC.

I think you handled the situation really well. Good luck to you in the future.

Even though I already knew that most cops don't know their gun laws, I was more irritated that the cop didn't know that I need my license to OC in my truck.

[Gunslinger]

NH RSA 594:2 Questioning and Detaining Suspects. – A peace officer may stop any person abroad whom he has reason to suspect is committing, has committed or is about to commit a crime, and may demand of him his name, address, business abroad and where he is going.

The cop had NO authority to stop you. You had NO duty to show a CCW when not concealing. NH follows Terry, just like Colorado. Absent a reasonable suspicion of the above, you were falsely arrested by this cop and should at least file a complaint. I would suggest seeing a lawyer. These cops were dumb ***** and should go work in the PDR of Taxachussetts, not a Free State.

[jrd929]

NH RSA 594:2 Questioning and Detaining Suspects. – A peace officer may stop any person abroad whom he has reason to suspect is committing, has committed or is about to commit a crime, and may demand of him his name, address, business abroad and where he is going.

The cop had NO authority to stop you. You had NO duty to show a CCW when not concealing. NH follows Terry, just like Colorado. Absent a reasonable suspicion of the above, you were falsely arrested by this cop and should at least file a complaint. I would suggest seeing a lawyer. These cops were dumb ***** and should go work in the PDR of Taxachussetts, not a Free State.

Thanks, I have been looking for this law for a while now, I'll have to write this one down for reference when I need it later. I'll file a complaint next time I am in the area. I wasn't put if cuffs, but i was cornered by a bunch of cops.

[KBCraig]

I wasn't put if cuffs, but i was cornered by a bunch of cops.

"A person is seized within the meaning of the Fourth Amendment only when by means of physical force or show of authority his freedom of movement is restrained, and in the circumstances surrounding the incident, a reasonable person would believe that he was not free to leave."
--United States v. Mendenall

You were ordered in unambiguous language to stand with your hands in the air, and to turn over your ID and license, while surrounded by uniformed, armed officers. You were definitely "seized", unlawfully.

[nhsig220]

Thanks, I have been looking for this law for a while now, I'll have to write this one down for reference when I need it later. I'll file a complaint next time I am in the area. I wasn't put if cuffs, but i was cornered by a bunch of cops.

DO NOT WAIT. Do it now, if you plan on doing it at all.

You were unlawfully detained. Not doing anything only re-enforces such actions.

[MKEgal]

The officer (sergeant/supervisor?) asked one of the other officers if there were any ordnances against guns in the town park, to which the other officer said "No".

Seems to me that should have been done long before they contacted you,
& when the answer came back "no" they should have observed w/o interfering.

Unless there's a reason you need to carry your ID or permit, leave them in the car.
If you don't have them, police can't take them, & it makes them work harder to violate your rights.

I definitely third (or whatever number we're up to now) the motion that you do an open records request NOW, and once you have names of who was involved write a polite but very firm letter of complaint, perhaps followed up with a phone conversation if the Chief will do it.

Since you had broken no laws, & were doing nothing the whole time they observed you which could in any way be mistaken for being violent, the most they should have done would be to chat nicely & in a consensual way, maybe mention that another patron pointed you out to them. They could look like they were doing something, then go talk to the complainer & tell him you were doing nothing illegal.


Here are some court decisions that might help get your point across.
Especially pay attention to the last 3:

"The Claim and exercise of a Constitutional Right cannot be converted into a crime."
Miller v. U.S.

"The mere presence of firearms does not create exigent circumstances."
WI v. Kiekhefer

“Selective prosecution when referring to the decision to prosecute in retaliation for the exercise of a constitutional right gives rise to an actionable right under the constitution."
County of Kenosha, WI v. C. & S. Management, Inc.

"Stopping a car for no other reason than to check the license and registration was unreasonable under the 4th amendment."
Delaware v. Prouse

"Mr. St. John’s lawful possession of a loaded firearm in a crowded place could not, by itself, create a reasonable suspicion sufficient to justify an investigatory detention."
St. John v. McColley

The Third Circuit found that an individual’s lawful possession of a firearm in a crowded place did not justify a search or seizure.
United States v. Ubiles

The Tenth Circuit found that an investigatory detention initiated by an officer after he discovered that the defendant lawfully possessed a loaded firearm lacked sufficient basis because the firearm alone did not create a reasonable suspicion of criminal activity.
United States v. King

[jrd929]

DO NOT WAIT. Do it now, if you plan on doing it at all.

You were unlawfully detained. Not doing anything only re-enforces such actions.

Okay, The problem I have is I live almost 3 hours from Gorham, NH. The cost of fuel alone for my truck to make a special trip to Gorham, NH would be $65-$70 which I can't swing right now. If I could afford the fuel to make the trip, I would have done it yesterday. I don't plan on not doing anything, the soonest I could get up there is in 2 weeks. Also, I have never filed a FOIA request, where and how do I go about doing that? Thanks, Jon

[jrd929]

Seems to me that should have been done long before they contacted you,
& when the answer came back "no" they should have observed w/o interfering.

Unless there's a reason you need to carry your ID or permit, leave them in the car.
If you don't have them, police can't take them, & it makes them work harder to violate your rights.

I definitely third (or whatever number we're up to now) the motion that you do an open records request NOW, and once you have names of who was involved write a polite but very firm letter of complaint, perhaps followed up with a phone conversation if the Chief will do it.

Since you had broken no laws, & were doing nothing the whole time they observed you which could in any way be mistaken for being violent, the most they should have done would be to chat nicely & in a consensual way, maybe mention that another patron pointed you out to them. They could look like they were doing something, then go talk to the complainer & tell him you were doing nothing illegal.


Here are some court decisions that might help get your point across.
Especially pay attention to the last 3:

"The Claim and exercise of a Constitutional Right cannot be converted into a crime."
Miller v. U.S.

"The mere presence of firearms does not create exigent circumstances."
WI v. Kiekhefer

“Selective prosecution when referring to the decision to prosecute in retaliation for the exercise of a constitutional right gives rise to an actionable right under the constitution."
County of Kenosha, WI v. C. & S. Management, Inc.

"Stopping a car for no other reason than to check the license and registration was unreasonable under the 4th amendment."
Delaware v. Prouse

"Mr. St. John’s lawful possession of a loaded firearm in a crowded place could not, by itself, create a reasonable suspicion sufficient to justify an investigatory detention."
St. John v. McColley

The Third Circuit found that an individual’s lawful possession of a firearm in a crowded place did not justify a search or seizure.
United States v. Ubiles

The Tenth Circuit found that an investigatory detention initiated by an officer after he discovered that the defendant lawfully possessed a loaded firearm lacked sufficient basis because the firearm alone did not create a reasonable suspicion of criminal activity.
United States v. King

Thanks for the tips, I'll include a few of those when I file the complaint. I wouldn't leave my ID and permit in the truck. The last thing I need is someone taking one or both and then using them to commit ID fraud. Next time I have to deal with the police, I could just refuse to give them my ID and CCW, politely of course.

[jrd929]

"A person is seized within the meaning of the Fourth Amendment only when by means of physical force or show of authority his freedom of movement is restrained, and in the circumstances surrounding the incident, a reasonable person would believe that he was not free to leave."
--United States v. Mendenall

You were ordered in unambiguous language to stand with your hands in the air, and to turn over your ID and license, while surrounded by uniformed, armed officers. You were definitely "seized", unlawfully.

And I was temporarily disarmed. I'm rather surprised they didn't go as far as a pat down which I would not have authorized.

[nhsig220]

Okay, The problem I have is I live almost 3 hours from Gorham, NH. The cost of fuel alone for my truck to make a special trip to Gorham, NH would be $65-$70 which I can't swing right now. If I could afford the fuel to make the trip, I would have done it yesterday. I don't plan on not doing anything, the soonest I could get up there is in 2 weeks. Also, I have never filed a FOIA request, where and how do I go about doing that? Thanks, Jon

Blah, blah, blah.....excuses.

Most of the work is done before you even go to Gorham. You gotta a phone don't you.

[Rattrapper]

You have computer, right. Send the FOIA via email.

Contact lawyers via email. Sorry, But it is put up or shut up time.

[MagsH2]

I just read this thread after getting back from the Gorham, Berlin area. We went up to Jericho Mountain to ATV this past weekend. I usually dont open carry but I did this weekend. I OC'd in Berlin at the Walmart, In Gorham at the Royalty Inn where we stayed, the local BurgerKing and Dunkin Donuts. I didnt have any problems and felt very comfortable especially being that far north, not that should matter. I saw one person with a firearm on his side loading his ATV in the Jericho Sports parking lot. I felt right at home. The speed limits driving through Berlin can drive you crazy, there is a 2 lane stretch of road which is posted at 35 MPH and going through other zones drop to 25mph. Seems kind of slow in some areas. Anyways i got pulled over by the State Police going 42mph in a 30. I didnt realize the speed limit dropped down after cruising in the 40 zone. I was OC'ing while driving. My wife was very charismatic with officer telling him that we were very excited that we went looking to spot some moose and found one after driving for about an hour. He was very polite and said spotting a moose is far better than hitting one. He let us go with a warning, the firearm was no issue. I'm sure he didnt know I had one and I didnt annouce it.
Last night we went down to Zebs in North Conway and I OC'd in there. There were lots of tourists and at this point I was very comfy OCing and had no issues or looks at Zebs. We then went to the outlet stores and we walked around and went into Eddie Bauer, Under Armor and a few others. The store clerks in Under Armor asked if I was LE or Military, I said no, they said " Oh I thought maybe you were with the gun and all". My wife said, we like to practice our 2nd amendment right, the store clerks said "great, go for it". That was nice to hear. It was a postive experience and I do usually shy away from OC just because of what could happen like the original poster. I would feel the same as he, a little intmidated and irritated. I probably wouldnt have OC'd if I read this thread first befoer I went up to the Gorham area. But now I'm glad I did.

[jrd929]

I just read this thread after getting back from the Gorham, Berlin area. We went up to Jericho Mountain to ATV this past weekend. I usually dont open carry but I did this weekend. I OC'd in Berlin at the Walmart, In Gorham at the Royalty Inn where we stayed, the local BurgerKing and Dunkin Donuts. I didnt have any problems and felt very comfortable especially being that far north, not that should matter. I saw one person with a firearm on his side loading his ATV in the Jericho Sports parking lot. I felt right at home. The speed limits driving through Berlin can drive you crazy, there is a 2 lane stretch of road which is posted at 35 MPH and going through other zones drop to 25mph. Seems kind of slow in some areas. Anyways i got pulled over by the State Police going 42mph in a 30. I didnt realize the speed limit dropped down after cruising in the 40 zone. I was OC'ing while driving. My wife was very charismatic with officer telling him that we were very excited that we went looking to spot some moose and found one after driving for about an hour. He was very polite and said spotting a moose is far better than hitting one. He let us go with a warning, the firearm was no issue. I'm sure he didnt know I had one and I didnt annouce it.
Last night we went down to Zebs in North Conway and I OC'd in there. There were lots of tourists and at this point I was very comfy OCing and had no issues or looks at Zebs. We then went to the outlet stores and we walked around and went into Eddie Bauer, Under Armor and a few others. The store clerks in Under Armor asked if I was LE or Military, I said no, they said " Oh I thought maybe you were with the gun and all". My wife said, we like to practice our 2nd amendment right, the store clerks said "great, go for it". That was nice to hear. It was a postive experience and I do usually shy away from OC just because of what could happen like the original poster. I would feel the same as he, a little intmidated and irritated. I probably wouldnt have OC'd if I read this thread first befoer I went up to the Gorham area. But now I'm glad I did.

Great, yeah, I haven't had any more trouble OCing up north, this incident hasn't stopped me from OCing everywhere I go. I walked by probably hundreds of people that didn't have an issue with me OCing there. I have no way to prove it, but he was probably one of the few people there from Mass. Where ever he was from, he didn't look like he was all there either, but he knew enough to go to the nearest cop as soon as he saw me with my gun.

[jrd929]

Blah, blah, blah.....excuses.

Most of the work is done before you even go to Gorham. You gotta a phone don't you.

I didn't know you could do most of it over the phone or the computer, I thought I had to go there and write out a bunch of paperwork in person. Like I said earlier, I have never done a FOIA request before.

[yt8znu35]

Is it legal to record in NH? If so, I would start recording whenever you carry. Good luck.

Just be aware that recording provokes police ire in its own right. http://www.nashuatelegraph.com/news/...n-of-july.html If you are recording audio, police in NH can arrest you on felony wiretapping. You might win the court case, but it will be an ordeal.

I recommend wording the complaint very carefully, adhering rigidly to the facts pertaining to their actions. Acknowledge officers who, although wrong to hassle you in the first place, were otherwise polite or at least not rude. If your complaint comes across as a raving assault on the character of the department, it will not get far.

[hermannr]

JRD, you did fine. Only one comment: You could have told them you do not voluntarilly consent to giving them your ID, when you gave it to them. I am not saying don't give it to them, just that you do not voluntarilly do so. You were doing nothing wrong, so there was no legal reason for them to demand it.

A full blown argument would not have helped you in the situation you were in. Good job.

[KBCraig]

The speed limits driving through Berlin can drive you crazy, there is a 2 lane stretch of road which is posted at 35 MPH and going through other zones drop to 25mph. Seems kind of slow in some areas. Anyways i got pulled over by the State Police going 42mph in a 30.

The 40 mph limit on 16 between Berlin and Gorham (I know, not technically "between" them), on a wide flat straight road with four lanes, and two wide breakdown lanes, is outright ridiculous.

There are lots of ridiculously low speed limits throughout NH.

[WCrawford]

The Tenth Circuit found that an investigatory detention initiated by an officer after he discovered that the defendant lawfully possessed a loaded firearm lacked sufficient basis because the firearm alone did not create a reasonable suspicion of criminal activity.
United States v. King

I'm having some difficulty finding this case (too many US v King(s)), what year was this case hard?

[Gunslinger]

I'm having some difficulty finding this case (too many US v King(s)), what year was this case hard?

http://openjurist.org/361/f3d/802/un...tates-v-d-mayo

I like this one better.