How long will Californians Tolerate This?

cato said:

12031 e PC IS being challenged by CGF and the officer is being sued for personal damages: Richards v Harris

Click to expand...

Thanks for the reminder Cato, I am aware of the 12031(e) challenge by CGF. But like others I too feel it does not go far enough, 12031 in its entirety needs to be taken down.

Not attacking 12031 head on might have something to do with reading SCOTUS tea leaves and playing the safe litigation cards to insure as many wins early in the contest. Why did only one of the plaintiffs in Parker v DC, Dick Heller, have standing to sue for his rights? Hint: he applied for a permit and was denied. The exemption available to us from 12031/626.9 is with a 12050 license. I'm not happy with that but that's them thar tea leaves wispern at us...There is a path to take down 12031 but that comes further on in this chess match. I want 12031/626.9/12025 dead and buried! Don't mistake my goal.

I don't believe Biswell is analogous. FFL in his place of business, with prior knowledge that inspections happen pursuant to a business license, during business hours...vs...private person on private business, carrying for self defense, multi-jurisdictional stops in random places at random times, and post Heller/McDonald too?

Love the assault that likely takes place right before the camera is turned off. Terry pat down without any reason for thinking the two men were dangerous. Put loaded magazine in individuals pocket, thus concealing it, violating 12025 under People v. Hale. Fourth amendment violations galore. I'd be upset too.

Sons of Liberty said:

Also I noticed that in the Richards v. Harris complaint that what CGF argues for in the second claim for relief that mentions 12031e is "to be free from unreasonable seizures under the Fourth Amendment", but not to be free from unreasonable searches. There is a big difference. We are confronted first and often with the issue of searches; not seizures. So, Richards v. Harris seems to not directly address the issue in this aspect also.

Click to expand...

If they can't seize you or your property how do they accomplish the search?

I have to make this statement because in this particular case it would have made a difference.

If you UOC in California, you MUST carry and operate a minimum of 2 Recording devices. Your primary video device easily seen by LEO to capture the activities visually and orally, and a hidden audio recorder that is always on and running not seen or easily found by LE. They can be purschased at Radioshack for under $100.

Why did the officer turn off the recording device? What statements did he make that were not recorded that would have been damning. This one simple back up recorder could have caught these officers bias and hatred and un-professional behavior. (more then what they already showed)

I have UOC'd dozens of times and have yet not encountered a negative LE encounter close to the level of this one, but I always have a primary and backup recorder running. (actually I have a total of 3 recording devices now on me when UOC'ing).

Be prepared for the worst.

Firemark said:

I have to make this statement because in this particular case it would have made a difference.

If you UOC in California, you MUST carry and operate a minimum of 2 Recording devices. Your primary video device easily seen by LEO to capture the activities visually and orally, and a hidden audio recorder that is always on and running not seen or easily found by LE. They can be purschased at Radioshack for under $100.

Why did the officer turn off the recording device? What statements did he make that were not recorded that would have been damning. This one simple back up recorder could have caught these officers bias and hatred and un-professional behavior. (more then what they already showed)

I have UOC'd dozens of times and have yet not encountered a negative LE encounter close to the level of this one, but I always have a primary and backup recorder running. (actually I have a total of 3 recording devices now on me when UOC'ing).

Be prepared for the worst.

Click to expand...

Almost forgot, also DO NOT carry ID, always UOC sterile, its safer.

I love it when my name is taken in vain here...

I carry a loaded firearm in school zones. I want everyone to be able to.

Unloaded carry isn't the right. Those who think they're being uncompromising but carry a pile of parts in their holsters are compromising.

-Gene

hoffmang said:

I carry a loaded firearm in school zones. I want everyone to be able to.

Click to expand...

But... but... but... permission slip... something about tyranny... elitism...

Clearly since your firearm isn't unloaded, you're doing something wrong. Haven't you heard? That's the only way real American patriots who are serious about their rights do it.

i have nothing to say about this video except the time for talking is over.

cato said:

If they can't seize you or your property how do they accomplish the search?

Click to expand...

Just search you and arrest you.

The issue is not the seizure. The issue is the law that led to the search and seizure.

12031a is the law that led to the 12031e inspection, which led to the seizure.

---

cato said:

I don't believe Biswell is analogous. FFL in his place of business, with prior knowledge that inspections happen pursuant to a business license, during business hours...vs...private person on private business, carrying for self defense, multi-jurisdictional stops in random places at random times, and post Heller/McDonald too?

Click to expand...

The issue is the same. A private person conducting business is you and me. Whether pursuing life, liberty, or the pursuit of happiness as an individual or individual doing business, it is our unalienable right.

The courts may use Biswell as they did on individuals (not businesses) in U.S. v. Ortiz 422 U.S. 891, U.S. v. Aukai 497 F.3d 955, U.S. v. Raub 637 F.2d 1205, and U.S. v. Schafer 461 F.2d 856.

Also you will have to deal with Camara v. Municipal Court 387 US 523 in which SCOTUS stated,

"In assessing whether the public interest demands creation of a general exception to the Fourth Amendment's warrant requirement, the question is not whether the public interest justifies the type of search in question, but whether the authority to search should be evidenced by a warrant, which in turn depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search."

The Government will argue, "It will frustrate the enforcement of 12031a if we need a warrant to perform a 12031e inspection."

Good luck with this.

Correspondence with UPD

Dear Chief Mendenhall,

I'm writing you in regard to the actions of a couple of your officers while dealing with two Open Carriers in your city. If you are not aware, open carry is a nationwide movement that is gaining steam everyday.

While California has the distinction of being one of most restrictive states when it comes to openly carrying an exposed firearm in public, it is none the less legal, provided all the restrictions are obeyed.

I am hoping that your department provides some type of training to its officers for future dealings with open carriers. Open Carry, when done properly is not a crime, as I mentioned above. I would hope in the future your officers, absent any reasonable suspicion a crime has been committed, or is about to be committed, would treat open carriers as the law abiding citizens they are and not force them to the ground and violate their constitutional rights.

I'm sure you're aware under current law all that officers are allowed to do (in incorporated areas, or areas where the discharge of a firearm is forbidden) is check to see if the firearm is in fact unloaded. [pc12031(e)]
The "e" check, of course, is completely optional (not MANDATED by law) and should take less than 90 seconds to perform. And may I also remind you that California is not a "stop and ID state", and that searching for, or recording the serial number of said open Carriers weapon is a violation of the Fourth Amendment.

In my opinion, an officer who does not believe in the transparency of a government agency, as Officer Duran stated, does not belong on the force. Or at the least, needs some serious retraining.

There are plenty of other cities across this state, and across the country that know how to deal with law abiding citizens who openly carry weapons in accordance with local laws. I'm sure your city can come up with a reasonable policy to be more in line with these other departments.

I would love to hear your thoughts on this issue and any changes or training you have planned. I fully support all law enforcement and acknowledge your job, and that of your officers, is not an easy one. However, I would hope that in the future your officers can treat law abiding citizens as such.

That a store near where this incident occurred was recently robbed, as Officer Duran stated, should have no bearing on the way men who are obviously no threat should be treated.

With much respect, Jerry J.

--------------------------------------------------------------

This email is being written to all persons that took the time to correspond with me regarding the recent posting of an Upland officer dealing with two individuals who were not involved in any illegal activity. The individuals were exercising their Constitutional right to carry an unloaded weapon in plain sight. I do agree the individuals were not breaking the law. The call for service could have been handled in a more professional manner, consistent with the training previously provided to all officers.

Prior to this incident, the Upland Police Department conducted briefing training on how to handle a person exercising their Constitutional right by “open carrying”. The Upland Police Department used a District Attorney training bulletin as the basis of the training. The training, in a nutshell, advises officers have a right to check the weapon to make sure it is unloaded. Officers should not lengthen the detention by running the serial number of the weapon or individuals involved.

On the night of the incident, when Command Staff became aware of the call and how it was handled, immediate steps were taken to ensure all officers received refresher training. The Patrol Commander has ensured that all patrol briefings have gone over the appropriate way to handle an “open carry” call for service and what legally can be done by the officers.

In closing, I do believe Upland Police officers made mistakes during this contact and the incident could have been handled better. The Upland Police Department has opened a citizen’s complaint investigation of the incident and as such all officers involved will be afforded their personnel rights.

Within 48 hours, “open carry” advocates exercised their rights at the same shopping center and all subsequent calls for service were handled appropriately, indicating the refresher training was successful.

Jeff Mendenhall

Acting Chief of Police

Upland Police Department

1499 West 13th Street

Upland, California 91786

909-946-7624 ext 3200

jmendenhall@uplandpd.org

----------------------------------------------------------------------------

Dear Jerry J,

The Upland Police Department is considering this a citizen’s complaint. Since we have no physical address we are sending the response via email, which was provided.

Sincerely,

Luz Barrett

Senior Admin Asst

--------------------------------------------------------------------
(note: Included was a correspondence letter on official letterhead stating that "I have assigned Lieutenant Marty Elliott to investigate your allegations. At the conclusion of his investigation, you will be advised of our findings." )

I would love to be able to break the law and just tell the police and prosecutor "that i should have handled it differently" and then go home.

Correct me if I am wrong but didnt the officer admitt in the video to seizing and turning off the open carriers video camera ?

JJ said:

In closing, I do believe Upland Police officers made mistakes during this contact and the incident could have been handled better. The Upland Police Department has opened a citizen’s complaint investigation of the incident and as such all officers involved will be afforded their personnel rights.

Jeff Mendenhall
Acting Chief of Police
Upland Police Department

Click to expand...

Translation; We are conducting an internal investigation. Any records related to this incident requested via PRA will be censored or redacted while this investigation is ongoing.

Click to expand...

I suppose the good news is that email is something of an admission that things were not handled correctly, however not being able to review their records reduces the possibility that an attorney will be able to use them to advance any litigation.

This is why it isnt to our benefit to post the video or the account of what happened without first clearing it with counsel immediately after it occured. This is rule 8 or 9 in the Noobie thread (too lazy to look it up). Since this was posted, Im sure a dozen or more have contacted Upland PD to share their complaint... Which does nothing to help those directly involved.

ConditionThree said:

I suppose the good news is that email is something of an admission that things were not handled correctly, however not being able to review their records reduces the possibility that an attorney will be able to use them to advance any litigation.

This is why it isnt to our benefit to post the video or the account of what happened without first clearing it with counsel immediately after it occured. This is rule 8 or 9 in the Noobie thread (too lazy to look it up). Since this was posted, Im sure a dozen or more have contacted Upland PD to share their complaint... Which does nothing to help those directly involved.

Click to expand...

I see this as the Chief possibly seperating the Dept from the possible/probable lawsuit.
By admitting that his officers had been trained and that they mishandled the situation, he basically removed thier qualified immunity. The officers are now personally on the hook for the civil lawsuit.

Decoligny said:

I see this as the Chief possibly seperating the Dept from the possible/probable lawsuit.
By admitting that his officers had been trained and that they mishandled the situation, he basically removed thier qualified immunity. The officers are now personally on the hook for the civil lawsuit.

Click to expand...

I think you are right on with that observation.

not much $$ damage, one more LEO agency on notice to do it right

I am not a lawyer, and I saw a whole lot of rights violations. That being said, nobody got hurt, injured, or arrested and hauled off to jail,which does not lead to much in the way of $$ civil damages. If these OC'ers were truly out educate the public that day, then they may have educated a whole police department in the correct procedures for their "days work". If all it takes is one ******* contest, where nobody gets hurt to correct a whole LEO agency from assaultingOC'ers rights, I would call that a good thing. The acting chief seems to be taking a proactive stance of rehabilitation. Officer Duran, was stepping way over the line, and I am also truly concerned about a uniformed officer who does not believe in government transparency. His arrogance shined brightly. He needs to be put back with a training officer for some additional lessons in how to treat people that are not under arrest. What is even more showing is that the Sargent calling the shots seems just as clueless to the laws as Duran. Remember, he is the guy that should have been conducting the training briefings, probably over multiple shifts. I can only hope the acting police chief gives them appropriate discipline and reeducation..
Monday morning quarterbacking is easy . The involved OC'ers should have let the Leo's do what they did without so much talking, however given the amount of jacking around they took, including turning off the recorder, being placed on their knees, the officers are the ones who way overreacted, and makes them look really bad. If a Officer from Upland ever pulls another stunt likes these officers did, the city and officers will have no protection by claiming they did not know better and will face serious civil rights consequences. With the tone of the Chief's letter, I doubt that problem will reoccur anytime soon.

The dept has escaped no liability for the chiefs words.

I really like the acting chief's letter. I'd bet a good lawyer would too. Too bad a lot of evidence has been locked away due to personnel rights. Is there any way around that? How about after the personnel review is completed?