Okay......what does everyone think of this letter? Don't mind the formatting, for some reason it didn't come through with the cut and paste. It has proper indents and such. Incidents ONE and FIVE will be added to it once I talk to the appropriate people.
## August, 2011
Tim George
Chief of Police, City of Medford
411 W. 8th St.
Medford, OR 97501
As you and your officers should already know, it is not unlawful to openly carry firearms in the state of Oregon and that, like most states, no license is required to open carry, whether on foot or in a vehicle. In fact, Sheriff Winters has stated publicly, on the Bill Meyers show, that “open carry is legal in Oregon”. Also, that while firearms carry “in or on” a “public building” (as defined in ORS 166.360) is prohibited by ORS 166.370, section (3) (d) of that ORS specifically exempts persons licensed to carry a concealed handgun. This exemption does not limit the carry of firearms to only handguns, nor does it require them to be concealed, only that a person carrying “in or on” a “public building” be licensed. It should also be well known that ORS 166.262 specifically prohibits arrest for violation of 166.250 or 370 if the person has a CHL in their possession. It should be noted that possession of a CHL on the person is not required but only prohibits, through ORS 166.262, arrest. If a CHL is not in the possession of the individual, the fact that they did, in fact, have one at the time they were arrested becomes an affirmative defense to the charge under ORS 166.370(4). Finally, I am sure that you and your officers are well aware that the United States Supreme Court has established that it is a violation of the Fourth Amendment for the police to seize a person absent reasonable articulable suspicion (RAS) of crime afoot. Terry v. Ohio, 392 U.S. 1 (1968).
Unfortunately, several recent incidents involving officers of the Medford Police Department have come to my attention and those incidents appear to violate one or more of the above mentioned “basics”.
INCIDENT ONE:
REDACTED UNTIL EXACT DETAILS ARE CONFIRMED
Another individual has been repeatedly contacted over the last several months, with the most recent incident occurring this week. While most officers have reportedly been friendly and merely making consensual contact to determine if there was cause for concern, three of the most recent incidents raise serious concerns.
INICIDENT TWO:
The first of these involves three officers contacting this individual, the lead officer of whom stated “I know who you are”. The officer informed the individual that he had been trespassed from an Albertsons parking lot which, if true, is perfectly within his legal authority. However, the officer then attempted to intimidate the citizen with a threat of “disorderly conduct” because multiple people were concerned. This claim by the officer is either uninformed or purposely intended to intimidate. ORS 166.023 and 166.025 are the disorderly conduct statutes in this state. ORS 166.023 only applies to a situation involving a “false report” while ORS 166.025 lists seven specific actions, none of which apply to the lawful carry of a firearm.
INCIDENT THREE:
The second incident with this individual occurred when officers of your department again made contact with this individual at Hawthorne Park while responding to a service call due to a fight. A single officer approached the individual, with some agitation which can be expected when responding to a call of a fight and finding an armed individual. However, when informed that the fight was in another part of the park and directed to that location, the officer turned his back on the armed individual and departed. This would indicate that the officer did not consider the individual dangerous. Yet he returned with at least three other officers and proceeded to threaten the individual with detention and to “lecture” him as to the officer’s feelings on the issue of lawful carry. Ironically, the officer made statements to the effect that the park was unsafe so why would he open carry, apparently preferring that a law abiding citizen be at the mercy of criminals in a public park that his department is incapable of policing.
As the officer obviously, by turning his back when departing at the first contact, did not consider the individual dangerous, his return, with multiple officers, to confront a law abiding citizen, is nothing short of intimidation under the color of authority. Further, editorializing against open carry is not the province of law enforcement. If your officers have any objection to open carry, they should contact their state legislator on their off duty time and not use the color of authority behind their badges and uniforms to stifle both the right to bear arms and the First Amendment right of expressive conduct to open carry firearms.
INCIDENT FOUR:
The third incident for this individual occurred that same day when he went to the Medford PD to file a complaint regarding the earlier incident. In the hallway, as a courtesy because he was openly carrying, he notified the first officer he saw that he was licensed, openly carrying, and there to file a complaint. That officer went through a doorway and left the individual in the public hallway for a fairly lengthy amount of time during which, no police officers were present and at least one individual came out of the offices and walked calmly through the hallway indicating that there was certainly no alarm within the building. Sometime later, an officer exited an office door, proceeded to the outer door of the building, apparently to read the sign there stating that firearms are prohibited in the building (citing ORS 166.360 as the authority). This officer then detained and cuffed the individual, escorted him out of the hallway while stating “you can’t carry it in here” and into a room off the hallway at which time he was also disarmed. This officer, joined by multiple other officers, then tried to sort out the laws and one of them stated something to the effect of calling the sheriff’s department to figure it out. Additionally, an individual who was recording audio and video, and had announced that fact repeatedly, and was quietly sitting on a bench in the hall, was told to move down the hallway a substantial distance. There are several areas of concern with this incident.
First, the signage on the entrance to the building incorrectly cites ORS 166.360 as the prohibition against carry of firearms in the building. ORS 166.360 merely defines “public building” and other terms. The prohibition is contained in ORS 166.370. However, ORS 166.370 (3) (d) exempts persons with a CHL.
Second, that one of your officers would rely upon a door sign, as justification to detain an individual, indicates a lack of training.
Third, to make a detention and then try to determine if any laws were broken violates both the intent and the letter of black-letter law, well established case law, and the fourth amendment civil rights of the individual.
Fourth, while officer safety needs to be taken into consideration, telling the quietly seated videographer, though worded as a request, presented as a demand under color of authority, at a minimum gives the appearance that something improper may, or may about to be, happening.
While the individual was eventually released and given the complaint forms that he came to obtain, this incident is further evidence of an ongoing problem within your department.
INCIDENT FIVE:
REDACTED UNTIL EXACT DETAILS ARE CONFIRMED
First paragraph below goes with the redacted incident
Non-consensual police stops of open carriers for simply open carrying, as this incident seems to be, are per se unlawful and a violation of the fourth amendment. That officers, absent RAS, would draw firearms and aim them at a law abiding citizen, is not acceptable in the City of Medford!
While these are the only incidents that I am currently aware of, the actions of your officers indicate that there are training or personnel deficiencies within your department. These issues can have significant consequences to crime prevention and the finances of both the department (i.e. City) and individual officers. Unlawful stops of open carriers will result in suppression of evidence even if unlawful conduct is uncovered, potentially allowing criminals to get off the hook. In Casad v State of Washington, the Appeals court suppressed evidence of the unlawful possession of firearms because law enforcement seized a man for merely openly carrying firearms in public. This result is not unusual, see Goodman v. Commonwealth, 2007 WL 2988343(Va.App. 2007) (same result as Casad), because the result is a matter of federal Constitutional law commanded by the United States Supreme Court and will apply equally in Oregon.
As it is clearly established law that the open carry of handguns in holsters is lawful without a CHL, qualified immunity does not attach to your officers for the unlawful harassment, ID checks, gun serial number checks, etc. It is also likely that officers will forfeit qualified immunity with a long gun carried in a non threatening manner (i.e. slung, in a case, etc.). Further, by way of this letter, you as the Chief of Police, and the Office of the Chief of Police, are on actual notice in this matter, subjecting you to personal liability for damage claims under 42 USC 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989).
If you are not aware of it, there is a growing nationwide movement in which law abiding citizens “open carry” firearms to both provide for their personal defense and exercise their constitutional rights. Most who participate in this activity are highly knowledgeable of firearms and constitutional law and may even carry handouts for individuals who approach them. Many of these individuals also practice “sterile carry” in that they do not carry identification and will refuse to provide their names when contacted because of their lawful carry of a firearm. Though officers are free to request identification, as Oregon is not a “stop and ID” state, absent RAS officers have no authority to require identification be produced or given verbally.
It should be obvious that a number of people in the Medford area are now participating in “open carry” and equally clear that at least some of your officers are not sufficiently trained in properly handling encounters with law abiding citizens who are carrying firearms. It also appears that some of them engage in intimidation and lecturing their opinions under color of authority. For these reasons it would be prudent to ensure that your entire force is properly trained in how to lawfully contact these individuals. As I previously mentioned, this is not simply a second amendment issue and is more often a matter of fourth amendment violations.
It is the constitutional right of open carriers to enjoy the same freedom of movement and right of assembly in society as those wishing to carry concealed, or not at all. The purpose of law enforcement is to help ensure open carriers enjoy these freedoms, not to stifle them. I would like a response indicating what immediate and ongoing actions you intend to take to rectify these issues, not just for “open carriers” but for all citizens, as the intimidation and opinionating actions of your officers are not likely to be confined to open carriers. If I can be of any assistance in investigating this matter or formulating a solution, please feel free to contact me in that regard as well.
If I have not received an initial reply by ****__DATE_**** I will be left with no choice but to consider my next course of action.
Sincerely,
Redacted (name)
Redacted (email)
Edited to make four (4) corrections and to add the line explaining that one paragraph below a redacted incident in concerning that redacted incident.
