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View Full Version : 10th Cir. Federal judge tells police: leave open gun carriers alone!


Mike Stollenwerk
09-09-2009, 7:27 PM
Folks - let's spread this story far and wide and get the word out - open carriers get fourth Amendment protection too!

Please sign up for a DIGG.com account and DIGG this news column - REDDIT the story too if you have time.

http://www.examiner.com/x-2782-DC-Gun-Rights-Examiner~y2009m9d9-Federal-judge-rules-police-cannot-detain-people-for-openly-carrying-guns

SNIP

examiner.com — On September 8, 2009, United States District Judge Bruce D. Black of the United States District Court for New Mexico entered summary judgment in a civil case for damages against Alamogordo, NM police officers. The Judge’s straight shootin’ message to police: Leave open carriers alone unless you have “reason to believe that a crime [is] afoot.” . . .

Dr. Peter Venkman
09-09-2009, 7:37 PM
Not understanding the details of the case. The movie theater has the current legal right to make him remove his handgun, does it not? I guess the issue was that the police assumed that was the theater's intended wish and it was not clear whether they wanted that done.

yellowfin
09-09-2009, 7:48 PM
Excellent news. I really wish there could be judges in California or New York that would give LE a much needed smack across the face for messing with OC'ers, a smack hard enough that they would abandon thoughts of doing it again.

Maestro Pistolero
09-09-2009, 8:11 PM
Excellent.

CitaDeL
09-09-2009, 8:14 PM
God Bless you Mike. Thanks for keeping us apprised and staying involved at CalGuns...

M. Sage
09-09-2009, 8:22 PM
Not understanding the details of the case. The movie theater has the current legal right to make him remove his handgun, does it not? I guess the issue was that the police assumed that was the theater's intended wish and it was not clear whether they wanted that done.

In a lot of places, it isn't trespassing unless you're notified somehow. To me it sounds a bit like the theater owner wanted him gone, but failed to notify him properly and simply pussed out and called the cops.

Mstrty
09-09-2009, 8:26 PM
God Bless the US Constitution and all who abide by it. Damn all who trample on it.

KylaGWolf
09-09-2009, 8:48 PM
In a lot of places, it isn't trespassing unless you're notified somehow. To me it sounds a bit like the theater owner wanted him gone, but failed to notify him properly and simply pussed out and called the cops.

Oh that happens here in Cali too unfortunately.

coolusername2007
09-09-2009, 11:14 PM
Oh that happens here in Cali too unfortunately.

Very good news!

ETA: Oops, didn't mean to quote KylaGWolf. Very good news about the article, not the happenings in CA.

GrizzlyGuy
09-10-2009, 7:22 AM
Awesome! :clap:

The judge even swatted away the LEOs' standard claim of qualified immunity. That will hopefully make all the LEO agencies and their parent governments (who pay the bills) think twice in the future. There's nothing like hitting them in the pocketbook to remind them that the 4th amendment is still in effect.

JDoe
09-10-2009, 7:23 AM
Interesting news regarding Open Carry.

Federal judge rules police cannot detain people for openly carrying guns (http://www.examiner.com/x-2782-DC-Gun-Rights-Examiner~y2009m9d9-Federal-judge-rules-police-cannot-detain-people-for-openly-carrying-guns)

On September 8, 2009, United States District Judge Bruce D. Black of the United States District Court for New Mexico entered summary judgment in a civil case for damages against Alamogordo, NM police officers. The Judge's straight shootin' message to police: Leave open carriers alone unless you have "reason to believe that a crime [is] afoot."...

Qualified immunity is denied.

Notably, Judge Black denied the police officers' requested "qualified immunity," a judicially created doctrine allowing government officials acting in good faith to avoid liability for violating the law where the law was not "clearly established."

6172crew
09-10-2009, 7:27 AM
Interesting news regarding Open Carry.

Federal judge rules police cannot detain people for openly carrying guns (http://www.examiner.com/x-2782-DC-Gun-Rights-Examiner~y2009m9d9-Federal-judge-rules-police-cannot-detain-people-for-openly-carrying-guns)



Qualified immunity is denied.

I merged your thread with the one below yours.

Roadrunner
09-10-2009, 8:03 AM
It's good to hear that judge Black spanked them on the issue of qualified immunity. If that was acceptable, a cop could do anything they want and just smooth it over with qualified immunity. Now if only we can get that done in California.

Vtgunner
09-10-2009, 8:30 AM
I am curious if courts would find the California law allowing LE to inspect the weapon if it is loaded would withstand federal scrutiny.

wash
09-10-2009, 8:49 AM
Do you know what this means?

It means when you OC, very bad things may happen, so bad that a judge might make the police pay.

This does not in any way mean that UOC in California is a better idea today than it was last week.

Something has to go terribly wrong, then you have to wait for your day in court, then you might get a settlement. But people have a short attention span, no one will notice the results in court but they will remember the part where things went terribly wrong.

dirtnap
09-10-2009, 9:05 AM
From the article:


On September 8, 2009, United States District Judge Bruce D. Black of the United States District Court for New Mexico entered summary judgment in a civil case for damages against Alamogordo, NM police officers. The Judge's straight shootin' message to police: Leave open carriers alone unless you have "reason to believe that a crime [is] afoot."

The facts of the case are pretty simple. Matthew St. John entered an Alamogordo movie theater as a paying customer and sat down to enjoy the movie. He was openly carrying a holstered handgun, conduct which is legal in 42 states, and requires no license in New Mexico and twenty-five other states.

In response to a call from theater manager Robert Zigmond, the police entered the movie theater, physically seized Mr. St. John from his seat, 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.

Importantly, no theater employee ever ordered Mr. St. John to leave. The police apparently simply decided to act as agents of the movie theater to enforce a private rule of conduct and not to enforce any rule of law.

On these facts, Judge Black concluded as a matter of law that the police violated Matthew St. John's constitutional rights under the Fourth Amendment because they seized and disarmed him even though there was not "any reason to believe that a crime was afoot." Judge Black's opinion is consistent with numerous high state and federal appellate courts, e.g., the United States Supreme Court in Florida v. J.L. (2000) (detaining man on mere report that he has a gun violates the Fourth Amendment) and the Washington Appeals Court in State v. Casad (2004) (detaining man observed by police as openly carrying rifles on a public street violates the Fourth Amendment).

Mr. St. John's attorney, Miguel Garcia, of Alamogordo, NM was pleased with the ruling and look forward to the next phase of the litigation which is a jury trial to establish the amount of damages, and possibly punitive damages. Garcia said that

"[i]t was great to see the Court carefully consider the issues presented by both sides and conclude that the U.S. Constitution prohibits the government from detaining and searching individuals solely for exercising their rights to possess a firearm as guaranteed by our state and federal constitutions."

Notably, Judge Black denied the police officers' requested "qualified immunity," a judicially created doctrine allowing government officials acting in good faith to avoid liability for violating the law where the law was not "clearly established." In this case, Judge Black concluded that

"[r]elying 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. . . . 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. 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."

Judge Black's opinion and order is welcome news for the growing number of open carriers across the United States. Though police harassment of open carriers is rare, it's not yet as rare as it should be - over the last several years open carriers detained without cause by police have sued and obtained cash settlements in Pennsylvania, Louisiana, Virginia (see additional settlement here), and Georgia. More cases are still pending in Ohio, Wisconsin, Michigan, and Pennsylvania.

Judge Black's opinion and order can be read here.

CaliforniaCarry
09-10-2009, 9:09 AM
Do you know what this means?

It means when you OC, very bad things may happen, so bad that a judge might make the police pay.

This does not in any way mean that UOC in California is a better idea today than it was last week.

Something has to go terribly wrong, then you have to wait for your day in court, then you might get a settlement. But people have a short attention span, no one will notice the results in court but they will remember the part where things went terribly wrong.

Federal judge in a different circuit: "4th Amendment actually means what it says. Qualified immunity doesn't apply."

You: "Yet another reason not to UOC in CA!"

Is it just me, or is that a pretty big canyon to jump over? I'm not sure Evil Knievel himself would have attempted that one. UOC wasn't even mentioned anywhere in this thread until you brought it up :rolleyes:

dantodd
09-10-2009, 11:07 AM
Not understanding the details of the case. The movie theater has the current legal right to make him remove his handgun, does it not? I guess the issue was that the police assumed that was the theater's intended wish and it was not clear whether they wanted that done.

Are you sure the movie theater has the right in NM? I don't know the NM laws I am seriously asking if carry is a right that is immutable by private businesses or not in NM.

scc1909
09-10-2009, 11:24 AM
Are you sure the movie theater has the right in NM? I don't know the NM laws I am seriously asking if carry is a right that is immutable by private businesses or not in NM.
IANAL and am not familiar with the specifics of NM Code, but I used to live in Albuquerque and routinely saw businesses with "No Guns" signs in their front windows/doors. I suspect a form of 'castle doctrine' applies in NM where a business can set limits on what persons can do on that property. Violate those limits and you are "trespassing" or something like that. In this case it appears that the theater had no sign and that the management didn't even ask him to remove the handgun (which serves the same purpose as a sign). They just called the cops on him.

I trust his lawyer will get him plenty of cash from both the theater and the PD.

wash
09-10-2009, 1:20 PM
Federal judge in a different circuit: "4th Amendment actually means what it says. Qualified immunity doesn't apply."

You: "Yet another reason not to UOC in CA!"

Is it just me, or is that a pretty big canyon to jump over? I'm not sure Evil Knievel himself would have attempted that one. UOC wasn't even mentioned anywhere in this thread until you brought it up :rolleyes:
From what I've seen, the enthusiastic UOC crowd will read things like that in to this story.

I've heard several mention that they are waiting for a bad stop so they can go to court and get $$$ out of the PD.

This is just the kind of story that might encourage them to do something stupid.

The judgment itself is good, sending a message to the PD's that they can't hide behind qualified immunity when they hassle someone with out probable cause.

Vtec44
09-10-2009, 1:49 PM
I've heard several mention that they are waiting for a bad stop so they can go to court and get $$$ out of the PD.

This is just the kind of story that might encourage them to do something stupid.

I personally don't agree with UOC. However, people are doing it to make a statement, and not looking for money. Laws are laws, both sides have to follow them. I don't see how this story encourages people to do anything stupid since you still have to follow strict CA laws when UOC. To many people, owning a gun is doing something stupid.

CaliforniaCarry
09-10-2009, 1:53 PM
From what I've seen, the enthusiastic UOC crowd will read things like that in to this story.

I've heard several mention that they are waiting for a bad stop so they can go to court and get $$$ out of the PD.

This is just the kind of story that might encourage them to do something stupid.

The judgment itself is good, sending a message to the PD's that they can't hide behind qualified immunity when they hassle someone with out probable cause.

So, based on mere conjecture that someone might construe it that way, you threadjack a perfectly good, informative thread about a LOC decision in another circuit? You really don't see why that's a stretch?

I'm not going to discuss this further in this thread. There are several existing threads dedicated to discussion of the merits (or lack thereof) of UOC. It bugs the friggin' crap out of me to see every single thread about LOC treated like there's some ulterior motive behind it related to UOC.

Kharn
09-10-2009, 2:46 PM
I think a few people need to read SCOTUS's Florida v. J.L. (2000) (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=98-1993) ruling.
The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. This Court also declines to adopt the argument that the standard Terry analysis should be modified to license a "firearm exception," under which a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing.
The SCOTUS says "man with a gun" is not sufficient for a stop and frisk, there must be a reasonable suspicion of criminal activity occurring.

wash
09-10-2009, 2:53 PM
It's not a threadjack when it's on topic.

I didn't comment about the different circuit, but that's a good point, no one in CA should expect to get the same ruling here. If a similar case came up in the 9'th, the ruling might be very different.

So, why is this being mentioned in calguns.net? Isn't it stretching a bit to think that any part of this story is relevant to California Mr. CaliforniaCarry?

GoodEyeSniper
09-10-2009, 3:02 PM
It's mentioned on calguns because this is the 2nd amendment forum, and any news from the country like this should be shared.

However it's not directly relevant to our UOCers here, because it doesn't apply in several ways.

hoffmang
09-10-2009, 5:04 PM
Please remember that the 10th Circuit is not the 9th Circuit (yet). We'll work on it here.

-Gene

The Wingnut
09-10-2009, 5:29 PM
dugg!

Indeed! We need this here, badly!

M. Sage
09-10-2009, 5:48 PM
I am curious if courts would find the California law allowing LE to inspect the weapon if it is loaded would withstand federal scrutiny.

I was just thinking that it really needs to be challenged under the same grounds. :cool: 12025's "inspection" search is very obviously unconstitutional.

So, why is this being mentioned in calguns.net? Isn't it stretching a bit to think that any part of this story is relevant to California Mr. CaliforniaCarry?

It applies as far as something we should keep an eye on, and for something that we should plan on possibly following the example of in the future. This is "2nd Amendment Politics and Laws", and this thread certainly applies on those grounds alone.

No sense focusing all our attention to what's inside California. There are good things happening elsewhere that can benefit directly or by observing and copying methods.

wash
09-11-2009, 8:14 AM
I agree that it's relevant, a ninth circuit judge might read that decision if they are faced with a similar case. On the other hand, the good of a positive ruling in the 9'th would certainly be overshadowed by the negative media that would certainly accompany whatever event led up to the case.

IGOTDIRT4U
09-11-2009, 8:31 AM
It's good to hear that judge Black spanked them on the issue of qualified immunity. If that was acceptable, a cop could do anything they want and just smooth it over with qualified immunity. Now if only we can get that done in California.

You'll note that the article is in a Los Angeles publication. At least SOME of the LA flunkies may read it. Now, question is, will they understand it.

IGOTDIRT4U
09-11-2009, 8:39 AM
It's not a threadjack when it's on topic.

I didn't comment about the different circuit, but that's a good point, no one in CA should expect to get the same ruling here. If a similar case came up in the 9'th, the ruling might be very different.

So, why is this being mentioned in calguns.net? Isn't it stretching a bit to think that any part of this story is relevant to California Mr. CaliforniaCarry?

It's very pertinent. It's usable as case law. Not the best or strongest of cases (Note, it was a Summary Judgement), but one way to have a victory in court is to find as many lower court or lesser cases that are on point and in your favor, adding them into one strong brief.

Roadrunner
09-11-2009, 10:59 AM
You'll note that the article is in a Los Angeles publication. At least SOME of the LA flunkies may read it. Now, question is, will they understand it.

Understand it, maybe. Ignore it, probably since it really doesn't effect them. If I were them, I would consider it a warning, but what will probably happen is if it were to become law here, some cops would yell foul, and claim that it's taking their discretion away and tying their hands, thus preventing them from doing their jobs and protecting the public. I saw this movie one too many times with the LA police protective league. If I sound like I have a low opinion of the LAPD, your perception would be correct.