9th Circuit Ruling May Help Open Carry

[GrizzlyGuy]

The 9th circuit's recent decision in Elliot Park v. Manglona et al. (http://www.ca9.uscourts.gov/datastore/opinions/2010/01/12/08-16089.pdf) may help open carry advocates and gun owners in general. From this summary (http://www.basicallylaw.com/home/2010/1/12/ninth-circuit-refuses-qualified-immunity-to-officers-on-a-cl.html) of the ruling:

...the Ninth Circuit found was that the Plaintiff alleged enough, if true, that states a §1983 claim and that the Defendants, police officers, are not entitled to qualified immunity...Unlike prosecutors who enjoy absolute immunity, police officers only enjoy qualified immunity. Police officers are not entitled to qualified immunity if a constitutional violation is alleged and that violation was well established at the time.


One of our well-established Constitutional rights is our 4A right to be free from unreasonable searches and seizures. When LEOs detain an open carrier beyond the short amount of time needed to perform a 12031(e) check, they are making an unreasonable seizure (a detention is a seizure of your body), and that is a violation 21 USC 1983 (http://www.law.cornell.edu/uscode/42/1983.html).

In the past, LEOs/LEAs had little fear of these types of suits, since they could usually count on getting qualified immunity. That also discouraged people from filing suit in the first place. Thanks to this ruling by 9th circuit, getting qualified immunity is much less certain.

The recent UOC memo from San Mateo County Sheriff's Dept. (http://www.calguns.net/calgunforum/showpost.php?p=3643614&postcount=4) suggests to me that they intend to regularly infringe on 4A rights (http://www.calguns.net/calgunforum/showpost.php?p=3644477&postcount=20) (as a likely part of responding with "hypervigilant urgency"). Perhaps this ruling will cause them to think twice about doing that?

[Gio]

Good stuff, I hope this helps out. But I would still have a CCW and not have to worry about people calling the cops every 2 minutes saying man with a gun.

-Gio

[dustoff31]

That's some good news.

I'm not sure which I find more interesting. The decision itself, or the court that rendered it.

[Hopi]

Good start.

[Liberty1]

I'm not drawing a connection with specifically OC here. Yes 12031 "e" and certainly any detention beyond that absent RAS can be challenged with a '1983' suit and yes QI can be pierced. The Alamogordo, New Mexico Open Carry case (http://www.examiner.com/x-2782-DC-Gun-Rights-Examiner~y2009m9d29-Alamogordo-police-pay-21000-to-settle-open-carry-lawsuit)showed that QI was pierced for lawful gun carry generally dealing with 4th A violations (based on what State Law allowed).

I agree that UOC would be helped by such a case AS LONG as UOC remains lawful.

[pullnshoot25]

Hot damn.

This is getting emailed to my IA guy at SDPD :)

[navyinrwanda]

Sorry, but there's nothing new here about qualified immunity. The summary sentence quoted by the OP is simply restating the well-establish standard that courts use in determining whether the police are entitled to present a qualified immunity defense against a 42 U.S.C. § 1983 claim.

This decision is noteworthy for other reasons, though. It establishes a precedent that while prosecutors enjoy absolute immunity in their choice of who to charge with a crime, the police cannot "fail to investigate a crime or make an arrest due to the race of the victim."

This is also a good example of how a suspect classification (in this case, race) invokes the highest level of judicial scrutiny.

[GrizzlyGuy]

I'm not drawing a connection with specifically OC here. Yes 12031 "e" and certainly any detention beyond that absent RAS can be challenged with a '1983' suit and yes QI can be pierced. The Alamogordo, New Mexico Open Carry case (http://www.examiner.com/x-2782-DC-Gun-Rights-Examiner~y2009m9d29-Alamogordo-police-pay-21000-to-settle-open-carry-lawsuit)showed that QI was pierced for lawful gun carry generally dealing with 4th A violations (based on what State Law allowed).

I agree that UOC would be helped by such a case AS LONG as UOC remains lawful.

There is nothing specifically about OC in this decision, and the idea that qualified immunity can be penetrated isn't new. However, this is a recent case in our 9th circuit that demonstrates it yet again. It could have value as a deterrent.

Local governments don't like to be sued and especially don't like to lose suits. If this case is mentioned in requests to LEAs (such as San Mateo SD) to ease off on their 4A-trampling extended detainments when they encouter someone open carrying, it could carry some weight in convincing them to change their policies. The detainments (if any) should be brief and limited only to verifying that the firearm is unloaded, per 12031(e). If they extend the detainment to run warrants, run serial numbers, question/lecture the OC-er, etc... they are now solidly into territory where a '1983' 4A suit could penetrate qualified immunity.

The NM case is certainly more to the point, but it was only in a district court rather than a circuit court, and NM just as well be the moon when it comes to CA local government officials performing political calculus.