GrizzlyGuy
01-20-2010, 10:52 AM
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?
...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?