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View Full Version : Atlanta Fed Court - open carry is enough to detain - Proescher v Bell


Librarian
11-01-2013, 8:36 PM
http://docs.justia.com/cases/federal/district-courts/georgia/gandce/1:2012cv01459/182912/53/0.pdf?1377387540, 8/21/2013

United States District Court for Northern District of Georgia, Proescher v Bell and Dantzler, Case 1:12-cv-01459-WSD

A 42 U.S.C. § 1983 action against the officers named.

The totality of the circumstances here and the reasonable inferences from the
facts support the existence of a reasonable suspicion. Bell was advised by a police
dispatcher that a security guard had reported a suspicious person in the Park who
was “carrying a gun out in the open” as he walked near a playground, who, when
Bell arrived at the Park, did have a visible weapon, and who evaded Bell’s
questions and requests for identification bearing a photograph, provided more than
a sufficient basis constitutionally to detain Plaintiff.

Proescher had a valid Georgia Weapons License; I can't find a reference, but apparently open carry with such a license is legal in Georgia.

speedrrracer
11-02-2013, 7:38 AM
But...but...I thought open carry was "the right"!

BobB35
11-02-2013, 7:40 AM
http://docs.justia.com/cases/federal/district-courts/georgia/gandce/1:2012cv01459/182912/53/0.pdf?1377387540, 8/21/2013

United States District Court for Northern District of Georgia, Proescher v Bell and Dantzler, Case 1:12-cv-01459-WSD

A 42 U.S.C. § 1983 action against the officers named.



Proescher had a valid Georgia Weapons License; I can't find a reference, but apparently open carry with such a license is legal in Georgia.

Don't be surprised. State courts (The government) protecting government agents from being sued after they do something any normal person would consider to be illegal. If these were not government agents then this would have been considered Kidnapping or unlawful imprisonment. But hey expect more and more of this as time goes on. The level of govt corruption and the degree to which they will try to control the "Citizens" will only go up.

Librarian
11-02-2013, 11:55 AM
Don't be surprised. State courts (The government) protecting government agents from being sued after they do something any normal person would consider to be illegal. If these were not government agents then this would have been considered Kidnapping or unlawful imprisonment. But hey expect more and more of this as time goes on. The level of govt corruption and the degree to which they will try to control the "Citizens" will only go up.

This decision was Federal.

SWalt
11-02-2013, 12:06 PM
Is there a law in GA that someone with a LTC must identify themselves?

big jim
11-02-2013, 12:28 PM
Unless you are driving I thought you did not have to provide identification?

SWalt
11-02-2013, 12:34 PM
Unless you are driving I thought you did not have to provide identification?

LTC isn't driving, falls under other law/regulations.

flatbedtruckin
11-02-2013, 7:49 PM
I was under the assumption that parks where children fall under the category of prohibited places such as schools or school zones (1000foot rule), playgrounds, federal property, ECT... I personally think that parks where children play, people should seriously refrain from open carry unless absolutely necessary or it is a requirement of your job.. I'd personally would be very pissed if i saw someone open carry where my daughter plays.. I'd personally chew them out then let my daughter continue the chewing out till said person leaves the area.. Period..

njineermike
11-02-2013, 8:03 PM
I was under the assumption that parks where children fall under the category of prohibited places such as schools or school zones (1000foot rule), playgrounds, federal property, ECT... I personally think that parks where children play, people should seriously refrain from open carry unless absolutely necessary or it is a requirement of your job.. I'd personally would be very pissed if i saw someone open carry where my daughter plays.. I'd personally chew them out then let my daughter continue the chewing out till said person leaves the area.. Period..

Why does someone need your permission to make their own decisions?

socalblue
11-02-2013, 8:24 PM
http://docs.justia.com/cases/federal/district-courts/georgia/gandce/1:2012cv01459/182912/53/0.pdf?1377387540, 8/21/2013

United States District Court for Northern District of Georgia, Proescher v Bell and Dantzler, Case 1:12-cv-01459-WSD

A 42 U.S.C. § 1983 action against the officers named.



Proescher had a valid Georgia Weapons License; I can't find a reference, but apparently open carry with such a license is legal in Georgia.

So Proescher was evasive / non-responsive when asked by the responding officers. That is valid reason for detention & in some states arrest.

Open carry in the urban areas of GA is not the norm & came to the attention of a witness who called law enforcement. All Proescher needed to do was present his LTC, which would have cleared up all issues. GA LTC doesn't discriminate between open or concealed carry, so unless there is another law in GA regarding carry in parks he would have been free & clear, issue resolved.

Failure by Proescher here.

LoneYote
11-02-2013, 9:53 PM
refrain from open carry unless absolutely necessary or it is a requirement of your job..

My job is staying alive.... it's a 24/7 gig....

Librarian
11-02-2013, 10:32 PM
So Proescher was evasive / non-responsive when asked by the responding officers. That is valid reason for detention & in some states arrest.

Open carry in the urban areas of GA is not the norm & came to the attention of a witness who called law enforcement. All Proescher needed to do was present his LTC, which would have cleared up all issues. GA LTC doesn't discriminate between open or concealed carry, so unless there is another law in GA regarding carry in parks he would have been free & clear, issue resolved.

Failure by Proescher here.

Plaintiff was a bit pf a PITA but at page 5 Bell asked if Plaintiff had any identification, specifically asking to see
Plaintiff’s driver’s license. Plaintiff responded by presenting a Georgia weapons
permit that contained a name, date of birth and fingerprint, but which did not have
a photographThe officers, IMO, should have acted as you suggested would be the result of that behavior but chose to act differently.

RickD427
11-02-2013, 11:02 PM
Unless you are driving I thought you did not have to provide identification?

Big Jim,

Some states have mandatory ID laws.

This caper was from Georgia, I'm not sure if Georgia is a mandatory ID state.

California used to be a mandatory ID state, but the way the statute was worded was found to be unconstitutional (Kolender v Lawson). The U.S. Supreme Court since found that properly worded mandatory ID statutes were constitutional (Hiibel v Sixth Judicial District).

California has not yet adopted a mandatory ID statute that complies with Hiibel.

Mulay El Raisuli
11-03-2013, 5:49 AM
Hmmm.


The Raisuli

Rodell
11-03-2013, 8:39 AM
I just don't get why even some gunners treat OC as "evil". We all espouse that guns are not evil, and then hide in the shadows.

If someone is intent in harm at a public park, they are going to do it. Does the fact you see the gun first make a difference?

IVC
11-03-2013, 10:19 AM
I was under the assumption that parks where children fall under the category of prohibited places such as schools or school zones (1000foot rule), playgrounds, federal property, ECT... I personally think that parks where children play, people should seriously refrain from open carry unless absolutely necessary or it is a requirement of your job.. I'd personally would be very pissed if i saw someone open carry where my daughter plays.. I'd personally chew them out then let my daughter continue the chewing out till said person leaves the area.. Period..

Can't do that any more than you can chase away two men holding hands in the park. It's just not subject to your approval.

In both cases, if you don't like legal activity you can pack up and leave.

On a separate note, a gun is a gun whether concealed or carried openly. Feeling safe just because the gun is not visible is an "ostrich response." Not wanting to admit that there are people carrying guns and believing that the human populated areas are therefore safe is another fallacy. However, it's a very common response. That's why constitutional concealed carry is most likely the correct type of carry in urban areas that are not accustomed to firearms.

CBR_rider
11-04-2013, 3:55 AM
Plaintiff was a bit pf a PITA but at page 5 The officers, IMO, should have acted as you suggested would be the result of that behavior but chose to act differently.

Interesting case, thanks for finding it by the way. I find it odd that the weapons permits do not include photographs. It essentially forces law enforcement to run the person or seek photo ID to confirm that the person (especially one in this case who is acting like an idiot, not simply exercising his right to not incriminate himself/etc) who presented the weapons license is the same as the person authorized by the permit. It would be like having a driver's license with no picture. I would have no reason to believe that weapons permits are any easier to steal than driver's licenses (unless they are in the hands of their armed possessor at the time of the attempted theft:p).

It seems like the court really used the plaintiff's idiotic behavior to justify granting summary judgement. I can't help but get the feeling that if the plaintiff had presented his Georgia ID and the weapons permit at the same time and then simply shut up that this would have gone very different (assuming the officers acted the same way as they really did).

KABA556
11-04-2013, 5:30 AM
Don't be surprised. State courts (The government) protecting government agents from being sued after they do something any normal person would consider to be illegal. If these were not government agents then this would have been considered Kidnapping or unlawful imprisonment. But hey expect more and more of this as time goes on. The level of govt corruption and the degree to which they will try to control the "Citizens" will only go up.

New Mexico's Supreme Court handed down a ruling that police didn't even have the right to approach a man and detain him for an involuntary conversation, let alone arrest him at gunpoint, just because he was openly carrying a pistol.

The police actually tried to argue "qualified immunity" while claiming the man went with them willingly. They admit pointing their guns at him and telling him to get out of the chair he was seated in, but they insist he went without complaint and didn't resist and thus he went willingly.

The man was in a movie theater for a double feature. An usher explained that the man had not done anything, he had sat through the first movie, and had then come to the concession stand to buy popcorn in-between movies. Apparently another customer had called the police.

Anyway, the Supreme Court did not accept the idea of "he went willingly" because they decided that just because a man doesn't speak up and decline to obey when you stick a gun in his face, does not mean he is going willingly.

They also decided that the police had no qualified immunity in this instance because qualified immunity requires a good-faith belief that one is acting to uphold the law and the law in New Mexico is very clear on open carry, it is legal, period.

Basically the tax-payers had to foot the bill for those officers dislike of open carrying citizens.

KABA556
11-04-2013, 5:32 AM
I was under the assumption that parks where children fall under the category of prohibited places such as schools or school zones (1000foot rule), playgrounds, federal property, ECT... I personally think that parks where children play, people should seriously refrain from open carry unless absolutely necessary or it is a requirement of your job.. I'd personally would be very pissed if i saw someone open carry where my daughter plays.. I'd personally chew them out then let my daughter continue the chewing out till said person leaves the area.. Period..




If you're actually worried that somebody openly carrying a pistol near a playground is a danger, then chewing them out would be utterly illogical.


Again, if you feel safe enough around them to chew them out, then they're not a threat.

KABA556
11-04-2013, 5:34 AM
Why does someone need your permission to make their own decisions?



On another note, it is always a good idea to start and escalate a verbal confrontation with a man carrying a gun, isn't it?

njineermike
11-04-2013, 6:29 AM
On another note, it is always a good idea to start and escalate a verbal confrontation with a man carrying a gun, isn't it?

Even if he didn't have a gun, deciding to escalate a situation with a person doing nothing wrong is a bad idea. Knowing he's armed takes it from a bad idea to completely stupid. Add in doing it while your kid is around and it passes the stop for stupid and goes off into special ed world.

baggss
11-04-2013, 7:42 AM
I can't help but get the feeling that if the plaintiff had presented his Georgia ID and the weapons permit at the same time and then simply shut up that this would have gone very different (assuming the officers acted the same way as they really did).

Agreed. Since GA requires one to have the permit in order to open carry, the demand for ID and the card in question are, IMO, reasonable. Establishing that the defendant was in compliance with the law was ok. Now if they were like VA where open carry requires no permit then the requist itself would, IMO, be unreasonable.

DannyInSoCal
11-04-2013, 7:53 AM
I was under the assumption that parks where children fall under the category of prohibited places such as schools or school zones (1000foot rule), playgrounds, federal property, ECT... I personally think that parks where children play, people should seriously refrain from open carry unless absolutely necessary or it is a requirement of your job.. I'd personally would be very pissed if i saw someone open carry where my daughter plays.. I'd personally chew them out then let my daughter continue the chewing out till said person leaves the area.. Period..

Your assumptions are wrong.

And what you "personally think" is that we should expand the repeatedly failed "gun free safe zone" responsible for hundreds of murdered children into our communities - Especially where your daughter is playing.

The manager of a CVS caught a glimpse of a mag holder when I pulled out my wallet.

He also a veteran (USMC tattoo on his forearm) and he simply gave me a nod and said "Nice mag - I'll feel safer whenever I see you in the store."

Then again - He didn't throw a hysterical hissy fit because he's not an ignorant naive asshat.

He actually realizes he and his employees/customers are SAFER with armed law abiding citizens and veterans in his store.

And you're giving yourself way too much credit.

A couple of girls whining away won't even break into the top 100 times I've been "chewed out".

Bwawawahahahahahah......

Carry on....