Federal judge rules police cannot detain people for openly carrying guns

[Bud Helms]

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)

September 9, 10:16 PMDC Gun Rights ExaminerMike Stollenwerk

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 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.

[JWT]

Maybe if rullings like this got more coverage in the press local police departments would take a look at how they respond to open carry reports in states where it's legal. Thanks for the post, certainly hadn't seen anything about it in any of the newspapers, television, or on line news sites.

[OuTcAsT]

Notably, Judge Black denied the police officers' requested "qualified immunity,"

This is perhaps the best message in the whole judgment, for once the officers could not hide behind their badges simply because they were either ignorant of the law, or chose to violate it.

And before the flaming starts, not bashing LE, merely glad that the court emphasized that the knife cuts both ways and the law applies equally to everyone.

[KLRANGL]

Sorry, my legal knowledge is a bit limited. Where exactly does this ruling apply to? Its a NM federal judge, so does this apply only to those states under the tenth circuit court? Any influence anywhere else?

[fiddletown]

Sorry, my legal knowledge is a bit limited. Where exactly does this ruling apply to? Its a NM federal judge, so does this apply only to those states under the tenth circuit court? Any influence anywhere else?This is a ruling of a District Court judge. The Federal District Court is the trial court level. This ruling applies only in this case.

If the question were to go up to the court of appeals, in this case the Federal Court of Appeals for the 10th Circuit , and if the court of appeals agrees, then the ruling would apply in the 10th Circuit.

[Uncle Buck]

So far I liked what I have read. I really liked Outcasts' last paragraph. But I do wonder, and maybe the legal guys/gals will be able to answer it...
Will this set a precedent, or will it have to go to the appeals court before it sets a precedent?

i.e, Could a lawyer practicing in the 9th circuit use this ruling to defend his/her client?

[csmsss]

So far I liked what I have read. I really liked Outcasts' last paragraph. But I do wonder, and maybe the legal guys/gals will be able to answer it...
Will this set a precedent, or will it have to go to the appeals court before it sets a precedent?

i.e, Could a lawyer practicing in the 9th circuit use this ruling to defend his/her client? Fiddletown addresses this above. Precedent is set in a hierarchical construct. Decisions at the trial (district in this case) level do not set precedent and are only applicable to the case at hand. Should this be heard by the 10th circuit appellate court, then that court's decision will set precedent for the 10th circuit only. Should that decision then be reviewed by the SCOTUS, then that decision would become law of the land and precedent for all of the U.S.

An attorney is free to submit any argument he likes, using whatever decisions in the subject or other jurisdictions he so chooses; however, the judge is not bound to consider as precedent anything other than those precedents established by the above hierarchy. Most will ignore references to cases that are outside applicable established precedent; however, there a certain number who don't necessarily feel constrained/encumbered when there is no existing applicable precedent and will look elsewhere for guidance.

[Antipitas]

This case only applies to New Mexico. Only if an appeals is heard before the 10th Circuit, would it apply to all of the 10th Circuit jurisdiction.

However...

It can be used in other courts as part of a pleading to take judicial notice, should another case be substantially the same.

This particular case now will go to a civil trial jury, in order to see if damages are warranted and what amount, if any, will be awarded.

What is worthy of note, is that there is now a growing body of case law, against unreasonable searches and seizures, simply because you are lawfully carrying a gun in the open.

[HellBillySuperstar]

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.

I was happy until I saw that. I'd say damages equal $8.00 for making him miss a movie he payed for.

There are to many people that always think they are entitled to something extra.

[MLeake]

... but I half disagree.

I agree that the "damages" should be about $8.00, plus any legal fees incurred.

However, I disagree that it ends there. "Punitive damages" aren't meant to make the plaintiff whole, as are actual damages; they are meant to serve notice to the wrong-doer that there is a price for doing wrong. In this instance, I think punitive damages are warranted, and the price needs to be enough to motivate the PD to put an end to its current practices. How much is that? Not sure.

[buzz_knox]

I was happy until I saw that. I'd say damages equal $8.00 for making him miss a movie he payed for.

There are to many people that always think they are entitled to something extra.

Such "extras" include all damages that reasonably flow from the defendants' actions. These include damages to compensate the plaintiff for being physically attacked without legitimate cause and having to incur legal costs to seek redress, as well as damages sufficient to deter the bad actors from repeating the acts.

The missed movie is only the tip of the iceberg for what this guy is legally (and rightfully) entitled to. This isn't a case where someone has a meaningless injury and wants disproportionate damages.

[csmsss]

What would really deter the police from overreaching like this would be not just potential civil but criminal liability. What happened to the victim in this case could be compared with kidnapping - he was targeted, under the color and authority of the law and in bad faith, and illegally detained.

[maestro pistolero]

There is a reason that the law provides for punitive damages. The man's civil rights were violated. He was not free to come and go during the detention. What other deterrent is available? A ruling without consequences has no teeth and does nothing to prevent a repeat of the violation.

[BillCA]

As Antipitas said, if a similar case comes up in another court district, attorneys can point to this case (and it's supporting precedents) to show that such conduct is prohibited under similar circumstances. But each trial court will have to adjust for differences in the wording of state laws.

WRT damages: The gentleman detained has a right to damages that occured due to the police action. They caused him to miss all or part of his movie ($8), unlawfully seized him by force, subjected him to public humiliation (unlawfully seizing him in a public theatre), unlawfully deprived him of his liberty, unlawfully denied him is 2A right to carry, unlawfully recorded his ID information (probably now in some LE database forever).

Each unlawful act could be worth $5k. You decide on how much the public humiliation is worth (especially if a neighbor saw it or his name was reported in the local news or papers). Then there are legal fees.

Punative damages can be whatever a judge or jury decides is fitting to "get the attention" of the offending party. In this case the city & PD. If awarded more than 5K for each unlawful act by the PD and legal fees, then as far as I'm concerned the punative could be just $1 ... and the city on notice that another occurrance could cost them $100k in punative damages.

[Don H]

In this particular case, if damages are awarded, are the police officers themsleves liable for those damages or will it end up being the taxpayers that will end up paying for this unlawful conduct?

[MLeake]

The judge denied the officers' requests for immunity, so they could be liable.

The city and PD could always be liable for actions of its officers.

[Dust Monkey]

The only one who can make this a criminal case against the officers is the victim. He needs to go file a criminal complaint at the state and federal level. A DA could prosecute this, but probably would not take it on his own to draw up criminal charges.

I am glad the cops got their magic mushroom yanked by the judge. If ignorance of the law is no excuse applies to me it should apply to those enforcing the law.

Personally. I would file criminal charges as well as go after the officers personally in civil court and the movie theater manager and owners.

[JohnKSa]

Very nice. Let's hope the damages ruling is as constructive.

[Mike Irwin]

This will be of particular interest to Virginians.

A member of VCDL who has been legally open carrying a handgun has been illegally detained by, I believe, Norfolk police. He's won at least one case against the police, and received damages.

Only a few hours after one award he was again detained by police who detained only him out of a group of, IIRC, at least three open carriers. The others were not detained.

Ah, here we go. A recounting of the incidents as reported by VCDL and copied onto another website: http://www.ravnwood.com/archives/006175.php

MOre follow up. He prevailed in the charges against him: http://blog.vcdl.org/index.php?/archives/461-VA-ALERT-Norfolk-LOSES-to-Danladi-Moore,-again!.html

[maestro pistolero]

That is bucket 'O' popcorn worthy. The repeat performance means the PD essentially thumbed it's nose at the court. I predict a 10X settlement this time around. For those of us who poo-poo OC, this is worth paying attention to.

[D-E-T-O-X]

wish something like this would happen in cali


oh wait....... riiiiiight

[highrolls]

There are to many people that always think they are entitled to something extra.

Mr. St. John is NOT one of them.

and the movie theater manager and owners

As I understand it, and well after the incident, the manager/owners now have a sign restricting firearms in the theater. It was not there before.

[Dust Monkey]

[QUOTE]There are to many people that always think they are entitled to something extra./QUOTE]

Nothing extra. Just due process, cops actually following, understanding the laws of the state they work in. And, not to be hassled, humiliated in public. This a violation of civil rights under color of law. The officers, IMO, need some "off time" and never to wear a badge again. They, and the department need to pay a hefty fine. The only way that problems like this will stop happening is when cops that mess up do jail time, just like everyone else. This immunity crap is just that, crap.

[ZeSpectre]

What is worthy of note, is that there is now a growing body of case law, against unreasonable searches and seizures, simply because you are lawfully carrying a gun in the open.

Join in now.... "It's Aaaaaaaa Beautiful day in the neighborhood..." :D

[OuTcAsT]

A member of VCDL who has been legally open carrying a handgun has been illegally detained by, I believe, Norfolk police. He's won at least one case against the police, and received damages.

Only a few hours after one award he was again detained by police who detained only him out of a group of, IIRC, at least three open carriers. The others were not detained.


Thanks Mike, I read the articles and all I can say is unbelievable!

I wonder how many zeros it's gonna take before the DA gets the message? And on top of all that, looks like he might have a case for race discrimination this time. This one is gonna get really interesting !

[Mike Irwin]

That's what I thought, but since that incident there hasn't been a single word of follow up on whether he's pursuing a damages claim/discrimination suit or not.

I certainly hope that he is.

[ilbob]

What is worthy of note, is that there is now a growing body of case law, against unreasonable searches and seizures, simply because you are lawfully carrying a gun in the open.
This is a good thing in general, not even related to guns. The courts need to show some backbone. They have been giving police carte blanche for 50 years, regardless of what the constitution actually says.

Absent some especially good reason, police should not be detaining anyone for any reason.

[BillCA]

I'm in agreement about the police having their "magic fairy shield" removed on this one. But before people jump on the bandwagon and say it ought to be abolished, consider what it was really intended to do.

The qualified immunity police enjoy is there to protect them from so-called "honest" errors. For example, an officer stops someone for "public consumption" of alcohol because he sees the man drink what appears to be a Budweiser can. But after detaining him, the officer finds it's a Coca-Cola can inside a foam insulator with the Budweiser logo.

It also shields officers when some activity might be a crime if certain elements are met and in good faith he intervenes. But after establishing the facts he realizes one or more required elements are missing or dubious, he lets the person go. Such could be the case of someone selling "fake ID's" and the officer not noticing the fine-print that says "Novelty Use Only" and the prosecutor rejecting the charges.

Now... accusing someone of a crime that isn't even on the books is different. That's most likely why the judge stripped them of their immunity. Had they made a mistake -- i.e. if an O.C. statute required a holster and they couldn't see his deep-tuck IWB holster until they were outside -- that would be covered by the immunity.

[Uncle Buck]

No one has mentioned the police chief, who should be responsible for making sure his officers receive the required training they need to stay current on changes in the law, as well as the old laws themselves. He, along with the police department trainer if it is another person, should also be held responsible.

Here in Missouri we are allowed open carry. There are times when I go to pick my wife up at work that I still have my sidearm belted on. I have one convenience store I like to stop at and get my coffee and argue with the clerks on duty about politics (They are wrong all the time!:D). If I do not show up for a few days, they actually have a list of things to 'argue" about. I love that place. But I digress.... Anyway, the owner finally posted a 'No firearms' sign and I explained I would not be back as often.

I guess I can understand some of these places not knowing about open carry, but I can not excuse a police officer who does not know state law.

[rampage841512]

What would really deter the police from overreaching like this would be not just potential civil but criminal liability. What happened to the victim in this case could be compared with kidnapping - he was targeted, under the color and authority of the law and in bad faith, and illegally detained.

Agreed. It would also take the tax payer off the hook when LE agencies screw up.