Seized by the Manchester, New Hampshire PD for Open Carry

[mvpel]

Many of you may already have seen this thread on FreeRepublic, The High Road (updates), or Packing.org. In light of The Firing Line's reopening, I thought I'd post it here.

Latest news follows in the first post.

===================
Capt. David Mara
Public Integrity & Professional Standards
Manchester Police Department
351 Chestnut Street
Manchester, NH 03101-2294

March 29, 2004

Dear Captain Mara,

I am writing to you in your capacity as head of Public Integrity and Professional Standards to lodge a complaint against your department and certain of your officers stemming from an incident that took place on Saturday, March 27 at about 9:00pm.

Background

My wife and I had just finished our 11th anniversary dinner at Kobe Japanese Steakhouse on Second Street, and had stopped in to the Barnes & Noble bookstore on South Willow Street for a cup of latte and a few books and DVDs. I was dressed neatly in slacks and a purple oxford shirt, and was clean-shaven.

Due to the pleasant evening air, I left my coat in the car. Since I had neglected to tuck my shirt over it, my holstered Glock 30 sidearm was thus visible in the small of my back in a Workman IWB holster.

For about 10-15 minutes, I chatted with my wife about choosing a sweater from a selection of knitting books she was reviewing, browsed the history and political sections near the restroom, and then made my way over to the Science Fiction aisle.

I was idly leafing through an interesting book, minding my own business, when suddenly I found myself seized by the right shoulder and my holster, pushed towards the corner of the bookcase, by either Officer Chris Byron or Office David DuPont, I’m not absolutely certain which of them.

I exclaimed, raised my hands up to prevent myself from going face first into the bookshelf. I dropped the book, and upon glancing over my right shoulder, saw another uniformed officer at my right flank. The officer holding me requested that I relax and place my hands on my head. I immediately complied.

I was then disarmed, the holster being unsnapped and removed from my waistband. I informed the detective to whom the firearm was handed that it had a round in the chamber upon his inquiry. I believe the individual who unloaded it was one of the detectives, either Sean Leighton or John Patty.

I was then asked to go outside the store with them, and I agreed. I was released and walked to the doorway, handing over my driver’s license and New Hampshire pistol license on the way out.

Once my record came back clear, naturally, I was subjected to a condescending lecture about the carrying of arms, quizzed repeatedly as to why I carry a firearm.

I replied “to protect myself and my family,”[1] which yielded a number of derisive comments about the effectiveness of firearms in self-defense and defense of others – hmm, why do cops carry them, I wonder? “We have to,” one of the detectives whined. They also lectured on liability issues, terrorism, and other such topics.

I informed them that I am trained, having completed the Lethal Force Institute’s Judicious Use of Deadly Force course, as well as handgun licensing requirements in California and for a Utah Concealed Carry license.

Given the crowd of talkative uniformed officers and detectives around me (Ofc. Chris Byron, Ofc. David DuPont, Sgt. Bartlett, Det. Sean Leighton, and Det. John Patty), and having been somewhat rattled by the ambush, I had difficulty finishing a sentence, and in hindsight I should probably have told them it was none of their damn business why I carry a firearm or whether I was trained.

After about 5-10 minutes of my polite endurance various disrespectful and arrogant statements and questions by the officers and detectives, my firearm was returned to me, and I reloaded it and placed it back on my belt, this time tucked under my shirt. Upon completing a contact card with Ofc. Byron, at his vehicle, I retrieved my coat, and returned to the store to find my wife.

We purchased about $200 worth of books and DVDs, and then went home.

Points of Complaint

Simple Assault – RSA 631:2-a-I(a)

At no time until, during, or after the officer laid his hands on me, was there any legal cause for his touching or restraining me.

The irrational alarm induced by the sight of my holstered handgun among those who called 911 aside, I was conducting myself in a calm and reasonable manner, merely browsing the books and minding my own business, occasionally chatting with my wife, not posing any threat or menace to anyone else in the store.

RSA 631:4, Criminal Threatening, does not apply as I was not engaging in any manner of physical conduct that purposely placed or attempted to place another in fear of imminent bodily injury or physical contact.

RSA 644:2, Disorderly Conduct, does not apply as I was not engaging in “violent, tumultuous, or threatening behavior,” either knowingly or purposefully. The open carrying of a firearm is not inherently threatening behavior, even when it makes someone from Massachusetts pee their pants and hyperventilate.

Unlike Illinois,[2] New York, or Washington, DC, where an openly carried firearm is prima facie evidence of a violation of the law, there is no New Hampshire statutory provision against open carry. In fact, it is a right guaranteed explicitly in the Constitution of the State.

Your officers should have enough experience and common sense to evaluate the totality of the circumstances – my attire, my demeanor, the fact that most armed criminals don’t carry openly, etc. – and take action on that basis, rather than on the basis of a paranoid fear of armed citizens which they evidently share with those who called upon them.

Public Duty – RSA 627:2

Given the fact that there was no violation of the law taking place or reasonably suspected when I was seized, the officer’s use of physical force was not authorized by law, and thus does not fall under the exemptions offered to public servants by this section of New Hampshire law.

The irrational concern expressed by others at the mere sight of a well-dressed individual openly carrying a firearm “near the children’s section” has no legal standing, and does not afford any credible justification. Another’s belief in “evil gun radiation” has no bearing on law or reality.

Physical Force in Law Enforcement – RSA 627:5

This statute provides that “[a] law enforcement officer is justified in using non-deadly force upon another person when and to the extent that he reasonably believes it necessary to effect an arrest or detention or to prevent the escape from custody of an arrested or detained person, unless he knows that the arrest or detention is illegal…”

Again, the officer should have known, and can reasonably be expected by a court and a jury to know, that there was no legal justification for seizing and detaining me under the laws of New Hampshire, and his detention of me was therefore illegal and unjustified.

Fourth Amendment

My Fourth Amendment right against unreasonable seizure was violated, as there was no reasonable basis to believe, given the totality of circumstances and New Hampshire law, that a violation of the law was underway or planned before I was grabbed by the officer.

Defamation of Character

The seizure of my person under false and illegal pretenses, being ordered to place my hands on my head, and my being escorted from the store by a crowd of police officers had a clear and unmistakable tendency to expose me to public hatred, contempt, or ridicule[3] by all the patrons of the store who witnessed the incident, and by anyone who might read about the incident in the newspaper were it to be reported in the media’s usual breathless and inflammatory style.

[mvpel]

Conclusion

I understand that your officers often face difficult, dangerous, and demanding situations, and that they must conduct themselves in such a way as to minimize the risk they face while carrying out their duties.

However, this necessity to minimize risk does not override the fundamental right guaranteed to all citizens of this State and Nation to be free from arbitrary exercise of the police power while lawfully going about their business.

If they had approached me, I would have greeted them politely. If they had requested that I tuck my shirt over my firearm due to the irrational concern expressed by other patrons of the store, I would have politely complied.

Even if they felt the need to have one officer sneak up behind me, ready to tackle me, while another officer engaged me in conversation, that would have been fine too.

But to have their first interaction with me be an ambush, to find myself grabbed and restrained for no justifiable reason while peaceably going about my business, is far beyond the pale. And to then be subjected to a condescending interrogation about my choice to exercise my fundamental human right to carry a firearm for the defense of myself and my family was even more irritating, in light of the fact that I’ve undergone about half a dozen federal background checks and fingerprinting in the process of obtaining my CCW cards.

Whether or not your officers and detectives realize it, and whether or not you even like it, the armed citizen in New Hampshire is your ally and friend in the endless struggle against dangerous criminals. We are part of the reason that the violent crime rate in New Hampshire (175.4 per thousand[4]) and Vermont (113.5 per thousand) is a fraction of that of Massachusetts (476.1 per thousand), a state where women living in a town with an at-large serial rapist must go begging to the police for pepper spray. Thomas Paine expressed this principle eloquently, saying:

“…arms like laws discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. … Horrid mischief would ensue were the law-abiding deprived of the use of them; ...the weak will become a prey to the strong.”[5]

There are far too many instances – as I’m sure you are well aware – where the weak, deprived by law of effective tools for self-defense, have fallen prey to the strong, such as the Manchester high school girls who were brutally raped in recent weeks.

Just have a look at page A8 of the March 29 Union Leader, and every month, for crimes prevented or ameliorated by armed citizens.

Reflecting on the incident the following morning, I realized that I had forgotten Massad Ayoob’s point that sheep can’t tell the difference between the sheep-dog and the wolves, even though the sheep-dog would risk his life to save the sheep from hungry wolves.

I realize that some of the patrons of Barnes & Noble thought of me as a wolf, rather than a sheep-dog, and reacted accordingly by calling in the authorities. Needless to say, I will be careful to carry my firearm more discreetly in the future to avoid spooking the sheep.

However, I expect better discernment from fellow sheep-dogs.

I have not yet decided whether or not to file a lawsuit on the basis of the aforementioned violation of my rights and New Hampshire law. If I do, I will copy you on the service as a courtesy.

Thank you for your attention to this matter, Captain Mara. If you wish to discuss this matter further in a meeting, please feel free to contact me at the phone number indicated on the first page, or via e-mail at [email protected], and we can arrange something.

Sincerely,

Michael Pelletier.
----------------------------------------------------------------------

[1] New Hampshire Constitution, Article 2-a
[2] 720 ICLS 5(a)(10), unlawful use of weapons.
[3] RSA 644:11, Criminal Defamation
[4] Federal Crime Statistics, 2000 - http://www.disastercenter.com/crime/macrime.htm http://www.disastercenter.com/crime/nhcrime.htm
[5] Thoughts On Defensive War, (1775) in 1 Writings of Thomas Paine, at 56, M. Conway ed

[fix]

Mods, can we restrict posting on this particular thread to mvpel only? We can start a new one to discuss. Wouldn't be a bad idea to float it either. If the decision is made to do this, please delete my post to clean things up.

[mvpel]

So, to bring everyone up to date on this issue:

Late the following week, I retained the services of Penny Dean, an attorney and member of the Gun Owners of New Hampshire board of directors.

The Manchester PD immediately clammed up, putting all the information they have under the rubric of an "internal investigation," exempt from public records requests.

They interviewed the store manager without informing us, and he refuses to talk with us.

They are citing regulatory rules barring the release of 911 record information, Penny has been doing research to see how we might be able to get those records without having to file a lawsuit.

They attempted to contact my wife to interview her last week, in spite of Penny's request that they refrain from ex partae communication.

Dave Workman published an article about the situation in GunWeek, in the May 10 edition - the MPD refused to comment.

Gun Owners of America has expressed interest in the case, and the board of Gun Owners of New Hampshire discussed it at their last meeting a couple of weeks ago. I expect that their quarterly newsletter will include an article about it.

There has been essentially no interest expressed by the newspapers, even the Manchester Union-Leader.

[Rich Lucibella]

Fix-
Not possible or appropriate to restrict. The story is fascinating and Michael's written complaint is one that all should see and respond to....articulate, non-emotional and unwavering in its demand. Besides, mv may get some great ideas from the Members here.

mv-
I've taken the liberty of correcting the URL in the post above.
You deserve real high marks for the way you're handling this.

If your attorney would like to seek advice by another in the profession who specializes in these matters, I'll try to put him together with Richard W. Stevens of JFPO and SWAT fame....he's the guy I'd turn to. If needed, I'm certain we can find the funds for his services in the TFL legal slush fund. Feel free to email me on this.

Rich

[mvpel]

Rich,

I'm actually a friend of Richard's - we met at the Gun Rights Policy Conference. I seem to recall informing him about this situation, though it's been a busy month so I might be misremembering.

[Rich Lucibella]

Then you're clearly out front of us on all sides of the issue.
Please keep us posted.
Rich

[jAK-47]

Speaking of Mas Ayoob, I wonder if he'd get involved or offer advice. He DOES live about 20 miles from the Barnes & Noble where this took place. Maybe you should have your lawyer contact him if he thinks Mas could help.

Good luck with this. I've been in that B&N many times with a gun - but always had it concealed

jAK-47

[Marshall MacEuen]

and good pic in Gun Week. Good luck Michael

[LAK]

"They are citing regulatory rules barring the release of 911 record information, Penny has been doing research to see how we might be able to get those records without having to file a lawsuit."

... Reading your account, I would have thought that criminal charges against individual officers would be more appropriate - then a civil case for damages against the city. In which case they would have a hard time blocking the release of anything. Too late now, but B&N instore camera footage might have been very useful.

[mvpel]

The bookstore does not have video surveillance - the cost-to-bulk ratio of their product is fairly low, and they have sensor gates around the CD/DVD department and around the front door for loss prevention.

We were hoping to resolve the matter without having to file a lawsuit, since filing a lawsuit is very, very, very expensive. Get them to admit their wrongdoing, apply sanctions to the officers involved, and update their training, etc. If we have to sue, we will. Not sure how much more time Penny wants to give them.

[PATH]

mvpel,

keep up the good work!

PATH

[mvpel]

I spoke for three minutes with the Governor of New Hampshire, Craig Benson, this evening, at his first "Meet the Governor" thing here in Merrimack.

His reaction was "they're still doing that??" and instructing his aide to jot down an action item for the attorney general.

I also spoke with a reporter from the Nashua Telegraph, so we'll see what comes of that.

More tomorrow morning or this weekend.

[TheBluesMan]

The Governor!?!

Wow. You don't mess with the middlemen, do you?

I hope something comes of your conversation.

-Dave

[PATH]

The New Hampshire C-in-C! Way to go mvpel!

[RegBarc]

I love it when police officers sworn to uphold the Constitution do exactly the opposite. They are an embarassment, good luck in your legal situation.

[LAK]

Well, if you have the ear of the state governor, and he is not only aware of the problem - but sees it as a problem and get's involved with the AG - there might be some action.

[SturmRuger]

I am glad you you found a new way to keep us up to date.

I still need to join the NMA I just got a speeding ticket this weekend and I am going to need some help fighting it.

[Theophorus]

I'm getting really anxious to hear how this is progressing. I understand how slow the system is, but that knowledge hasn't buffered my thirst for the latest. WHAT'S GOING ON!?

Theo

[buckmeisterq]

I just got an email alert from GOA, describing the incident, it names names and asks us to email the Manchester COP and our legislators. Should I post it here, or is that at mvpel's discretion?

[mvpel]

Go ahead and post it here, the cat's out of the bag and the heat's ready to be turned up. I spoke with Gov. Benson about this situation on the two-month anniversary of the incident - two months is plenty long enough for them to carry out an "internal investigation."

[P95Carry]

Hard to believe Michael that it's that long already. Sure shows how slow things can go ........ when folks want it that way!

Still watching with great interest.

Best

[buckmeisterq]

Manchester Police Out of Control

Gun Owners of America E-Mail Alert
8001 Forbes Place, Suite 102, Springfield, VA 22151
Phone: 703-321-8585 / FAX: 703-321-8408

Friday, June 4, 2004


Michael Pelletier was browsing in a Manchester Barnes & Noble
bookstore this past March, and sipping a cup of latte, when he was
suddenly assaulted by a couple of Manchester police officers, Chris
Byron and David DuPont. (These officers were backed up by
Detectives Sean Leighton and John Petty, and a Sergeant Bartlett.)

Pelletier was carrying a pistol openly at the small of his back,
having taken off his jacket due to the warm weather. All of a
sudden, he was seized by the right shoulder and his holster and
pushed toward the corner of a bookcase by one of the cops. He was
told to place his hands on his head, which he did at once.

He was then disarmed and escorted out of the store by the police.
The cops ran a background on Pelletier and found that he had no
record. They proceeded to take the next five minutes cascading a
chorus of questions about why he carries a gun and what kind of
training he had.

(Truth be told, Pelletier’s training almost certainly exceeded that
of his inquisitors.)

After enduring various disrespectful and arrogant statements and
questions by the officers and detectives, Pelletier’s firearm was
returned to him and he proceeded to reload it and put it back on his
belt -- under his shirt. Pelletier then went back into the store to
complete his purchases before going home.

The cops were responding to an anonymous complaint from someone
alarmed by the sight of a private citizen possessing a gun. (The
caller to 911 likely left his or her name, but Pelletier’s attorney
has been prohibited from learning the caller’s identity -- allegedly
due to Emergency Services regulations.)

The cops assaulted Pelletier based on this flawed complaint in spite
of what their own eyes revealed to them -- a family man wearing his
gun openly and legally, peaceably browsing in a store. They claimed
that it was reasonable for someone to feel alarmed and threatened.

The reckless behavior of the cops resulted in a violation of
Pelletier’s Fourth Amendment rights and defamed his character,
making a spectacle out of him in public.

So far, the police department has offered no explanation, and
certainly no apology for the outrageous and unprofessional behavior
of its officers. An internal investigation is underway, but there
has been no public disclosure of any details of this investigation.

We believe the reason for Mr. Pelletier’s complaint being classified
as an internal investigation is to allow the police to keep the 911
call and other pertinent information secret from Mr. Pelletier’s
attorney. As long as the investigation is categorized as "internal,"
the RSA 91-A Right to Know law is said not to apply. To challenge
that determination and interpretation of the law would require Mr.
Pelletier to file an expensive and time-consuming lawsuit.

The Manchester Police Department needs encouragement to do the right
thing and to assure the public that what happened to Pelletier is
not department policy.

ACTION: Please send the text below in an e-mail to Manchester
Police Chief John Jaskolka. Also, please e-mail your state
legislators. To identify those elected officials, and to obtain
contact info for them, see
http://www.gencourt.state.nh.us/ie/whosmyleg/ on the legislature's
website.

Please don’t forget to forward this alert to other New Hampshire gun
owners. The next victim of this official abuse could be literally
anyone.

CONTACT INFO for Chief Jaskolka:

John A. Jaskolka, Chief of Police
The Manchester Police Department
351 Chestnut Street
Manchester, NH 03101

Phone: (603) 668-8711
Fax: (603) 628-6145
[email protected]

----- Pre-written letter for Chief Jaskolka -----

Dear Chief Jaskolka:

I was very disturbed to learn of the treatment Michael Pelletier was
subjected to in a Manchester Barnes & Noble on March 27.

What plans do you have to apologize to Pelletier for the behavior of
officers under your command?

What plans do you have to insure that such an outrage never happens
again?

Sincerely,


--- Pre-written letter for state representatives and senators ---

Dear ________________,

I have learned that the Manchester Police Department has taken no
public action to correct the outrageous behavior of some of its
officers when they rousted Michael Pelletier on March 27 at a Barnes
& Noble bookstore in Manchester. Pelletier was legally carrying a
pistol in a holster and was browsing at the store with his wife.

Please let me know what Chief Jaskolka tells you regarding his plans
to apologize for the officers’ behavior, and what actions he has
taken, or will take, to insure that his officers will not assault a
peaceful armed citizen in the future.

Sincerely,


****************************

[tcdrennen]

Michael-

Go for it! at the very least, the arrogance of those "public servants" needs to be taken down a peg.

But I would like to ask why you choose SOB carry? While the potential advantage of being able to access the weapon with either hand is valid, the ease with which you were disarmed demonstrates the disadvantage of that carry method (especially when carrying openly!).

Seriously consider strong-side carry! A second weapon (a pocket-holstered BUG or perhaps a knife) on the weak hand side should assuage access concerns.

[buckmeisterq]

Basically, he wasn't set on carrying openly. It was more or less spur of the moment decision to leave his jacket off. He admits it wasn't the best decision, to wit that he was so easily disarmed. He has admitted to and apologized for his lack of situational awareness :-)