Open carriers (courtesy Oleg Volk)
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 New Mexico and twenty-five other states. Learn more here.
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.
Judge Black's opinion and order can be read here.
NOTE: Mathew St. John's attorney, Miguel Garcia, is an associate at John R. Hakanson PC, 307 11th St., Alamogordo, NM 88310 and can be reached at Miguelo.Garcia AT gmail.com.
Update: $21,000 settlement orderd.
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Comments
It's good to know that there are still justices that still understand what the US Constitution is for, and do not use "creative" interpretation of it to pass anti-liberty rulings.
This is another victory for freedom.
Wonderful! This is great news for us in California that wish to use the best tools available for personal protection.
Thanks for reporting this. Court rulings that uphold civil rights like OC in localities help significantly the cause of standing for our rights. This helps the national cause as more and more police are told to stop hassling people for OC when it is legal.
Absolutely amazing !!!
Cops are required to obey the same law that applies to us peons,
they are NOT authorized to act as agents of property owners,
they CAN be popped with punitive damages for their actions.
Just love it !!!
The law of the land interpreted the way it should be - factually, honestly and succinctly. Guess this justice will not be nominated for the Supreme Court anytime in the next 3 years.
This is great news for all gun owners, there is still justice in our great country.
blackgunowners.org
Great news. Nice to see a judge uphold gun rights.
Now if only online news agencies would only proof their articles. Guess it's the way things are going. Here comes idiocracy.
"... and requires no license in Mexico and twenty-five other states".
I'm a rural American and I intend to start wearing a side arm when I leave my property. Most cops here are rabidly Un-American in their efforts to live up to their oath to preserve and defend the Constitution. They believe it is their job to maintain order instead of simply upholding the law. I know people who have been beaten mercilessly for simply questioning the actions or authority of police and I'm not talking about cranksters or skinheads or gang bangers. One man was an Alzheimer patient who seems drunk all the time and a rookie aggressively pushed him. He, being an ex boxer, put up his "dukes" whereupon the cop swung at him. My friend blocked and knocked the smarmy little badge wearing Hitler on his butt and was rewarded by officer Adolph attacking him with his night stick. 2 other cops, driving by stopped and helped. Not the innocent citizen but the attacking officer and they mercilessly beat him. I fear what they will do seeing me but I refuse to be bullied. wish me luck!
Now the corrupt Police officers involved should be charged and convicted pursuant to 18 USC Sec 241 and 242 for justice to fully prevail.
Personally, I'd prefer they be horse whipped in the Town Square every Saturday morning for the next 3 months but ....
Nice to see rights being protected. Hopefully the police take notice.
Thank you Judge Black. Not everyone that carry's a gun is a criminal. And should never be treated as one. The ones that open / concealed carry did it the legal way.
I celebrate the ruling. However, I question the individual for wearing his sidearm in the theater. It seems that this can be a question of reasonable and prudent.
TO PROTECT AND SERVE. Might have been true many years ago. NOT ANYMORE!! Recently while having dinner at a Interstate Truck Stop, we over heard 2 really young state troopers comment in the booth behind us. How much fun it was to stop people on the highway for driving 2 mph over the limit and watch them squirm like worms as they walked up to the car. We never did hear anything about PROTECTING & SERVING. God only knows what would have happened if these people would have had a legal weapon in their car.
There was supposed to be a citizen oversight and review board enacted here in Santa Cruz. The police chief threatened to resign along with other high ranking members of that organization, if such an entity were created and given authority to review records and publicly recommend disciplinary actions. I cannot validate this as it was verbally related to me by a friend in the know. With the elitist attitude and laws which, elevate civil servants well above the citizenry in terms of penalties and sentences afforded. I guess they are just better than the rest of us... Somebody assaults me? They may not even be arrested but if the victim is a civil servant? Mandatory prison sentences apply. How do you feel when a police car is behind you? Some cops are good men and women but psychological screening leaves much to be desired! I am sick and tired of being subjected to intimidation, threats, domination and aggression just because I drive a dusty Jeep instead of a Lexus.
John in AZ Wrote:
"Now if only online news agencies would only proof their articles. Guess it's the way things are going. Here comes idiocracy.
"... and requires no license in Mexico and twenty-five other states". "
New Mexico, and 25 other states, do not require any sort of permit to carry a handgun OPENLY in some manner. In New Mexico the sidearm may be loaded, but in California it must be unloaded. The permit or license is only needed for CONCEALMENT.
Unless you were talking about him calling it "Mexico" instead of "New Mexico". Mike has fixed it. ;)
[...] Fed judge - cops may not detain people for "open carry" [...]
Another brick in the wall comes down. Are you listening, California?
Actually... In California, you may openly carry a loaded handgun or rifle in unincorporated areas. I'll let you know how that goes...
I don't think that anyone can question someones reasons for carry as Firetruck1 did. If he's legal to carry and was not brandishing, let him be, he can carry where ever he likes. Discretion means a lot of different things to different people.
Oh no. No, no, no. Firetruck1 is a psychic and knows in advance where and when a criminal is going to victimize someone. And, of course, we ALL KNOW that no criminal acts can be commited in movie theatres! Geez, people. They're like "Gun Free Zones" (schools, etc.). We all KNOW that there are never, ever any shootings in Gun Free Zones. Guns aren't allowed in Gun Free Zones you know. Geez just can't believe how paranoid that guy must be. Carrying a handgun into a theatre. Geez!!
I have a License To Carry A Firearm in PA and choose to carry my firearm concealed. A reminder to everyone reading that a License To Carry a Firearm is not required to openly carry a firearm in PA with the exception of Philadelphia. In Philadelphia you need a License To Carry A Firearm or a license/permit that the PA Attorney General has reciprocity with to carry concealed or openly. Currently PA has reciprocity with 22 states. (i.e. your PA LTCF is valid in Florida) (PA 18:6109). A person who chooses to exercise the right to open carry a firearm should not have to be worried about unnecessary and unwanted detainment and/or harassment from the police. If the person is merely lawfully displaying a firearm safely holstered then I see no reason to detain them. Until that individual breaks the law or commits a crime my advice is that we should leave the person alone. By detaining individuals lawfully open carrying we are merely costing the taxpayers to defend litigation in court.
Hey mark edward marchiafava,
Why don't you call the police dept over there and harass them like you LOVE to do over in your home state. Better yet, you need to call the young lad in the story and recommend a motorcycle for him to buy since you are an expert in that. Maybe even give him pointers in the "Chuck Norris stance" like you did in front of your used motorcycle and Amerikan Flag waving in the background!!!
But don't let him drink too much of your kool-aid like that poor kid from Hammond you convinced to OC all the time and is now sitting in prison for Murder...
Here's a similar case... except that the gun wasn't even real, the person was on a public hiking trail, and the complainant had no proprietary authority at all:
www.azfamily.com/news/local/stories/Scottsdale-news-081109-military-teen-hiking-arrest.cfefaf2a.html
Oh, and yeah... the person was a ROTC student on a training hike.
You're not the Boss of me!
There is a serious problem in a country where citizens need to carry handguns.
Citizens should feel safe on the streets and not have to resort to carrying firearms in public.
It is a testament to how troubled USA as a country is.
Sorry, David, but it's time to grow up. Not everyone in the world is friendly and lawabiding. There have been criminals (violent ones too!) since the dawn of humanity...and even when America was just born, people carried guns. I guess there was always something wrong with our country then??
Perhaps you can name a couple of countries where no violent crime occurs "on the streets" that we can use as role models?
If the police academys in amerika screened the cadet's as carefully as regular citizens who apply for concealed carry permit's we would have a far lower rate of cops abusing citizens .
It's time for amerika to repeal all laws that place politicians or cops above citzens . If you kill your neighbor you go to prison for life . if you kill an abusive cop [in some cases even in self defense] you will face the death penalty. WHY? what makes a cops life more valuble than my life or yours? what happened to all men are created equal? Any weapon a local police dept purchases for it's armory should be aval.for the citizens of that community to purchase as well.We cannot afford to allow any more of our rights to be legislated away in the name of a phony war on drugs or terrorism or to make the local cop's feel safer while doing their alleged duty. No cadet should be allowed to grad. from a police academy w/o taking a drug screen for steroids & should be tested monthly till they leave the dept.
This is good news, but thay guy could have avoided the whole mess by carrying concealed. Unfortunately, people who don't know how to handle a gun
get scared of someone open carrying because they are so conditioned to worship authority. In their mind, onlu someone in uniform with a badge and a funny hat should openly possess a firearm. A damn shame. My grandpa used to bring his shotgun to school and go hunt pheasant after school let out. He'd put it right up against his coat locker, unloaded of course, and the teacher wouldn't think twice about it. He was twelve years old. Those were different times though. People had common sense, whereas today the youth, not all but sadly ot seems most, don't really mature mentally past the age of five or six.
There's a new, underground just out & it's about a small, Oklahoma town that stands up to government tyranny & starts the 2nd American Revolution. Read it!! It's great & it tells you what's coming next. "Make your own history"
(booksbyoliver.com)
that guy must have a really small dick.
sean's dick is smaller than that guy's!
How stupid can some of you people be ??? I bet some of the people who were shot in schools and fast food joints and shopping malls wish some gun carrying citizen had been there to stop the illegal gun carrying crazy shooter.
A law abiding citizen exercising their right to wear a sidearm does not scare me. Individuals who oppose law abiding citizens to having such rights do.
Hey Missouri Resident, every hear a cop state what his or her daily objective is?
It's to stay alive and get home to their family.
One day a sovereign citizen will shoot a cop in defense of her/his sovereign, unalienable rights. Cops either work for us, or work against us.
That day will trigger new civil war against tyrany, taxation without representation, lies, deceit and violence perpetrated by administration.
sean says:
that guy must have a really small dick.
---------------------------------------------------
He must have but I am willing to bet bullets to liberal donuts that his is 4 inches longer than your pea shooter and calls it Mr. Colt 1911.
Ignore your rights and they'll go away.
Last month in NH, a young woman walked through a park topless, which is legal under state law. The local cops insisted it MUST be illegal, and even a printed copy of the state law confused them. They conflated that they'd never seen it and didn't like it with the legality of it. Eventually, charges were dropped, but never should have been filed in the first place. We need more rulings like this, and as others have said, the police need better training.
And Sean, my wife carries a gun. I can assure you she has a VERY small dick. What's your point?
Guns are tools. I don't carry one but I always have my UDAP bear spray in the car and home. 30 foot range and effective. If I decide to carry it will be on my belt and even the poorest shot can put down more than one or two attackers with it, quickly. As to home invasion - if a group decides to invade, my house may be unlivable for a while but the group will all go down unless they are burdened with gas masks. A smart people will always be able to defend themselves against attack.
good news.
Cops are high on authority and push people into situations hoping to get a gun pulling reaction to a shoot out and be in the "I shot me one" club.
Cops need to get their emotions in order and rationalize the situation. After all, there supposed to be trained to assess a situation and act accordingly. Since most cops act as if people are the enemy and they are the authority, they will continue to act thuggish when seeing a gun strapped on the hip of good people.
So who is the gangsters, cops or people open carrying.
I've noticed a surprising proportion of 'City' raised men are afraid of guns...behave like hysterical women when around guns. it ain't like this in rural areas.
Going into a show with an open gun appears to be An obviously 'staged event.' We need to guess what exactly are our banksters driving at here?
Consider first that the Federal courts are stage props for our war crimes cartel members and the Feds follow their instructions to a "T."
Are they aiming to turn loose open gun fighting in this land that will then allow them to openly turn loose their privatized death squads to operate in the open as they do in Iraq and Afghanistan and other 3rd world countries?
Our central banker war crimes cartel and contract murder for hire crowd has a plan; what is it?
The best thing that could happen to forestall and prevent what our death squad crowd wants to happen, is to remove the power to issue money from the central bankers. If congress can do this, "Displace the economic authority," and take the Federal reserve bank out of the equation, we may experience a peaceful shut down of our criminal elite and their murder for hire racket.
I wish some of you would stop with the "all cops are @ssholes" nonsense. Some of us actually DO carry a copy of the Constitution with us every day we work, and we have actually been known to READ it every once in awhile. And we also adjust our own conduct accordingly. But it's the @ssholes who sell newspapers and ads on websites, so that's all you hear about.
if a cops daily goal is to go home to his family - maybe he should become a maytag repairman instead.
There are many many poor places in the world that due to poverty, the citizens openly carry machetes. There is a country in europe where all guns are illegal (England) where the armed robbery and knife felonies are huge. In other very poor places, handguns and AKs are normal for citizens (of all persuasions) to possess. In switzerland where handguns and fully automatic weapons are a dime a dozen, there is very little armed robbery or knife felonies. Don't even pretend that felonious assault is some kind of unique US situation, with guns or anything else. It is a universal, worldwide for all history phenomena, no code from Hummarabi, to the Decalogue, to the French Revolution Constitution has ever gotten rid of it.
The only question is, when they come to beat you with chains in rural india, or necklace you in SA, or rape/kill/molest your wife/brother/child/mother in the US are you going to resist and how. History is replete with people who did not believe they needed to resist.
Watcher1
Pepper spray doesn't work against anyone with mental illness or high on drugs or alcohol. I am trained to use pepper spray, impact weapons, tasers, firearms, etc. Please don't rely only on pepper spray. If there are more than one person invading your home, go with the firearm, leave asap and call 911. One invader, possibly use the taser, but more likely a firearm would be, leave immediatey and call 911. Even a firearm just punches bleeding holes and doesn't knock people down as shown on TV. Sometimes they don't know that they have been hit.
Remember that there are no timeouts for either you or LEO when taking on the bad guys. Remember the old saying, "A liberal is a conservative who hasn't been mugged yet."
Be safe and remember that you may care about other people but home invaders DON'T. Hesitate and you and your family could die or be seriously injured.
Don't forget, some cities only hire dumb cops. Can't post a link, but you can search for it. It's an old story. Keywords 'low i.q. cops hire'
B R A V O!!! It's about TIME someone who is charged with the responsibility to uphold the US Constitution utilizes the testicular fortitude to do so!! Judge Brown, and Judge Carter for President 2012!
Michael Z. Williamson, the size your wife's dick is irrelevant, it's just the fact that your wife happens to HAVE a dick in the first place......
People who open carry should be arrested! If there is no law that prohibits it then we need one. Open carry is Hate Speech! Support the ADL and SPLC!
Gun laws only protect the criminals.
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