FED Judge rules, OK to open carry

[Mtn.man]

From: "LOMA WHARTON"
Date: September 12, 2009 06:56:06 AM PDT
Subject: Fed judge rules police cannot detain people for open carry
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.
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 relying 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, and Georgia. More cases are still pending in Ohio, Wisconsin, and Pennsylvania.
Judge Blak's opinion and order can be read here.
<http://www.examiner.com/x-2782-DC-Gu...-carrying-guns>

[Rampart Runner]

excellent! thanks for posting.

While I don't open carry or plan to open carry, I never want the that right to be diminished.

RR

[Irving]

I still don't think I'd try it in Denver.

[DOC]

I still don't think I'd try it in Denver.

Denver is its in its own world in its own mind. With the hippy judges we have now I wouldn't count on them standing by the letter of the law.

[Irving]

Denver is its in its own world in its own mind. With the hippy judges we have now I wouldn't count on them standing by the letter of the law.

Perhaps if the law were carved into the side of a tree or something...

[DOC]

Perhaps if the law were carved into the side of a tree or something...

They would charge me with a crime, because I wouldn't bother looking for a spot without a hippy hugging it.

[Eow]

excellent! thanks for posting.

While I don't open carry or plan to open carry, I never want the that right to be diminished.

RR

I agree 100%. Thanks for posting this--nice to see a judge uphold his duty to defend the constitution!

[DOC]

Lets see it all over the country.

I remember how stupid (YES STUPID) I thought the judges here are when they were dictasteing the case of Denver's AWB. They said its ok to ban the storage of guns here because if one was fired its more likely to hit something. Well that would be great if they were argueing the negligent discharge of firearms in the city. But the law was about scary looking gun bans and if Denver was above the state premption law. Well since Denver can put up Parking Meters without state approval. I guess they can do whatever they want to even violate state laws and bill o rights. They should have decided this better because now they think they can do whatever they want. They would have been doing Denver a favor. Like telling a friend that they are getting to drunk before they take their shirt off and go home with the ugly shemale.

[MuzzleFlash]

The key take away here was that the ruling was not on the second amendment. Rather, it was on the fourth amendment. Since the plaintiff had not broken any law and the officers had no probable cause for a search or seizure, the officers acted beyond the scope of their authority to remove him and temporarily seize his property.

I will bet that the ruling would have come out less favorably if the theater was posted and the plaintiff was carrying in violation thereof. If the city, county or state had a law against open carry, he likewise would get no love from the judge on fourth amendment grounds. That is abundantly clear reading the decision.

I'd caution folks about reading this as a blanket ruling on the second amendment's keep and bear clause. There is absolutely nothing in the summary judgement to support that.

http://opencarry.mywowbb.com/attachment.php?id=7856

[DOC]

I can't remember if we are in the same district as NM?