Judge rules against police officers who searched a man who was open carrying

[zeppelinfromled]

I'm posting this in the general section because I view it as dealing for with the rights of a gun owner, but if the mods think that it would be more appropriate in the law section, please move it.

I'm linking to the pdf at the bottom, but the short(er) version is this:

The facts:
A man (Matthew St. John) goes to see a movie while open carrying (he is in New Mexico and this is legal to do). The theater manager called the cops to say that someone had entered the theater wearing a gun. The officers showed up and told St John to come with them to the outside of the theater. On the way out, at least one police officer grabbed his arm to escort him. Once outside, the officers disarmed him and patted him down. Nothing illegal was found, and it was verified that he was carrying the weapon legally. At the end of the encounter he was given back his weapon and told that he could go back into the theater if he left his gun in his car, and he chose to do that.

So later on, St John filed suit for 4th amendment violations, battery, and false arrest. But the 4th amendment violation suit was the most interesting, since he lost the battery and false arrest suits.

So the 4th amendment claim, summarizing from the ruling (pdf):
It was pretty clear that St. John had been seized, and a seizure is only reasonable if there is "...a reasonable suspicion a person has committed or is committing a crime." Since this did not exist (the only reason that he was seized was him gun, which was being carried legally). The situation was no different than if the officers has stopped St John because he possessed a wallet. The judge rules that St John's lawful possession of a firearm in a crowded place could not create reasonable suspicion on its own. Otherwise the law would apply differently to citizens who work on farms in Vermont than citizens who work in office buildings in Boston. The search was invalid for the exact same reasons as the seizure. The police can pat you down if they believe that you are armed and dangerous. St John was certainly armed, but there was no legitimate reason to think that he was dangerous. There were some interesting counter arguments made that you can read about in the PDF if you'd like.

http://www.nmcourt.fed.us/Drs-Web/v...009/09/08/0002561429-0000000000-08cv00994.pdf

 

[TomH]

Great ruling!

 

[Flyer007]

Interesting read. Nice find.

 

[icyclefar]

It's nice when they get it right!

Would have been even better if the LEO's got it right.

Perhaps they will next time.

 

[bolt]

Great ruling!

X2............"gunz are scary" to the indoctrinated.

 

[terraformer]

It's refreshing to see people who were never charged sue. Normally we see courts faced with scumbags who are looking to get off from a valid charge on technicalities and it is so much easier for the judicial system to do the right thing when the person has no motive other than justice behind them. Although I guess money may be a motive here, it is still less motive than beating a potentially significant jail sentence.

 

[~kev~]

It brings a smile to my face to see a situation when a persons rights are upheld.

I am also glad to see that something is missing from the article - there is never any mention of Matthew St. John resisting the police. The way that I read it, he was a law abiding citizen who fully corporated with the police. That is outstanding on his part.

The street is no place to have a discussion on the law with the police. Do as the police ask to do. And take it up in court later on.

Matthew St. John, I applaud you.

 

[tj western ma]

Now would this apply to MA also?

 

[zeppelinfromled]

Now would this apply to MA also?

The ruling doesn't have any effect here. But even if it did, what the ruling really says is that someone who is not breaking the law and is giving no indication of breaking or having broken the law cannot be seized nor searched. And in that state carrying openly is not a crime, so both the search and the seizure were illegal. I don't think we would do so well in MA courts.

 

[BBQ.Uncle]

The ruling doesn't have any effect here.... I don't think we would do so well in MA courts.

Not only that, but depending on the town, it's likely that if he filed a complaint/sued the cops, the COP might reconsider his suitability.

 

[ShadeWPI]

The courts got it half right (well, not even half right)

Yes, the search and seizer was unreasonable and therefor unconstitutional, however, he was also wrongfully arrested AND was the subject of assualt by the police officer.

"Arrested" is defined as, Placed in a situation where a reasonable person would believe they are compelled to remain against their will. When he was escorted by the police out of the movie theatre, he was "Under Arrest" when the police had no reasonable suspicion that he had committed a crime.

Since the police officers had no reasonable suspicion that he had committed a crime, forcibly grabbing him IS assault.

Since I don't know NM laws on restricting firearms from a public access property, I don't know if the Theatre Manager AND Police Officers were wrong for first calling the police and second telling him he could go back in the theatre if he left his firearm in the car. In most states, public access properties (which the theatre is) MUST post signs at all public access entrances with very specific wording. Texas, for example requires the sign quote the RSA number.

 

[Rob Boudrie]

Commonwealth v. Couture a MA case very similar (concluding that a report of a gun on a person does not give police cause to assume unlawful action), however, in practice, this case is ignored in the field and has not resulted in significant chance in LE behavior in this state.

With regards to posting:

States with "binding signage" (for example, Texas code 30.06) frequently have specific requirements the sign must meet in order for violation of the sign to be considered a criminal offense. The fact that a sign does not comply, or is absent, does not strip the property owner of the right to tell any person "You may not enter this establishment" - any more than the absence of a sign means a movie theater may not order someone to lose the outside food or leave. All the absence of a sign does in states with binding signage laws is remove the ability to successfully charge someone who violates the terms of the sign absent an order from the owner or owner's representative to leave.

 

[zeppelinfromled]

"Arrested" is defined as, Placed in a situation where a reasonable person would believe they are compelled to remain against their will.

According to the court documents, what you're describing is not arrest, but is instead seizure. If he had been handcuffed, I agree with you that it would have been a de facto arrest.

The battery claim was denied in part because NM law doesn't clearly define tortious battery, according to the court documents at least ("It was finally concluded that there was insufficient New Mexico law on assault and batter to guide the committee on this subject..."). Some courts have been using a different approach in which "a battery occurs when an individual acts intending to cause a harmful or offensive contact with the person...and an offensive contact with the person...indirectly results." And the court document says that whether or not the contact would be "offensive to a reasonable sense of personal dignity" (and thus battery) is best left to a jury.

 

[law dawg]

The courts got it half right (well, not even half right)

Yes, the search and seizer was unreasonable and therefor unconstitutional, however, he was also wrongfully arrested AND was the subject of assualt by the police officer.

Incorrect. He was detained, not arrested. Arrest has very specific definitions in the legal world. This did not meet those definitions. Additionally, he was not assaulted, as a LEO can use minimum force for officer protection or to enforce compliance. This would probably fall under the officer protection part.

As for the ruling, it's absolutely the correct one. The officers were compelled to investigate the call made by the citizen owner (complaint) but once it was obvious that he was in compliance with the law they had to let him go.

 

[law dawg]

According to the court documents, what you're describing is not arrest, but is instead seizure. If he had been handcuffed, I agree with you that it would have been a de facto arrest.

Not even handcuffing completely defines an arrest. I've handcuffed several people that were not under arrest, particularly in volatile situations or potentially violent ones.

 

[zeppelinfromled]

Not even handcuffing completely defines an arrest. I've handcuffed several people that were not under arrest, particularly in volatile situations or potentially violent ones.

My understanding (not a lawyer or LEO) is that there is something that constitutes arrest, but is less than a formal arrest where you go to the station to get booked. Do you know what that something is, or am I wrong on this?

 

[RKG]

The ruling doesn't have any effect here. But even if it did, what the ruling really says is that someone who is not breaking the law and is giving no indication of breaking or having broken the law cannot be seized nor searched. And in that state carrying openly is not a crime, so both the search and the seizure were illegal. I don't think we would do so well in MA courts.

Actually, the Supreme Judicial Court not too long ago reached exactly the same result (in a procedurally different context), as a matter of state law.

 

[Garys]

The courts got it half right (well, not even half right)

Yes, the search and seizer was unreasonable and therefor unconstitutional, however, he was also wrongfully arrested AND was the subject of assualt by the police officer.

Only St. John testified that he was never arrested, as quoted in the opinion. The court also states why there was no assault.

 

[law dawg]

My understanding (not a lawyer or LEO) is that there is something that constitutes arrest, but is less than a formal arrest where you go to the station to get booked. Do you know what that something is, or am I wrong on this?

Not in my experience, in both administrative and criminal arrests.

Generally speaking an arrest is objectively defined. Usually it's held to the reasonable person standard - if a reasonable person would have believed they were under arrest then that standard is met and the person in question was under arrest. The mere application of handcuffs may or may not meet that standard.

Like most things in life "it depends."

 

[KMaurer]

The question was asked what this sort of ruling would have in Massachusetts. We have one bit of information with the case of Commonwealth v. Couture. Since the court simply ruled that police had no reason to assume that a crime had been committed, and didn't subject them or the town to any civil penalty (understandable, since this was an ruling in a criminal case, not in a civil suit brought be Couture), it's pretty much ignored. After all, we aren't particularly interested in actually convicting and incarcerating criminals here in the People's Republic, so why change. If a ruling were to be made against police or a town in a civil suit brought under similar circumstances, the consequences would be fairly predictable. The Legislature would pass, and the governor would sign an emergency law within 48 hours making open carry by anyone other than an LEO or a uniformed and licensed security guard a criminal offense, regardless of what license the person held.

Ken

 

[EFR]

The question was asked what this sort of ruling would have in Massachusetts. We have one bit of information with the case of Commonwealth v. Couture. Since the court simply ruled that police had no reason to assume that a crime had been committed, and didn't subject them or the town to any civil penalty (understandable, since this was an ruling in a criminal case, not in a civil suit brought be Couture), it's pretty much ignored. After all, we aren't particularly interested in actually convicting and incarcerating criminals here in the People's Republic, so why change. If a ruling were to be made against police or a town in a civil suit brought under similar circumstances, the consequences would be fairly predictable. The Legislature would pass, and the governor would sign an emergency law within 48 hours making open carry by anyone other than an LEO or a uniformed and licensed security guard a criminal offense, regardless of what license the person held.

Ken

Finally, a voice of reason.

 

[ShadeWPI]

Law Dawg,

At least in New Hampshire, if a reasonable person believes they were not free to leave, they are "Under Arrest" I clarified this with a police procecutor this evening.

If the theatre manager reported, "There's a guy here, he has a gun" the police were not obligated to investigate in an open carry state since no criminal activity or suspcion of criminal activity has been reported. Police are only obligated to investigate the report of a crime or suspicion of criminal activity.
If they chose to investigate, their investigative powers ended when they observed no evidence of a crime and no crime had been reported, since carrying an openly displayed firearm was not a crime.

 

[law dawg]

Law Dawg,

At least in New Hampshire, if a reasonable person believes they were not free to leave, they are "Under Arrest" I clarified this with a police procecutor this evening.

This prosecutor is wrong then. You can be detained and not free to leave but not be under arrest. It's called a forced detention or detention short of arrest. Quote him Tennessee v. Garner and he/she will know what I'm talking about. If a cop pulls you over, are you under arrest? No? Then you must be free to leave, right?

If the theatre manager reported, "There's a guy here, he has a gun" the police were not obligated to investigate in an open carry state since no criminal activity or suspcion of criminal activity has been reported. Police are only obligated to investigate the report of a crime or suspicion of criminal activity.

Correct, to a point. We don't really know what the complaint the manager made was. It kind of depends on how it was presented. I was assuming (and I know what happens when you assume ) that it was presented as more than that otherwise they would not have gotten involved.

If they chose to investigate, their investigative powers ended when they observed no evidence of a crime and no crime had been reported, since carrying an openly displayed firearm was not a crime.

Correct, again, depending upon the presentation of the complaint.

 

[zeppelinfromled]

Correct, to a point. We don't really know what the complaint the manager made was. It kind of depends on how it was presented. I was assuming (and I know what happens when you assume ) that it was presented as more than that otherwise they would not have gotten involved.

Also, someone saying to a 911 operator "there's a man here with a gun" could mean that a guy is there and he has a gun holstered on his hip, or it could mean that there is a guy waving a gun around who might start shooting people. Since all we know is that he said that there's a guy with a gun, we don't really know if the officers were obligated to investigate or not.

 

[joehaus]

I thought it would be considerd "custodial arrest" if I have the term right. Like when you get pulled over for a traffic violation. Your not free to leave.

 

[steveyc272]

An arrest is distinguished from the stopping or detention of an individual for purposes of questioning or reasonable investigation.

There is a difference between an arrest and a detention.[FN1] The difference between an "arrest" and a "stop" lies not in the initial restraint on movement, but rather in the length of time a person may be detained and the scope of the investigation which may follow the initial encounter.[FN2] A brief stop of a suspicious individual, in order to determine his or her identity or to maintain the status quo momentarily while obtaining more information, does not constitute an "arrest."[FN3] Thus the mere stopping or detention of an individual or a motorist for purposes of questioning or reasonable investigation is not an arrest.[FN4]

On the other hand, whenever the detention and questioning by a police officer are more than brief and cursory there is "arrest," which must be supported by probable cause.[FN5]

Whether an encounter should be characterized as an investigatory stop or an arrest is an objective inquiry based on the totality of the circumstances.[FN6] In order for a court to conclude that a suspect was "in custody," it must be evident that, under the totality of the circumstances, a reasonable person in the suspect's position would feel a restraint of his or her freedom of movement, fairly characterized, so that the suspect would not feel free to leave or to terminate the encounter with police.[FN7] Thus a seizure is an arrest if a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement to the degree associated with formal arrest.[FN8]

CJS ARREST § 2

 

[WILDCATT]

mass

the permit in Mass is a "permit to carry" is it not.or has it been changed??It really is so converluted does any one know.
In other word can you carry OPEN.

 

[zeppelinfromled]

the permit in Mass is a "permit to carry" is it not.or has it been changed??It really is so converluted does any one know.
In other word can you carry OPEN.

AFAIK, there is nothing on the books in MA that either prohibits or allows for open carry. I think that someone who was open carrying would likely be charged with disorderly conduct or something, because there is no law for them to be charged with "open carrying." And this disorderly conduct would almost definitely make them an unsuitable person in the eyes of the PD, and their LTC would be taken.

 

[sy32478]

AFAIK, there is nothing on the books in MA that either prohibits or allows for open carry.

In America, anything not prohibited by law is allowed - but this is mASSachusetts.

 

[fsusoldier]

Since the police officers had no reasonable suspicion that he had committed a crime, forcibly grabbing him IS assault.

it would actually be "Battery".. assault is the threat to commit a battery...