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 shooting 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





"It 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
(see additional settlement here), and Georgia. More cases are still
pending in Ohio, Wisconsin, Michigan, and Pennsylvania.

Holy shit!

A federal judge that actually reads and interprets the law rather than legislating from the bench. Sotomayor should pay attention (actually, she'll probably write the desenting opinion if it makes it to the Supreme court and is upheld)

Dupe from last week

Wow!

Might be a dupe but it is still good news.

Everyone's always looking to sue somebody.




 

I know!



This judge sounds like they would have been a better pick for the SCOTUS seat.

Of course, that really isn't saying much as she is a petty excuse for a judge.




 

Does Louisiana fall under those states who have no rule against carrying a holstered gun in public?

and on that subject of LA, anyone know if a sbs is considered an AOW in LA?

Check out this site.







 

I guess you missed the summary judgment part and that this was already a civil case

Lexis Nexis didn't have this one yet. Anyone have any details or actual reports on this?

The original summary above implies that the judge found that there is a constitutional right to open carry.  That is not the basis for the judgement.

What the judge did was rule that given that open carry is not a crime in the state that then it was a violation of the plaintiff's rights to be arrested with no evidence of any crime.