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.

http://www.ar15.com/forums/topic.html?b=1&f=5&t=925367

http://www.ar15.com/forums/topic.html?b=1&f=6&t=927525

I grow fairly tired of the eagerness on this forum to parade that you found this to be a duplicate thread.  Some of us avoid General Discussion and don't check in to the numerous subforums on ARfcom.  Any relevant information should be welcome in the subforums, even if it is a duplicate thread in another subforum.

This topic certainly belongs in "Carry Issues".

OP, thank you for posting.

Thanks! I actually did see the thread in GD but decided to stick this in the tech forums anyway.

Some people just don't go to GD and should still have access to relevant information.



 

agreed, i never check the GD mainly because all the other great parts of the sight keep me occupied. if anything these kinds of posts should be kept out of the GD

Thanks for the post OP. Really nice to see that the courts are supporting our rights. I hope to see more of these rulings in the future as more of open carriers are harassed. It has come to the point that concealed carry is a lot better option just because the fear of being detained/arrested is less.

Didn't call dupe nor did I say it didn't belong in "Carry Issues", just providing links to other discussions on the issue so that people can be well informed.

+1 to Gamma

The OP is providing good information to everyone.  Gamma is doing the same.

You know.. if I saw a guy walking down the street with an AR in hand or even on a sling and we weren't heading into the local gun shop or store, I would be checking my CCW and keeping a damn close eye on him.  It might be legal.  It might be our right.  But it's still odd behavior and I'm wary of odd behavior in whatever form it takes.  Annoys hell out of the general public as well.  It creates more opponents than allies and unless it's common in your town (it would not be common in Alamagordo) I don't think it's a good idea.  New Mexico is a must issue statue.  The guy should have taken the time to get a CCW like the rest of us.  We now have the theater owner, employees, some other patrons, and the local police pissed off and that theater owner will now post a sign banning even CCW.  That helps us how?

It'll never become "common" with that attitude.  A right not exercised and all that...

no harm meant to  you gamma , i was commenting more so on the subject of duped threads, not so much what you had posted.  ... sorry got off topic a little.

Which is funny, because when I saw that you had replied and as I went to click on the thread I thought "well... technically he could just be linking so people can look at the other discussions".  My brain didn't make that connection late last night.

My statements still remain, but not directed at you.  Apologies, Gamma.

In any event it's really a good thing that a court may finally establish some precedent that arresting or detaining someone when there is no evidence of a crime is not permissible;  if it constitutes an actionable civil rights violation I would forsee a lot more carry in states where legal.  Conspiracy/RICO suits against police administrators promulgating policies of harassment (such as in recent Wisconsin experience) would not be out of the question either.

I get the part where it would be nice to not have to worry about open carry.  When I see someone hiking in the national forests next to my house, it's common and you don't think twice about it.  

Now.. moving to a mall in Albuquerque.  If someone is exercising their right to open carry it will make most (like 95%) of the patrons nervous.  Many will not shop in the same area.  That impacts the merchants and you can expect them to exercise their right to post notices that firearms are prohibited on the premises.  In New Mexico, that is binding and if you ignore it, even with CCW, you are committing a crime.  On the other hand, if CCW holders keep a low profile, those signs won't get posted and I can carry in those places.  So, when someone wants to push the open carry in places like theaters and malls, they are impacting my ability to carry concealed in those places.

If the goal is to get everyone comfortable with open carry so there is no issue and there aren't signs on every restaurant and shop, we start with making the populace not feel threatened.  Getting in their face is not how you go about that.

The same has been said about blacks, jews, and others in the past.

It's not just open carriers either.  Many have been subject to various grades of harassment at traffic stops for transporting firearms, etc.

OK.. if we have a sit in with AR's, I'm in.

"You're just racist against my rifle because it's black".




 

I think you're point is a valid one but only applicable in the short term. If we don't act, it will be bad news for all gun owners. Yes the populace will be uncomfortable with people OC'ing around them at first because they are not used to it. They have no clue why someone would OC, if it's legal, or what the OC'er is going to do. When the populace finally realizes that these OC'ers are no different than them, but exercising their rights, they will become more comfortable with the act. Once they are comfortable with law abiding citizens exercising their right to OC there will be no adverse effects on merchants and no anti-carry signs.


I'm glad to see that this man's rights were protected!

It's a classic "people are afraid of what they don't understand."

I have no problem with OC, although i would rather CC.  But there needs to be a point where it goes a little to far.  OC a handgun is really not that big of a deal in my mind, OC a rifle or shotgun just because you can is a little much.  There really is no reason to have a AR with you walking around down town or in the mall.  In the woods or rural areas not to much of a big deal.  I am not going to say it is malicious to OC a AR or such, but the person is making a point whether it is good or bad, OC a rifle is not needed, keep it in the vehicle, and if you have to OC, do it with a handgun.  Or better yet get your CHL.  Just my opinion...

Really?



So OCing a long gun is too much in your opinion. What about the people who think OCing a handgun is too much?

What about the people who do not agree with CCW. You shouldn't need to have a handgun with you at all. Pepper spray is good enough.








 

Based on my opinion yes, a long gun is a little much.  If I see someone OCing with a Long Rifle around me, I would not be freaked out about it, It just makes me think of the why.  It is really unneeded attention, I will keep doing things my way, concealed and be happy.  To each their own.

It isn't something that I would generally do either, but we cannot go around judging other people for what we think is "too much". Remember that everyone's definition of "too much" is different. To some people the fact that we can even own a gun at all is "too much", and they are just convinced with themselves that they are right. Keeping this in mind I try not to set a standard and call what other people do extreme or unnecessary (as long as it's legal).



 

If our goal is to have the support we are due in all facets of firearm ownership and use, then we need support not only from the legal system but from the populace.  It is legal to do many things but it will not always get people on your side.  I take issue with absolutists and activists in the area of OC.  I believe in the long run they are not helping.  We have seen progress but it is through the lobbying and electoral power of things like the NRA.  I want soccer mom's to be ambivalent about firearms if they cannot be supportive.  If they are writing their congressmen and joining Brady, it will only make things more difficult.  We need to show respect to those who are uncomfortable with firearms and get them on our side.  Walking around the mall with your AR will not accomplish that goal.

You’ve presupposed a falsehood, which discredits your argument.  You assume that ‘soccer moms’ are afraid of firearms, and that the mere sight of one would drive said moms shrieking to their congressional representative.  Concealed carry is better?  Well, think about it, how would a hysterical soccer mom react if someone’s concealed carry firearm were exposed?  It happens all the time, reaching for something, stooping down to tie a shoe, etc..  Will she be more or less nervous?  If she doesn’t know you she doesn’t know your intentions, and the unknown is always more worrisome than the known.

People put a lot of stock in their own observations, much more than in even a first-hand account from someone else.  When I’m out and about openly carrying, I am polite, friendly, and cordial to everyone.  Now mom, who was previously nervous around firearms, walks away with her presuppositions destroyed.  She realizes that her apprehension wasn’t the paradigm; she saw a real gun and it wasn’t used in a crime and it didn’t ‘just go off’.  Your concealed carry did nothing, and if she observed it become exposed she also observed you hastily cover it and glance around nervously.  

Concealed carry is either neutral or destructive to firearms rights, because it’s done by both the honest and the dishonest.  Open carry has, so far, been either neutral or beneficial to firearms rights, because it’s done by only people with honest intentions.  

Actually, I think the 'soccer mom' demographic probably is, as a group, afraid of firearms.  However, since I'm not a mom nor am I associated with soccer and I am unwilling to look up reliable statistical information, I can only infer from the few I come in contact with.  I also infer that most people view those that open carry as being strange and quite possibly dangerous.  Probably the same reaction to people carrying swords.  It isn't common behavior and since a weapon is involved it warrants attention.  Long arms are much worse and personally I would vacate the area immediately if someone walked in a store toting a rifle or shotgun, but even an open carry pistol would have me scrutinizing the individual.  That may not be the way you wish it was or want it to be, but I believe that is the way it is.  

I disagree. Even in Kalifornia where guns are almost forbidden, young women who know nothing about guns or laws surrounding them feel safer in a place with OC'ers.
They carry guns!