NM: Judge tell police to leave OCers alone

[Glock30Owner]

Nice article with link to the ruling.

Federal judge rules police cannot detain people for openly carrying guns

Those police are in deep doo doo without their immunity.

[Guest PapaB]

Not only did he rule for the gun owner, it was a summary judgement.

Accordingly, Mr. St. John's motion for summary judgment is granted with regard to his Fourth Amendment and New Mexico constitutional claims.

That means it was so cut and dried it didn't require a trial, just the submitted documents, to make a ruling.

[Currently]

Can this ruling apply in Milwaukee?

[Guest Muttling]

Rock on!!!

[Guest TurboniumOxide]

Examples need to be made of the cops in this case.

[Fallguy]

Can this ruling apply in Milwaukee?

New Mexico is in the 10th US District and Wisconsin is in the 7th.

http://www.uscourts.gov/images/CircuitMap.pdf

[Guest justme]

New Mexico is in the 10th US District and Wisconsin is in the 7th.

http://www.uscourts.gov/images/CircuitMap.pdf

this ruling is out of a District Court in the 10th District, but was not a decision out of the larger 10th Circuit Court of Appeals itself, but I don't see why it will not likely be quoted and used in rulings in other districts.

I don't see why a ruling out of one district can't be mentioned, or used in cases in other districts...and hopefully it will.

[Guest PapaB]

Can this ruling apply in Milwaukee?

It can and should but that doesn't mean it will.

Here's the caselaw cited in the ruling:

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).

[Guest justme]

Can this ruling apply in Milwaukee?

it won't have to apply, but I don't see why the case cannot be used in pleadings in Wisconsin or anywhere else, but--there is so much pressure being placed on OC'ers in Wisconsin--Milwaukee in particular, but in other places--that Wisconsin is just ripe for a major civil rights case.

The OC arrest of a man on his own property, on his own porch this past week for simply refusing to give his name to the police--is going to be a nice civil suit against the police.

Edited September 12, 2009 by justme

[Guest AmericanWorkMule]

What about being left alone in Tennessee?

There have been plenty of OC Tennesseans on this board alone with stories just like Matthew St. John's.

Can this ruling apply in Milwaukee?

[Guest justme]

What about being left alone in Tennessee?

There have been plenty of OC Tennesseans on this board alone with stories just like Matthew St. John's.

more successful lawsuits are needed to get the message across.

more successful civil rights complaints are needed

more successful departmental complaints are needed.

Edited September 12, 2009 by justme

[TripleDigitRide]

What about being left alone in Tennessee?

There have been plenty of OC Tennesseans on this board alone with stories just like Matthew St. John's.

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.

If it happens to you, you could stand to receive enough money to add a few firearms to your collection.

[Guest justme]

If it happens to you, you could stand to receive enough money to add a few firearms to your collection.

or take a nice vacation on the taxpayer dime and still have money left to add to your collection.

Edited September 12, 2009 by justme

[Fallguy]

What about being left alone in Tennessee?

There have been plenty of OC Tennesseans on this board alone with stories just like Matthew St. John's.

Although OC (with a permit) is allowed in TN, there is still a general law against firearm possession in TN. Having a HCP is simply a defense to that law.

So unlike NM where OC without a permit is legal, therefore no law possible being broken by simply possessing the gun, in TN a LEO can detain you long enough to see your HCP. After that you should be free to go unless you are suspected of something else.

[Guest justme]

Although OC (with a permit) is allowed in TN, there is still a general law against firearm possession in TN. Having a HCP is simply a defense to that law.

So unlike NM where OC without a permit is legal, therefore no law possible being broken by simply possessing the gun, in TN a LEO can detain you long enough to see your HCP. After that you should be free to go unless you are suspected of something else.

And I agree--OC with a permit is legal in Tennessee, and that the police under the law have the ability to detain someone carrying a gun long enough to verify they have a permit...

That said, the stop should be limited to merely verifying the permit--not to lecture the OC'er, or for any other purpose. They should simply verify the permit and allow the OC'er to continue--prolonging the stop just to try and find some reason to arrest the OC'er is wrong.

[Smith]

on a side note, anyone notice the Oleg Volk picture they used?

[Fallguy]

And I agree--OC with a permit is legal in Tennessee, and that the police under the law have the ability to detain someone carrying a gun long enough to verify they have a permit...

That said, the stop should be limited to merely verifying the permit--not to lecture the OC'er, or for any other purpose. They should simply verify the permit and allow the OC'er to continue--prolonging the stop just to try and find some reason to arrest the OC'er is wrong.

Agree

[Guest PapaB]

Although OC (with a permit) is allowed in TN, there is still a general law against firearm possession in TN. Having a HCP is simply a defense to that law.

So unlike NM where OC without a permit is legal, therefore no law possible being broken by simply possessing the gun, in TN a LEO can detain you long enough to see your HCP. After that you should be free to go unless you are suspected of something else.

That's why we all need to buy those carry permit badges. The LEO's will see it and leave you alone, plus it'll impress the heck out of the opposite sex.

[Glock30Owner]

Although OC (with a permit) is allowed in TN, there is still a general law against firearm possession in TN. Having a HCP is simply a defense to that law.

So unlike NM where OC without a permit is legal, therefore no law possible being broken by simply possessing the gun, in TN a LEO can detain you long enough to see your HCP. After that you should be free to go unless you are suspected of something else.

If police can't stop to check if a driver is licensed (a privledge), why can they do the same to to someone carrying a firearm (a supposed right)? It just doesn't make sense to me...

[Fallguy]

If police can't stop to check if a driver is licensed (a privledge), why can they do the same to to someone carrying a firearm (a supposed right)? It just doesn't make sense to me...

Regardless of right/privilege there is a law against the possession of a firearm. So it reasonable for a LEO to assume someone that is armed is breaking the law, until they can show they fall into one of the defenses. There is no law against driving, so there is no assumption someone is breaking the law by driving.

[Guest H0TSH0T]

There is no law against driving, so there is no assumption someone is breaking the law by driving.

everyone that drives breaks the law...sooner or later.... and yes i have been pulled over for doing the -3 mph to speed limit in a speed trap in dade county ga, the reason the officer pulled me over is he felt that it was out of the ordinary for someone to be not speeding, and then searched my car, (i gave permission to had nothing to hide, needless to say it took 45 min. waste of my time and will never consent again, so much for doing the right thing) the officer was pissed he couldn't find anything on me or in my car, stomped off and drove off, without the satisfaction of issuing a ticket while his buddies in 17 different cars were racking it up on the other side of the road.

but the officers should not assume your breaking the law until your breaking the law, the LEO should assume your following the law until breaking the law, the other way is just looking for trouble and could go to evidence in a case of harassment and civil rights violations.

[Guest PapaB]

Sorry Fallguy but there is a law against driving without a license just like there is against carrying a gun without a permit.

[Fallguy]

Sorry Fallguy but there is a law against driving without a license just like there is against carrying a gun without a permit.

I'm about done with this.....

There is not a law against carry without a permit. There is a law against carry, PERIOD. Then there is a seperate law that says if you have a HCP, are on your property etc.... it is a defense against the application of the law against possesion.

Yes, you have to have a license to drive. But there is no law that says the act of driving in-and-of-itself is against the law. If there is, please show it to me.

On firearms...

39-17-1307 says it is illegal to posses a firearm. PERIOD

39-17-1308 gives a list of defenses to 39-17-1307. So if you have a HCP or are on your property or the other things you can use those things to defend yourself to a LEO that you are not violating 39-17-1307

On driving

55-50-301 does say you must have a lisense to drive, but it is not a defense to a violation of another law. There is no law that says the act of driving is illegal.

Everyone keeps saying that it is the same...and it is not. If it is the same show me the motor vehicle law comprabable to 39-17-1307 on weapons. The law that says driving is an illegal act (Just like 39-17-1307 says firearms possesion is an illegal act) and that having a DL is a defense to that illegal act (like 39-17-1308)

http://www.michie.com/tennessee

Title 39, Chapter 17, Part 13 Weapons

Title 55, Chapter 50, Part 3 Application, Examination, and Issuance

[macville]

Actually, I believe the law says it's illegal to carry a firearm if it's loaded or the ammo is near, plus being concealed--aka: intent to go armed. Really, technically by the law, if a firearm is not concealed and there is no ammo on you/in reach, you have broken no law.

It's kinda confusing and here's why. 39-17-1307 says "A person commits an offense who carries with the intent to go armed a firearm." Well, without ammo, it's hard to prove "intent to go armed." I know section 1308 says defense, but without intent to go armed, 1308 doesn't apply as it's not against the law. But when you have ammo in/near the gun since intent to go armed, that's when "defense" kicks in.

What's most annoying is that carrying a firearm is a right, but we have laws against it. Driving is NOT a right, but it's easy to get a license and there's not a long section of where you can and can not drive, etc. We really have our laws turned around when it comes to "rights".

Matthew

[macville]

BTW, where is the defense to shooting a gun on someone's property? (with permission.) The 1308 only mentions THE person's property/premises and nothing about other people's property. Or is the law just overlooked?

Matthew