We hope to be able to bring him home some time in July.
Posted on 03/29/2004 7:22:52 PM PST by mvpel
Michael V. Pelletier, xxxxxxxxxxxxxxxxxxxxxxxxx, (xxx)xxx-xxxx
Capt. xxxxxxxx, Public Integrity & Professional Standards, Manchester Police Department
March 29, 2004
Dear Captain xxxxxxxx,
I am writing to you in your capacity as head of Public Integrity and Professional Standards to lodge a complaint against your department and certain of your officers stemming from an incident that took place on Saturday, March 27 at about 9:00pm.
Background
My wife and I had just finished our 11th anniversary dinner at Kobe Japanese Steakhouse on Second Street, and had stopped in to the Barnes & Noble bookstore on South Willow Street for a cup of latte and a few books and DVDs. I was dressed neatly in slacks and a purple oxford shirt, and was clean-shaven.
Due to the pleasant evening air, I left my coat in the car. Since I had neglected to tuck my shirt over it, my holstered Glock 30 sidearm was thus visible in the small of my back in a Workman IWB holster.
For about 10-15 minutes, I chatted with my wife about choosing a sweater from a selection of knitting books she was reviewing, browsed the history and political sections near the restroom, and then made my way over to the Science Fiction aisle.
I was idly leafing through an interesting book, minding my own business, when suddenly I found myself seized by the right shoulder and my holster, pushed towards the corner of the bookcase, by either Officer xxxxxxx or Officer xxxxxxx, I’m not absolutely certain which of them.
I exclaimed, raised my hands up to prevent myself from going face first into the bookshelf. I dropped the book, and upon glancing over my right shoulder, saw another uniformed officer at my right flank. The officer holding me requested that I relax and place my hands on my head. I immediately complied.
I was then disarmed, the holster being unsnapped and removed from my waistband. I informed the detective to whom the firearm was handed that it had a round in the chamber upon his inquiry. I believe the individual who unloaded it was one of the detectives, either xxxxxxx or xxxxxxx.
I was then asked to go outside the store with them, and I agreed. I was released and walked to the doorway, handing over my driver’s license and New Hampshire pistol license on the way out.
Once my record came back clear, naturally, I was subjected to a condescending lecture about the carrying of arms, quizzed repeatedly as to why I carry a firearm.
I replied “to protect myself and my family,”[1] which yielded a number of derisive comments about the effectiveness of firearms in self-defense and defense of others – hmm, why do cops carry them, I wonder? “We have to,” one of the detectives whined. They also lectured on liability issues, terrorism, and other such topics.
I informed them that I am trained, having completed the Lethal Force Institute’s Judicious Use of Deadly Force course, as well as handgun licensing requirements in California and for a Utah Concealed Carry license.
Given the crowd of talkative uniformed officers and detectives around me, and having been somewhat rattled by the ambush, I had difficulty finishing a sentence, and in hindsight I should probably have told them it was none of their damn business why I carry a firearm or whether I was trained.
After about 5-10 minutes of my polite endurance of various disrespectful and arrogant statements and questions by the officers and detectives, my firearm was returned to me, and I reloaded it and placed it back on my belt, this time tucked under my shirt. Upon completing a contact card with one of the officers, at his vehicle, I retrieved my coat, and returned to the store to find my wife.
We purchased about $200 worth of books and DVDs, and then went home.
Points of Complaint
Simple Assault – RSA 631:2-a-I(a)
At no time until, during, or after the officer laid his hands on me, was there any legal cause for his touching or restraining me.
The irrational alarm induced by the sight of my holstered handgun among those who called 911 aside, I was conducting myself in a calm and reasonable manner, merely browsing the books and minding my own business, occasionally chatting with my wife, not posing any threat or menace to anyone else in the store.
RSA 631:4, Criminal Threatening, does not apply as I was not engaging in any manner of physical conduct that purposely placed or attempted to place another in fear of imminent bodily injury or physical contact.
RSA 644:2, Disorderly Conduct, does not apply as I was not engaging in “violent, tumultuous, or threatening behavior,” either knowingly or purposefully. The open carrying of a firearm is not inherently threatening behavior, even when it makes someone from Massachusetts pee their pants and hyperventilate.
Unlike Illinois,[2] New York, or Washington, DC, where an openly carried firearm is prima facie evidence of a violation of the law, there is no New Hampshire statutory provision against open carry. In fact, it is a right guaranteed explicitly in the Constitution of the State.
Your officers should have enough experience and common sense to evaluate the totality of the circumstances – my attire, my demeanor, the fact that most armed criminals don’t carry openly, etc. – and take action on that basis, rather than on the basis of a paranoid fear of armed citizens which they evidently share with those who called upon them.
Public Duty – RSA 627:2
Given the fact that there was no violation of the law taking place or reasonably suspected when I was seized, the officer’s use of physical force was not authorized by law, and thus does not fall under the exemptions offered to public servants by this section of New Hampshire law.
The irrational concern expressed by others at the mere sight of a well-dressed individual openly carrying a firearm “near the children’s section” has no legal standing, and does not afford any credible justification. Another’s belief in “evil gun radiation” has no bearing on law or reality.
Physical Force in Law Enforcement – RSA 627:5
This statute provides that “[a] law enforcement officer is justified in using non-deadly force upon another person when and to the extent that he reasonably believes it necessary to effect an arrest or detention or to prevent the escape from custody of an arrested or detained person, unless he knows that the arrest or detention is illegal…”
Again, the officer should have known, and can reasonably be expected by a court and a jury to know, that there was no legal justification for seizing and detaining me under the laws of New Hampshire, and his detention of me was therefore illegal and unjustified.
Fourth Amendment
My Fourth Amendment right against unreasonable seizure was violated, as there was no reasonable basis to believe, given the totality of circumstances and New Hampshire law, that a violation of the law was underway or planned before I was grabbed by the officer.
Defamation of Character
The seizure of my person under false and illegal pretenses, being ordered to place my hands on my head, and my being escorted from the store by a crowd of police officers had a clear and unmistakable tendency to expose me to public hatred, contempt, or ridicule[3] by all the patrons of the store who witnessed the incident, and by anyone who might read about the incident in the newspaper were it to be reported in the media’s usual breathless and inflammatory style.
Conclusion
I understand that your officers often face difficult, dangerous, and demanding situations, and that they must conduct themselves in such a way as to minimize the risk they face while carrying out their duties.
However, this necessity to minimize risk does not override the fundamental right guaranteed to all citizens of this State and Nation to be free from arbitrary exercise of the police power while lawfully going about their business.
If they had approached me, I would have greeted them politely. If they had requested that I tuck my shirt over my firearm due to the irrational concern expressed by other patrons of the store, I would have politely complied.
Even if they felt the need to have one officer sneak up behind me, ready to tackle me, while another officer engaged me in conversation, that would have been fine too.
But to have their first interaction with me be an ambush, to find myself grabbed and restrained for no justifiable reason while peaceably going about my business, is far beyond the pale. And to then be subjected to a condescending interrogation about my choice to exercise my fundamental human right to carry a firearm for the defense of myself and my family was even more irritating, in light of the fact that I’ve undergone about half a dozen federal background checks and fingerprinting in the process of obtaining my CCW cards.
Whether or not your officers and detectives realize it, and whether or not you even like it, the armed citizen in New Hampshire is your ally and friend in the endless struggle against dangerous criminals. We are part of the reason that the violent crime rate in New Hampshire (175.4 per thousand[4]) and Vermont (113.5 per thousand) is a fraction of that of Massachusetts (476.1 per thousand), a state where women living in a town with an at-large serial rapist must go begging to the police for pepper spray. Thomas Paine expressed this principle eloquently, saying:
“...arms like laws discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. ... Horrid mischief would ensue were the law-abiding deprived of the use of them; ...the weak will become a prey to the strong.”[5]
There are far too many instances – as I’m sure you are well aware – where the weak, deprived by law of effective tools for self-defense, have fallen prey to the strong, such as the Manchester high school girls who were brutally raped in recent weeks.
Just have a look at page A8 of the March 29 Union Leader, and every month, for crimes prevented or ameliorated by armed citizens.
Reflecting on the incident the following morning, I realized that I had forgotten Massad Ayoob’s point that sheep can’t tell the difference between the sheep-dog and the wolves, even though the sheep-dog would risk his life to save the sheep from hungry wolves.
I realize that some of the patrons of Barnes & Noble thought of me as a wolf, rather than a sheep-dog, and reacted accordingly by calling in the authorities. Needless to say, I will be careful to carry my firearm more discreetly in the future to avoid spooking the sheep.
However, I expect better discernment from fellow sheep-dogs.
I have not yet decided whether or not to file a lawsuit on the basis of the aforementioned violation of my rights and New Hampshire law. If I do, I will copy you on the service as a courtesy.
Thank you for your attention to this matter, Captain xxxxxxx. If you wish to discuss this matter further in a meeting, please feel free to contact me at the phone number indicated on the first page, or via e-mail at mvpel@yahoo.com, and we can arrange something.
Sincerely, Michael Pelletier.
-------------------------------------------------
[1] New Hampshire Constitution, Article 2-a
[2] 720 ICLS 5(a)(10), unlawful use of weapons.
[3] RSA 644:11, Criminal Defamation
[4] Federal Crime Statistics, 2000 - http://www.disastercenter.com/crime/macrime.htm http://www.disastercenter.com/crime/nhcrime.htm
[5] Thoughts On Defensive War, (1775) in 1 Writings of Thomas Paine, at 56, M. Conway ed
i really love your article im also a nh. ccw licence holder and i think its a bunch of bull that the police in manchester and portsmouth can harrass us like that good luck with your case keep us informed
I really want to thank you for the way you handled the situation and the response you made afterward. We need more people like you who are willing to stand up for their rights. Ideally, we would have teams of volunteers (some with guns, some with video cameras), making citizen "sting" operations with the object of stopping this type of violent abuse by sworn police officers.
Those officers violated their oath of office, and should be fired, IMHO. At the minimum, you should get legal fees and some valuta to teach them a valuable lesson.
Thanks again for the good work, don't dwell on the mildly negative aspects, you have every right to be both offended by the police conduct, and proud of your own.
The latest news is that I spoke with the Governor of New Hampshire, Craig Benson, on Thursday May 27, and his reaction to my tale of woe was "they're still doing that?!?" and having his aide jot down a note for the attorney general.
I also spoke with a reporter for the Nashua Telegraph while I was there, but haven't heard anything back from him yet.
Hopefully this will help brighten the spotlight on this situation and get the PD to respond.
A gunowners group is protesting the seizure of a legally armed citizen in a bookstore by two police officers who responded to an anonymous caller alarmed by the weapon.
Michael Pelletier was browsing a Manchester, N.H., Barnes & Noble with his wife March 27 when a police officer, assisted by a colleague, suddenly grabbed him by the right shoulder and his holster and pushed him toward the corner of a bookcase, says Gunowners of America.
The Manchester Police Department officers, Chris Byron and David DuPont, ordered Pelletier to place his hands on his head, which he did at once, the group said.
Pelletier was carrying a pistol openly at the small of his back, which became apparent after he took off his jacket.
The officers then disarmed Pelletier and escorted him out of the store. Background checks revealed no record, but officers and detectives issued a barrage of questions about why he carries a gun and what kind of training he had, the gun group said.
Pelletier received back his firearm then reloaded it and put it on his belt, under his shirt. He then went back to the store to complete his purchases.
The group said the police were responding to an anonymous complaint from someone "alarmed by the sight of a private citizen possessing a gun."
Pelletier's attorney has been prohibited from learning the caller's identity, citing emergency services regulations.
The gun group said: "The cops assaulted Pelletier based on this flawed complaint in spite of what their own eyes revealed to them -- a family man wearing his gun openly and legally, peaceably browsing in a store."
The police, however, claimed it was reasonable for someone to feel alarmed and threatened.
But the gun group said "the reckless behavior of the cops resulted in a violation of Pelletier's Fourth Amendment rights and defamed his character, making a spectacle out of him in public."
The police department has offered no explanation for the actions of the officers, Gunowners of America said.
An internal investigation is underway, but police have not disclosed to the public any details.
"We believe the reason for Mr. Pelletier's complaint being classified as an internal investigation is to allow the police to keep the 911 call and other pertinent information secret from Mr. Pelletier's attorney," the group says.
It notes that "as long as the investigation is categorized as 'internal,' the RSA 91-A Right to Know law is said not to apply.
"To challenge that determination and interpretation of the law would require Mr. Pelletier to file an expensive and time-consuming lawsuit," the gunowners say.
With a handgun. Long guns are not included in the prohibitions.
I don't know for sure how the law evolved, probably an anti "Negro" and "Mexican" measure, not intended to be applied to the white populace. As recently as the 1970s, the police would usually use their discretion and not arrest you for having a handgun, especially in your vehicle. Even "illegal" carry of a handgun is only a misdemeanor, under normal conditions In some areas they still will. Also there is defense to prosecution if you are "traveling", although the term is not defined in the law(by court interpretation it does not include traveling to and from work for example) It also wasn't unusual to see a rifle, either a 30-30 or a bolt action, in the rack of a pick-em up truck, even in the Dallas suburb of Plano where I lived at the time. I'm not completely clear on the law involved, but in many cities carrying a rifle about would be you arrested for "brandishing".
It seems to me that the whole point of carrying a concealed weapon is that it remain concealed. I know that if I'm carrying a weapon the last thing I want to see is people glancing at me with alarm and concern.
Have you heard the one about the old Texas Ranger and the young Texas Ranger?
The old Ranger was came up to the young Ranger carrying his 45 in his accustomed manner, cocked and locked and stuffed down the front of his pants.
The young Ranger, glancing at the pistol, was very uneasy and finally said, "That looks dangerous!"
The old Ranger replied, "Well, why do you think I carry the danged heavy old thing?"
The mob "protects" businesses. Bulls "serve" cows.
Anything happen on this lately?
Any further progress on this?
Next month, a letter from the Salem Police Chief apologizing to someone who was hassled for open carry, and stating that open carry is a recognized individual right, will be published in the GO-NH Firearms & Freedom newsletter, and we'll be making sure that this letter winds up in the hands of every police chief and sheriff in the state.
Same in Montana
We hope to be able to bring him home some time in July.
Dallas, I'm glad someone called her on that.
Congratulations!
July is looking good for you.
I live in NH and I’ve got my permit to conceal. I didn’t get that permit to open carry. That’s in invitation to for some above the law cop or uneducated/paranoid masshole to take away your rights. Sadly our constitutional rights aren’t what they should be. It’s only going to get worse with our new president. I carry everyday legally and I open carry often but not large public view.
Wow, way to revive an old thread there!
Do you have a marriage “permit” too?
If people are uneducated and paranoid, will hiding the fact that you’re not outsourcing the carrying of a defensive arm to the police somehow change that state of ignorance an paranoia?
We’ve been hiding our guns for decades, and look where that got us! How is continuing to hide going to defend or restore our constitutional rights?
And then, you get to sue him and his department, and if they're smart, they'll cut you a check for $10,000 like they did for a fellow down in Virginia, or in Louisiana, to settle the case.
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