NH: Seized by the Manchester Police for Open Carry (vanity)

self | March 29, 2004 | Michael Pelletier

[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

[Copernicus]

but CCW people must realize they have NO absolute rights to carry openly and offend non-gun-owners who are also voters. Occasionally I see new CCW folks carry openly and I tell them to "cover it" or put it in the car trunk.

Respectfully disagree. Many people in many states elect not to jump through Goobermint Ordered Flaming Hoops that are in themselves UnConstitutional by definition. They rely on "open carry" as the legal right of transport and self defense.

There is no standard by which simple carry is inherently offensive any more than there are prohibitions against any number of other behaviours which would offend some portion of the population.

At one time the only reasonable form of carry an honest citizen would expect to encounter would be open carry.

Concealed carry was the mark of dishonorable and untrustworthy people.

That Goobermint has managed to invert this concept is yet another blight and stain on this generation.

Best regards,

[W Clark]

Your a retired Federal Agent?, Is that supposed to strike fear in our hearts?, is that supposed to make you some kind of "expert" on CCW?, Open or Concealed?. I live in Utah. We open carry here. Why? because some of us WANT to and there is not a Damm thing you or the "voting"?? public has done about it. When it is 105 degrees out I am known to open carry everywhere. I have done so all over Utah since 1995. I have not ONCE offended someone to the point they called the Police on me. Talking about Absolute Rights, when did they pass a law against being Offended? EXPOSURE INCREASES TOLERANCE.
Yes, I conceal 99% of the time but not because I don't want to offend because it is tactically better. You sound as though if it offends we can't or shouldn't do it. I recall after 911 the Police cars started showing up with American Flag stickers on them. Someone complained and said they were offended and a captain of a SLPD division ordered them to be removed. So you agree with that? The day when we all are "not Surprised" when Police toss us for doing nothing wrong is the day Liberty breathes it last breath. When Justice is only for the Strong and the Connected. Tenx, by your opening statement, you are already there. Too Bad.

[Copernicus]

You are a retired Federal Agent?

I am sure we can take Tenex at his/her word since impersonation of a Law Enforcement officer is an investigatible felony and most knowledgeable retirees are careful to divorce their personal opinions from any official policy or representation of statute or regulation.

In addition,I doubt the Free Republic High Command would long tolerate impersonators posting on their website.

Best regards,

[metesky]

Probably some of the 75,000 Massachusetts transplants.

Why... why they're almost as bad as California transplants!
;O)

[2nd_Amendment_Defender]

Just one question...Why is your sidearm opern-carried in the small of your back? I understand the practical implications of it when covered by either your shirt or coat(as mentioned), but unconcealed, doesn't it make a nice holster for anyone behind you? I really am trying to learn this stuff before getting and practicing with a sidearm, so I don't mean to be sound like a wise-a**.

I wouldn't ever carry my concealed pistol in the small of my back. When you get into the car it is very uncomfortable sitting against a gun. I wear loose shirts and carry a Glock 23 .40 S&W on my right side. It's out of the way and there if I ever need it.

I'm moving to Pennsylvania soon so my concealed carry days are about over. My wife's family lives in New York (where I will be spending a lot of time) and New York makes you register your handguns with them if you want a concealed weapon permit there. New York also doesn't honor any other states concealed weapon permit (New York gun haters). So I guess now am going to start carrying a knife (better than nothing).

[thompson]

Tenx said, "but CCW people must realize they have NO absolute rights to carry openly"

Huh? - Did you miss this part in your 'Federal Agent' training?
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are..." "...the right of the people to keep and bear Arms shall not be infringed."

Tenx also said,"Mike marked himself for being the first shot because he carried indiscreetly."

I'll give you that point, but then why do police officers open carry if it just makes them a target? Perhaps the knowledge that there are people carrying firearms to defend themselves (and others) is a visible deterrent to criminals?

[archy]

By the way, "small of the back" is the worst method for gun handling as well as your own physical safety, one slip and fall and you could very easily suffer serious spinal damage.

It is not the way to carry, also taking a few courses doesn't make you qualified for anything, the fact that your firearm was not concealed made you a first target in an armed robbery.

I'll be sure to pass your keen observation on to some of my pals, Marine intelligence officers and classified materials couriers who go armed with Beretta M9s or Colt Officer's Model .45s in the small of their backs daily, as well as a couple of similarly fitted-out CIA couriers and Brit 14th Intelligence Company personnel whose routine carry piece in that position during operations in Northern Ireland is the .380 L88A1 Walther PP.

It's not my preferred means or location for carry, concealed or otherwise, but then I don't wear a Marine dress uniform blouse or utilities or a pullover or Barbour raincoat most of the time, nor carry a 9mm Ingram M10 as my backup gun anymore either. Neither do I tell other people what means and method of carry will or won't work best for them, though I'll sometimes offer advice if requested.

Funny those Galco NSA middle-of-back holsters are so popular...I wonder who's been buying them on government purchase orders by the hundreds....

[Copernicus]

Any followup reports?

This inquiring mind would like to know.

Best regards,

[mvpel]

I have retained attorney Penny S. Dean, of Concord. She has assisted me with the request to retain the 911 call records, and doing some additional research.

The Manchester Police have called this an "internal investigation," one of the exemptions to the public records law in New Hampshire, and thus are refusing to discuss anything with us, including their interview with the store manager who was on duty that evening. He won't talk to us, only to the police.

My mom, an attorney in Michigan, is doing some legal research on the subject of Terry v. Ohio and qualified immunity.

The MPD has requested to interview me, we're not sure yet whether we'll take them up on the request or just let my letter of complaint stand as all I have to say on the matter.

We're planning on making an effort to locate any other witnesses to the incident aside from the 911 caller and the store manager.

I've been posting updates to TheHighRoad.org, since their system allows bookmarking of threads and some other features of their software that make it easier to keep track of:

http://www.thehighroad.org/showthread.php?s=&threadid=74034

[Copernicus]

Many thanks.

I notice "The High Road" also has a High Etiquette Quotient.

I will spend more time and learn to use their system.

Best regards,

[TigersEye]

btrl

[Carb]

If you do not have the following info on NH License to Carry, please take it with my reguards.

I'm from Merrimack NH, have Concealed Carry Permit and pack all the time. This type of thing I've worried about and I've actually ran your type of senerio over in over in my head, what would I do in that case?

Oh, those police and detectives have just as much right to carry as we do. No different between police and us, except they cannot be everywhere. Otherwise, they have families, go out to eat and even go to the book store with their own concealed weapon and its a shame how they grilled you... their shame, they missed 'dozens of speeding tickets' (speeding inserted for humor) while wasting public time and tax dollars on a bogus call. Talk about a hole for terrorism... it should be a lecture for themselves on how they can be so easily diverted!

However here is some NH Statue information on License to Carry:

TITLE XII PUBLIC SAFETY AND WELFARE
CHAPTER 159
PISTOLS AND REVOLVERS
Section 159:6
159:6 License to Carry. –
I. The selectmen of a town or the mayor or chief of police of a city or some full-time police officer designated by them respectively, upon application of any resident of such town or city, or the director of state police, or some person designated by such director, upon application of a nonresident, shall issue a license to such applicant authorizing the applicant to carry a loaded pistol or revolver in this state for not less than 4 years from the date of issue, if it appears that the applicant has good reason to fear injury to the applicant's person or property or has any proper purpose, and that the applicant is a suitable person to be licensed. Hunting, target shooting, or self-defense shall be considered a proper purpose. The license shall be valid for all allowable purposes regardless of the purpose for which it was originally issued. The license shall be in duplicate and shall bear the name, address, description, and signature of the licensee. The original shall be delivered to the licensee and the duplicate shall be preserved by the people issuing the same for 4 years. When required, license renewal shall take place within the month of the fourth anniversary of the license holder's date of birth following the date of issuance. The license shall be issued within 14 days after application, and, if such application is denied, the reason for such denial shall be stated in writing, the original of which such writing shall be delivered to the applicant, and a copy kept in the office of the person to whom the application was made. The fee for licenses issued to residents of the state shall be $10, which fee shall be for the use of the law enforcement department of the town granting said licenses; the fee for licenses granted to out-of-state residents shall be $20, which fee shall be for the use of the state. The director of state police is hereby authorized and directed to prepare forms for the licenses required under this chapter and forms for the application for such licenses and to supply the same to officials of the cities and towns authorized to issue the licenses. No other forms shall be used by officials of cities and towns. The cost of the forms shall be paid out of the fees received from nonresident licenses.
II. No photograph or fingerprint shall be required or used as a basis to grant, deny, or renew a license to carry for a resident or nonresident, unless requested by the applicant.
Source. 1923, 118:6. PL 149:6. 1941, 172:1. RL 179:6. 1951, 151:3. RSA 159:6. 1959, 100:1. 1967, 220:4. 1977, 563:76. 1979, 355:1. 1993, 27:1; 203:1. 1994, 257:1; 257:2. 1996, 167:2, eff. Aug. 2, 1996. 2003, 90:1, eff. July 29, 2003.

From URL: http://www.gencourt.state.nh.us/rsa/html/XII/159/159-6.htm

[mvpel]

I'm in Merrimack too - let's get together for dinner sometime! :-) FreepMail me...

[TigersEye]

Occasionally I see new CCW folks carry openly and I tell them to "cover it" or put it in the car trunk.

Don't ever approach me with that kind of bs. What I would tell you isn't fit to post on a public forum.

[Sir Gawain]

Sue them.

[Lonesome in Massachussets]

Isn't Vermont the 'Live Free or Die' state? Or used to be?

That would be New Hampshire. Vermont is the Green Mountain State. Massachusetts is the Gay State.

[TigersEye]

Tenx also said,"Mike marked himself for being the first shot because he carried indiscreetly."

I'll give you that point, ...

I wouldn't give him that point at all. The only place LEO's have been given permission to kill indiscriminately comes from their own pea sized JBT brains. I do not believe that all LEO's, local or Fed, are like this or are anything but hard working courageous public servants but it does seem to be a trend.

Police and Feds who think like Tenx and act on it are putting themselves near the top of the list when the lead starts to fly. Those kinds of attitudes increase our vulnerability to criminals and terrorists and create rancor and division between citizenry and government. If he isn't lying then I'm glad he's retired. The less of his kind the better.

[mvpel]

In some states, such as Texas, open carry is illegal, and a CCW holder can be charged with a misdemeanor for failing to conceal his or her firearm. That's not the case in New Hampshire.

[TigersEye]

I understand that and I wish you well if you choose to pursue a case against them. You will have done those officers a favor even if they are fired. What they did was reckless and dangerous to themselves as well as others.

If Tenx isn't just lying through his teeth he had better keep his do-gooder approach in a state where the law backs up his piety. It won't go over well in other western states that I am familiar with like CO, NM, WY, UT, MT, ID and others. What he would get from me is an ear full. What he might get from some of the characters I've known is an unscheduled tour of an abandoned mine shaft.

[kbl]

Hey all of you, seems the idea of a 'diversonary tactic' shown by MPD feeble attempt to subdue a honorable citizen, was noticed by the criminal elements at large:

http://www.msnbc.msn.com/id/4825845/

Hey you Anti-Gun holier than thou idiots, seems your actions are meaningless and hollow. Why don't you take the next flight over to Turkey and live in the Compound in downtown Incirlik, be those 90 year old mommas can teach your dumb buns a lesson, about how loose lips sink ships! ;-)