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
This is one man who would very careful consideration to saving the life of a sheep.
Why? Because I do not trust the judgement of todays LEO's, even in non life threatening situations! It is too easy for me to imagine them viewing me as a wolf rather than a sheepdog and just firing at me without any warning. They have become the wolves in my eyes.
Citizen rights is not a prime consideration of their views as your experience should have taught you.
I hope you are successful in whatever avenue you choose to pursue this matter.
If that's true, we need a different breed of cops. If that's true, the cops we have now qualify as "domestic" enemies.
Thanks for the compliment, I appreciate it!
The controlling statute on vehicular carry is RSA 159:4, as follows:
159:4 Carrying Without License. – No person shall carry a loaded pistol or revolver in any vehicle or concealed upon his person, except in his dwelling, house or place of business, without a valid license therefor as hereinafter provided. A loaded pistol or revolver shall include any pistol or revolver with a magazine, cylinder, chamber or clip in which there are loaded cartridges. Whoever violates the provisions of this section shall, for the first such offense, be guilty of a misdemeanor. For the second and for each subsequent violation of the provisions of this section, such person shall be guilty of a class B felony, provided such second or subsequent violation has occurred within 7 years of the previous conviction.
In short, this means that a CCW is required in order to legally carry a loaded sidearm in a vehicle.
Sans license, this seems to be able to be taken two ways, depending on how you take the meaning of "with" - does a magazine with rounds in it in the glove box while the pistol is on your hip count as "a magazine with" the pistol?
Considering that "cylinder" and "chamber" are by definition attached to the firearm, and that an empty revolver with a speedloader sitting next to it would meet the requirements of this law, a colorable argument could be made that "with" means "inserted," that you don't have to pop all the rounds out of the mag every time you get in the car.
I don't have WestLaw access anymore, so I can't look up cases to this effect, but I'm sure there are a few here and there that would clarify this question, or if there's any firearms law experts around, they might be able to answer it.
I almost never go to Denver, I haunt the 'burbs to the west. I have been considering testing the waters.
You appear to be caught between the "rock" of lawful open carry and the "hard place" of "armed to the terror of the public"
As you are probably already aware "armed to the terror of the public" is one of those abominable legal theories developed to negate the otherwise ordinary activity of open carry.
I am not sure what it is called in your state but since several cell phone callers were sufficiently alarmed to generate a Police response equivalent to "Officer Down" or "Felony Stop Underway"you may have met the requirements.
I am glad to learn no one was hurt.
Best regards,
In my letter, I mentioned two statutes that could be thought applicable at first glance: RSA 631:4 - "criminal threatening," and RSA 644:2 - "disorderly conduct" - and explained why neither of them were applicable to the situation.
RSA 644:13, "unauthorized use of firearms and firecrackers," doesn't apply either as that only criminalizes the discharge of a firearm within the compact part of a town.
Regardless of how thoroughly other people were wetting their pants, I was committing no articulable crime under New Hampshire law.
My mistake in neglecting to tuck in my shirt upon taking off my coat and thereby spooking the horses, while regrettable, was not a criminal offense.
In my view - as I mentioned in my letter - while the overreaction of my fellow patrons in making panicked calls to the police is understandable (given the drumbeat of mass-media anti-gun propaganda and the associated prevalence of the mental illness of hoplophobia), the execution of a "felony stop" by the officers was at best a serious overreaction, and representative of bad judgement on their part.
.I'm glad that everything seems to be turning out OK. The fact that you obviously know the law and kept your composure better than all the so-called "professionals" put together always stands you in good stead in these situations. Well done, Micheal!
Please keep us advised of any changes in this matter, and let us know if there is any way we can assist.
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