Posted on 07/11/2008 3:00:00 PM PDT by marktwain
Five open carry activists in Pennsylvania have filed two separate federal civil rights lawsuits against Dickson City police Officers Anthony Mariano and Karen Gallagher, and Chief William Stadnitski in the aftermath of a May 9 incident in which the plaintiffs were confronted and detained even though they had broken no laws.
Gun Week first reported the incident in the June 15 edition.
The first complaint, filed in US District Court for the Middle District of Pennsylvania, alleges that Gallagher and Mariano "illegally threatened, harassed, detained and/or accosted" plaintiffs Richard and Judy Banks, Roger McCarren and Larry Meyer while they were dining at a restaurant Banks, McCarren and Meyer were all visibly armed, and were essentially minding their own business. The lawsuit asserts that the plaintiffs' rights were violated under the First, Fourth, Fifth and 14th Amendments.
The other lawsuit, filed individually by Edward J. Kraft Jr. names Gallagher, Mariano and the Dickson City Borough, but not Chief Stadnitski.
All four plaintiffs in the Banks lawsuit were with several other people, and according to filing papers, Banks, McCarren and Meyer "were ordered (by Mariano and Gallagher) to report to a different section of the restaurant for `investigation'." However, the lawsuit contends, there was no explanation of what was being investigated.
Banks refused to provide identification, believing that the officers had no justification to ask for it, so he was then, according to the lawsuit, "illegally and unjustifiably handcuffed, frisked, and arrested, his personal property illegally confiscated and he was thereafter placed in the back seat of the Dickson City marked police car."
Kraft's lawsuit details his encounter with Gallagher and supports the account of the incident contained in the Banks documents. In all, according to the two lawsuits, the officers had nine or 10 men in the group standing outside in the rain, coercing them to produce identification and concealed carry permits, the latter of which is not required in Pennsylvania if someone is carrying openly.
Gun Week earlier spoke to Stadnitski, who said this was the first incident in his 37 years in law enforcement that involved private citizens openly carrying a firearm, other than while hunting. He also maintained that his officers erred on the side of caution when responding to a 911 call from a restaurant patron that complained about people "brandishing guns."
"There was no ill will on our part," Stadnitski stated. That is not how the incident is portrayed in the lawsuit filed by attorney Robert J. McGee, who is representing the Banks plaintiffs. He believes the incident began because another patron in the restaurant was "unhappy and uncomfortable that someone had a firearm in a holster on their hip" and called the police. He does not know who placed the initial 911 call. Magee told Gun Week that the process could take some time, because the defendants have 30 days in which to respond, and then there will be motions, discovery, depositions and a conference, and all of that takes time. Likewise, the confrontation between Kraft and Gallagher, as portrayed in the lawsuit filed by attorney Johanna L. Gelb of Scranton, suggests that both Gallagher and Mariano acted "without cause or justification." In the Kraft lawsuit, it is alleged that "Mariano falsely informed the group...that they did, in fact, need a concealed weapons permit to openly carry a firearm in the Commonwealth of Pennsylvania."
The Banks lawsuit also complains that Gallagher and Mariano "refused to return...a handgun which Banks had in his possession at the time..." They also seized a handgun from McCarren and "refused to return it to him, on the basis that, according to some type of illegal registry maintained or available to the Dickson City Police Department, the handgun was not 'registered' to...McCarren."
Banks was ultimately released after, according to the filing document, "Gallagher and Mariano realized they had no basis for placing (him) under arrest...but it was only after an extended period of time."
Banks' lawsuit also describes a confrontation between the officers and Judy Banks, who tried to videotape and audiotape the encounter between the officers and the three other plaintiffs. The officers ordered Judy Banks to stop recording "under threat of being arrested for violation of the federal wiretap law," the document states. Meanwhile, Kraft alleges that "Gallagher and Mariano acted with a conscious and/or reckless disregard of the constitutional rights of Kraft to be free from unreasonable detentions, searches and seizures, and to be deprived of his property without due process of law."
Kraft's lawsuit says both officers "illegally threatened, detained, searched and seized him, and otherwise interfered with his rights under the Second, Fourth and Fourteenth Amendments..." The incident has infuriated open carry activists across the country, who have been following developments on OpenCarry.org, an Internet forum set up for the growing open carry community. This is not the first time an open carry confrontation between citizens and the police has resulted in a federal civil rights lawsuit. A few years ago, another such lawsuit was filed, according to Magee, who also represented the earlier client. That lawsuit was settled but the terms of that settlement were confidential, the attorney said.
Richard Banks is the founder of Pennsylvania Open Carry, an offshoot of OpenCarry.org
A number of law enforecement types have been taught to harass people who exercise their Second Amendment rights. This could stop a lot of that harassment.
I believe a person should be able to carry a gun but I believe like driving a car they should have to produce a permit when requested in public by a police officer or the owner of an establishment.
“I believe a person should be able to carry a gun but I believe like driving a car they should have to produce a permit when requested in public by a police officer or the owner of an establishment.’
No permit is required for open carry, but the refusal to provide identification I think will count against them. There was cause to ask for it, they were responding to a call about someone brandishing firearms. The check of a city registry for the serial numbers on a firearm is a very questionable act and steps into the realm of harassment. Disarming those they're talking to while investigating a crime seems valid, but failure to return the firearms at the end of the conversation does not. Failure to return a firearm incident to arrest is a whole different matter.
As I assume that PA has laws against fellons possessing firearms, the identification check seems like a valid procedure in any case. The lawsuit will likely prevail on the serial check, fail on the illegal detention, and wash on the harassment issues.
Misplaced your Constitution, huh. How's life on your knees?
In addition their employers should get to pay hugh civil penalties to the victims.
UGH! Go back under your rock. No, a legal owner of a weapon DOES NOT and should not have to produce a "permit" of any kind. His "permit" is a RIGHT guaranteed by the Constitution of the United States and affirmed by the Supreme Court. Driving a car is a privilege - not a RIGHT!
It is interesting that the police would want to be sure that the public did not know how much they had to pay for their mistakes.
"Papers please" is something out of an old Nazi war film.
/johnny
Seriesly!
“I believe a person should be able to carry a gun but I believe like driving a car they should have to produce a permit when requested in public by a police officer or the owner of an establishment”
No law requires a permit to open carry.
This incident is why I have a problem with “police.” They’re nothing more than arrogant bureaucrats with a badge and gun.
An elected sheriff is superior to “police”. The sheriff is accountable to the people via the ballot box. If he messes up, the people can replace him via recall or at the next election.
“Police” are agents of whatever political cow is in power at the time. “Police” cannot be recalled by the vote of the people. Police are a political creature and will do whatever they’re told by the ruling gang in power.
The sheriff is the constitutional rule of law by the people. “Police” is the arbitrary rule of people by political hacks.
In my county, the sheriff is a strong supporter of the 2nd amendment, as are his deputies which he alone hires.
And he doesn’t hide behind billboards trying to generate revenue from people rolling thru stop signs. Instead, he sends his deputies out on stake outs to nab burglars breaking into summer homes. Plus he runs on the platform that he’s the highest peace officer in the county, and no Johnny Law department can operate in his territory without his permission.
We like that.
Now, should they be allowed to obtain damages against those who call in the police for no other purpose than to harrass them?
I think that's the real quesion here. Everything else is a slam dunk. Cops lose. Cops pay. Taxpayers pay.
P.A. does not require a permit for open carry.
It doen’t mention in the article that Mr. Banks holds a FFl.
Please explain -- in detail -- why "a person" (one of "the people") should be required to seek (much less pay for) permission (a "permit") to exercise a Constitutional right.
~~~~~~~~~~~~~~
FYI, I already have a "permit" that guarantees my God-given right to be armed:
"The right of the people to keep and bear arms shall not be infringed."
But they weren't standing around on private property, they were in a public dining establishment which police had been summoned to in response to a citizen account of someone brandishing firearms. A quick check of ID, establishing that no crime has been committed, and everyone's on their way. I agree with being secure in one's papers, but I see nothing unreasonable given a) the call, b) likely PA's laws regarding possession of firearms by fellons in providing identification, and I bet the court will agree on this point.
/johnny
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