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
HUH? What does "free and unimpeded travel" have to do with this issue? This blog came from a Jack Daniels's bottle, I think.
There is NO "right" to free and unimpeded travel in the Constitution or its Amendments that I can find. You are talking about two different meanings of the word "right" when you mention a right-of-way. You are mixing your nouns with your adjectives here. Again though, traveling on a right-of-way is a privilege, not a right guaranteed by our Constitution!
Registration requirements = Infringement.
Carry Permit requirements = Infringement.
FOID card = Infringement.
FFL requirement = Infringement.
BATF existence = Infringement.
“undue burden” = Infringement (any burden is undue).
Heller = just the first step down a long road back to Freedom.
“guilty of carrying a loaded firearm” = Infringement.
carrying a loaded firearm = pre-existing right explicitly enumrated in (not granted by) COTUS.
I’m OK with that.
Not an enumerated right.
smoke dope
Not an enumerated right.
take anything we want
Not an enumerated right; indeed, Castle Doctrine means those of us who exercise RKBA may shoot anyone engaging therein.
some things have evolved that prove to work
The Endlösung zur jüdischen Frage evolved, and would have worked if it hadn't been interrupted. Doesn't make it a good thing.
I intend to try and take care of my own...am willing to die trying.
If you die trying, you're doing it wrong.
invents all these rights
We didn't invent 'em. We were born with them. It is others who are trying to take them away. We object.
When does the rights of many over the rights of a few suppose to come into play.
It doesn't...at least in this country.
I have been where you are and you have tunnel vision. The day will come,believe you me. That is if you live long enough.
1. Trying to figure out if that's a threat-- FAIL
2. Subroutine: if it is a threat, is the person making it more or less likely to be carrying what I'm carrying -- LESS
3. Trying to determine whether, if it's a threat, whether I should care or not -- NOT
4. Conclusion: At 44, having faced death for my country from a foreign enemy at 26, I sense that there may be a domestic enemy at my heels; but since that individual is likely to be armed with only with words and little wit, I choose to ignore its petulant whinging and get on with life.
Farewell.
I agree, yet the law IS on the books. And it IS an infringement. Yet, I will bet that when this goes before either a State appeals court or the 9th circus, it will be upheld as reasonable regulation. I can only suspect that when the SC ruled in Heller that it deliberately left out any mention of the right to carry. The hope I have is that the right to carry will be grandfathered under “unreasonable burden.”
Some cringing thing on this thread has whinged about enumerated rights and the Preamble to COTUS. The preamble does not contradict the Second Amendment.
The phrase “shall not be infringed” has a very definite meaning.
How does an ID check establish that no crime had been committed? I’m very unclear about that.
If the police saw someone truly brandishing (waving around) a firearm, or if someone filed a non-anonymous complaint about same, then fine, arrest the guy. But playing “Vere are your PAPERS!?” games with people exercising an enumerated right based on someone freaking out over a holstered pistol shouldn’t be acceptable.
Exactly so, and see my previous.
Whatever you say hoss.
I’m always interested in the musings and opinions of random gasbags, that’s why I pay so much heed to the flatulent felons in Washington.
I can see no cause to deny you the same degree of respect I would any other ruminating rectum.
So carry on j.f.kerry ...er... j.r.freeper, carry on.
I can understand your position.
I also think we’re long past the point where talking with LEOs is going to fix the problems. It will take legal cases and judgments against jurisdictions, officers, prosecutors, etc. It will take at least 30 years of pushing back to get us to a reasonable place where talking to LEOs might solve a problem in this area.
“This will not end well. A retention holster was not used. Meaning a felon could snatch said firearm and use it in a family restaurant.”
http://www.freerepublic.com/focus/f-news/2044398/posts
While it's not explicitly enumerated, it would be one of the common-law rights covered by the Ninth Amendment. Certainly far less of a stretch than all the other stuff it seems to cover.
Although the Dredd Scott decision has been overturned by the Fourteenth Amendment which declared that Blacks were citizens, that does not undo its fundamental logic; indeed, it turns the logic around.
Basically, the Dredd Scott decision said that if Blacks were citizens, they could do all sorts of things including going where they pleased, and bearing arms while doing so. Since it would be bad it Blacks could do those things, ergo they cannot be citizens.
I would suggest that while the Fourteenth Amendment overruled Dredd Scott by stating that Blacks were citizens, the implication is not that citizenship no longer implies the right to freely travel, armed, but rather that blacks now have the right of free travel.
It would be possible to draft a few rules related to firearms and ammunition which would pass Constitutional muster. I would see nothing wrong with having an agency to enforce those few rules.
The biggest problems with the BATF are (1) there are a lot of rules that are grossly unconstitutional, but which the BATF enforces anyway, and (2) it is bad to combine the functions of peace officers and rev'nooers; the BATF exhibits the tendencies for abuse that occur when those functions are combined.
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