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Loveland man's lawsuit says cops violated Constitutional rights
equinox137:
--- Quote from: Hardwood83 on August 09, 2010, 10:31:49 AM ---The article clearly stated: "Miller wants the city and cops to admit they violated his rights against illegal search and seizure and to openly carry a firearm in Colorado." and my personal favorite: an officer also told Miller "You have the right to carry that (gun), but whenever you do, you can expect the same treatment." He did nothing remotely illegal and was harassed for it- furthermore was told it will continue unless he complies with the overt police-state tactics.
The Police enforce the law, not create it. They certainly are NOT to intimidate and harass citizens into surrendering what they deem unpopular rights. The cop that said that should be fired and lose any benefits he has, and get sued for willfully violating civil rights but of course that is a pipe dream and nothing will come of it.
--- End quote ---
IF that's what the officer actually said....we won't know because we haven't heard the officer's version of events.
But he should be fired? Seriously? How do you know that was the first officer that responded to the scene? This could have been the last guy arriving there, whom didn't do anything but talk to the man, whom may have even told the man "hey, we understand you have the right to carry, but whenever you do, you can expect the same treatment - with the way people are in this town/city about guns". If that was the case, he should still be fired for that???
equinox137:
--- Quote from: SBarry on August 09, 2010, 12:59:55 PM ---There is case law on the books that backs this guy up. The police do not have the right to question him when he is doing nothing wrong, and do not have the right to harrass him. Carrying is legal, just like they do not have the right to pull you over if you have violated no traffic laws.
--- End quote ---
I'm sorry, Barry, but that it not correct. The passerby reported a "man with a gun" to the police, saying who knows what in the 911 call. Because of that simple fact, not only did the officers have the duty to respond, they also had the reasonable suspicion that a crime has been or could be committed. If the officers ignored the call and a tragedy happened, where the fingers be pointed then? Certainly not the ACLU.
Once they talked to him, checked him for wants/warrants, checked his weapon through NCIC, they returned his weapon to him and sent him on his merry way. They did not deprive him of his liberty or property for any unreasonable period, therefore no violation of his rights occurred.
SBarry:
Like I said, there is case law. Now I have to find it because of you equinox. When I do, I will post it.
ETA, Courtesy of Pennsylvania Open Carry.
Commonwealth v. Hawkins 1996 clearly states that open carry, in and of itself, lacking any actual threatening or illegal behavior on the part of the person open carrying is not grounds for even a "stop and ID" by police. As such, open carry can not be anything warranting a "stop and ID" or greater reaction such as detainment or arrest.
This is case law in Pennsylvania, so it could be used to support the victim of "Unreasonable Search and Seizure", the police must have had reasonable suspicion that a crime had been or is in progress. I do not see where they could have even had an unreasonable suspicion.
Im glad you are not a cop Equinox (or maybe you are, that seems plausible), going on this hard core evidence a crime has been commited.
1. 72 year old man
2. Eating an Apple
3. Enjoying the view at a lake
4. Carrying a holstered weapon
None of these are crimes, plain and simple. He was detained for thirty minutes and told he couldn't be within the letter of the law again, or he would face detainment and bullying again. Stop apologizing for being a gun owner. Police are paid to arrest people who break the law, not harass those who follow the law. When police start making their own laws, then we are in serious trouble.
Hardwood83:
--- Quote from: equinox137 on August 10, 2010, 02:41:39 AM ---
--- Quote from: Hardwood83 on August 09, 2010, 10:31:49 AM ---The article clearly stated: "Miller wants the city and cops to admit they violated his rights against illegal search and seizure and to openly carry a firearm in Colorado." and my personal favorite: an officer also told Miller "You have the right to carry that (gun), but whenever you do, you can expect the same treatment." He did nothing remotely illegal and was harassed for it- furthermore was told it will continue unless he complies with the overt police-state tactics.
The Police enforce the law, not create it. They certainly are NOT to intimidate and harass citizens into surrendering what they deem unpopular rights. The cop that said that should be fired and lose any benefits he has, and get sued for willfully violating civil rights but of course that is a pipe dream and nothing will come of it.
--- End quote ---
IF that's what the officer actually said....we won't know because we haven't heard the officer's version of events.
But he should be fired? Seriously? How do you know that was the first officer that responded to the scene? This could have been the last guy arriving there, whom didn't do anything but talk to the man, whom may have even told the man "hey, we understand you have the right to carry, but whenever you do, you can expect the same treatment - with the way people are in this town/city about guns". If that was the case, he should still be fired for that???
--- End quote ---
Of course there are 2 sides- and we don't know the details, so rather then inserting fantasy scenarios I'm strictly going off the information actually reported. If the facts are misrepresented (certainly possible) then it's meaningless speculation. However my point is: IF a policeman told a citizen (admitted by all to have done nothing illegal) that he can expect to be harassed by the POLICE for exercising his ACKNOWLEDGED rights, then yes, absolutely that officer should be fired and prosecuted, no question. Disagree? replace 'man practicing open carry' with 'Black man walking down the street in an upscale neighborhood'. If the cop said 'You have the right- but expect to be questioned and detained every time you excercise that right' would that be okay? What if an Muslim cop decided to harass people attending a church? Sorry equinox, the police don't get the option to ration liberties. They have a difficult job and I appreciate that, but it doesn't include pressuring people and infringing on freedoms, for whatever reason.
equinox137:
--- Quote from: SBarry on August 10, 2010, 08:13:23 AM ---Like I said, there is case law. Now I have to find it because of you equinox. When I do, I will post it.
ETA, Courtesy of Pennsylvania Open Carry.
Commonwealth v. Hawkins 1996 clearly states that open carry, in and of itself, lacking any actual threatening or illegal behavior on the part of the person open carrying is not grounds for even a "stop and ID" by police. As such, open carry can not be anything warranting a "stop and ID" or greater reaction such as detainment or arrest.
This is case law in Pennsylvania, so it could be used to support the victim of "Unreasonable Search and Seizure", the police must have had reasonable suspicion that a crime had been or is in progress. I do not see where they could have even had an unreasonable suspicion.
--- End quote ---
As you pointed out, this is PA case law. It is also obviously a criminal case in which Hawkins' conviction was reversed based on a lack of RS from an "anonymous tip". The case summary did not specify where it was 911 call or a confidential informant. There is also the possibility that this guy's case was reversed due to poor articulation in the arresting officer's arrest report. It certainly happens more often than one would like. However this did not necessary give Mr. Hawkins ground to sue the arresting officer in civil court, not when the officer is acting in good faith. Either way, what happened in this case in PA, over fifteen years ago is apples and oranges comparted to what happened in this case in CO. Not to mention that this suit was filed in Federal court.
--- Quote from: SBarry on August 10, 2010, 08:13:23 AM ---Im glad you are not a cop Equinox (or maybe you are, that seems plausible), going on this hard core evidence a crime has been commited.
1. 72 year old man
2. Eating an Apple
3. Enjoying the view at a lake
4. Carrying a holstered weapon
None of these are crimes, plain and simple. He was detained for thirty minutes and told he couldn't be within the letter of the law again, or he would face detainment and bullying again. Stop apologizing for being a gun owner. Police are paid to arrest people who break the law, not harass those who follow the law. When police start making their own laws, then we are in serious trouble.
--- End quote ---
You're missing the point, Barry. No one is arguing what the 72yr old man did was anything but within the law. I'm pointing out that no one has the exact details of what was said in the 911 call to the police, no one here has read incident reports by the officers involved, and most importantly none of us were there as it happened. The article gives a biased view of the incident based on Mr. Miller's lawsuit and his attorney's statements. Upon getting the officers' side of the story, I can guarantee you that the picture will have quite a few different colors.
To win a civil suit, Mr. Miller is going to have to prove malice by the officers involved, not to mention that any of his rights were violated. The officers received a 911 call of a MWAG - they detained him, ran him and his weapon, and returned the weapon to him when everything came back clean with some advice that he might not want to do that again (and even then, we don't know what exactly the officer said, we only know what Miller's attorney says the officer said). He is going to have to prove which of his rights were maliciously violated by the police. As I've pointed out, he is not going to be able to.
I'm not apologizing for being a gun owner. I think people who call 911 about "a man with a gun" without giving any other facts are complete and utter morons that have that same liberal-sissified fear of guns we have all encountered before. Those people are ridiculous. But unfortunately, they are part of our society - in which the police get caught in the middle. Had they not investigated the call and Mr. Miller had turned out to be a lunatic who shot up a shopping mall twenty minutes later, who would be getting the fingers pointed at them? We both know who.
And no, police are not paid to arrest people who break the law - they're paid to keep the peace. Arresting people who break the law are part of that function. I don't see where they "made their own laws" in this particular case.
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