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General Categories => Newsworthy => Topic started by: lefty on August 02, 2010, 12:58:27 PM
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DENVER AND THE WEST
Loveland man's lawsuit says cops violated Constitutional rights
By Monte Whaley
The Denver Post
POSTED: 08/01/2010 01:00:00 AM MDT
A 72-year-old man claims Loveland police violated his constitutional
rights in 2008 when they confiscated his holstered gun while he was
enjoying a day at Lake Loveland.
Bill Miller alleges that police violated his First, Second and Fourth
Amendment rights during a 30-minute "shakedown," said his attorney,
Nelson Boyle.
The lawsuit, filed this week in U.S. District Court, names the city of
Loveland, Police Chief Luke Hecker and several police officers.
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. He also is asking for $100,000 in punitive damages.
Loveland City Attorney John Duval said he could not comment on ongoing
litigation.
The lawsuit says Miller was sitting at Lake Loveland, eating an apple
and enjoying his view. A passer-by noticed his holstered handgun and
called police.
Cops didn't charge Miller
A police officer approached, seized the gun, and detained Miller, the
suit said. The lawsuit says Miller carries a holstered weapon to
advertise his custom-holster business - and to spark dialogue about
Second Amendment rights.
Police removed the ammunition and ran the weapon through a police
database. After clearing the serial number, police returned the gun.
No charges were filed.
However, the suit said, an officer also told Miller "You have the
right to carry that (gun), but whenever you do, you can expect the
same treatment."
The suit seeks to answer, once and for all, whether law-abiding
citizens can openly carry a legal weapon in Colorado, Boyle said.
"The right to carry a gun on your hip hasn't really been played out in
Colorado," Boyle said.
Most cases dealing with the open-carry issue have arisen because the
defendant was arrested during the commission of a crime, he said.
"Here, no actual crime was committed, so we don't get into something
that muddies the water," he said.
Miller's encounter with police sparked protests from gun advocates and
the American Civil Liberties Union, which sent a letter to the
Loveland Police Department in 2009 criticizing its handling of the
incident.
Balancing rights, protection
"Based upon Mr. Miller's account and LPD's own reports, no reasonable
officer could have believed Mr. Miller was doing more on Oct. 7, 2008,
than 'lawfully exercising his right under . . . law to possess a gun
in public,' " the ACLU said.
Elliott Phelps, chief investigator for the Larimer County District
Attorney, said in a letter to Miller that the incident was an internal
police matter.
"While citizens have many constitutional rights, the right to possess
and carry a firearm is a right which, in the hands of the wrong
person, in the wrong circumstances, may cause harm to an officer,"
Phelps said in his letter. "There is a fine balance between the
protection of an individual's rights and the protection of a law
enforcement officer."
Duval said he didn't know if an internal investigation was ever
conducted.
Monte Whaley: 720-929-0907 or mwhaley@denverpost.com.
[Non-text portions of this message have been removed]
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I think this is the first time I've ever heard of the ACLU doing anything pro-2A.
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My bet is it's the local CO chapter. The national ACLU is still rabidly anti-gun, but the locals are starting to wake up.
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I think this is the first time I've ever heard of the ACLU doing anything pro-2A.
I had to reread that section a few times as well...
WTF ???
hehehehe.
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I think this is the first time I've ever heard of the ACLU doing anything pro-2A.
Me too- I prefer my villains remain one dimensional so they are easier to vilify. Oh well, I'm sure they'll rush to the defense of terrorists or pedophiles soon enough.
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I think the ACLU's involvment is more anti-police than pro-2A
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I think the ACLU is concerned about defending the 4th Amendment right against unreasonable search and seizure. They wouldn't care if it was a car or a gun if the cop took it without cause. The ACLU does a lot to defend the 4th and 5th Amendment rights of the people.
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I'm a little confused as to what the police was supposed to have done wrong in this case.
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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.
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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.
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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.
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???
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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.
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.
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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.
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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.
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???
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.
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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.
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.
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.
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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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.
That's what I'm getting at.
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.
Prosecuted for what crime? Wouldn't the prosecuting DA be violating that officer's 1A rights for going so? Fired because warning a citizen that open carrying is going to create unnecessary attention and would result in likely being detained to repeat this process again? If if the attorney's claim on the officer's statement was true, sounds to me like the officer was being honest with the man.
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?
How about replacing it with 'white suburban family from Millard driving their SVU with Nebraska plates down 10 Mile Road in inner Detroit at 10PM on a summer Friday night'? Do you have the right to do? Yes. Is it wise? You're out of your mind if you say yes. A Detroit cop will find RS in a hurry (i.e. a burned out license plate lamp or something) to pull said family over and advise said family "you have the right to do this, but my advice to you is to get the hell out of here in a hurry." They'll even tell you not to stop for red lights.
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.
Where did the rationing or infringing of liberties occur in this particular case? Where did the pressuring occur?
Where did the harassment occur?
None of it happened.
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Interesting arguments on both sides, I tend to agree that proving damages in Federal court will be a tall order.
I for one prefer to keep my weapon concealed.
Greg58
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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.
That's what I'm getting at.
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.
Prosecuted for what crime? Wouldn't the prosecuting DA be violating that officer's 1A rights for going so? Fired because warning a citizen that open carrying is going to create unnecessary attention and would result in likely being detained to repeat this process again? If if the attorney's claim on the officer's statement was true, sounds to me like the officer was being honest with the man.
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?
How about replacing it with 'white suburban family from Millard driving their SVU with Nebraska plates down 10 Mile Road in inner Detroit at 10PM on a summer Friday night'? Do you have the right to do? Yes. Is it wise? You're out of your mind if you say yes. A Detroit cop will find RS in a hurry (i.e. a burned out license plate lamp or something) to pull said family over and advise said family "you have the right to do this, but my advice to you is to get the hell out of here in a hurry." They'll even tell you not to stop for red lights.
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.
Where did the rationing or infringing of liberties occur in this particular case? Where did the pressuring occur?
Where did the harassment occur?
None of it happened.
Obviously we disagree at a fundamental level. As for the officer's '1A' rights, that doesn't apply at all. This wasn't a friendly conversation at a bar after work, he was speaking as an armed official of the government. What the cop said was not portrayed as 'friendly advice' or merely 'being honest'. It was a warning not to cause trouble or pay the consequences, again from a policeman. As for the 'crime' the policeman is violating the citizens civil right to carry. Harassment IS infringing on the right. As for your Detroit scenario- that has no relation to this. This guy wasn't approached or detained for HIS safety or well being. And to answer your question as to how/what right was infringed- the story tells us he was detained for 30 minutes. Against his will. And threatened with more of the same if he dared to do 'it' again. Although what he did was perfectly legal- armed officials of the state 'suggested' he not do it anymore or he would be inconvenienced, questioned, detained again. If being forcibly detained for 30minutes by armed men for NOT DOING ANYTHING WRONG doesn't equal harassment, pressure or infringement of liberties then what does? If you don't see a problem with that I'm afraid your discernment is very poor. Do you work for the city of Omaha, by chance?
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Obviously we disagree at a fundamental level. As for the officer's '1A' rights, that doesn't apply at all.
That is completely incorrect. Officers do not lose their rights merely because they put a uniform and badge on. There is plenty of case law on that. Garrity is a good starting point on that one.
This wasn't a friendly conversation at a bar after work, he was speaking as an armed official of the government.
So? This guy wanted attention and he got it. And by stirring up crap like this, as he stated his intentions were in his lawsuit, he's making firearms owners everywhere look bad.
What the cop said was not portrayed as 'friendly advice' or merely 'being honest'. It was a warning not to cause trouble or pay the consequences, again from a policeman.
Errrr......that wasn't what was protrayed, even by Mr. Miller's attorney.
As for the 'crime' the policeman is violating the citizens civil right to carry. Harassment IS infringing on the right. As for your Detroit scenario- that has no relation to this. This guy wasn't approached or detained for HIS safety or well being.
Ummmm....there is not a "civil right to carry." There is a right to bear arms. Just because there are no laws prohibiting something doesn't automatically make it a "right". There is no law prohibiting me from owning a radar detector, but that doesn't that I have a "right" to have a radar detector. Try arguing that "right" in someplace like Virginia and see what happens. If there was an affirmed right to carry, CHPs would be a moot point nationwide, would it not? Had they confiscated his weapon, I would agree with you that his 2A and probably his 5A rights would have been violated, however they returned it to him once their investigation was completed. Therefore, no violation of his rights occurred.
And no, he was detained for the safety and well being of the community at large. No one knew who this guy was or what his intentions were, nor are police officers mind-readers. Yes, it turned it that he and his weapon were clean, but he could have easily been despondent and ready to go shoot up his old work place when he was done eating that apple -because he lost his job of 30 years to some young computer punk. Nobody knows what the deal actually is until someone goes to talk with him and checks him out.
And to answer your question as to how/what right was infringed- the story tells us he was detained for 30 minutes. Against his will.
Yes, that's exactly what a Terry stop is. And most courts will find 30 minutes reasonable because at times, it takes that long sometimes to get a response back from NCIC, especially during peak hours of usage. I guarantee you the federal courts will.
And threatened with more of the same if he dared to do 'it' again. Although what he did was perfectly legal- armed officials of the state 'suggested' he not do it anymore or he would be inconvenienced, questioned, detained again.
Threatened? Where was the threat? If they threatened him with arrest or criminal charges for doing the same thing, then yes, I would agree that there was threat...but once again, when someone makes a "man with a gun" call to 911, in a lot of jurisdictions, the police have the DUTY to respond and investigate it. In many places, it's written policy.
It wasn't a threat - it was a dose of common sense. Packing a weapon openly in a lot communities around this country is going to draw a lot of attention & generate 911 calls, that's just being realistic.
If being forcibly detained for 30minutes by armed men for NOT DOING ANYTHING WRONG doesn't equal harassment, pressure or infringement of liberties then what does?
Do you even know the definition of reasonable suspicion??? No one knew he was not doing anything wrong until he was checked and the scene was cleared. RS can cover a plethora of things. To use your example of "a black man walking down an upscale neighborhood" - that in itself isn't RS, but "a black man walking down an upscale neighborhood, wearing unseasonable clothing (bulky clothing in 90 degree weather), carrying a bag (that possibly could contain burglar tools), and having passed the same empty house 4 times while talking on a cell phone"....is. The police wouldn't be doing their job if they didn't stop and make contact with him. See how easily the picture changes when a few missing facts are added in?
Let's face it - a person carrying a weapon openly without being in some kind of uniform or wearing some kind of badge unusual in today's society. The very sight is enough to make some people panic. It sucks, but that's just the way it is. I really don't like it any more than you do, but it is what it is. Because it's unusual, the sheep are always going to call 911 when they see that. What are the police supposed to do? Ignore the calls? They can't do that. It will be their collective asses if it turns into an active shooter call later on.
And yes, Barry cited a case on PA where their Supreme Court said that open carrying a gun is not RS in itself for that state, but you've also got to consider that the case in question was decided before Columbine, Virginia Tech, Westroads Mall, etc... Not only that, but the federal courts in which Mr. Miller has chosen as a venue is LOADED with Clinton and Obama appointees...His lawsuit is going to go nowhere fast.
By the way, he was not detained forcibly - nobody put hands on him or did anything else but get his compliance via verbal commands (i.e. "can you come here so I can talk to you for a second"). That is not using force. Secondly, once it was determined that he was not doing anything wrong, he was released with his property returned. They did not deprive him of his property, detain, or delay him more than was necessary to ascertain the facts.
If you don't see a problem with that I'm afraid your discernment is very poor. Do you work for the city of Omaha, by chance?
Perhaps it's that my discernment is tempered by training, knowledge and experience that differs from yours.
Do I work for the City of Omaha? No.
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Equinox137 perhaps you are a cop, thin blue line and all that, and are taking this as a personal attack on you/your profession. Please don't- I don't take your attempts to be condescending personally. I'm certain you are a nice guy and upstanding citizen and not a troll, despite all appearances. Notwithstanding (or because?) of all your extensive training, exhaustive knowledge & world-class experience you appear to view everything as a privilege that must be approved by authorities or else you are asking for trouble. Rights certainly come with responsibilities- but not an approval checklist. You are promoting serfdom not citizenship.
Back to the discussion: Are you claiming a policeman can say whatever he wants in his capacity as an officer and it's protected free speech? That is what I understand you to be arguing.
How exactly did he make firearms owners look bad? Please be specific.
To quote you 'Errrr....ummmm..." if 'bear arms" doesn't explicitly & exactly mean carrying a gun what does it mean? Please be specific.
You state the Police had a duty to respond to the call- no argument there. The issue comes from how it was handled. The rub is that you believe, by your words, it is not 'common sense' to exercise your rights (in this case under Colorado law specifically) and doing so is stirring up trouble. It appears you think the Minutemen should have laid down their muskets at Lexington, Rosa Parks should have just sat in the back of the bus and Dick Heller should have accepted the status quo in DC. After all, again in your words, 'that's just being realistic'. Society has dictated 'guns are scary' the cops are enforcing that and we all need to comply. To do otherwise makes one a rabble-rouser that deserves extra police attention.
As for your assertion that he wasn't detained by force, I again disagree. If he had briefly explained himself then politely refused to submit to further scrutiny would he been free to walk away? No, he was detained and not free to leave. He would have been arrested by force if he didn't comply. Explain to me that implied or threat of force is not force.
Now was this episode the very picture of tyranny? No, but it shows how far we have to go regarding gun rights, obviously including some gun owners in our midst.
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Tone it down a notch fellas. I don't want to stifle debate, but I will not let it degrade any further.
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Understood, DanW. ;)
Equinox137 perhaps you are a cop, thin blue line and all that, and are taking this as a personal attack on you/your profession. Please don't- I don't take your attempts to be condescending personally. I'm certain you are a nice guy and upstanding citizen and not a troll, despite all appearances.
No sir, I'm not taking anything as a personal attack. I'm also not trying to be condescending, I'm trying to provide others with a perspective most people likely don't have.
Notwithstanding (or because?) of all your extensive training, exhaustive knowledge & world-class experience you appear to view everything as a privilege that must be approved by authorities or else you are asking for trouble. Rights certainly come with responsibilities- but not an approval checklist. You are promoting serfdom not citizenship.
Not at all - I don't view everything as a privilege. However in this day and age, carrying a weapon on your person is legally a privilege. As I said before, I don't like that myself, but that's the way it is.
If I was "promoting serfdom not citizenship", I would be saying "just leave your guns at home and let the police handle it" like most of the sheep in our society.
Back to the discussion: Are you claiming a policeman can say whatever he wants in his capacity as an officer and it's protected free speech? That is what I understand you to be arguing.
Yes, that is correct....and there is plenty of case law to back that up. Departments have a very hard time disciplining officers to the point of termination on something like that because the facts of what was said can easily be disputed, not to mention that the FOP and other LE unions would be all over them, as well as getting spanked in the courts. You'd have to say something pretty scandalous, such as the repeated use of a racial slur, before something like that would begin to stick.
Departments don't just fire an officer and walk him/her out the door. It doesn't work like that. There has to be "progressive discipline" and even when the decision to terminate an employee is made by a chief, sheriff, or department head, it's still not over. The termination almost always goes to a civil service commission, a merit commission, etc... where the documentation is reviewed and a hearing is held where testimony is obtained and most of the rules in criminal court apply. IF the commission upholds the termination, then the employee has the option of filing suit in both state and federal court, where the same thing happens again. It's not a matter of "you're fired, clean out your locker" and it's done with the employee never to be seen again...like it is in the civilian workplace.
There are also sticky issues such as the "Garrity Rule". This generally states that statements an officer makes to IA investigators can not be used against him/her during a criminal trial. That would make it very difficult for an officer to be fired AND prosecuted for a statement made during the course of one's duties.
How exactly did he make firearms owners look bad? Please be specific.
To quote you 'Errrr....ummmm..." if 'bear arms" doesn't explicitly & exactly mean carrying a gun what does it mean? Please be specific.
How did he make firearms owners look bad? Primarily because Mr. Miller's stated purpose was to "to spark dialogue about Second Amendment rights" i.e. he went there with the intention of causing a scene. He wasn't just sitting in the park enjoying an apple when the knuckle-dragging, jack-booted police showed up and hassled him - he was deliberately looking for a confrontation over the open carry issue. My guess is that Mr. Miller went to the park in the hopes that he would get arrested and his gun confiscated so he could sue and get precedent setting case law on OC - and when the cops didn't take the bait, he sued anyway in the hopes he might get at least a little bit of lemonade out of that (dry) lemon. Either way, he is going to lose...big... when his case goes to court, and when he does, he might do gun rights more harm than good. This is especially in CO, where they're fighting over whether or not colleges can ban CCW on campus. I'd rather have CCW on campus right now. You're giving away your tactical advantage with OC anyway.
Because of guilt by association, he makes it look like firearms owners everywhere are like that...to the sheep. I'm certainly not. I carry everywhere I go, but I always make sure my weapon is concealed - not only because I'd rather have the element of surprise during an engagement, but I also have the responsibility to not cause undue alarm among other citizens. You might say "well, they're just ignorant sheep". That may be true, but those are the same ignorant sheep that vote in the politicians that support or oppose gun rights. Mr. Miller is not succeeding in "opening eyes" - he is alienating people....people that don't have gun rights on the front burner in their lives. Most people don't. Look at the proportion of CHP holders in Nebraska compared to the overall population...
The right to bear arms means specifically owning arms. That's what McDonald and Heller was all about. Even Scalia stated that the right to bear arms doesn't mean that there can't be "reasonable regulation" attached. Now the fight is going to be about what's reasonable. Not whether or not a citizen can own a handgun, as was the case in Chicago.
You state the Police had a duty to respond to the call- no argument there. The issue comes from how it was handled.
One of the common complaints that LEOs have about the public is that "everybody knows how to do the job better than we do."
Since you asked me for specifically how Mr. Miller made firearms owners look bad, and I answered you - I think it's fair for you to reciprocate. How would you have handled this call? Keep in mind that you don't know the subject personally, his intentions, mental and emotional status, etc..
The rub is that you believe, by your words, it is not 'common sense' to exercise your rights (in this case under Colorado law specifically) and doing so is stirring up trouble.
He wasn't "exercising his rights", he was doing something that was not statutorily illegal. There's a big difference. There is nothing in the Colorado Constitution that guarantees the public the right to carry a weapon openly and publicly. Colorado could ban OC next year and there's not much anyone could do about it, otherwise you'd be able to strap your Smith to your hip in downtown Chicago, right?
It appears you think the Minutemen should have laid down their muskets at Lexington, Rosa Parks should have just sat in the back of the bus and Dick Heller should have accepted the status quo in DC. After all, again in your words, 'that's just being realistic'. Society has dictated 'guns are scary' the cops are enforcing that and we all need to comply. To do otherwise makes one a rabble-rouser that deserves extra police attention.
1. The Minutemen was a military force confronting another military force. Apples and oranges.
2. Rosa Parks defied authority because the law discriminated against her based on something she could not possibly change - not something she chose to do and accept the responsibility for.
3. Heller fought within the law and with the help of the SAF, and won big - not by trying to generate unnecessary attention.
As for your assertion that he wasn't detained by force, I again disagree. If he had briefly explained himself then politely refused to submit to further scrutiny would he been free to walk away? No, he was detained and not free to leave. He would have been arrested by force if he didn't comply. Explain to me that implied or threat of force is not force.
You just contradicted yourself here. You're claiming he was detained with force, yet you yourself stated "he would have been arrested by force if he didn't comply".
When you do not put hands on someone, use intermediate weapon control (i.e. OC or tasers), or deadly weapons to gain compliance from a subject - you are not using force. This isn't merely my assertion, this is case law and departmental policy at just about every agency in the U.S. Officers give verbal commands everyday, yet they're not filling out use of force reports on every verbal command given.
Now was this episode the very picture of tyranny? No, but it shows how far we have to go regarding gun rights, obviously including some gun owners in our midst.
I agree, we still have far to go. Letting property owners put up a ridiculous "gun free zone" sign and have that sign backed up by force of law is assinine, IMO. I certainly hope that portion of NRS 69-2441 (1)(a) goes away in the next few years, but I'm not going to march in front of Westwood Plaza with my weapon strapped to my hip to demonstrate my point. As I stated earlier, all that is going to accomplish is to make me look like an idiot and alienate people that might not otherwise care about my personal hot-button issue.