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
You say it well. Open carry is “permitted” in most states. Here in the Republik of North Carolina we have a real cool law. You can be charged with “brandishing a weapon to the terror of the people”.This make open carriers subject to arrest that would cost tens of thousands of dollar to fight and win.
/johnny
/johnny
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.
This sounds like a lie to me. The caller called 911. The 911 system knows who is calling on land lines. I'm sure the 911 system can log a cell phone. If not, the phone company can tell them.
We should know what the caller said to the police. Saying people are brandishing weapons seems odd to me. This is a term more likely used by the few familiar with law or obligations of carrying arms. The ordinary caller is not going to say brandish. Brandish does not apply to holstered side arms. It means more to wave or display weapons aggressively as to threaten.
Drag the caller into the law suit too. Maybe he is a well to do liberal who needs a lesson in Constitutional rights and lying to the police intending to cause harm to others.
The officers have a duty to determine if their is probable cause for an arrest. If they are negligent in their determination, they are liable, it seems to me.
“Drag the caller into the law suit too. Maybe he is a well to do liberal who needs a lesson in Constitutional rights and lying to the police intending to cause harm to others.”
“The officers ordered Judy Banks to stop recording “under threat of being arrested for violation of the federal wiretap law,”
If cops can do this (They can, they have and it sticks) then they can take your guns and or otherwise do as they damn well please.
A wire tap invades a discrete circuit. A citizen recording a public servant in a public place is tapping NOTHING save the ether.
These guys strapped on guns they apparently had no intention of using—so what was their point? To force a legal precedent? Good luck with that. As long as they put themselves into the hands of the very corrupt system that ignores the Constitution as it damn well pleases (as this incident clearly demonstrates) they will accomplish NOTHING. If you put on a gun use it. If you can’t——THEN DON’T PUT IT ON IN THE FIRST PLACE.
George Washington would have opened fire (if he were there in the first place)
If this was a case of cops just walking in for dinner, seeing patrons and demanding ID, then I would agree with you. That wasn't the case.
The present state of the law in Kaleefornia is that you must have a permit for carrying a concealed firearm. You will be arrested for violating the CCW law. However, if you choose to openly carry a loaded firearm, you will still be arrested.
Per Penal Code 12031:
12031. (a) (1) A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.
I'm not dancing around it. I'm saying it doesn't apply to requiring identification. They can ask all they want. There is no requirement to cooperate under the 5th amendment. Just don't lie.
And if a citizen call alleging a crime is all it takes for jack-booted thugs to descend, demanding ID and detaining non-law-threatening citizens, we're already in a world of hurt.
/johnny
And that's just NOT true.
/johnny
If the person that complained was not available, then they have to start from ground zero.
Does one need a permit to put his bible,koran, newspaper in brief case, book bag or under his coat concealing it.
Guns are to the 2nd that books,newspapers and movies are to the frist.
I don't think the Founders would have agreed with that. They recognized a right of free and unimpeded travel; many rights of way have changed over the years so as to preclude their use by any means other than a motorized vehicle.
All 911 lines have caller ID but if the caller blocks it they can not tell who is calling
Jack-booted thugs... It was a criminal investigation, it has always been common practice to identify those the police speak with, and failure to produce identification is cause for detention until identification is established. Personal identification has never successfully been argued as a protected right under the 5th, and I believe it goes completely against the intentions of the 5th to even lay that claim. Is there a case where this has been established?
Bottom line, there are very limited places and circumstances when you are required to show ID.
/johnny
What percentage of people of whom the cops check ID will be felons? Does it seem like they're limiting their actions to cases with anything even remotely resembling probable cause?
That having been said, what if the cop were to discretely ask the waiter to replace the suspect's water glass while being careful to only touch the rim, and then to later retrieve that water glass (again only touching the rim)? The cop could then suggest to the suspect that, if he prefers, the cop could run his prints. See what the reaction to that would be.
The Federal court case that said that felons filling out a BATF firearms questionnaire can use the 5th pretty much abrogates your assumptions. And that decision is much more famous that the black guy jogging in Houston.
You don't have to cooperate. At all. Period. Just don't lie.
/johnny
“It was a criminal investigation”
” Survival of the fittest.”
“failure to produce identification is cause for detention until identification is established.”
You have been watching way to many westerns. There were a lot less actual face to face shoot outs then the movies would have you belive. Most felons did not last long when they did.
So your wife/husband just says you are a abuser you lose your rights there are many classifications of people who are not felons who can’t not carry.
You can tell the bad guys form the good guys the bad guys shoot at you the good guys don’t.
Once a felon, most all the time a felon so do you relly think the law stops them from carring now. Way to many felons are arrested each year to know that isn’t true.
Crimnals break the law that is why they are crimnals.
Sounds like, "Show us your papers" kind of thing. I believe Germany back in the late 30's and early 40's had such a policy.
I wonder if the police at the scene made any attempt to establish who made the actual complaint? After all, you need a witness, right? A voice on the phone to a 911 operator that somebody “brandished” a weapon would not seem to be sufficient evidence if when I walk in the door I observe everybody peacefully eating.
Given the training-level of some 911 operators, I’d take any report passed thru them with a huge grain of salt.
That said, I’d have produced the ID if the officer had asked for it — just out of courtesy. But it all depends on how the officer behaved. I mean I might not have if I was abruptly being ordered around.
Sorry, you are wrong. They can --always-- tell who is calling, or can find out.
“I wonder if the police at the scene made any attempt to establish who made the actual complaint? After all, you need a witness, right? A voice on the phone to a 911 operator that somebody “brandished” a weapon would not seem to be sufficient evidence if when I walk in the door I observe everybody peacefully eating.”
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