Posted on 12/10/2008 8:33:35 PM PST by neverdem
In keeping one's eye on the ferment in lower courts on gun issues post-Heller, Eugene Volokh at the Volokh Conspiracy finds an interesting footnote in a U.S District Court for Utah memorandum opinion and order.(pdf)
The order allows the (partial) moving forward of a lawsuit charging some police officers of 4th Amendment excessive force violations due to their ruffian behavior against a man in Salt Lake City who didn't, because he was physically unable to, raise both hands above his head when ordered to by the cops. The details of the story in Volokh's post make for aggravating reading, to be sure.
While the case was not a Second Amendment one, the fact that a gang of cops were accosting Miles Lund in the first place was because of a call in about a "man with a gun" in the park. As it turned out, Lund was not that "man with a gun." But the footnote avers interestingly, among much discussion of specifically Utah constitutional provisions and policies:
By itself, mere possession of a firearm in public is not unlawful and may well represent the exercise of a fundamental constitutional right guaranteed by the Second Amendment to the United States Constitution..... See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008) (“There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.”)..... Salt Lake City’s asserted governmental interest in its police officers’ response to a report of a “man with a gun” in a public park cannot be weighed in isolation....there may well be more individual constitutional rights at stake than the Fourth Amendment freedom from unreasonable searches and seizures.
For the history of the case that started this new wave of Second Amendment judicial musings, see my new book Gun Control on Trial.
I can barely touch the top of my head, my shoulders lock up. I reckon I’d best not agitate any cops.
There are “levels” to having a gun on your person, and from the days of the old West, these were important in the law. They remain so.
1) Having a gun in a holster, open carry.
2) Having a gun, concealed.
3) Wearing any variety of mask or disguise.
4) Gun is out of holster, open view.
5) Gun is brandished, out of holster with a purpose.
6) Gun is used to menace and individual or group.
7) Gun hammer is back, more important with a single action revolver.
8) Gun is fired as a warning.
9) Gun is fired with intent.
NY, NJ? They’ll taze you bro!
Open carry policies are very important. Legal and common open carry would eventually assure more respect for Second Amendment rights, calm most people who have irrational fears of firearms and foster more respect for property rights (i.e., your policy for who carries while visiting your home or business). ...been in that kind of environment in the past, where people commonly carried in pickup truck racks, holsters, etc.
-bflr-
She took it before a judge and he said something along the line of “by law you can, but it could cause other citizens to be concerned, do it might be actionable in other ways”.
She got her gun back but the judge was not happy and gave her a strong talking to about the other problems she was causing by having a displayed carry piece.
Funny thing is, if she did have a concealed carry piece but did have one displayed she was liable for several citations or crimes.
So don't have a gun in a holster and displayed and be liable for several legal problems, or have a CC and where the weapon was displayed and CC and she is liable for several citations.
They will try to prevent your rights either way.
I’m not a cop basher.
However, it seems to me that there’s way too much Barney Fife and way too little Sheriff Andy these days.
I'm expecting the usual whining about how no one understands the tough job they have, and oh, yeah... how the "perp" deserved a much worse beat down due to his "non-compliance" with the "lawful orders" of the nice police officers.
It's still early, but it's coming.
Me too. I remember walking home from the corner store with my Dad after buying my first .22 rifle. I had it at shoulder arms the whole way (about 6 blocks). It was 1964 and I was 7yrs old. This was in Orange, CA.
Slick Willie and the new administration will try to see to it we get too much Arkady Renko instead.
Wow. I”m in CA now and can imagine what would happen to someone openly carrying a gun down the street. Even a 7 year old.
Yeah, I remember going into a grocery store in Thousand Oaks, (CA) with a gun in a holster on my belt. Sure wouldn’t want to try it today though.
That’s insane. But not surprising.
Thanks for the advice. I found the publication you mentioned on Amazon and will add it to my wishlist.
A lot of cops are ex-military. I respect our armed forces, but that is a problem- officers coming from a military setting (especially if they are coming home from Iraq or Afghanistan) to a law enforcement capacity need to be majorly retrained to change their mindset and outlook.
The type of approach to one's job that is perfectly appropriate while patrolling the streets of Baghdad is not appropriate for a peace officer in America's cities.
The militarization of the police is a major problem in America. One of the best innovations of the Giuliani years was to get cops out of their cars and onto a regular patrol on the streets. That way, the cops became members of the community, rather than guys who just showed up to arrest people.
Well if Ga., Fla. other states with carry laws showing a reduction in crime is true, then gun rights, good tough permits, training for legit citizens, could be a better effort at stopping gangs, illegal criminals, and other muggers in large cities than the outgunned, outmanned police. As a life member of the NRA who has never owned a gun, this could be the next step in stopping crime and lowering the rates in even urban areas. But, the testing, permits have to be tough to keep out the thugs.
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