Posted on 05/19/2010 7:09:55 PM PDT by marktwain
This is the letter I sent to my attorney. I just pasted it here.
On January 15th 2010, at approximately 7:30PM, in Artesia, New Mexico I was traveling on highway 285 with my wife and 2 young daughters, ages 4 and 1. I came upon a DWI checkpoint operated by the City of Artesia police department. An officer (name unknown) approached my drivers window, informed me that they were conducting a DWI checkpoint, and asked for my license, registration, and proof of insurance. As I handed him my insurance card, I informed him that my wallet was in close proximity to my sidearm. The officer said "O.K, I need you to keep your hands on the wheel for me, O.K?" He was polite and I did as instructed. The unknown officer called for another officer, later identified as Lt. David Spencer, and told him "We have a weapon here." Lt. Spencer approached the vehicle by the drivers side with his hand on his weapon and asked where my weapon was. I informed him that it was holstered on my right hip. Lt. Spencer, then in a loud and demanding voice, ordered me multiple times to "Keep your hands on the wheel!" and "Do not take your hands off that wheel!" Then he ordered me to pull my vehicle over to the parking lot of the Masonic Lodge next to the checkpoint, where he told me to put the vehicle in park. I was too afraid to reach for the gear shift, so I asked my wife to do it for me. I shut off the vehicle and Lt. Spencer ordered me to "Get out of the vehicle and keep your hands where I can see them." I asked if this was all really necessary, the only response from Lt. Spencer was an order to turn around and put my hands on the vehicle. At this point I was standing in front of the rear drivers side window, in full view of my children. Lt. Spencer approached me from behind and removed my pistol from its holster. The moment I felt him pull on my pistol I told him that I did not consent to any search or seizure of my person or property. His reply was "I'm not searching anything, this is for officer safety." He then sat my loaded firearm on the curved trunk of my car. My wife informed me after the event that when Lt. Spencer removed my weapon my 4 year old cried out "DON'T SHOOT MY DADDY!" Lt. Spencer began to question me about why I carry a firearm. I told him for self-defense. He balked and asked "Why, is someone after you?" My response was "I never know when I might need it." He asked if I had a concealed weapons permit. I told him no, and informed him that New Mexico was an open carry state, and I did not need a permit to openly carry a sidearm. Lt. Spencer argued with me telling me that if my jacket falls over the gun it is concealed. I reminded him that the firearm was not concealed, but New Mexico allows concealed carry in a private vehicle by non-permit holders. I then noticed another officer by the passenger side of the vehicle, Later identified as Sgt. Jarod Zuniga, who informed me that it was still not allowed if the weapon is on my person. Lt, Spencer the re-iterated his opinion that I needed to get a CCW permit. He asked if I was a felon, I replied that I am not. Sgt Zuniga asked who the pistol was registered to. I told him I purchased it new, so it would come back registered to me. Sgt Zuniga then proceeded to write the serial number of my firearm on a pad. I said "So, Now your going to search my pistol?" He was looking down at the vehicle, and I was able to make out "I have every right to do this" or "I am perfectly within my rights to do this." At this point the officers asked for the registration for the vehicle. My wife looked, but could not find our copy. We told the officers that we had misplaced it, but the license plate had a valid sticker. Sgt Zuniga said that the state could revoke registration, and they needed to see our copy. Then returned to his cruiser. My oldest daughter Julie was still crying, Lt. Spencer said I could get in the vehicle to calm her down. I opened the rear drivers door and re-assured my daughter that everything was O.K. She immediately calmed down. I asked Lt. Spencer if he could place his hand on my pistol so that it would not fall off the curved trunk when I shut the door. Sgt Zuniga returned with a citation for no proof of registration. I signed the citation in the area for court appearance. I was told I could secure my pistol and be on my way. Both officers had their hands on their weapons as I retrieved and holstered my own. The entire incident lasted between 30 and 45 minutes.
I did some looking and found that Spencer is the troop leader for the New Mexico Mounted Patrol. Troop 18 in Artesia New Mexico.
....already signed the settlement papers. Just waiting for the check to clear. Sorry about not using paragraphs, It never occured to me.
--------------------------cut-------------------------
Yeah, Got a lawyer. We did sign papers to settle out of court. My daughter would ask every time she saw a cop if they were going to come and shoot me, So I called a friend of mine who is an Alamo officer to meet us at McDonalds in uniform and talk to her..... She's not afraid of cops anymore. Thanks Officer Thompson.
You made 'em pay - sweet.
Some cops know better. Some don't. They need training. Cheaper training than settlements.
/johnny
Just the difference between the HP in a red state versus a blue state. The Mississippi Highway Patrol asked to see my weapon, looked it over good, commented on it positively, and handed it back. They wanted to know my opinion on how it handled and if I had any malfunctions while shooting it. They were very courteous and friendly. This is how police in a free state versus how jack booted thugs act in a blue state.
I hope they have gone through proper training and are now treating open carriers with the respect they deserve. As you said, it is cheaper than the settlements.
I’m glad that you and your family are ok after that incident. Kudos to you for the settlement!
Just because they are cops doesnt necessarily mean they know the law.At least thats what it seems.
What a jack ass that thug cop was. Nazi Thug. I hope he is ruined.
Well score one for the “victim” mentality.
There are two sides to every story. This is half of one. Sounds like a shakedown of the city by a shyster and a “victim.” Maybe it isn’t. Maybe it is.
If the cops were out of line, then they need to be investigated and disciplined. Were they? If they acted inappropriately, had they done this other times? If they acted in violation of state law, under color of authority, was that a crime under New Mexico law?
If they weren’t, was this guy a jerk? Did they take the time to check him out and finding the one violation do nothing but cite him and let him go? Were they the very model of restraint when dealing with the guy? If this was a story where a wanted man was caught with meth in the trunk or an illegal would it be “good job officers”?
Or does anyone care to think here? The lawyer knows that insurance companies who provide liability protection for the cities have full say up to a certain dollar amount on what to settle and what to contest. All he has to do is pitch it below this level and the good people of New Mexico just shelled out some money. Not bad for a letter.
Just a little quick here to “Nifong” the officers. If they were wrong, they need to be retrained, disciplined, or taken off the road.
I don’t see where the guy rated any cash either way.
As far as I understand, the police are under no obligation to tell the truth and will assert things that are untrue to gain what they need. One is obligated to know their rights to mitigate this.
Can always ask for a supervisor to come to the scene as well.
Mrs. Gutierrez,
We were talking on the phone earlier today about State Statutes which contradict the State Constitution; specifically as it related to the right to keep and bear arms. You requested that I send a letter to your e-mail account; this is that letter.
As we can plainly see here this statute violates the first sentence in the given Constitutional section in every possible way: citizens are not allowed to bear their arms for security or defense on University premises, citizens are not allowed to hunt or target shoot on university premises (A-Mountain could be construed to be ‘University Premises’).
Similarly questionable statutes are:
● 30-7-2. Unlawful carrying of a deadly weapon.
○ Depending on how “any other type of deadly weapon” is interpreted it could criminalize the open-carry most weapons.
● 30-7-2.1. Unlawful carrying of a deadly weapon on school premises.
○ Same as 30-7-2.4
● 30-7-3. Unlawful carrying of a firearm in licensed liquor establishments.
○ Same as 30-7-2.4
● 30-7-4. Negligent use of a deadly weapon.
○ Damages, injuries, and deaths should be prosecuted under their appropriate laws or civil suits.
● 30-7-8. Unlawful possession of switchblades.
○ Switchblades are an arm, and therefore should be allowed the open-carry rights just as guns under Art II, Sec 6.
● 30-7-13. Carrying weapons prohibited.
○ On busses; w/o prior approval from the Company.
- The Company can disallow firearms and weapons, just like any other privately owned business; however, if they are to disallow weapons the same posting requirements on buildings should be imposed on the busses.
● 30-7-15. Weapons; transporting.
○ Prohibits weapons from being accessible while in transit on a bus; thereby abridging the right to security and defense.
However, it could just as easily be something violating Sections 8 & [possibly] 11 of Article 2 of the State Constitution, they read as follows:
Sec. 8. [Freedom of elections.]
All elections shall be free and open, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.
Sec. 11. [Freedom of religion.]
Every man shall be free to worship God according to the dictates of his own conscience, and no person shall ever be molested or denied any civil or political right or privilege on account of his religious opinion or mode of religious worship. No person shall be required to attend any place of worship or support any religious sect or denomination; nor shall any preference be given by law to any religious denomination or mode of worship.
All that would be needed would be a couple of state statutes; say one disallowing anyone who is wearing a six-pointed star from voting, and another requiring all Jews (or Hispanics, or Anglos, etc) to wear a six-pointed star. {Obviously the choice of example is reference to Nazi Germany; but that is precisely how Nazi Germany was able to ‘legally’ oppress its Jewish Citizens.}
The only way to prevent such from happening here is to hold our Constitutions in highest respect and treat them as the Supreme Laws of the Land; which, in fact, Section 1 of Article 2 states:
The state of New Mexico is an inseparable part of the federal union, and the constitution of the United States is the supreme law of the land.
This sums up my concern: if the people are not allowed to use their Constitutions as legal defense (or legal ‘offense’, challenging the validity of contra-constitutional laws) then the government can do anything it wants without restraint.
Sincerely,
OneWingedShark
See post #12; and just to be clear New Mexico State Law considers the vehicle to be an extension of your domicile... meaning that you can do anything in your car with a gun that you could do in your house.
It has been my experience that cops are the least educated on laws. I learned long ago to never ask or accept legal advice from a cop.
Words to live by.
Be clear that according to the supreme court a cop can not even legally ask an open carrier for ID based solely on his open carrying of a firearm. That makes the cops conduct absolutely unforgivable.
I agree with your thought, but often times the judicial system needs to get involved to determine if someone's rights were violated. Civil action can be the trigger (no pun intended) to put the wheels in motion to determine if a cop needs disciplinary action against him or just an education of the law. Without the civil action, an investigation and corrective action would most likely never occur.
“Some cops know better. Some don’t.”
.
Some cops should be cops; some shouldn’t.
.
I was a Deputy for Eddy County, New Mexico back in the late 70’s. I remember a case that occured in Roswell where an individual was arrested for concealed carry. The individual had the weapon in an external holster attached to the belt. He was wearing a Denim jacket and the officer noted the holster just sneaking out from the bottom of the jacket. The outcome of the case was it was not concealed because it was in an external holster on the belt, if it was in an inside the waistband holster it would be considered concealed. We were directed not to hassel anyone carrying thus.
Things may have changed since then, but there is case law somewhere in the Roswell DA’s office.
P.S. Artesia is in north Eddy County.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.