Posted on 03/29/2004 7:22:52 PM PST by mvpel
Michael V. Pelletier, xxxxxxxxxxxxxxxxxxxxxxxxx, (xxx)xxx-xxxx
Capt. xxxxxxxx, Public Integrity & Professional Standards, Manchester Police Department
March 29, 2004
Dear Captain xxxxxxxx,
I am writing to you in your capacity as head of Public Integrity and Professional Standards to lodge a complaint against your department and certain of your officers stemming from an incident that took place on Saturday, March 27 at about 9:00pm.
Background
My wife and I had just finished our 11th anniversary dinner at Kobe Japanese Steakhouse on Second Street, and had stopped in to the Barnes & Noble bookstore on South Willow Street for a cup of latte and a few books and DVDs. I was dressed neatly in slacks and a purple oxford shirt, and was clean-shaven.
Due to the pleasant evening air, I left my coat in the car. Since I had neglected to tuck my shirt over it, my holstered Glock 30 sidearm was thus visible in the small of my back in a Workman IWB holster.
For about 10-15 minutes, I chatted with my wife about choosing a sweater from a selection of knitting books she was reviewing, browsed the history and political sections near the restroom, and then made my way over to the Science Fiction aisle.
I was idly leafing through an interesting book, minding my own business, when suddenly I found myself seized by the right shoulder and my holster, pushed towards the corner of the bookcase, by either Officer xxxxxxx or Officer xxxxxxx, I’m not absolutely certain which of them.
I exclaimed, raised my hands up to prevent myself from going face first into the bookshelf. I dropped the book, and upon glancing over my right shoulder, saw another uniformed officer at my right flank. The officer holding me requested that I relax and place my hands on my head. I immediately complied.
I was then disarmed, the holster being unsnapped and removed from my waistband. I informed the detective to whom the firearm was handed that it had a round in the chamber upon his inquiry. I believe the individual who unloaded it was one of the detectives, either xxxxxxx or xxxxxxx.
I was then asked to go outside the store with them, and I agreed. I was released and walked to the doorway, handing over my driver’s license and New Hampshire pistol license on the way out.
Once my record came back clear, naturally, I was subjected to a condescending lecture about the carrying of arms, quizzed repeatedly as to why I carry a firearm.
I replied “to protect myself and my family,”[1] which yielded a number of derisive comments about the effectiveness of firearms in self-defense and defense of others – hmm, why do cops carry them, I wonder? “We have to,” one of the detectives whined. They also lectured on liability issues, terrorism, and other such topics.
I informed them that I am trained, having completed the Lethal Force Institute’s Judicious Use of Deadly Force course, as well as handgun licensing requirements in California and for a Utah Concealed Carry license.
Given the crowd of talkative uniformed officers and detectives around me, and having been somewhat rattled by the ambush, I had difficulty finishing a sentence, and in hindsight I should probably have told them it was none of their damn business why I carry a firearm or whether I was trained.
After about 5-10 minutes of my polite endurance of various disrespectful and arrogant statements and questions by the officers and detectives, my firearm was returned to me, and I reloaded it and placed it back on my belt, this time tucked under my shirt. Upon completing a contact card with one of the officers, at his vehicle, I retrieved my coat, and returned to the store to find my wife.
We purchased about $200 worth of books and DVDs, and then went home.
Points of Complaint
Simple Assault – RSA 631:2-a-I(a)
At no time until, during, or after the officer laid his hands on me, was there any legal cause for his touching or restraining me.
The irrational alarm induced by the sight of my holstered handgun among those who called 911 aside, I was conducting myself in a calm and reasonable manner, merely browsing the books and minding my own business, occasionally chatting with my wife, not posing any threat or menace to anyone else in the store.
RSA 631:4, Criminal Threatening, does not apply as I was not engaging in any manner of physical conduct that purposely placed or attempted to place another in fear of imminent bodily injury or physical contact.
RSA 644:2, Disorderly Conduct, does not apply as I was not engaging in “violent, tumultuous, or threatening behavior,” either knowingly or purposefully. The open carrying of a firearm is not inherently threatening behavior, even when it makes someone from Massachusetts pee their pants and hyperventilate.
Unlike Illinois,[2] New York, or Washington, DC, where an openly carried firearm is prima facie evidence of a violation of the law, there is no New Hampshire statutory provision against open carry. In fact, it is a right guaranteed explicitly in the Constitution of the State.
Your officers should have enough experience and common sense to evaluate the totality of the circumstances – my attire, my demeanor, the fact that most armed criminals don’t carry openly, etc. – and take action on that basis, rather than on the basis of a paranoid fear of armed citizens which they evidently share with those who called upon them.
Public Duty – RSA 627:2
Given the fact that there was no violation of the law taking place or reasonably suspected when I was seized, the officer’s use of physical force was not authorized by law, and thus does not fall under the exemptions offered to public servants by this section of New Hampshire law.
The irrational concern expressed by others at the mere sight of a well-dressed individual openly carrying a firearm “near the children’s section” has no legal standing, and does not afford any credible justification. Another’s belief in “evil gun radiation” has no bearing on law or reality.
Physical Force in Law Enforcement – RSA 627:5
This statute provides that “[a] law enforcement officer is justified in using non-deadly force upon another person when and to the extent that he reasonably believes it necessary to effect an arrest or detention or to prevent the escape from custody of an arrested or detained person, unless he knows that the arrest or detention is illegal…”
Again, the officer should have known, and can reasonably be expected by a court and a jury to know, that there was no legal justification for seizing and detaining me under the laws of New Hampshire, and his detention of me was therefore illegal and unjustified.
Fourth Amendment
My Fourth Amendment right against unreasonable seizure was violated, as there was no reasonable basis to believe, given the totality of circumstances and New Hampshire law, that a violation of the law was underway or planned before I was grabbed by the officer.
Defamation of Character
The seizure of my person under false and illegal pretenses, being ordered to place my hands on my head, and my being escorted from the store by a crowd of police officers had a clear and unmistakable tendency to expose me to public hatred, contempt, or ridicule[3] by all the patrons of the store who witnessed the incident, and by anyone who might read about the incident in the newspaper were it to be reported in the media’s usual breathless and inflammatory style.
Conclusion
I understand that your officers often face difficult, dangerous, and demanding situations, and that they must conduct themselves in such a way as to minimize the risk they face while carrying out their duties.
However, this necessity to minimize risk does not override the fundamental right guaranteed to all citizens of this State and Nation to be free from arbitrary exercise of the police power while lawfully going about their business.
If they had approached me, I would have greeted them politely. If they had requested that I tuck my shirt over my firearm due to the irrational concern expressed by other patrons of the store, I would have politely complied.
Even if they felt the need to have one officer sneak up behind me, ready to tackle me, while another officer engaged me in conversation, that would have been fine too.
But to have their first interaction with me be an ambush, to find myself grabbed and restrained for no justifiable reason while peaceably going about my business, is far beyond the pale. And to then be subjected to a condescending interrogation about my choice to exercise my fundamental human right to carry a firearm for the defense of myself and my family was even more irritating, in light of the fact that I’ve undergone about half a dozen federal background checks and fingerprinting in the process of obtaining my CCW cards.
Whether or not your officers and detectives realize it, and whether or not you even like it, the armed citizen in New Hampshire is your ally and friend in the endless struggle against dangerous criminals. We are part of the reason that the violent crime rate in New Hampshire (175.4 per thousand[4]) and Vermont (113.5 per thousand) is a fraction of that of Massachusetts (476.1 per thousand), a state where women living in a town with an at-large serial rapist must go begging to the police for pepper spray. Thomas Paine expressed this principle eloquently, saying:
“...arms like laws discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. ... Horrid mischief would ensue were the law-abiding deprived of the use of them; ...the weak will become a prey to the strong.”[5]
There are far too many instances – as I’m sure you are well aware – where the weak, deprived by law of effective tools for self-defense, have fallen prey to the strong, such as the Manchester high school girls who were brutally raped in recent weeks.
Just have a look at page A8 of the March 29 Union Leader, and every month, for crimes prevented or ameliorated by armed citizens.
Reflecting on the incident the following morning, I realized that I had forgotten Massad Ayoob’s point that sheep can’t tell the difference between the sheep-dog and the wolves, even though the sheep-dog would risk his life to save the sheep from hungry wolves.
I realize that some of the patrons of Barnes & Noble thought of me as a wolf, rather than a sheep-dog, and reacted accordingly by calling in the authorities. Needless to say, I will be careful to carry my firearm more discreetly in the future to avoid spooking the sheep.
However, I expect better discernment from fellow sheep-dogs.
I have not yet decided whether or not to file a lawsuit on the basis of the aforementioned violation of my rights and New Hampshire law. If I do, I will copy you on the service as a courtesy.
Thank you for your attention to this matter, Captain xxxxxxx. If you wish to discuss this matter further in a meeting, please feel free to contact me at the phone number indicated on the first page, or via e-mail at mvpel@yahoo.com, and we can arrange something.
Sincerely, Michael Pelletier.
-------------------------------------------------
[1] New Hampshire Constitution, Article 2-a
[2] 720 ICLS 5(a)(10), unlawful use of weapons.
[3] RSA 644:11, Criminal Defamation
[4] Federal Crime Statistics, 2000 - http://www.disastercenter.com/crime/macrime.htm http://www.disastercenter.com/crime/nhcrime.htm
[5] Thoughts On Defensive War, (1775) in 1 Writings of Thomas Paine, at 56, M. Conway ed
I've retained firearms attorney Penny S. Dean, up in Concord, for some assistance in obtaining the 911 call records - apparently they need to see legal letterhead before they will save them from their scheduled destruction 25 days hence, and a subpoena for copies of them.
I've been taking a sound beating over on The High Road thread for my Condition White screwup, and it's a well-deserved one. If I wanted to get absorbed in a book, I should have had my butt in a chair or my back to the wall, or have kept my jacket on. I won't be forgetting that lesson anytime soon. I'll probably also take a retention course at some point in the near future.
The letter was delivered to Capt. Mara and the officers involved in the response on Wednesday, March 31, and I have yet to hear back from any of them. We figure we'll give them a reasonable amount of time to respond, and then fire off a few more letters if necessary.
The letter is planned for publication in the next issue of the GO-NH (Gun Owners of New Hampshire) newsletter, and I have sent copies of it to Mark Steyn, Vin Suprynowicz, and the Manchester Union Leader, among others.
I'm also planning a copy to the chair of the Public Safety Committee up in Concord, as the opponents to the SB454 concealed carry reform bill unanimously claimed - as part of their opposition to the bill - that open carry is legal and "no problem."
I'm looking into forming a legal fund, as I've had several people inquire about it. I'll keep folks posted as the situation develops.
You will succeed in changing some minds at the police department, since you don't come across as a habitual complainer or a whiner.
After all, the "us" versus "them" mentality does not help anyone; the extremists on both sides create unnecessary friction between the citizenry and the police.
This topic is explored in detail in Chris Rock's magnum opus How To NOT Get Your A** Kicked By the Police. [WARNING: Strong (and hilarious!) language.]
Hat-Trick
Most of them, and most all of their chiefs and sheriffs, would just as soon have us unarmed and dependent on them for our personal safety - you know - just dial 911.
Within limits, no real argument from me.
In any case this has been a very educational thread for me in two respects: I was unaware Jeff Cooper's definition of hoplophobia was archived at Brassroots and this is the first I've heard of "The Highroad.org".
I was also unaware "armed to the terror of the public" was not a universal concept.
I will follow your adventures with interest. By all means expose the mechanics of such an incident(911 tapes etc) as much as possible,we can all learn from such encounters.
As you or your lawyer are probably aware, there are provisions for personally suing LEO's who "act outside of statute" and it is possible you have a case for such relief.
It need not be excessively punitive, but certainly cautionary for the individuals involved. The detectives, for example, may need to rethink their impromptu seminars on the right of taxpayers to carry-open or concealed.
Best regards,
This is not correct. Unless you are arrested he has to give your gun back at the scene.
GC §411.207. AUTHORITY OF PEACE OFFICER TO DISARM. A peace officer who is acting in the lawful discharge of the officer's official duties may disarm a license holder at any time the officer reasonably believes it is necessary for the protection of the license holder, officer, or another individual. The peace officer shall return the handgun to the license holder before discharging the license holder from the scene if the officer determines that the license holder is not a threat to the officer, license holder, or another individual and if the license holder has not violated any provision of this subchapter or committed any other violation that results in the arrest of the license holder.
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