Federal judge rules concealed carry is probable cause of criminal activity

[RXtion]

http://www.examiner.com/x-5619-Atlanta-Gun...iminal-activity

 

 

Northern District of Georgia federal judge Thomas W. Thrash Jr. ruled today that carrying a firearm on MARTA justifies forcible detention by the police, in a federal civil rights lawsuit filed over the half hour long detention and disarmament of GeorgiaCarry.Org member Christopher Raissi.

 

Judge Thrash also held that merely carrying a concealed firearm justifies detention and disarmament. He wrote in his opinion that "possession of a firearms license is an affirmative defense to, not an element of, the crimes of boarding [MARTA] with a concealed weapon and carrying a concealed weapon."

 

"After Raissi concealed his handgun and started walking to toward the MARTA station, he had committed all of the acts required for the crime of boarding with a concealed weapon and the crime of carrying a concealed weapon."

 

As a result, Judge Thrash concluded that the officers had reasonable suspicion that Raissi was committing two crimes. As a result, the officers were justified in using force to detain him, and the "officers were entitled to take Raissi's handgun because they knew Raissi had concealed it on his person and would have easy access to it while they questioned him." The officers were also entitled to ask him for his social security number and transport him to a locked area out of the public view.

 

Judge Thrash was reluctant to rule on the issue of carrying firearms openly, rather than concealed, on MARTA, because Raissi was carrying his handgun concealed. Instead, he held that such relief is inappropriate until a GeorgiaCarry.Org member sues for constitutional violations while carrying openly at some future date. Judge Thrash recognized that Georgia opinions in cases involving "the separate and distinct crime of carrying a pistol without a license" observe that "the statutory language requires absence of the firearms license as an element of the crime." This makes carrying a handgun openly different from carrying concealed, as the officers seeing an open handgun bear the burden of having a reasonable suspicion that the person carrying openly does not have a firearms license. Carrying openly on MARTA under this court's ruling, however, would still subject one to detention and disarmament, since boarding the MARTA system requires a license as an "affirmative defense," and not as an "element of the crime."

 

Judge Thrash held for trial Raissi's Privacy Act claim, based on the demand for Raissi's social security number. He refused to rule on the request that MARTA be enjoined from requesting social security numbers because MARTA stated that it no longer demands social security numbers of those who provide firearms licenses. "It seems very unlikely that members of GeorgiaCarry.Org would carry a Georgia firearms license but then refuse to provide it to MARTA police officers."

 

John Monroe, Christopher Raissi's attorney, expressed disappointment with the opinion and declared that if the opinion stands its effects will be felt far beyond MARTA:

 

"The decision means everyone see carrying a firearm in any place that is prohibited without a license is subject to stop, arrest, and prosecution, even if they have a license. Anyone carrying a firearm in a restaurant that serves alcohol or a state park is fair game. The same goes for police officers. A police officer carrying a firearm in a restaurant, bar, or school is subject to arrest, including a citizen’s arrest, because being a law enforcement officer is an affirmative defense and not an element of the crime."

 

Mr. Monroe has not yet decided whether to appeal, but observed that such a decision would probably not be made until the entire case is over, including the trial on the Privacy Act claim.

 

 

 

 

:Angry!:

[Ocellairs]

....reading material.

[w00dc4ip]

Not a lawyer but...

Having just read the complaint and order, I see nothing wrong with the judges ruling. I'm curious what you might see wrong with it.

 

The facts of the case seem to be that a police officer saw a man (Plaintiff Raissi) park his car, retrieve a handgun in a holster from his trunk, attach the holster to his jeans and cover it with his shirt so as to conceal the holstered firearm. The officer radioed for backup, and when backup arrived the officers temporarily removed the firearm from Raissi's possession, they asked him to provide identification information (a little too much including the Social Security number, part of the lawsuit that is moving forward and will probably result in a ruling for the Plaintiff) and display his carry license (GFL), which he did. Once they had verified that he had no "wants and warrants" and the GFL was valid, they then took him somewhere out of public view so that they could return his firearm to him and he could re-holster his firearm out of view of the public. The only disputed fact in the case is how long the encounter lasted, 10 minutes or 30 minutes. Either way, it wasn't an egregious amount of time.

 

I guess my question is what you believe officers should do when they see someone pull what appears to be a loaded firearm from the trunk of their car and holster it, conceal it, and then attempt to board public transportation. In Georgia, it is a crime to concealed carry a firearm, and it is a crime to board public transportation with a concealed firearm. There is an exemption to the criminal status of those two actions, and the exemption is possession of a valid GFL. The officers had no way of knowing if Raissi had a valid GFL until they stopped him and asked. They assumed they witnessed a criminal act, investigated, determined that they hadn't witnessed a criminal act, and let Raissi continue on his way. Where is the harm other than a temporary delay to Raissi and asking for a little too much identifying information during the investigation (which I agree was over the top and should result in a ruling for the plaintiff).

 

I realize it would be a pain to constantly have to go through verification like this, but there is no other way for an officer to determine who is carrying legally and who is carrying illegally. If it became common practice for officers to stop everyone and check if they were carrying, and then verifying the status of anyone found carrying, I could see that as an illegal policy. In this case, I'm not so sure. If we all had true constitutional carry and anybody who could legally walk the street could also legally carry open or concealed, then this could be seen as a violation. However, as the laws are written now, everyone seems to have done the "right" thing, with the exception of the SS number request.

[lockman]

Not a lawyer but...

Having just read the complaint and order, I see nothing wrong with the judges ruling. I'm curious what you might see wrong with it.

 

Only that once established that he has a valid permit, the encounter should be over, firearm returned and allowed entry onto MARTA. Based on the judges reasoning this incident would have been avoided if the subject was openly carrying. I do not understand this ruling from the perspective that it is a violation of your rights to be pulled over solely to check if you have a drivers license yet driving is a privilege. Based on this ruling you can be pulled aside and detained for lawfully carrying a firearm because it requires a license, which in Washington is a right with shall issue.

[lockman]

I realize it would be a pain to constantly have to go through verification like this, but there is no other way for an officer to determine who is carrying legally and who is carrying illegally.

 

If you agree with the above statement aren't you are in favor of stop and ID requirements?

 

Can an LEO stop you on the street and detain you for the following:

 

To check if you are wanted or have warrants?

 

To make sure you are not behind on your child support?

 

To make sure the pill you just took is aspirin and not an illegal substance?

 

May I see your papers please?

 

What bothers me the most about this ruling is the fact that the judge basically rules that even after your exemption is known, that does not remove the threat of arrest, detention, incarceration and the possibility of a hearing or trial. It is good that police officers enjoy no extra legal protections against arrest for this non-offense (Even when on duty). As the article alludes I can see Gomer yelling "Citizens arrest! Citizens arrest!"

[w00dc4ip]

Only that once established that he has a valid permit, the encounter should be over, firearm returned and allowed entry onto MARTA.

As far as I read in the accounts of the plaintiff and officers, that is what happened. The only extra thing is the police radioed the information in to make sure the GFL was valid.

 

Based on the judges reasoning this incident would have been avoided if the subject was openly carrying.

That seems to be what I read as well.

 

I do not understand this ruling from the perspective that it is a violation of your rights to be pulled over solely to check if you have a drivers license yet driving is a privilege. Based on this ruling you can be pulled aside and detained for lawfully carrying a firearm because it requires a license, which in Washington is a right with shall issue.

There is a slight difference here. It is a specifically defined crime in Georgia to (a) concealed carry a firearm and ( board public transportation while concealed carrying a firearm. Possession of a valid GFL is an exemption to the criminal status of those two activities. The officers in question didn't randomly stop someone, search, find a weapon, and then ascertain that the plaintiff had a GFL. The officer witnessed the plaintiff commit actions that fit two specifically defined crimes, albeit crimes that have an exception (the GFL), and then took steps to make sure the person they witnessed committing the possibly criminal actions fit the exception. I see the comparison with driving without a license, but I'm not sure it is a violation for an officer to pull a car over for a status check. If that was the case, what is the exception for DUI or seatbelt-check roadblocks, where everyone or random cars on a specific road are pulled over for just driving, and they are checked for license, insurance, seat belt, and DUI? I'm not saying that is "right" either, but at the current time it seems to be within the scope of the law, and it would probably take a few SCOTUS cases to change that (or one really good ruling on the P&I grounds of McDonald v. Chicago).

 

Filpping the coin a little, I'm curious, if the plaintiff had turned out to be a previously convicted rapist wanted for murder and he was making the same legal challenge to the "stop, search and ID," would your outrage at the ruling be the same?

 

 

What bothers me the most about this ruling is the fact that the judge basically rules that even after your exemption is known, that does not remove the threat of arrest, detention, incarceration and the possibility of a hearing or trial.

Nothing ever removes that threat. I could be arrested, detained, incarcerated and tried for sitting here typing on my keyboard right now, or more realistically, for being in the area where a crime was committed and fitting the description of the suspect, even though I committed no crime. However, if I was detained for longer than it took to determine that I had not committed a crime, I would most likely be entitled to some relief and punitive damages from the officers and department that arrested me when I clearly did nothing wrong.

 

It seems to me the judge indicated in the order that had the "detention" of the plaintiff gone beyond the scope of what was described in the law suit, there may have been a violation of his 4th Amendment rights. A good portion of the order essentially seemed to indicate that the police stopped and questioned someone and when they determined that no crime was being committed, they moved on. If they had arrested the plaintiff, or confiscated his weapon for longer than it took to determine that he was within the scope of the law, there could have been a 4A violation. I'm not sure it was an illegal search either, as the officer had witnessed the plaintiff place the holstered gun in his waistband, he didn't randomly search and find it or witness a "bulge" and investigate. As it is, the officers and MARTA are still facing a portion of the suit for demanding the plaintiffs SS number in the wrong manner.

 

See Above first...

 

I agree it is wrong for "stop and ID" to be allowed.

I agree that we should all be able to carry openly or concealed without having to be licensed by the state.

I agree that the simple act of carrying a defensive firearm should not be a crime. Hopefully, eventually, we will get to that point.

I'll even take it a step further and say that anyone society considers safe enough to be walking the streets, including previously convicted felons, should be able to legally possess and carry defensive firearms. If a felon is still considered a danger, they should still be incarcerated. Early release on "parole" prior to the completion of the sentence for what primarily seems to be state or prison budgeting reasons shouldn't happen. If they've "served their time" and are no longer being punished, then they shouldn't be punished by having any of their rights removed either (this aspect, however, is a discussion for a later day).

 

That said, as the law is written right now, everyone involved in this case seems to have acted within the scope of the law (with the exception of the privacy act / SS number portion) and the judges order seem to be consistent with that. The police may have acted a little more hostile than they needed to, or they may have acted perfectly appropriately, we'll never know for sure but we'll never know for sure about the plaintiff's actions or intentions either. Keep in mind that at the time of the incident, the police had no idea the plaintiff was a member of GeorgiaCarry, and they had no idea if he had just murdered someone and had a body sitting in the trunk of the car he just left. They witnessed someone conceal a gun and enter a MARTA station. Maybe simply carrying a concealed firearm shouldn't be a crime, but unless he had a GFL, it is and the officers had reasonable enough suspicion to investigate further. They also had every right/power to disarm the plaintiff for their own safety during the questioning. If the unchallenged court filings are accurate, the plaintiff was not "removed from public to a locked area" until the officers were returning his firearm to him. As far as I can tell, that was a courtesy to the plaintiff as much as it was a safety measure for the public. Presumably, he carried concealed so that others would not know he was carrying, and if the officers returned his firearm to him in public view there was the possibility of several witnesses.

 

Cases like this need to happen and this one seems to have been resolved as it should have been. Maybe this case will serve as a warning to police and MARTA that GeorgiaCarry members will challenge actions like this every time, and maybe it will embolden police to search when they have a less "reasonable" suspicion next time, only time will tell.