Tag Archives: Fourth Amendment

Airport Rules Changed After Ron Paul’s Aide Is Detained

An angry aide to Rep. Ron Paul, an iPhone and $4,700 in cash have forced the Transportation Security Administration to quietly issue two new rules telling its airport screeners they can only conduct searches related to airplane safety.

In response, the American Civil Liberties Union is dropping its lawsuit on behalf of Steve Bierfeldt, the man who was detained in March and who recorded the confrontation on his iPhone as TSA and local police officers spent half an hour demanding answers as to why he was carrying the money through Lambert-St. Louis International Airport.

The new rules, issued in September and October, tell officers “screening may not be conducted to detect evidence of crimes unrelated to transportation security” and that large amounts of cash don’t qualify as suspicious for purposes of safety.

“We had been hearing of so many reports of TSA screeners engaging in wide-ranging fishing expeditions for illegal activities,” said Ben Wizner, a staff lawyer for the ACLU, pointing to reports of officers scanning pill-bottle labels to see whether the passenger was the person who obtained the prescription as one example.

He said screeners get a narrow exception to the Fourth Amendment, which prohibits unreasonable searches, strictly to keep weapons and explosives off planes, not to help police enforce other laws.

TSA has repeatedly bumped heads against civil libertarians, who argue officers overstep their authority.

The directive tells screeners that “traveling with large amounts of currency is not illegal,” and that to the extent bulk quantities of cash warrant searching, it is only to further security objectives, the ACLU said.

The ACLU sued in June on behalf of Mr. Bierfeldt, who was detained after he sent a metal box with $4,700 in cash and checks through an X-ray machine at the airport.

He had the cash as part of his duties as director of development for the Campaign for Liberty, the offshoot group that Mr. Paul, Texas Republican, created from his presidential bid.

Mr. Bierfeldt recorded audio of the confrontation on his iPhone, including threats, insults and repeated questions about where he obtained the money.

“Are you from this planet?” one officer told him, while another accused him of acting like a child for asking what part of the law forced him to answer their questions about the money.

Some civil liberties activists speculate that TSA wants passengers to be uncertain about its procedures because it gives more power to the authorities in an encounter.

Federal Judge Rules Police Cannot Detain People For Openly Carrying Guns

On September 8, 2009, United States District Judge Bruce D. Black of the United States District Court for New Mexico entered summary judgment in a civil case for damages against Alamogordo, NM police officers.  The Judge’s straight shootin’ message to police:  Leave open carriers alone unless you have “reason to believe that a crime [is] afoot.”

The facts of the case are pretty simple.  Matthew St. John entered an Alamogordo movie theater as a paying customer and sat down to enjoy the movie.  He was openly carrying a holstered handgun, conduct which is legal in 42 states, and requires no license in New Mexico and twenty-five other states.  Learn more here.

In response to a call from theater manager Robert Zigmond, the police entered the movie theater, physically seized Mr. St. John from his seat, took him outside, disarmed him, searched him, obtained personally identifiable information from his wallet, and only allowed him to re-enter the theater after St. John agreed to secure his gun in his vehicle.  Mr. St. John was never suspected of any crime nor issued a summons for violating any law.

Importantly, no theater employee ever ordered Mr. St. John to leave.  The police apparently simply decided to act as agents of the movie theater to enforce a private rule of conduct and not to enforce any rule of law.

On these facts, Judge Black concluded as a matter of law that the police violated Matthew St. John’s constitutional rights under the Fourth Amendment because they seized and disarmed him even though there was not “any reason to believe that a crime was afoot.”  Judge Black’s opinion is consistent with numerous high state and federal appellate courts, e.g., the United States Supreme Court in Florida v. J.L. (2000) (detaining man on mere report that he has a gun violates the Fourth Amendment) and the Washington Appeals Court in State v. Casad (2004) (detaining man observed by police as openly carrying rifles on a public street violates the Fourth Amendment).

Mr. St. John’s attorney, Miguel Garcia, of Alamogordo, NM was pleased with the ruling and look forward to the next phase of the litigation which is a jury trial to establish the amount of damages, and possibly punitive damages.  Garcia said that

“[i]t was great to see the Court carefully consider the issues presented by both sides and conclude that the U.S. Constitution prohibits the government from detaining and searching individuals solely for exercising their rights to possess a firearm as guaranteed by our state and federal constitutions.”

Notably, Judge Black denied the police officers’ requested “qualified immunity,” a judicially created doctrine allowing government officials acting in good faith to avoid liability for violating the law where the law was not “clearly established.”  In this case, Judge Black concluded that

“[r]elying on well-defined Supreme Court precedent, the Tenth Circuit and its sister courts have consistently held that officers may not seize or search an individual without a specific, legitimate reason. . . . The applicable law was equally clear in this case. Nothing in New Mexico law prohibited Mr. St. John from openly carrying a firearm in the Theater.  Accordingly, Mr. St. John’s motion for summary judgment is granted with regard to his Fourth Amendment and New Mexico constitutional claims. Defendants’ motion for summary judgment is denied with regard to the same and with regard to qualified immunity.”

Judge Black’s opinion and order is welcome news for the growing number of open carriers across the United States.  Though police harassment of open carriers is rare, it’s not yet as rare as it should be – over the last several years open carriers detained without cause by police have sued and obtained cash settlements in Pennsylvania, Louisiana, Virginia (see additional settlement here), and Georgia.  More cases are still pending in Ohio, WisconsinMichigan, and Pennsylvania.

Judge Black’s opinion and order can be read here.


They Carry Guns


Below is the beginning of the Cover Story in San Diego Weekly Reader. I think it is well worth the read!

It’s a beautiful day in Pacific Beach as Nate approaches the bronze pelican statue on the boardwalk. He’s slight and blond, spectacled and clad in jeans and an army-green T-shirt. He squints. The sun’s so bright overhead that he is prompted to spray a fine mist of sunblock over his fair skin to stave off a burn.

I’ve never met Nate before, but I know it’s him (a) because I’ve seen his picture and (b) due to the handgun that sits on a holster against his hip. I’m about to get up from where I’m sitting and introduce myself when someone else beats me to the punch. A scraggly-looking beachgoer, a man of indeterminable age because he is so weather-beaten, approaches.

“What’s that for, bro?” he asks, pointing in the direction of Nate’s gun, a Taurus Tracker .44 Magnum revolver.

Before Nate can answer, the man continues.

“There are surfers at the beach looking to party, and you show up with that? That’s not right. Love life! Be mellow!”

This is when I walk up and introduce myself. The beachgoer looks at me for a moment with wild blue eyes, then looks back at Nate, as Nate is beginning to explain what he will have to reiterate time and time again to concerned and/or interested parties: he is open carrying

The term “open carrying” refers to one who is in possession of a holstered, unloaded firearm on his or her person, displayed in plain view. Nate begins to explain the legalities of this to the beachgoer when Sean approaches, video camera in tow. In shades, a green shirt with double-breast pockets, green cargo pants, and a Sig Sauer P229 holstered on his hip, Sean looks not unlike a police officer.

The beachgoer does a double take.

“Another one!” he exclaims, as Sean greets us warmly.

The beachgoer, incredulous, excuses himself — with one final stare — to go “get baked.”

Soon we are joined by a third open carrier, Sam, who is Nate’s older brother. He’s a tall fellow in jeans and a T-shirt, and his gun, a Glock 17C 9mm semiautomatic pistol, sits squarely in a black holster, handle well visible against the blue of his shirt.

And now it’s my turn.

As the others deal with the beachgoer, who has returned, Nate and I take off to his car, where he removes from the depths of his trunk a silver handgun with a wooden handle. This is a Ruger Single Six .22 revolver, he tells me, as he slides it into the borrowed holster I have fixed to my belt. The gun is surprisingly heavy, nestled just below my waistline.

Back at the boardwalk, it seems that Sam and Sean are getting nowhere with the beachgoer, so we prepare to head out.

First, I am given instructions on what to do if approached by the police. I brace myself as Nate explains.

“What’s going to happen is, they’re going to want to do a 12031(e) unloaded check,” he begins. “They’ll say they want to check your weapon. You say, ‘Are you requesting or demanding?’ If they say, ‘Demanding,’ you say, ‘I don’t consent to any warrantless searches. But I’m not going to resist.’ And then you stick your hands out, they check your weapon, and it’s done.”

Sounds easy enough, I figure. I’ve got my tape recorder ready, as open carriers are urged, via websites like OpenCarry.org, to keep recording devices on them while carrying to capture any interactions with police (and civilians) they might have in case their rights are infringed upon.

“You don’t have to answer any other questions. You don’t have to give them your ID,” Sam instructs. “It’s technically an illegal search under the Fourth Amendment. The Fourth Amendment says you have protection against unreasonable search and seizure. If there’s a woman pushing a baby stroller down the boardwalk, that does not give the police the right to check if the kid is kidnapped. So if you’re in full compliance with the law, minding your own business, they technically don’t have the right to stop you to check if your weapon is unloaded or loaded.”

Open carrying, Nate explains, is legal in San Diego and the rest of California.

“[The law says] you can’t carry a loaded gun in an incorporated area,” he says. “This is an incorporated area.”

“Because San Diego is a corporation,” Sam chimes in.

“So then, [the law] says, ‘Firearms carried openly in belt holsters are not concealed within the meaning of this section,’ ” Nate continues, referencing California Penal Code Section 12025(f), which outlines the illegality of concealed carrying and what is and is not considered a concealed firearm.

“So there you have that,” Nate continues. “And then case law says that ammo next to the gun is not considered loaded. So, basically, you start out with a great idea and it gets detracted down to what we have now.”

The nuances of gun laws in California, I find, are difficult. For example, concealed carrying is not legal in San Diego (and all of California) without a permit — that much is abundantly clear — and neither is carrying a loaded gun. Having ammunition situated next to a firearm, however, does not amount to “loaded,” meaning that Nate, Sean, and Sam can carry full magazines on their belts.

The legalities involving open carry are dizzying, the restrictions numerous. One cannot open carry 1,000 feet from a school, for instance, or in the “sterile area” of an airport or in a post office or a national park (though it is legal in a national forest).

And then there’s the somewhat sticky issue of the Second Amendment.

“Instead of [the Bill of Rights] being automatic, they did amendment-by-amendment incorporation,” Sam explains. “So now practically all the amendments have been incorporated against the states except the Third, because nobody’s tried to quarter soldiers in [anyone’s] house, and the Second, because it hasn’t happened yet.” By “incorporated against the states,” Sam means that the U.S. Supreme Court has not ruled that the amendment applies to the states.

So if it’s such a hassle, why open carry?

As we walk, the trio explains.

For Sam, 39, who works from home studying “history and behavioral economics independently and try[ing] to figure out what’s going to happen next before everyone else,” it’s mostly about constitutional freedom, a cause he says he’s felt strongly about since childhood. He’s been open carrying for about seven months and heard about it through Nate and Calguns.net, a popular online meeting place for California gun owners and enthusiasts.

“I really believe, and I think that most thinking people believe, that we are slowly losing our freedoms in this country,” he says. “Everything’s become more and more restricted, and nobody seems to know what to do about it. If we would just get back to following the Constitution, America would again be the place it was intended to be, the place where everybody wanted to come. This whole open-carry movement, for me, is really about more than just guns; it’s about liberty and what it means to be a free man.”

Nate, a 22-year-old human biology student, voices another issue: the lack of CCW (concealed-carry weapon) permit issuance. A concealed-weapon license allows one to have a concealed weapon on his or her person. In California, Nate says, concealed-weapon licenses are most commonly issued to lawyers, jewelers, and traveling doctors.

“I knew I wasn’t going to get a CCW permit. I’m not important enough — I don’t make enough money, I don’t have a good enough ‘cause,’ according to California — so I said, ‘Well, I guess I’ll just start open carrying,’ ” he says. “Another reason I started doing it is that it’s a political statement. I’m not important enough for my right to self-defense, so what we do is we just take it out in the open. This is what we have to do.”

Nate has been open carrying for about a year and heard about it on Calguns.net.

“I just started doing it,” he says. “Read[ing] up, whatever I could do.”

Sean, a 32-year-old senior systems engineer, chimes in.

“I’ve always been somewhat of a gun-rights activist,” he says. “I’m really in it more for the activism more than anything else. I’ve noticed that a lot of the guys are younger, and the police seem to react differently to folks who are in their 30s than to folks that are in their 20s. So I feel it’s a good idea to keep the reactions moderated a little bit.”

Sean has been open carrying for about a year, he says, and is also an active member of Calguns.net.

Most of the response the trio has gotten while open carrying has been positive.

To read the rest of this great article, please go to http://www.sandiegoreader.com/news/2009/jul/15/cover/