Federal judge rules police cannot detain people for openly carrying guns

[SC-Texas]

Score one for gun owners!

Federal judge rules police cannot detain people for openly carrying guns
[url]http://www.examiner.com/x-2782-DC-Gun-Rights-Examiner~y2009m9d9-Federal-judge-rules-police-cannot-detain-people-for-openly-carrying-guns[/URL]

September 9, 10:16 PM

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 Mexico and twenty-five other states.

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

"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, and Georgia. More cases are still pending in Ohio, Wisconsin, and Pennsylvania.

Judge Blak's opinion and order can be read here.
[url]http://opencarry.mywowbb.com/attachment.php?id=7856[/URL]


NOTE: Mathew St. John's attorney, Miguel Garcia, is an associate at John R. Hakanson PC, 307 11th St., Alamogordo, NM 88310 and can be reached at Miguelo.Garcia AT gmail.com.

 

[SC-Texas]

MEMORANDUM OPINION AND ORDER​

This matter comes before the Court on cross motions for summary judgment filed by
Plaintiff (Doc. 37) and Defendants (Doc. 39). For the reasons set forth below, both Plaintiff's and
Defendants' motions for summary judgment are GRANTED in part and DENIED in part.​

Factual and Procedural Background​

This is a 42 U.S.C. § 1983 cas​

1e brought by Plaintiff Matthew St. John after he was
escorted out of the Aviator 10 Movie Theater in Alamogordo ("Theater") and patted down.
Defendants, including David McColley, are Alamogordo police officers who were dispatched to
the Theater in response to a call from Theater manager Robert Zigmond. Upon arrival, Mr.
Zigmond informed Officer McColley that an individual, later identified as Mr. St. John, had
entered the Theater wearing a holstered handgun. Mr. Zigmond directed Officer McColley to the
theater where Mr. St. John was watching a movie and requested that Officer McColley "pull him
out" because Mr. St. John's firearm was "making [Mr. Zigmond's] customers upset." McColley
Depo. 10:18-10:20.​

Case 6:08-cv-00994-BB-LAM Document 48 Filed 09/08/2009 Page 1 of 16​

2 One training guide for law enforcement officers describes the escort hold as a technique used
to safely initiate physical contact with a subject. With one hand, the officer grips above the
elbow of the subject's dominant arm and,with the other hand, grips the subject's wrist. The
officer then pulls the subject's hand and wrist toward the officer's center. The officer may then
move the subject by stabilizing the subject's elbow and pushing forward on the subject's
forearm and wrist. Wisconsin Department of Justice Law Enforcement Standards Board,​

"Defensive and Arrest Tactics: A Training Guide for Law Enforcement Officers"​

​

(March
2007).
2
Officer McColley entered the crowded theater accompanied by three other Defendants
and, after Mr. Zigmond pointed Mr. St. John out, asked Mr. St. John if he was carrying a firearm.
Mr. St. John replied that he was, whereupon Officer McColley instructed Mr. St. John to "keep
your hands where I can see them." McColley Depo. 10:18-10:20. Officer McColley told Mr. St.
John that he needed to accompany Defendants out of the theater. After Mr. St. John stood up,
Officer McColley removed Mr. St. John from the Theater in an escort hold2, securing Mr. St.
John's left arm. According to Officer McColley, one of the other three Defendants may have
secured Mr. St. John's right arm as he was led out of the Theater. McColley Depo. 15:10-15:13.
Once outside, Officer McColley continued to restrain Mr. St. John's left arm while
Defendants removed the gun from Mr. St. John's holster, removed the gun's magazine and cleared
a chambered bullet. Defendants then instructed Mr. St. John to place his hands on a nearby wall
and proceeded to pat him down. No contraband or additional weapons were found on Mr. St.
John and a police database check revealed that he possessed the gun lawfully.
Having taken the weapon, Officer McColley informed Mr. St. John that he could return to
the movie if he left the gun in his truck. Mr. St. John agreed and led officers to his truck, where
they placed the unloaded gun. Mr. St. John reloaded and recocked the weapon before leaving it in
the truck and returning to the Theater for the remainder of the movie. Throughout the incident,​

Case 6:08-cv-00994-BB-LAM Document 48 Filed 09/08/2009 Page 2 of 16​

3
which Mr. St. John estimates took approximately thirty minutes, St. John Depo. 118:22, Mr. St.
John was, as Officer McColley recalls, "respectful and cooperative." McColley Depo. 16:14.
In September 2008, Mr. St. John filed suit in New Mexico state court alleging Fourth
Amendment violations, violations of the New Mexico Constitution, battery, and false arrest. He
asserts his federal claims under 42 U.S.C. § 1983 and his state-law claims under the New Mexico
Tort Claims Act. Based​

inter alia on 28 U.S.C. § 1331 and 28 U.S.C. § 1441, Defendants
removed this matter in October 2008. Discovery commenced and, in May 2009, both parties filed
summary-judgment motions averring that no genuine issues of material fact exist. Mr. St. John
seeks an entry of judgment in his favor on all counts. Defendants assert both that Mr. St. John
has no cognizable claims and that Defendants are protected from suit by qualified immunity.
Both motions are presently before the Court.​

Standard of Review​

Summary judgment is appropriate only "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law." Fed. R. Civ. P. 56(c). In addressing the parties' motions, the Court must "view the
evidence and draw reasonable inferences therefrom in the light most favorable to the non-moving
party."​

Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Serv., 165 F.3d
1321, 1326 (10th Cir. 1999). The party moving for summary judgment bears the burden of
showing that no genuine disputes over material fact exist. See Adams v. American Guarantee and
Liability Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000); Adler v. Wal-Mart Stores, Inc., 144 F.3d
664, 670 (10th Cir. 1998) (finding that the movant may satisfy his burden by "pointing out to the
court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim"). If
the movant meets his burden, the nonmovant must identify evidence that would enable a trier-of-​

Case 6:08-cv-00994-BB-LAM Document 48 Filed 09/08/2009 Page 3 of 16​

3 Mr. St. John also asserts claims under the New Mexico Constitution's Fourth Amendment
analog, Article II, Section 10. Because Mr. St. John does not ask that—and New Mexico law
does not require—the New Mexico constitutional claims be considered separately from their
federal counterparts, this Court will treat them in tandem, extending its holding on the federal
claims to Mr. St. John’s state-based constitutional claims.​

See State v. Ochoa, 93 P.3d 1286
(N.M. 2004) (analyzing state and federal claims of unreasonable seizure under uniform
standard where litigant did not request otherwise).
4
fact to find in the nonmovant's favor. Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022,
1024 (10th Cir. 1992). Though this case involves cross-motions for summary judgment, each
motion must be considered independently. Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433
(10th Cir. 1979). The denial of one does not require the granting of the other. Id.​

Analysis
1. St. John's Fourth Amendment Claims​

Mr. St. John asserts claims arising from the Fourth Amendment's prohibition on
unreasonable searches and seizures.​

3 The Fourth Amendment applies to the states through the
Fourteenth Amendment's Due Process Clause, see, e.g., Jones v. Hunt, 410 F.3d 1221, 1225 (10th
Cir. 2005), and provides, in part: "The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated . . . . " U.S.
Const. amend. IV. Mr. St. John claims that he was subjected to an unreasonable seizure when
Defendants removed him from the Theater and that he was subjected to an unreasonable search
when Defendants patted him down. In response, Defendants claim that no Fourth Amendment
violation took place and, alternatively, that Mr. St. John's recovery is barred by qualified
immunity.
Because Mr. St. John's Fourth Amendment claims and Defendants' responses require the
Court to begin by determining whether Mr. St. John has stated a viable cause of action, the Court
will do so before turning to qualified immunity.​

Case 6:08-cv-00994-BB-LAM Document 48 Filed 09/08/2009 Page 4 of 16​

5​

St. John's Claim for Unreasonable Seizure​

Mr. St. John contends that Defendants unreasonably seized him by "grabbing his arms
and escorting him out of the movie theater." (Doc. 1, Exhibit 1 at ¶ 21). A seizure under the
Fourth Amendment occurs when "a reasonable person would have believed that he was not free to
leave."​

Michigan v. Chesternut, 486 U.S. 567, 573 (1988) (quoting United States v. Mendenhall,
446 U.S. 544, 554 (1980) (opinion of Stewart, J.)). In determining whether a person has been
seized, this Court employs the factors set forth by the Tenth Circuit in United States v. Hill, 199
F.3d 1143 (10th Cir. 1999). Those factors, which are non-exclusive, see, e.g., United States v.
Griffin, 7 F.3d 1512, 1518 (10th Cir. 1993), require the Court to consider:
1) the threatening presence of several officers; 2) the brandishing of a weapon
by an officer; 3) some physical touching by an officer; 4) use of aggressive
language or tone of voice indicating that compliance with an officer's request is
compulsory; 5) prolonged retention of a person's personal effects . . .; 6) a
request to accompany the officer to the station; 7) interaction in a nonpublic
place or a small, enclosed place; 8) and absence of other members of the
public.​

Fuerschbach v. Southwest Airlines Co.​

​

, 439 F.3d 1197, 1203 (10th Cir. 2006) (citing Hill, 199
F.3d at 1147-8). While no one Hill factor is dispositive, see, e.g., United States v. Glass, 128
F.3d 1398, 1406 (10th Cir. 1997), we begin with Hill in assessing whether a seizure has taken
place. As part of our assessment, we consider the totality of circumstances, but remain aware
that the strong presence of two or three factors may sufficiently demonstrate that a seizure has
occurred. United States v. Shareef, 100 F.3d 1491, 1505 (10th Cir. 1996); Jones, 410 F.3d at
1226.
Applying the Hill factors, it is evident that Mr. St. John was seized. While watching a
movie, Mr. St. John was approached by four armed officers who instructed him to stand up and​

Case 6:08-cv-00994-BB-LAM Document 48 Filed 09/08/2009 Page 5 of 16​

4 Though Officer McColley's​

post-hoc acknowledgment that he would not have released Mr. St.
John does not factor directly into the Court's consideration, it is included here as indicative of
the tenor of Defendants' encounter with Mr. St. John.
6
accompany them out of the Theater. When Mr. St. John rose, Defendants restrained his arm(s)
and led him outside, away from the crowd, where they continued to restrain him until they had
removed his lawfully possessed weapon. At his deposition, Officer McColley testified that, had
Mr. St. John asked Defendants to release him, he "wouldn't [have felt] safe letting [Mr. St. John]
go at that point." McColley Depo. 13:21-4 13:32. While outside, Defendants removed Mr. St.
John's wallet and handgun. They ran a check on the latter and only returned it at the end of their
encounter. Because, from the time that Defendants approached Mr. St. John to the time when
they physically released him, Mr. St. John reasonably believed that he was not free to leave, a
seizure occurred.
But the inquiry does not end there. The Fourth Amendment does not protect individuals
from all seizures—only unreasonable seizures. See, e.g., United States v. Sharpe, 470 U.S. 675,
682 (1985). Under the Fourth Amendment, seizures such as Mr. St. John's, termed investigatory
detentions, are reasonable if they are (1) justified at their inception and (2) reasonably related in
scope to the circumstances which justified the interference in the first place. U.S. v. DeJear, 552
F.3d 1196, 1200 (10th Cir. 2009) (quoting United States v. Johnson, 364 F.3d 1185, 1189 (10th
Cir. 2004)). An investigatory detention is "justified at its inception" if "the specific and
articulable facts and rational inferences drawn from those facts give rise to a reasonable suspicion
a person has or is committing a crime," id. (quoting United States v. Werking, 915 F.2d 1404,
1407 (10th Cir. 1990)), or where officers have a reasonable suspicion that a crime may be afoot.​

Id. See also, e.g., Oliver v. Woods,​

​

209 F.3d 1179, 1186 (10th Cir. 2000); United States v.
Sokolow, 490 U.S. 1, 7 (1989). "nchoate suspicions and unparticularized hunches" are​

Case 6:08-cv-00994-BB-LAM Document 48 Filed 09/08/2009 Page 6 of 16​

Defendants contend that Mr. St. John was about t 5 o commit a crime because, had he refused to
comply with their request that he leave the premises, he would have been trespassing. If
accepted, this argument would significantly erode Fourth Amendment protections. Because
the Court finds no jurisprudential support for Defendants' novel contention, no further
discussion of it is necessary.
​

​

​

​

​

​

​

 

[SC-Texas]

7
insufficient bases for a reasonable seizure. United States v. Lyons, 510 F.3d 1225, 1237 (10th
Cir. 2007).
The undisputed facts establish that Mr. St. John's seizure was unreasonable. Defendants
lacked a justifiable suspicion that Mr. St. John had committed a crime, was committing a crime
or was about to commit a crime. Indeed, Officer McColley conceded that he did not observe Mr.
St. John committing any crimes and that he arrived at the theater with the suspicion that Mr. St.
John was merely "showing a gun", McColley Depo. 14:4, which is not illegal in the State of New​

Mexico.

See N.M. Stat. § 30-7 et seq. Nor was there any reason to believe that a crime was

afoot. When they found him, Mr. St. John was peacefully sitting through the previews for his


second movie of the day. Officers had no reason to believe that Mr. St. John had been, was, or


would be involved in any criminal activity whatsoever.​

5 Candidly, as the Ninth Circuit noted in a

somewhat similar case, one would expect someone engaged in shady business to act in a more


stealthy fashion than Mr. St. John did here. ​

See Duran v. City of Douglas, Arizona, 904 F.2d

1372, 1377 (9th Cir. 1989).


Moreover, Mr. St. John's lawful possession of a loaded firearm in a crowded place could


not, by itself, create a reasonable suspicion sufficient to justify an investigatory detention. For


example, in ​

United States v. Ubiles, 224 F.3d 213 (3rd Cir. 2000), the Third Circuit found that an

individual's lawful possession of a firearm in a crowded place did not justify a search or seizure.


In ​

Ubiles, officers seized Ubiles during a crowded celebration after they received a tip that he

was carrying a gun. ​

Id. at 214. Officers did so even though no applicable law prohibited Ubiles

Case 6:08-cv-00994-BB-LAM Document 48 Filed 09/08/2009 Page 7 of 16​

8


from carrying a firearm during the celebration. ​

Id. at 218. Holding that the search violated

Ubiles' Fourth Amendment rights, the court noted that the situation was no different than if the


informant had told officers "that Ubiles possessed a wallet . . . and the authorities had stopped


him for that reason." ​

Id. Nor, the court continued, could the officers rely on the fact that Ubiles

possessed the weapon while in a crowd. ​

Id. at 219. "[Otherwise], citizens farming under the

open skies of Washington or Vermont would generally have greater Fourth Amendment


protections than their compatriots bustling to work in Manhattan or Boston. As a general


proposition of constitutional law, this cannot be so . . . . " ​

Id.

The Tenth Circuit has also dealt with this question. In ​

United States v. King, 990 F.2d

1552 (10th Cir. 1993) the Tenth Circuit found that an investigatory detention initiated by an


officer after he discovered that the defendant lawfully possessed a loaded firearm lacked


sufficient basis because the firearm alone did not create a reasonable suspicion of criminal


activity. In ​

King, an Albuquerque police officer seized and searched King when, concerned that

King's honking would cause an accident, he approached King's vehicle and observed a loaded


firearm under King's thigh. ​

Id. at 155. Recognizing that King was allowed to carry a loaded,

concealed firearm in his vehicle under New Mexico law, the court explained that—in light of the


legality of King's actions—permitting such detentions would render the Fourth Amendment


functionally meaningless:


In a state such as New Mexico, which permits persons to lawfully carry


firearms, the government's argument [that the officer’s investigatory detention


of defendant was justified by concern for his safety and the safety of


bystanders] would effectively eliminate Fourth Amendment protections for


lawfully armed persons. Moreover, the government's "reasonableness" standard


would render toothless the additional requirement that the scope and duration


of detention be carefully tailored to its underlying justification. For example, if


a police officer's safety could justify the detention of an otherwise lawfully


Case 6:08-cv-00994-BB-LAM Document 48 Filed 09/08/2009 Page 8 of 16​

9


armed person, the detention could last indefinitely because a lawfully armed


person would perpetually present a threat to the safety of the officer.


King​

, 990 F.2d at 1559 (internal citations and quotations omitted).

Defendants nonetheless seek to rely on ​

King in asserting that, if Mr. St. John's seizure was

not justified by reasonable suspicion, it was at least permissable as part of Defendants'


performance of their role as community caretakers. Under the community caretaker exception,


officers may seize an individual in order to "ensure the safety of the public and/or the individual."


Id. ​

at 1560. Such stops are permissible when "articulable facts indicate the need to assure the

safety of the public or the individual being detained." ​

U.S. v. Luginbyhl, 321 Fed.Appx. 780, 783

(10th Cir. April 16, 2009) (unpublished); ​

King, 990 F.2d at 1560.

Defendants' reliance on ​

King is misplaced. Though the King court ultimately found that

King's detention was non-investigatory and could, thus, be justified under the officer's


community caretaker function while he advised King of the hazardous conditions that his


honking created, the ​

King rationale does not apply here because Defendants had no legitimate

reason to engage Mr. St. John in the first place. ​

Id. ("In short, while the safety of police officers

is no doubt an important government interest, it can only justify a Fourth Amendment intrusion


into a person's liberty ​

so long as the officer is entitled to make a forcible stop.") (emphasis

added)).


More broadly, Defendants' actions are not protected by the community caretaker


exception because they had no basis for believing that anyone's safety was at risk. Defendants


simply received a report that an individual was carrying a firearm in a location where individuals


could lawfully carry firearms. They received no indication that Mr. St. John was behaving


suspiciously or in a threatening manner. When Defendants arrived, they found Mr. St. John


Case 6:08-cv-00994-BB-LAM Document 48 Filed 09/08/2009 Page 9 of 16​

10​

​

sitting peaceably in the Theater preparing to watch a movie. They had no basis for believing that​

​

Mr. St. John's use of the weapon was likely to become criminal, cause a public disturbance or​

​

pose a threat to safety. Nor did anyone seem particularly alarmed by Mr. St. John's weapon.​

​

Indeed, the record does not reveal that anyone—including the lone customer who spoke to​

​

Officer McColley about Mr. St. John's gun—was even concerned enough to have left the Theater​

​

as a result.​

​

In sum, Defendants had no reason for seizing Mr. St. John other than the fact that he was​

​

lawfully carrying a weapon in a public place. Because New Mexico law allows individuals to​

​

openly carry weapons in public—and Mr. St. John had done nothing to arouse suspicion, create​

​

tumult or endanger anyone's well-being—there were no articulable facts to indicate either​

​

criminal activity or a threat to safety. Accordingly, Defendants' seizure of Mr. St. John violated​

​

his Fourth Amendment rights.​

​

St. John's Claim for Unreasonable Search​

​

If, during the course of a valid investigatory detention, an officer has an articulable and​

​

reasonable suspicion that a suspect is armed and dangerous, the officer may conduct a limited​

​

protective search. ​

​

U.S. v. Davis, 94 F.3d 1465, 1468 (10th Cir. 1996). Such a search must be​

"reasonably related in scope to the circumstances which justified the interference in the first​

​

place," ​

​

Terry v. Ohio, 392 U.S. 1, 20 (1968), and should be limited to ensuring that the suspect is​

unarmed. ​

​

King, 990 F.2d at 1558 (citing Sibron v. New York, 392 U.S. 40 (1968)).​

As discussed above, Defendants' detention of Mr. St. John was not a "valid investigatory​

​

detention." Defendants had no reason to suspect that Mr. St. John was involved in, or was about​

​

to become involved in, any criminal activity. Nor did they have any reason to believe that Mr. St.​

​

John posed a safety threat. Accordingly, Defendants' search of Mr. St. John was invalid.​

​

Case 6:08-cv-00994-BB-LAM Document 48 Filed 09/08/2009 Page 10 of 16​

​

​

 

[SC-Texas]

11


Additionally, Defendants lacked any reasonable suspicion for believing that Mr. St. John


was armed ​

and dangerous, as required by Tenth Circuit jurisprudence. See Davis, 94 F.3d at

1468. Defendants ask the Court to ignore the conjunctive phrasing of the rule and find, in


essence, that anyone who is armed is, by virtue of that fact, dangerous. In light of the extensive,


controlling and compelling jurisprudence to the contrary, the Court declines to do so.


Qualified Immunity


Defendants next assert that qualified immunity shields them from Mr. St. John's Fourth


Amendment claims. Qualified immunity protects government officials from civil damages


"insofar as their conduct does not violate clearly established statutory or constitutional rights of


which a reasonable person would have known." ​

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Courts generally follow a two-step procedure in considering qualified immunity defenses.


First, they determine whether the plaintiff's allegations, if accepted as true, adequately allege a


violation of a federal constitutional or statutory right. ​

See Albright v. Rodriguez, 51 F.3d 1531,

1534-5 (10th Cir. 1995). If the plaintiff's allegations are sufficient, courts then consider whether,


at the time of occurrence, the right was clearly established. ​

Id. For a constitutional right to be

clearly established, its contours must be sufficiently clear that a reasonable official would


understand that what he is doing violates that right. ​

Hope v. Pelzer, 536 U.S. 730, 739 (2002).

This is not to say that an official action is protected by qualified immunity unless the very action


in question has previously been held unlawful. ​

Id.; Malley v. Briggs, 475 U.S. 335, 341 (1986).

Rather, the unlawfulness of the official's conduct must only be apparent in light of pre-existing


law. ​

Id. Under Tenth Circuit precedent, a plaintiff must generally show that there was a Supreme

Court or Tenth Circuit opinion on point or that the proposition is supported by the weight of


authority from other courts. ​

Armijo v. Wagon Mound Pub. Schs., 159 F.3d 1253, 1260 (10th Cir.

Case 6:08-cv-00994-BB-LAM Document 48 Filed 09/08/2009 Page 11 of 16​

12


1998). If the plaintiff fails to show that a defendant's actions violated a clearly established right,


he cannot recover. ​

Id.

As discussed above, Mr. St. John was seized and searched in violation of his Fourth


Amendment rights. The question then becomes whether, at the time of the incident, Mr. St.


John's rights were clearly established. The Court finds that they were.


Relying 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. ​

See Terry, 392 U.S. at 21; Fuerschbach,439 F.3d at 1204-6 (holding that a

seizure without a reasonable suspicion of criminal activity "would violate the most minimal


Fourth Amendment standard"); ​

Jones v. Hunt, 410 F.3d at 1228 ("Where no legitimate basis

exists for detaining [an individual], a seizure is plainly unreasonable."); ​

Duran, 904 F.2d at 1378

("If there is one irreducible minimum in our Fourth Amendment jurisprudence, it is that a police


officer may not detain an individual simply on the basis of suspicion in the air. No matter how


peculiar, abrasive, unruly or distasteful a person's conduct may be, it cannot justify a police stop


unless it suggests that some specific crime has been, or is about to be, committed or that there is


an imminent danger to persons or property."); ​

see also Lawrence Rosenthal, Second Amendment

Plumbing after Heller: Standards of Scrutiny, Incorporation, Well-Regulated Militias, and


Criminal Street Gangs​

, 41 Urb. Law. 1, 37 (2009) (“When applicable law does not ban carrying a

firearm, however, the Fourth Amendment does not permit a stop-and-frisk regardless of any


indication that a suspect is armed or potentially dangerous because there is no indication that the


suspect is violating the law.”). For example, in ​

Sorrel v. McGuigan, 38 Fed.Appx. 970, 973 (4th

Cir. 2002) (unpublished) the Fourth Circuit denied qualified immunity to an officer who seized


an individual for lawfully carrying weapon. Noting that a state statute made the plaintiff's


Case 6:08-cv-00994-BB-LAM Document 48 Filed 09/08/2009 Page 12 of 16​

13


concealed carrying of the weapon legal, the court found that, though "[q]ualified immunity


protects law enforcement officers from bad guesses in gray areas," the fact that the plaintiff's


actions were clearly permissible under the statute meant that the officer "was not in a gray area."


Id. ​

at 974.

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. ​

See N.M. Stat. § 30-7 et seq.

Because both New Mexico law and the Fourth Amendment prohibition on unjustified seizure


were clearly established, and a reasonable officer is presumed to know clearly established law,


see, e.g., Harlow​

, 457 U.S. at 818-9, qualified immunity does not protect Defendants.

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.


2. St. John's Battery Claim


New Mexico law does not clearly define the elements of tortious battery. Indeed, the


committee that drafted the New Mexico Uniform Civil Jury Instructions noted this uncertainty in


declining to issue uniform instructions for such claims. UJI 13-1624, NMRA Civ. ("The


committee spent much time over a period of several months studying the matter of intentional


torts . . . . It was finally concluded that there was insufficient New Mexico law on assault and


battery to guide the committee on this subject . . . . "). Grappling with this issue, some New


Mexico courts have applied the elements of criminal battery to tort claims. ​

See New Mexico v.

Ortega, ​

827 P.2d 152, 155 (N.M. Ct. App. 1992) ("[T]he elements of civil and criminal assault

and battery are essentially identical.") This Court has, at times, done the same. ​

See, e.g., Garcia

Case 6:08-cv-00994-BB-LAM Document 48 Filed 09/08/2009 Page 13 of 16

14​

v. Jaramillo​

​

2006 WL 4079681, 8 (D.N.M. 11/27/06) ("N.M. Stat. § 30-3-4 [i.e. the criminal
battery statute] sets forth the elements of the tort of battery.").
More recently, New Mexico courts and the Tenth Circuit have begun relying on elements
more in line with the Restatement (Second) of Torts. See Restatement (Second) of Torts §§ 18-
19 (1965). Under this approach, "[a] battery occurs when an individual acts intending to cause a
harmful or offensive contact with the person of the other or a third person, or an imminent
apprehension of contact and . . . an offensive contact with the person of the other directly or
indirectly results." Fuerschbach, 439 F.3d at 1209 (citing State v. Ortega, 827 P.2d 152, 155-56
(N.M. Ct. App. 1992)); Selmeczki v. N.M. Dep't of Corrections, 129 P.3d 158, 167 (N.M. Ct.
App. 2006) ("It is black-letter law that causing an offensive touching, even indirectly to another's
clothing and not resulting in injury, is the tort of battery."); ee generally Restatement (Second)
Torts at § 18. “Any bodily contact is offensive if it offends a reasonable sense of personal
dignity.” Fuerschbach, 439 F.3d at 1209 (quoting Restatement (Second) Torts at § 19).
Defendants' contact with Mr. St. John involved restraining at least one of his arms while
leading him out of a crowded theater, restraining the same arm once outside and patting him
down. Defendants did not handcuff Mr. St. John and did not perform more than a cursory pat
down. Mr. St. John provided deposition testimony that his left shoulder was sore and that the
escort hold was “uncomfortable”. St. John Depo at 103:19-104:14.
Whether Defendants' actions would be offensive to a reasonable sense of personal
dignity, and would thus constitute battery, is a question best left to a jury. Simply stated, a
reasonable person—working with the limited factual record before the Court—may, but would
not necessarily, find Defendants' contact offensive to their sense of personal dignity.
Additionally, a jury must determine whether Defendants are protected by having acted reasonably​

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15
and in good faith.​

See Mead v. O'Connor, 344 P.2d 478, 479-80 (N.M. 1959) ("Officers, within
reasonable limits, are the judges of the force necessary to enable them to make arrests or to
preserve the peace. . . . However, it devolves upon the jury, under the evidence in the case and
proper instructions of the court, to resolve these questions."). Mr. St. John's battery claim is thus
not appropriate for disposition on summary judgment because viewing the evidence in the light
most favorable to the nonmovant necessitates denial of both Mr. St. John's and Defendants'
motions.​

3. St. John's False Arrest Claim​

False arrest involves the unlawful arrest of a person.​

Butler ex rel. Butler v. Rio Rancho
Pub. Sch. Bd. of Educ., 245 F.Supp.2d 1203, 1211 (D.N.M. 2002). Without an arrest, there can
be no viable claim for false arrest. See Johnson v. Weast, 943 P.2d 117, 121 (N.M. App. 1997)
("We are not aware of any Section 1983 false arrest case in which the defendant did not actually
arrest the plaintiff . . . . "). See generally Am. Jur. False Imprisonment § 3 ("Absent an arrest,
there can be no false arrest."). Mr. St. John makes no allegation that he was arrested—either
formally or as part of a de facto arrest. See, e.g., Doc. 1, Exhibit 1 at ¶¶ 26-30. The undisputed
facts indicate that he was not arrested. Accordingly, Mr. St. John's claim for false arrest fails as a
matter of law and Defendants' motion for summary judgment is granted with regard to that claim.​

Conclusion​

Mr. St. John's motion for summary judgment is granted with regard to liability on
Plaintiff's claims under the Fourth Amendment and New Mexico Constitution. Mr. St. John's
motion for summary judgment is denied with regard to his battery and false arrest claims.
Defendants' motion for summary judgment is granted with regard to Mr. St. John's false
arrest claim, but is denied with regard to Mr. St. John's Fourth Amendment, New Mexico​

Case 6:08-cv-00994-BB-LAM Document 48 Filed 09/08/2009 Page 15 of 16​

16
constitutional, and battery claims. Defendants' motion for summary judgment is also denied with
regard to qualified immunity.​

ORDER​

A Memorandum Opinion having been entered this date, it is hereby ORDERED that the
motion for summary judgment filed by Plaintiff (Doc. 37) be, and hereby is, GRANTED in part
and DENIED in part. It is further ORDERED that the motion for summary judgment filed by
Defendants (Doc. 39) be, and hereby is, GRANTED in part and DENIED in part.
Dated this 8​

th day of September, 2009.​

________________________________​

BRUCE D. BLACK
UNITED STATES DISTRICT JUDGE​

Case 6:08-cv-00994-BB-LAM Document 48 Filed 09/08/2009 Page 16 of 16
​

 

[Texas1911]

Awesome, a Judge that actually stands up for the Constitution.

 

[Texas42]

Got through about half of that. Thanks for the read.

seems reasonable to me that you can't sieze a man's property and detain him if he isn't breaking any laws.

 

[SIG_Fiend]

Awesome. Definitely a pleasant surprise considering things these days.

 

[MadMo44Mag]

Outstanding!

 

[Acetone]

Well, I think I am going to drive to NM this weekend and OC for the hell of it.

 

[Sheriff10]

Really??

"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 Mexico and twenty-five other states."

I was not aware of the fact that 42 states allow open carry. So we are 1 of 8 that does not? Geez. We get hammered by other states for the enthusiastic use of the death penalty here in Texas, but many of those states doing the hammering allow openly carried handguns??!! I don't get that.

 

[Maxpower]

too bad the texas republic does not allow oc

 

[shooter z]

SO!! When will Texas allow OC?

 

[Libertarian_Longhorn]

As soon as the legislator's stop giving each other HJ's during lunch break.

 

[ethan]

yeah, i really wish texas allowed open carry, and the funny thing is, most of the un-educated think that we do, and i have to tell them no, i mean, of all states, the same state that outsiders think we all ride horses to school and we dont have open carry, i really wish they would pass that

 

[rosebud99]

maybe we could get this judge to run for govenor....

 

[Willy]

maybe we could get this judge to run for govenor....

Debra Medina supports open carry. Maybe Hutchins and Perry will eliminate each other in the Rep. primaries for us. I can hope.