jcheinaman

This started out as a open carry story and led over to rights violations. I felt it was warrented to be posted here. Mods if this is the wrong place feel free to move it.

http://opencarry.mywowbb.com/forum46/10755.html

Pa. Patriot ARRESTED at the OC dinner @ The Old Country Buffet in Dickson City 5/9 - Page 15

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OpenCarry.org Press Release - May 10, 2008
************************************************** **********
FOR IMMEDIATE RELEASE
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Sieg Heil! Dickson City, PA police demand gun owners’ “identity papers” & conduct Katrina style gun confiscation!

Gun owners to demand Habeas Arma!

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It looks like the Dickson City (a borough in Lackawanna County, PA) police and Lackawanna County District Attorney have erected a “new order” in Pennsylvania – one where citizens must present their identity papers and give up their guns to police on demand.

Or, maybe Dickson’s finest are just trying to borrow a page from the play book of their bros’ in blue from the City of Brotherly love. . . [1]

The facts[2]

The facts are simple and not in dispute – a few folks, including families with small children, met up for dinner at the Old Country Buffet on Friday, May 9.[3] Apparently a customer called the police to report that some of these people were openly carrying handguns. Next thing you know, Dickson City Patrolman Tony Mariano and female Officer Gallagher rolled up and proceeded to roust everyone away from their dinners, demanded identity documents from anyone they saw openly carrying guns, and seized the guns for some sort of Orwellian “serial number check.”

When Luzerne County resident Rich Banks[4] and his wife Judy went over to the police and asked them what was going on, the police threatened to arrest Judy unless she turned off her camcorder, and then unlawfully arrested Rich when he declined to show identification[5] – Rich was then searched and placed in cuffs in a squad car.[6] Rich’s 6 year old son was upset and crying and several of the women in the party became nearly hysterical.[7]

For some time thereafter, squad cars full of police from the city of Scranton and Lackawanna County rolled up to assist in the illegal detention, ID checks, and serial number gun checks of these law abiding citizens just trying to eat dinner together.

Police start to get nervous

But something was wrong – Banks could see officers from the various jurisdictions franticly making cell phone calls and talking to each other – after a while, Officer Gallagher, the mean spirited officer in charge, who told Rich’s wife she did not want to be filmed because she might want to go back to “under cover work some day,” came over to Rich and said they were going to go easy on him and release him. But . . . Gallagher said he could not get his gun back until he “proved ownership” because there was no record of his gun in police records. Mr. Banks – a “gun smith” with a federal gun dealer license – explained to Gallagher that her seizure, arrest, and search of his person was unlawful and demanded his property be returned immediately because there was no more reason he had to prove he owned the gun than to prove he owned the TV in his house. Retorted an angry Gallagher, “I heard enough from you tonight!,” slamming the squad door in a huff.

Incredibly, officer Gallagher then claimed to have contacted unknown elements of the Lackawanna District Attorney’s office which allegedly ordered her not to return Banks’ gun until he “proved ownership.”[8] Banks demanded a receipt from the police – so they wrote a note (attached, with serial number redacted).

So that’s the story – a bunch of police, acting like thugs, unlawfully roust and harass gun owners and their families for the crime of obeying the law – and then drive away after stealing a gun.

Police look for cover from restaurant management

As the police began winding down their Kafkaesque theater act, one of the officers asked the Old Country Buffett manager on duty if he “had any problems” with the group remaining at the restaurant. The manager responded laconically that “we had no problems ‘till you showed up.”

The law:

It’s pretty simple actually. Pennsylvania is like most states. There is no gun registration, and, generally, anyone 18 years of age or over can openly carry a handgun on foot without any license to do so, even while eating dinner.[9] As a constitutional matter, a mere 911 call reporting a “man with a gun” does not allow the police to detain or search anyone.[10] And while it is true that the Pennsylvania State Police maintain a handgun sales database consisting of information reported to them by Pennsylvania gun dealers,[11] it is not a crime to own or carry a gun not listed in the database which only consists of guns transferred through Pennsylvania gun dealers anyway.[12] And the police have no power to confiscate personal property for failure to carry proof of ownership.

What’s next?

Habeas Arma!

OpenCarry.org calls on the Lackawanna County District Attorney to order Mr. Banks gun returned to him immediately without any further demands for “proof of ownership,” whatever that is supposed to mean.

Further, we call for the suspension and prosecution of Patrolman Mariano and Officer Gallagher and any member of the Lackawanna District Attorney’s office involved in this travesty for violations of civil rights under federal and Pennsylvania law, including Pennsylvania’s “Official Oppression statute.”[13]

Finally, Dickson City Police Chief William Stadnitski had better get his Department under control such that no officer ever treat guns like “contraband” or gun owners like second class citizens. And it looks like the Chief knows his officers’ were out of control – this incident has not been posted to his Daily Activity report at Police.[14]


John Pierce/Mike Stollenwerk

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Contact anytime on gun stories:
--
Mike Stollenwerk

Mr. Stollenwerk is a lifelong legal resident of Lancaster County, PA. In 2006, Stollenwerk prevailed in a federal lawsuit against the Pennsylvania State Police to quash their unlawful demands for social security number disclosure from gun purchasers and License to Carry Firearms applicants. Stollenwerk v. Miller, 2006 WL 463393 (E.D. Pa. 2006).
--
John Pierce
Mr. Pierce is an IT professional and works for an Allentown, PA area firm.
--
OpenCarry.org
A national pro-gun Internet community with more than 5,800 registered
members
News media reports citing OpenCarry.org's perspective:
http://opencarry.mywowbb.com/forum63
##########################

[1] See Patrick Walters, Philadelphia Police Caught Beating Suspects, Associated Press, May 7, 2008, available with video at Philadelphia Police Caught Beating Suspects (VIDEO) - The Huffington Post.

[2] Assembled from OpenCarry.org’s very reliable members who witnessed this debacle first hand.

[3] See discussion thread at Pa. Patriot ARRESTED at the OC dinner @ The Old Country Buffet in Dickson City 5/9 - at first this thread was just a way to talk about an upcoming social event – at page 15, it became a thread to talk about police misconduct and the thread’s name was then changed.

[4] Mr. Banks is the owner of Frontline Armory, Front Line Armory ~ Your source for military gunsmithing and refinishing..

[5] Pennsylvania has no “stop and ID” statute. Further, the United States Supreme Court has struck down state statutes requiring anyone to carry ID credentials. Kolender v. Lawson, 461 U.S. 352 (1983). And last month the 8th Circuit Court of Appeals held that an officer arresting someone for merely refusing to show identification is not due qualified immunity in a civil lawsuit. Stufflebeam v. Harris, 521 F.3d 884 (8th Cir. 2008). See also Rob Moritz, Fed appeals court says motorist's refusal to give police his name is no cause for arrest, Ark. News Bureau, April 5, 2008, available at LawReader : Blogs/ News Archive : Fed appeals court says motorist's refusal to give police his name is no cause for arrest.

[8] The story is a bit more complex – by this point, the police realized they were in the wrong generally and proceeded to back down. The police told one man he could not get his gun back because it was not “registered to him” but to his wife. The man told the police there was no registration in Pennsylvania and that Pennsylvania law does not require handgun transfers between family members to be conducted through dealer checks and record keeping anyway. The police handed the gun to the wife and walked away. Another man, who happened to have a License to Carry Firearms (required to “conceal” handguns in Pennsylvania) flat out told the police “you’re not taking my gun or running the serial number,” and the police quickly backed off.

[9] Commonwealth v. Hawkins, 692 A.2d 1068, n.4 (Pa. 1997) (“In all parts of Pennsylvania, persons who are licensed may carry concealed. 18 Pa.C.S. § 6108. Except in Philadelphia, firearms may be carried openly without a license.”). Interestingly, on the same day as Bank’s arrest and theft of his gun by police, the Associated Press reported that gun carry in restaurants is becoming pretty ho hum. Mathew Barakat, Guns in restaurants draw stares but little outcry, Associated Press, May 9, 2008, available at Guns in restaurants draw stares but little outcry | Lynchburg News Advance.

[10] Florida v. J.L., 529 U.S. 266 (2000).

[11] Only 13 other states are like Pennsylvania which generally bans the private **transfers** of handguns, see OpenCarry.org - The Internet's Premiere Open Carry Resource, but it is not a crime to move into Pennsylvania with a handgun, or transfer a handgun to a family members without going through a dealer – and so besides the point that the police have no lawful authority to seize guns and check their serial numbers against the PSP handgun transfer database, the fact that the handgun is not listed in the data base, or not associated with the person carrying the handgun is completely irrelevant. Regardless, it’s not a crime to **receive** a handgun in a private transfer under Pennsylvania law.

[12] Obviously the Dickson City and the Lackawanna District Attorney either don’t know the law, or are purposefully violating the law.

[13] 18 Pa.C.S.A. § 5301 ("Official oppression") provides that "[a] person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity commits a misdemeanor of the second degree if, knowing that his conduct is illegal, he: (1) subjects another to arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien or other infringement of personal or property rights; or (2) denies or impedes another in the exercise or enjoyment of any right, privilege, power or immunity. See also Matt Miller, Constable charged with official oppression, Mid State News, April 3, 2008, available at Constable charged with official oppression - Midstate PA Local News, Weather, Sports & Entertainment - PennLive.com.

[14] I wonder what the report will say, if it is ever posted – maybe something like, “To Old Country Buffet on a call about families eating out while some adults carrying holstered side arms. Police harassed a group of law abiding citizens for over an hour, and stole one gun from a man who would not keep his mouth shut.”

Attached Files

Rich Banks gun receipt.pdf (18.1 KB, 29 views)

SelfDefense

Hmmm. Open carry....Cop bashing...

I predict this thread does not last very long.

flagflyfish

+1.....

__________________
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and the sunshine patriot will, in this crisis, shrink from the
service of his country; but he that stands it now, deserves the
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jcheinaman

You have to look past the open carry portion of the story. Regardless it is a 2nd amendment rights issue. There is no cop bashing at all. All stated in this thread are quotes and actual interpretations of the law in PA including case law. Gun owners should stick together regardless of how the rights were violated. this thread is currently running on many other forums and I though I would bring it here. The NRA is probably going to be involved as well. Please don't be so quick to judge. This thread started over at PAFOA.

Pa. Patriot ARRESTED at the OC dinner @ The Old Country Buffet in Dickson City 5/9 - Page 15

kpw

Open carry is gaining popularity in PA wether we agree with it or not. Reporting on misdeeds of police officers is not cop bashing. The Dickson city officers acted well outside their capacity and lawful duties and did indeed violate their rights under PA law. In this case, they chose the wrong citizens to strong arm. They are organized, know their rights and will go to all legal means to make sure this doesn't happen again. Ignorance of the law is no excuse for citizens or LEOs.

jcheinaman

+2

Open carry isn't the issue. It is how the police handled themselves and blatantly disregarding rights of legal gun owners and the state law.. They stole Rich's gun claiming it was not in the PA state police database and he would have to prove he owned it. They commited an illegal terry stop according to the law in PA. PA does not have a registry... therefore if the gun was not reported stolen they must give it back to the owner. You can transfer firearms to immediate family without using a FFL. There are other reasons why guns may or may not be in the PSP database. The PSP did not have to discontinue the database because they claimed it was not a registry because it is not complete. It only contains sales and transfers sent to them from FFL dealers. If the database is not complete then why would you expect all guns to be in it? This is probably going to be pretty big for all of our rights in the long run. Just my .02

retsupt99

Sniff, sniff, sniff, sniff, sniff...
Illegal seizure?
Illegal arrest?
Cannot video tape? (she should have continued...)
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Can anyone else smell that?

Mmmmmm...smells like a giant lawsuit! We all have learn lessons in life to learn, even LEO's

OMO, of course!

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— Unknown

Liberals are as American as 'dog dodo' pie...

stanislaskasava

If this has anything to do with open carry, then why was his the only gun confiscated? It's not about open carry.

• I can't think of any reason why a police officer should take a person's gun and fail to charge him with any crime or take him downtown.
  
  
• What is so special about a gun that you would have to prove ownership on the spot in order to avoid confiscation?
  
  
• He was in possession of it and they have no reason to suspect that it is stolen.
  
  
• Is there anything illegal about being in possession of a borrowed gun?
  
  
• Where and when did The People give the government the right to confiscate guns that are not recorded in the database?

SixBravo

Before anyone is quick to judge the officers, I'd like to point out that the citizens were portrayed in the best light possible. None of us were there, so let's keep that in mind.

Having said that, I am curious what prompted the officers to begin checking all of their guns and asking for ID.

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SelfDefense

Bingo.

Some people have no respect for authority and they often act out to their detriment and embarrassment.