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Federal judge rules concealed carry is probable cause of criminal activity

Federal judge holds that carrying a firearm concealed justifies detention and disarmament, as does carrying a firearm on MARTA.
Attorney for gun carrier opines that opinion may reach into Georgia's restaurants and state parks as well.

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."

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.
 

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I assume that CC on the MARTA is legal(before this ruling)? If so, then this is going to be appealed. There is no way it could not be. This is just another activist judge legislating from the bench. Good luck Mr. Raissi, but hopefully you will not need it. Hopefully the next judge to hear this will actually have his head screwed on straight.
 

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I would need to do some reading to fully understand the issue. It seems the use of "affirmative defense" is poor wording on the part of the legislators. I am not even sure what affirmative defense means in this context.

OCGA 16-11-127 on GeorgiaPacking.org

Guilty until proven innocent?

an old thread about MARTA's rules:

http://www.defensivecarry.com/vbull...ssues-discussions/71965-marta-train-ride.html

from:
MARTA Monthly June 2008

Georgia law prohibits the carrying of a pistol, revolver or other firearm on public transit unless a person has a valid firearms license to carry a gun. This license must be carried at any time that an individual is carrying a firearm on MARTA. MARTA police will strictly enforce all provisions of this law. Any individual found to be carrying a firearm without a permit will have it confiscated and will be issued a citation pursuant to Georgia law.
What a mess all this is. Who wrote these silly laws?
 

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Not a chance that this stands on appeal.
 

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If you are observed catching a fish and putting it in your car, you have committed all the acts required for the crime of fishing without a game license. Merely carrying the fish justifies detention and confiscation of your dinner. The fact that you HAVE a fishing license is an affirmative defense, not an element of the crime.

Get ready for SWAT 2: "Game" Over (<-- that sounds funnier if you say it with the "movie guy" voice).
 

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This is a soundly written decission and I expect it to be sustained on appeal.

Try reading the decission, not just the article.

Here is part you may find interesting:

Because a Georgia firearms license is an affirmative defense to the crime of boarding with a concealed weapon and the crime of carrying a concealed weapon, it does not matter if there was no reason to suspect that Raissi did not have a Georgia firearms license. After Raissi concealed his handgun and started walking 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. Officer Nicholas saw this happen. The officers were not then required “to explore and eliminate every theoretically plausible claim of innocence,” including affirmative defenses, before making an investigative stop of Raissi. Ricciuti v. New York City
Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997); see also Jocks v. Tavernier, 316 F.3d128, 135 (2d. Cir. 2003) (“[J]ust as probable cause may exist although a suspect is in fact innocent, probable cause may exist where the police do not know of the existence
or validity of an exculpatory defense.”); Humphrey v. Staszak, 148 F.3d 719, 724 (7th Cir. 1998) (“[E]ntrapment is an affirmative defense . . . [and] is not part of our Fourth Amendment probable cause-to-arrest analysis.”); State v. Fry, 142 Wash. App. 456,
460 (2008) (“Medical authorization for marijuana use is an affirmative defense . . . [and] [a]ffirmative defenses are evaluated at trial, not by law enforcement at earlier stages of the proceedings.”).

In other jurisdictions that treat a firearms license as an affirmative defense, courts have held that it does not matter if there was no reason to suspect that a person did not have a firearms license. In State v. Timberlake, 744 N.W.2d 390 (Minn.2008), police officers stopped the defendant’s car based solely on a 911 call from an
identified private citizen. The caller said that he had just seen “a black male and black female . . . leaving a gas station in a white Pontiac Grand Prix,” and that, before they left the gas station, he had seen the black male with a gun. Id. at 392. The officers’ stop and subsequent search revealed evidence that was the basis of the defendant’s conviction for felon in possession of a firearm. On appeal, the defendant did not dispute the reliability of the 911 call, but said that, “because it is legal in Minnesota for a private citizen to carry a permitted gun in public, police may not conduct aninvestigat[ive] stop without additional evidence that the possession itself is illegal.”
Id. at 394. The Minnesota Supreme Court sustained the conviction and held that “consistent with our determination . . . that lack of a permit [is] not an element of the offense, the police in this case did not need to know whether [the defendant] had a permit in order to have a reasonable suspicion that [the defendant] was engaged in
criminal activity.” Id. at 395. “[T]he officers had a reasonable basis to suspect that [the defendant] was engaged in criminal activity, even without knowing whether he had a permit, based on the caller’s report that he saw [the defendant] with a gun in the vehicle.” Id

Also, in United States v. Cooper, 293 Fed. Appx. 117 (3d Cir. 2008), police officers stopped the defendant’s car based solely on information from another police officer who, while patrolling an area of Philadelphia, “observed [the defendant] lift his shirt, displaying a silver handgun . . . then [return] to his car and [drive] away.”
Id. at 118. The officers’ stop and subsequent search revealed evidence that was the basis of the defendant’s conviction for various drug possession and firearm crimes.


On appeal, the defendant said that, “ecause a firearm may be lawfully possessed under some circumstances, . . . the facts here – [the officer’s] mere viewing of [the defendant] in possession of a weapon on a public street in Philadelphia – did not create reasonable suspicion.” Id. The Third Circuit sustained the conviction and held that, because “licensure is an affirmative defense to a statutory violation for possession of a firearm,” “an officer’s observance of an individual’s possession of a firearm in a public place in Philadelphia is sufficient to create reasonable suspicion to detain that individual for further investigation.” Id. at 119-20; see United States v.
Bond, 173 Fed. Appx. 144, 146 (3d Cir. 2006); United States v. Collins, Nos. 05-1810, 01-CR-00780, 2007 WL 4463594, at *4 (E.D. Pa. Dec. 19, 2007).

None of the cases cited by the Plaintiffs were from jurisdictions that treat a firearms license as an affirmative defense. See United States v. Ubiles, 224 F.3d 213, 214 (3d Cir. 2000); St. John v. McColley, No. 08-994, 2009 WL 2949302, at *4 (D.N.M. Sept. 08, 2009). Ubiles is a case from the Virgin Islands and, under Virgin
Islands law, the absence of a firearm license is an element of the crime ofunauthorized possession of a firearm. 14 V.I.C. § 2253(a); Gov’t of the V.I. v. Isaac, 45 V.I. 334, 342 (V.I. Terr. Ct. 2004). St. John is a case from New Mexico and, under New Mexico law, it is not a crime to carry a firearm without a license so long as the
firearm is carried openly, which the plaintiff in St. John did. N.M. Stat. Ann. § 30-7-2; St. John, 2009 WL 2949302, at *4 (“[M]erely ‘showing a gun’ . . . is not illegal in the State of New Mexico.”). These cases are, therefore, distinguishable. See Collins, 2007 WL 4463594, at *4 (“Ubiles is distinguishable [because] the gun laws in the Virgin Islands are different from the gun laws in ennsylvania.”).

Once they decided to conduct an investigative stop of Raissi, Officers Nicholas and Milton were required to conduct the stop in a reasonable manner. The Plaintiffs say that the stop was unreasonable because the officers did not have any reason to seize Raissi’s handgun, ask for Raissi’s social security number, or take Raissi to a private hallway before returning his handgun. But each of the Plaintiffs’ objections
to the nature of the stop involves second-guessing of the officers’ actions. 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.


See Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977) (“The bulge in the jacket permitted the officer to conclude that [the defendant] was armed and thus posed a serious and present danger to the safety of the officer. In these circumstances, anyman of ‘reasonable caution’ would likely have conducted the ‘pat-down.’”). The
officers were entitled to ask Raissi for his social security number because a background check would help the officers determine whether Raissi had any outstanding warrants or prior felonies that would disqualify him from legally carrying a firearm. See Illinois v. Wardlaw, 528 U.S. 119, 126 (2000); United States v.
Hutchinson, 408 F.3d 796, 800-02 (D.C. Cir. 2005).

And the officers were entitled to take Raissi to a private hallway before returning his handgun because it was safer for Raissi to re-holster his handgun out of public view. (Nicholas Dep. at 23); cf.Mimms, 434 U.S. at 112 (a police officer may, for safety reasons, order a driver out of the car during a lawful stop).

Because Officers Nicholas and Milton were entitled to conduct an investigative stop of Raissi, and because the stop itself was reasonable, the Defendants did not violate Raissi’s Fourth Amendment rights. This resolves the Plaintiffs’ claims for
compensatory damages.


It does not necessarily resolve the Plaintiffs’ claims for declaratory and injunctive relief, which address what MARTA officers may do in the future. It does not resolve these claims because there is evidence that MARTA hasa policy of stopping anyone seen carrying a firearm, even if that person is carrying the firearm openly. (Dorsey Second Aff. ¶ 9); (Nicholas Dep. at 29-31).

When a person is carrying a firearm openly, reasonable suspicion of unlawful activity must obviously involve some unlawful act other than the crime of boarding with a concealed weapon or the crime of carrying a concealed weapon. There is also evidence that some
members of GeorgiaCarry.Org want to use the MARTA system while carrying firearms and that interest does not appear limited to carrying a concealed firearm. (Stone Decl. ¶¶ 4-6.)

Therefore, even after concluding that the Defendants did not violate Raissi’s Fourth Amendment rights, the Plaintiffs still have standing to seek a declaration that MARTA’s firearms policy as applied to any person openly carryinga firearm is unconstitutional and an injunction prohibiting enforcement of such policy. See 31 Foster Children v. Bush, 329 F.3d 1255, 1265 (11th Cir. 2003).
 

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Just in case anyone was as lost as I was: MARTA = Metropolitan Atlanta Rapid Transit Authority
 

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the laws are vague on purpose so black men could be disarmed....
I'm a Black man and in reading the OPs posting of the news item as parsed I too was very confused, and disarmed.

But in seeing that the item as posted, and parsed, made little sense I choose to follow through to the articles source.

That was a key decision and action!

This is an excellent example of why it is very important to both post the entirety of an article and not just a part of it.
As well why it is even more critical to cite the source AND provide if at all possible a URL link to it as follow through.

If you go to the article it becomes obvious very quickly that the OP posted only part of the whole article.
The part as posted does not include context of why the man was stopped, why the cops thought to detain him or even how and why MARTA is involved in this decision...Muchless insight as to what the judge was thinking.
Also the entirety of the judges ruling is misrepresented in the OPs post not on purpose I think but as result of being parsed.

Bottom Line:
I agree with the judge and his ruling, as in complete statement and not parsed.
Further I also agree with the MARTA police who had observed the gentleman and choose to apprehend him for questioning.
They _reacted_ reasonably as based on his own unreasonable and ill advised catalyst _action_ as had occurred prior to him entering the MARTA system as armed without knowing/thinking that he may have been observed.

Reading the follow on posts to this thread alone without going back to read the actual source in it's entirety only proves to further confuse things and by that I can see how folk are posting what they have...as a a result of reading the OPs post only and _not_ having read the actual source.

Read the source folks, before making a judgment...and posting it.

This threads title is misleading and inaccurate as against the facts as reported and subsequent judicial decision.

- Janq

In the ruling today, Judge Thrash held that merely carrying a concealed firearm justifies such 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."
- The not parsed and complete paragraph relating the judges decision statement, which is a more sensical and sensible read.
 

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Oh boy the court had opened a bucket of worms with this one.

It’s start with "affirmative defense".
The word affirmative also means assenting, positive, and confirmatory.

From Wikipedia
An affirmative defense is a category of defense used in litigation between private parties in common law jurisdictions, or, more familiarly, a type of defense raised in criminal law by the defendant. Affirmative defenses can be classified as either a justification defense or an excuse defense.[1] Affirmative defenses operate to limit, excuse or avoid a defendant's criminal culpability or civil liability, even though the factual allegations of the plaintiff's claim are admitted or proven. In fact, the defendant usually must affirm that the facts asserted by the plaintiff are correct in asserting his own defense; hence, "affirmative" defenses.

A clear illustration of an affirmative defense is self-defense.[2] In its simplest form, a criminal defendant may be exonerated if he can demonstrate that he had an honest and reasonable belief that his conduct was necessary to protect himself from another's use of unlawful force.
While one would think an LEO would upon producing “id” be shown more courtesy, than Mr. Raissi was, but I have known officers who were treated the same way, as Christopher Raissi's was when an officer in another jurisdiction noticed he/she was carrying a concealed weapon.

Was Christopher Raissi within his rights to carry on MARTA? Sure… absolutely

Was the officer correct, in making inquires?
Here I would have to agree that he was. But it should of stopped when Mr. Raissi produced his CCL. Or at the very worst, the officer should have called it in to verify, without undue detention of Mr. Raissi.

What this all boils down to is, this whole situation, would of never happen if Mr. Raissi would of kept his concealed weapon concealed, and for now until this ruling is “overturned” or amended, I think all of us need to take a lesson from this, and make sure our weapons stay concealed.
 

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I don't know if this will stand on appeal, the judge's ruling seems reasonable, but Mr. Monroe is a little over the top with his statement. I don't really think a police officer is the same as a GFL holder...

For clarification an 'affirmative defense', in Tx it means that basically, DA's will not accept charges, because they can't win...an automatic win for the defense...

I think part of the problem goes to the carrier... why is he arming himself where someone can see him in public? This might not be the popular opinion, but the officers had every right to take him to a secure area and investigate the situation, since carrying without a GFL is illegal... Once they had him detained, it would be normal to run him to see if he had any warrants outstanding, etc...
 

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Here's a proper analogy.

You are eating in a sandwich shop, and as you are stuffing your face with a salmon burger & sweet potato fries covered in chilli & cheese (not velveta, smoked gouda...) you see a guy park his car, walk to the trunk, withdraw a pistol, tuck it into the small of his back, close his trunk, adjust his jacket and walk toward the sandwich shop you are eating in.

Could he have a permit? Maybe.

Might he just be here for an order of sweet potato chilli cheese fries & a heart attack burger (3 1/2 pound angus burgers, 12 strips of bacon, gouda, swiss & pepper jack cheese all on a pair of krispy kreme doughnuts. With a slice of pickle for fiber...)? Maybe.

But tell me you aren't starting to wipe off your hands, shift a bit in your seat and palm that J-frame in your pocket as you think "OK, if it goes down I'm going to empty the J-Frame as I start moving..."
 

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I think part of the problem goes to the carrier... why is he arming himself where someone can see him in public?

Because they need the police action to sue.

You can't sue without standing, and absent action of the government which adversely effects you in a tangible way ("I was denied entry to a state park because I was carrying a firearm in accordance with state law...I was detained by the cops...") you are not a plaintiff the court will hear.

Just because you disagree with something doesn't mean the case will be heard.

You have to have some stake in the matter.
 

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For clarification an 'affirmative defense', in Tx it means that basically, DA's will not accept charges, because they can't win...an automatic win for the defense...
In layman's terms, "I did it, but I'm not guilty because I was justified/I have a permit for that thing..."

Some affirmative defenses, like self defense, are proven at trial because they are situationally and factually based - were you justified is a decission that has to be made by a jury.

Others are written into the law, such as "No person shall carry a pistol or revolver consealed upon their person. This section shall not apply to:....persons having a permit issued in accordance with subsection D1(f)3 of this section..."
 

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Discussion Starter #19
While one would think an LEO would upon producing “id” be shown more courtesy, than Mr. Raissi was, but I have known officers who were treated the same way, as Christopher Raissi's was when an officer in another jurisdiction noticed he/she was carrying a concealed weapon.

Was Christopher Raissi within his rights to carry on MARTA? Sure… absolutely

Was the officer correct, in making inquires?
Here I would have to agree that he was. But it should of stopped when Mr. Raissi produced his CCL. Or at the very worst, the officer should have called it in to verify, without undue detention of Mr. Raissi.

What this all boils down to is, this whole situation, would of never happen if Mr. Raissi would of kept his concealed weapon concealed, and for now until this ruling is “overturned” or amended, I think all of us need to take a lesson from this, and make sure our weapons stay concealed.


no way to verify a GFL in GA unless you call the probate that issued it and its during a normal buisness hour....
 

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While one would think an LEO would upon producing “id” be shown more courtesy, than Mr. Raissi was, but I have known officers who were treated the same way, as Christopher Raissi's was when an officer in another jurisdiction noticed he/she was carrying a concealed weapon.

Was Christopher Raissi within his rights to carry on MARTA? Sure… absolutely

Was the officer correct, in making inquires?
Here I would have to agree that he was. But it should of stopped when Mr. Raissi produced his CCL. Or at the very worst, the officer should have called it in to verify, without undue detention of Mr. Raissi.

What this all boils down to is, this whole situation, would of never happen if Mr. Raissi would of kept his concealed weapon concealed, and for now until this ruling is “overturned” or amended, I think all of us need to take a lesson from this, and make sure our weapons stay concealed.
The "open carry" movement can cause problems. I don't know, but I'm guessing that this was one of those confrontational demonstrations [where is the video?].

The entire history of gun control in the USA was racially based prior to about 1905. It began in the South where white men were expected to carry and the laws either forbade blacks from being armed, or the only guns allowed cost several years wages. Slave Codes were renamed after the Civil War to Black Codes. It was illegal to teach a black how to read, they might get ideas. Read Dred Scott, read about the 13 and 14th amendments and how the Second Amendment was a big part of their passage.

Atlanta is a high crime area, it is also an area that seeks to maintain the current political structure. The gun rights movement is in conflict with old line segregationists and liberal government school blacks.

"Open carry" stirs the pot and that can be a bad thing when the results are not well thought out. Did this guy open/conceal/open just to draw attention so he could complain? Should the police have investigated, yes. Should they have said, "Good day Sir" Here is your CWP back" [and be more discrete.

maybe the guy had drawn attention of a DA and that got the cops to single him out? Was there profiling? Is the judges reliance on NY law proper and not Kansas law or Colorado or Alaska?
 
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