Gonzales (LA) settles gun-carrying man’s lawsuit

[Bud Helms]

Gonzales settles gun-carrying man’s lawsuit (http://www.2theadvocate.com/news/27706824.html)

By BILL LODGE
Advocate staff writer
Published: Aug 31, 2008

Mark Marchiafava says he’s earned the right to wear his .357-caliber Magnum pistol in a hip holster in Gonzales.

And, he says at a local mall, city residents paid him to demonstrate that right.

“I wish the taxpayers of Gonzales knew just how much money it is,” the 55-year-old Marchiafava adds.

In January 2006, the longtime Baton Rouge resident was at the same mall, wearing the same pistol, when a Gonzales police officer asked him why he was carrying a gun.

Marchiafava says he told the officer that non-felons can legally carry firearms that are not concealed.

That exchange led to Marchiafava’s arrest on a count of illegal carrying of a weapon. The arrest led to an hours-long stay at the Ascension Parish Prison.

But the case later was dismissed, and Marchiafava’s bond and weapon were returned to him.

Marchiafava didn’t let the dispute fade away. He sued for violation of his constitutional right to bear arms. The city recently settled the case by paying Marchiafava an undisclosed amount of money.

“I can’t disclose any client confidences,” said Bradley C. Myers, a Baton Rouge attorney for the Gonzales Police Department. “The details are confidential, not the fact of the settlement.”

So why pay Marchiafava?

“It was just a business decision that everybody makes during a civil suit,” Myers said.

“There are risks in all litigation and costs to defend litigation,” Myers said, adding that city officials weighed those risks and costs before opting for a settlement.

Marchiafava won’t talk dollars and cents, either.

“The confidentiality agreement prevents me from disclosing that amount,” Marchiafava said.

But he said the settlement would “buy someone a brand-new motorcycle.”

“All of this could have been avoided,” Marchiafava said. “I kept telling them: ‘Don’t arrest me.’”

After his arrest, Marchiafava said, Police Chief Bill Landry told other people: “‘We have a policy of arresting anybody carrying any type of firearm without a concealed-gun permit.’

“It’s not the people who are openly carrying weapons that you need to worry about,” Marchiafava said. “It’s the people who carry concealed guns that you need to be concerned about.”

Marchiafava said he remains concerned that someone else may someday be arrested under similar circumstances because: “In Gonzales, the law is whatever the cops say it is.”

That’s not correct, Chief Landry said.

“We will follow the law as prescribed,” Landry said, adding that the law permits carrying a firearm in an unconcealed holster. But Landry will not discuss the case further.

“I’ve got no comment on that,” Landry said. “I’ve got no comment.”

Donald North, a professor at Southern University Law Center, said Marchiafava has the legal right to carry a firearm in a holster on his hip.

North says carrying the firearm in that manner falls under the same law that requires hunters to keep their shotguns and rifles on gun racks visible through the rear windows of their vehicles.

“If you’re not concealing it, the statute does not prohibit your carrying of that weapon,” North explained.

“This only applies to law-abiding citizens,” the professor said. “Convicted felons can’t do this.”

North adds that he is merely explaining the law, not advocating a particular behavior.

“I’m not trying to suggest we should go back to the days of the Wild West,” North said.

Marchiafava says he does not regret carrying the pistol — even when it draws unwelcome attention from police officers.

He says other people should exercise their right to lawfully carry firearms.

“When they (police officers) shoved a gun in my face, I was thinking: ‘These guys are dangerous.’ "

[treefarmernc]

I am glad that he was willing and able to take his case to its full extent. I bet the cop and other local law enforcers will think twice about harassing innocent citizens exercising their rights. I can’t help to wander about what other actual crimes going on at that exact moment that could had been a better use of the time, effort and tax money. I hope more in his situation does the same to defend their rights.

[Bud Helms]

I was struck by the public position the mayor and Chief of Police took at the time. They seemed not to know that they were treading on thin ice. Either they thought they were impervious to consequences or they were unaware of possible consequences.

[jgcoastie]

After his arrest, Marchiafava said, Police Chief Bill Landry told other people: “‘We have a policy of arresting anybody carrying any type of firearm without a concealed-gun permit.’

“We will follow the law as prescribed,” Landry said, adding that the law permits carrying a firearm in an unconcealed holster.

Donald North, a professor at Southern University Law Center, said Marchiafava has the legal right to carry a firearm in a holster on his hip.

North says carrying the firearm in that manner falls under the same law that requires hunters to keep their shotguns and rifles on gun racks visible through the rear windows of their vehicles.

“If you’re not concealing it, the statute does not prohibit your carrying of that weapon,” North explained.All emphasis added by me.

Anyone else see a MAJOR contradiction here? They have a policy of violating someone's 4th Amendment rights because they are legally expressing their 2nd Amendment rights? What's next? You can't bad-mouth the mayor in an expression of your 1st Amendment rights without having your 4th A rights violated? A d*mn round-robin is what it is...

:barf: Utter stupidity and foolishness. I guess that's what happens when you have too many d*mn lawyers running around with nothing better to do.

[mskdgunman]

The only question I have is if you are open carrying, can an LEO check to make sure you are not a convicted felon? I know that may sound stupid, but if the cops are now scared to approach someone who is OC for fear of a law suit, whats to stop a guy with a felony conviction from trying it? I know it sounds stupid, but after 19 years in this business, not much surprises me and I can see it happening

So, you're OC and a cop approaches asking for ID to verify that you are not a convicted felon...how would that sit with people? While I'm all in favor of CC, I've never been a fan of OC. It scares the sheep and they call us all panicked about a guy with a gun at the mall and then we have to respond. We're all tensed up as we're going to the dreaded man with a gun at the mall call so when we arrive we're all jacked up and prepared for the worst (or we should be) so you expect to be confronted with a drawn firearm. We'll straighten things out once the scene is secure.

If no State or local law prohibited it, I wouldn't arrest the guy unless there was some other violation but I would have a talk with him about the wisdom of OC. Potentially more hassel then it's worth. Technically in FL, it could be considered Disorderly conduct if the carrying of the weapon caused a panic or a stampede but generally, you have to have independent victims who will come forward. The State (the cops) can't be a victim in a DOC case. All in all, legal or not, a bad idea in our current society.

All that aside, the chief sounds like an idiot.

[Mello2u]

“If you’re not concealing it, the statute does not prohibit your carrying of that weapon,” North explained.

“This only applies to law-abiding citizens,” the professor said. “Convicted felons can’t do this.”

North adds that he is merely explaining the law, not advocating a particular behavior.

“I’m not trying to suggest we should go back to the days of the Wild West,” North said.

A return to the Wild West would be a plus for personal safety. Can't have that Mr. North?

A couple of studies of newspapers in infamous cities and towns in the "Wild West" showed that a person was much safer in the Wild West than in any city today.

[CowTowner]

The only question I have is if you are open carrying, can an LEO check to make sure you are not a convicted felon?

Why not? Wouldn't the LEO be performing his duty under the law by verifying the OC individual is in legal possession of the weapon?
I would only see an issue if the same person is stopped and "carded" repeatedly. The fine line to harassment could be crossed there, opening a different issue.

[hogdogs]

I do not think it is legal to approach an OC person to verify eligibility to carry no more than any of us feel it would be fine to be pulled over "just to see if you have a valid license..." Now if an officer has knowledge that the guy is a felon... have at it...

How about CCW "checkpoints" where folks are patted down for CCW and once found your permit is verified?
What is the difference?

Brent

[koolminx]

A return to the Wild West would be a plus for personal safety.

I couldn't agree more.

Look at Henry McCarty, he purportedly killed 21 people in his 21 years, but that's mostly legend, still, he likely would ave killed a lot more if people didn't wear gun's openly back then! It's a better Deterrent than most think.

Most hard core Outlaw's of the 1800's killed less people than the idiots that shot up columbine...

[mcintosh02]

"Where simply carrying a handgun is not in itself illegal and does not constitute probable cause to arrest,2 it follows that carrying a handgun, in and of itself, does not furnish reasonable suspicion justifying a Terry stop." - John M. Collins, Esq., General Counsel, Massachusetts Chiefs of Police Association, Shrewsbury, Massachusetts

Opencarry.org.

[44 AMP]

What would have been the outcome had he been carrying openly, and posessed a concealed carry permit?

Would they have arrested him?

The cops did state it was policy to arrest if you didn't have a CCpermit.

[KSFreeman]

After his arrest, Marchiafava said, Police Chief Bill Landry told other people: “‘We have a policy of arresting anybody carrying any type of firearm without a concealed-gun permit.’

So, Chief, you have a policy of breaking the law? Does this not make you a criminal?:confused:

[mvpel]

When this first came out last year, I tried to get the police department to disclose the amount of the settlement as a matter of public record, but consistent with Louisiana government style, they disregarded the law and simply returned my letter marked "private settlement."

I was hoping someone who actually had a stake in how their tax money was being spent there in Louisiana would pick up the ball and push it through, but I suppose nobody who might cross paths with a Louisiana cop would want to rile a Louisiana cop by forcing them to obey the law.

[mvpel]

Why not? Wouldn't the LEO be performing his duty under the law by verifying the OC individual is in legal possession of the weapon?

Wouldn't the LEO be performing his duty under the law by pulling over anyone who is traveling at the speed limit and obeying all traffic laws to verify that they have a current and valid drivers' license?

No.

[blume357]

I haven't seen it for years in S.C. but the highway patrol used to just have license checks... where everyone is stopped and checked... but then I guess if they are checking everyone driving down the road that is okay.

[OuTcAsT]

So, you're OC and a cop approaches asking for ID to verify that you are not a convicted felon...how would that sit with people?

Not very well. I OC frequently, have no criminal record, and a permit that allows me to do so. Since you have no legal reason to "terry stop" me, then I expect to be left alone.

While I'm all in favor of CC, I've never been a fan of OC.

This explains a lot. ^^

It scares the sheep and they call us all panicked about a guy with a gun at the mall and then we have to respond. We're all tensed up as we're going to the dreaded man with a gun at the mall call so when we arrive we're all jacked up and prepared for the worst (or we should be) so you expect to be confronted with a drawn firearm. We'll straighten things out once the scene is secure.

The scene was "secure" before you arrived and started "confronting me with a drawn firearm"
for no other reason than I happen to be OCing, sounds more like a dog and pony show for the benefit of the "sheep" rather than a tactical assessment of the situation, followed by an appropriate response; (which would be to observe that I am peacefully going about my business, and to educate the "sheep" of that fact, rather than violate my rights)

If no State or local law prohibited it, I wouldn't arrest the guy unless there was some other violation but I would have a talk with him about the wisdom of OC. Potentially more hassel then it's worth.

How courteous and professional of you to only violate my civil rights "just a little" Draw and point your own OC Weapon at me, and then attempt to lecture me on your perception of the proper way to carry.

Technically in FL, it could be considered Disorderly conduct

Only if you attempt to use that lame "catch-all" merely to hassle me, otherwise it does not apply, and is not any more legally sound(by your own post) than the case in the OP. My suggestion? Read this, and the other recent cases concerning OC, and how harassing law abiding citizens is being dealt with in the courts, you might want to re-think how you approach the issue...could save your city a lawsuit.


ETA: I also have a question; In your profession you OC all the time, why ? As a LEO, what advantage does OC offer you that carrying concealed would not? Please elaborate, and then explain why I should not be afforded the same advantage.

And question #2: Now that you have posted, on a public forum, that you have no problem with violating the law, and even your procedure, and intended justification for doing so, how will you defend your actions in court when someone files a lawsuit?

[azredhawk44]

“When they (police officers) shoved a gun in my face, I was thinking: ‘These guys are dangerous.’ "

Indeed.

Any LEO that draws purely to assert authority rather than to control a truly dangerous situation needs firing, charges for false arrest under color of law, and to be personally civilly liable for assault with a deadly weapon.

This situation sounds like a peaceful fella out shopping with a handgun on his hip, and a gung-ho cop with an authority complex over-reacting.

ETA: I went hiking with a buddy this weekend and we were talking about police.

Seems we both agree that the only LEO's that still hold to the traditional principles of "protect and serve" are Forest Rangers, Game and Fish officers, and it's hit-and-miss with County Sheriff deputies, probably depending on the training atmosphere with each county. I've had a lot of respect for Coconino and Maricopa deputies that I've met so far. The rest (municipal officers) are so traumatized by the pretense that they work in a supposed war zone, they're ready to mace/taze/shoot anyone that doesn't ask "how high" when they say "jump."

[nitetrane98]

Being a retired LEO, this is kind of hard for me to say. I think the "us versus them" mentality has permeated LE to the point that many LEOs are simply operating in "scared" mode these days. I was watching a COPS show the other day, Guys roll up to a little DC call, they've got 2 or 3 units for backup, frisks everybody involved and puts everybody in handcuffs, victim, witnesses, actor, everybody just to find find out what's going on. WTH?

Seems we both agree that the only LEO's that still hold to the traditional principles of "protect and serve" are Forest Rangers, Game and Fish officers, and it's hit-and-miss with County Sheriff deputies, probably depending on the training atmosphere with each county. I've had a lot of respect for Coconino and Maricopa deputies that I've met so far. The rest (municipal officers) are so traumatized by the pretense that they work in a supposed war zone, they're ready to mace/taze/shoot anyone that doesn't ask "how high" when they say "jump."

IMO there has always been a marked difference in the tactics and attitudes involved with Sheriff Dept, Game Wardens, etc than municipal agencies. I always attributed it to the fact that generally speaking the former were much more likely to be on their own to handle a situation with backup sometimes 15-30 minutes away. I always found it much better to ask for co-operation than demand it. Never doubt that co-operation was gained one way or the other. But I really never feared the common man, I wanted them on my side.

We had a sheriff elected who was a former PD officer and as he started the municipalizing of the SO by bringing in old chronies from his PD the image of the SO began to change. He did away with the traditional brown uniforms for (what else) dark blue, changed the patch from a star to a shield and it was pretty much down hill from there.

Caveat: I fully realize that times change, chances are old school ways won't work these days. My retirement came at just the right time.

[maestro pistolero]

I always have to chuckle a little when the old 'Wild West' analogy gets trotted out. What could possibly be more 'Wild West' than a sheriff shoving a gun in the face of a peaceful man with a holstered weapon?

[ESI Agent]

Hear in the wonderful city of Los Angeles Ca we can't get a CCW regardless if you are former Delta/special forces with a degree in Law. Regardless of how qualified you are, you're not qualified. Giving CCW's would improve public safety but regardless of the benefits we cannot get CCW's. I am a armed security person with a permit for an exposed firearm which allows me to wear a uniform and carry a firearm. I am a former Marine infantry with a additional 1000 hours plus in firearms and training in executive protection. People are self serving and they do what's in their best interest "those who make the rules keep the gold" The real reason people like myself are not given CCW's is to protect off duty officers income. Years ago in Ca. the State was going to change the security industry and require more training and qualifications for protection officers and the watch men types would remain the same. Two levels of security in the industry would have improved public safety. This bill was shot down by the Police Associations. After all who would want an industry to evolve that they would have to compete with. That's life, People do what's in their best interest even at the cost of public safety.

[apr1775]

The only question I have is if you are open carrying, can an LEO check to make sure you are not a convicted felon? I know that may sound stupid, but if the cops are now scared to approach someone who is OC for fear of a law suit, whats to stop a guy with a felony conviction from trying it? I know it sounds stupid, but after 19 years in this business, not much surprises me and I can see it happening

Lets apply the same standard to people out and about with children. How do we know if that person is not a convicted sex offender prohibited from interacting with children?

[BillCA]

Currently the incidence of open carry is pretty low. The article did not say if the gentleman's gun was loaded, but I'll presume it was (unlike California's idiot laws). So this forms an unusual circumstance - at least visually. In Nevada, Az and NM, people get used to the sight of a holstered weapon.

Citizens today are fearful of "unusual" strangers because they lack the ability to defend themselves or rely on nearby good citizens for help. Last night, listening to the scanner a call of a "homeless man" in front of a supermarket that a citizen said was "scary looking and he had a big stick". Yeah, being scary looking is a crime. :rolleyes: Dispatch updated saying the caller felt threatened but was not actually threatened by the man.

When cops arrived, they cleared the call in about 5 minutes. He was waiting for his wife, wearing dirty clothes after bathing two dogs and his "stick" was a cane to ease his weak back. If the guy had been OC'ing, instead of 2 cars it would have been four and no doubt they would have run his ID, gun serial number, and asked lots of questions.

Disorderly Conduct charges usually require some kind of knowledge that the conduct is likely to cause panic or alarm on the part of a reasonable person. D-C charges might be appropriate if you park a pickup downtown next to the curb with boxes in the back labeled "Dynamite", "explosives" or "Radioactive". :eek: However a man with a holstered weapon just walking calmly down the street should not cause alarm or panic by a reasonable person. They may be concerned, wary, watchful or curious. That concern may be enough to prompt a 911 call, but not such that he urges others to move away immediately.

[mark marchiafava]

............than what's been published.
I know, I'm the victim here.

Mark

[Al Norris]

... Or the hero. :D

Pick a side and stay with it.

[OuTcAsT]

I know, I'm the victim here.

Mark

Excellent, now we can get some first-hand information.

It would appear that your confidentiality agreement relates only to the settlement so, by all means regale us with the details.

[armsmaster270]

ESI Agent: You can blame your situation on Consumer Affairs, Bureau of Security and Investigativ Services
A lot of your problem is with Bureau passed admistrative regulations which have the effect of law although not passed by the Legislature per se.

[mark marchiafava]

What this Advocate article failed to mention was the way these rogue cops took me into custody.
AFTER their 6 week ROOKIE RESERVE OFFICER checked me out and RELEASED me, four car loads of his thug buddies "captured" me at gunpoint. The first words off the lead officer's lips were "are you a law enforcement officer?"
This question told me all I needed to know. They realized I was not a criminal and also conveyed it's their opinion only THEY can carry guns.

[divemedic]

To mskdgunman:
If you are the LEO you assert yourself to be, you mus know that this statement is totally wrong:


Technically in FL, it could be considered Disorderly conduct if the carrying of the weapon caused a panic or a stampede but generally, you have to have independent victims who will come forward.

In Florida, open carry is illegal under 790.053 (http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0790/SEC053.HTM&Title=-%3E2009-%3ECh0790-%3ESection%20053#0790.053) there are exceptions to this, such as being on your own property, at your place of business, going to or from fishing, hunting, etc. There are a host of exceptions. (http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0790/SEC25.HTM&Title=-%3E2009-%3ECh0790-%3ESection%2025#0790.25) I suggest you become acquainted with them, or you may be the next LEO on the other side of a lawsuit.

Your other statement shows another lack of understanding of the law:

The only question I have is if you are open carrying, can an LEO check to make sure you are not a convicted felon?

You are a LEO, and you don't already know? If OC is not illegal in the state the LEO is in, then no. Not anymore than than it would be to pull over every driver to do a license check, or stop everyone within 1,000 feet of a school to see if they are a sex offender.

[OuTcAsT]

If you are the LEO you assert yourself to be, you mus know that this statement is totally wrong:


Your other statement shows another lack of understanding of the law:


You know divemedic, that was my impression as well and I addressed it in my earlier post. Having read these statements, and all the recent case law that is appearing concerning this topic, I can draw only a couple of conclusions;

1) LE agencies are not training their officers on the laws concerning OC, or CC.
2) The agencies are aware of the laws but choose to thumb their collective noses at it in order to forward some "agenda"

Or, a combination of the two.

[NightSight]

Mark, thank you for standing up for all of our rights.

Outcast, I agree with you 100%. I cannot even relate how disturbed I am to hear of our LEOs with the attitude of mskdgunman. I would certainly appreciate the opportunity to peacefully, after having fully obeyed the officer, talk with him about the wisdom of OC.


If no State or local law prohibited it, I wouldn't arrest the guy unless there was some other violation
I am also pleased to hear that I wouldn't be arrested for breaking no laws, only a stearn "talking" to.

All in all, legal or not, a bad idea in our current society.

Hmmm. I wonder why that is. Maybe if some of our LEOs wouldn't harass the general law abiding public we would have more people willing to OC. Then maybe it wouldn't scare the sheep.

I certainly hope you reconsider your position on OC mskdgunman.

[mark marchiafava]

While I cannot discuss the settlement, I CAN post a pic of one of my new bikes........

[mark marchiafava]

Here are two of them............

[Al Norris]

Mark, while I understand why you cannot discuss the settlement, unless the court records are also sealed, can you discuss the case?

Such as; 1) The violations in the original complaint, 2) the City's rebuttal arguments, 3) discovery and motions, and 4) anything that happened at trial (assuming it went that far).

As I understand it, generally the settlement agreement will state that the City/County/State does not admit to any wrongdoing, regardless of any monetary settlement made. That's a given.

I am most interested in items #1 and #2 above.

[divemedic]

I wouldn't post those pics with a tag on them. This will only make you a target for other police actions.

[mark marchiafava]

The ONLY violation I was booked with was 14:95, illegal carrying of a weapon.
If any of you guys read the statute, you'd realize in short order it didn't apply to me.

There was NO attorney ( I could find) who was willing to take this matter to trial, so I had no choice but an out-of-court settlement. I know, not my first choice, either.

There were no depositions, nothing. The sheriff's office managed to get itself removed as a defendant during the preliminary motions.

I have no qualms about posting my plate. If they or any of their thugbuddies want to show their true colors, go for it.