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May 3, 2012, 06:55 PM | #1 |
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GA Suit Over Open Carry Incident
A Georgia man has filed suit against two Gwinnett County Police Officers and a Sugar Hill Security guard claiming violations of his First, Second and Fourth Amendment rights. Gwinnett County and the city of Sugar Hill are located in suburban Atlanta.
This all stems from an incident where the gentleman was stopped by the security guard for openly carrying a firearm in a Sugar Hill park. The two argued over the laws and the plaintiff admits to insulting the security guard. During this confrontation two Police Officers arrived and asked the gentleman to leave, but he refused and was arrested for criminal trespass. The Officers also report that he was very evasive and supplied conflicting information. After discussing this with some friends the general consensus was that the plaintiff made the situation worse with his behavior. There was even some question as to whether he might have actually been looking for a confrontation. To me it seems like the best course of action would have been to leave and then follow up with the City Attorney at a later date. To the best of my knowledge as a holder of a Georgia Firearms License the gentleman was well within his rights, but may have committed another crime based on his response. http://www.ajc.com/news/gwinnett/man...r-1429992.html
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May 3, 2012, 08:50 PM | #2 |
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Criminal tresspass
I also live in Georgia, some cities have ordances about carrying in parks. The law does state though if asked to leave an establishment, you have to leave or the cops and give you a criminal tresspass. On another subject, why anyone other then a cop or security guard would open carry I don't understand it. Can someone please explain to me why they choose to open carry? It just seems that you are drawing attention to yourself and giving away a tactical advantage. If I'm planning something and I can see your gun, you just made the math that much easier.
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May 3, 2012, 09:10 PM | #3 |
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The city.
I could be wrong but it looks like the city is going to win this one on a couple levels. He admited that his birthdate is wrong on the license. They could argue it's not his and he has no right to be armed. I am not familiar with this particular park, but if they hold public events their they could make that public gathering argument. If they don't get him on the gun or tresspass, is lying to the police a crime? He was carrying a fraudulent document and he knew it. I could be wrong about it and reading to much in to it, the fact that he is sueing the cops and guard and not the city says alot. The guard did not infringe on his rights, he was doing his job according to the law as he understood it.
Weapons: Bows and arrows, explosives, fireworks, slingshots, fishing spears or any device that discharges projectiles by any means is prohibited. Firearms must be unloaded, cased and stored, unless a person possesses a valid weapons-carry license for a firearm that is valid in Georgia. A person possessing a valid weapon-carry license to carry a firearm valid in this state may carry such firearm on Georgia State Parks and Historic Sites, except on sites where carrying such firearm is prohibited by federal law. Firearms except those that are unloaded, cased and stored are not permitted on sites that are leased, federal Army Corps of Engineers property, including: Red Top Mountain. It sounds like he should be sueing the city, some cities in Georgia do have these laws and they may be unconstitional. |
May 3, 2012, 09:19 PM | #4 |
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Georgia is a preemptive state. The city ordinance would probably not pass muster.
However, the OC'er does not seem to have handled things in a wise manner. |
May 3, 2012, 09:22 PM | #5 |
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If I got in an argument with a security guard and the Police told me to leave,I would have left skid marks leaving.You can't fix stupid.
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May 3, 2012, 09:30 PM | #6 | |
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The guy went out looking for trouble, and he got it. Looks like the lawsuit has already been filed. I'd lay money that he's going to try to make a 2nd Amendment issue about it, then scream bloody murder when the NRA fails to take up his cause.
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May 3, 2012, 10:21 PM | #7 |
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Tom,
You seem to be correct from what I have taken from this post and the AJC. I am sure there are some good, honest open-carriers out there. The very few I have met locally seem to want to make an issue of whether or not a property owners (or their representative) rights, trump their 2A rights. With one exception, that is all I have ever seen. Perhaps this man has a case, perhaps not. The fact that was he wasnt charged with a weapons offense, and instead charged with trespass says a lot to me. |
May 3, 2012, 10:27 PM | #8 |
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More freedoms legislated away..... a shame.... bet he pays taxes too.. ah but society has ruled..... what about freedom? when do we get to be free to act as a free people?
Im not promoting breaking laws what I do promote is we have way too many laws and in order to be free your every action cannot be dictated by law.
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May 4, 2012, 12:13 AM | #9 | |
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May 4, 2012, 12:32 AM | #10 | |
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I think the guy is approaching this kind of like the Police pulling someone over for an inappropriate reason and then discovering drugs. I think it is referred to as “fruit of the poisonous tree” or something like that. In other words if they had not stopped this guy when he was doing nothing wrong there would have been no confrontation and no subsequent arrest.
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A major source of objection to a free economy is precisely that it ... gives people what they want instead of what a particular group thinks they ought to want. Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman |
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May 4, 2012, 01:54 AM | #11 | |
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Like others post, I have read that this pre empts a city ordinance. http://www.georgiacarry.org/cms/geor...ked-questions/ This guy's problem is that his carry license may not have been "valid". |
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May 4, 2012, 02:08 AM | #12 |
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Barry, The fruit of the poisonous tree doctrine prohibits evidence of a crime from being used if it was obtained by violating one's right to be free from an unlawful search and seizure (4th Amendment). The idea is not that the evidence isn't good or that it isn't probative as to guilt or innocent. This kind of evidence is often the best. The idea is by barring its use the police will be deterred from disregarding the Constitution.
IIRC, the biggest chink in the poisonous tree doctrine was a decison, perhaps it was Wolfe. I am not sure and the name isn't that important. The decision allowed the use of evidence although it was fruit of an improper search, but the police had acted in good faith. I beleive later cases have expanded on the good faith exception. Here, I believe the court would find that the police acted in good faith since the city ordinance banned the carrying of a weapon, if they did not know that state law pre-empted it, and the weapons license appeared to be invalid. The birtdate was incorrect. Besides, the fruit of the poisonous tree only applies to the ban of evidence and what evidence does anyone seek to ban? |
May 4, 2012, 08:08 AM | #13 | |
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May 4, 2012, 09:25 AM | #14 |
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Would somebody please describe what acting like a free people is?
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May 4, 2012, 11:57 AM | #15 | |
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The person that was open carrying in this incident has made a couple bad decisions...
His comment in the story linked above: Quote:
I have to wonder how Mr Proescher treated others around there as well...I am sure there were other "non-police officers" there. Sometimes being polite goes a long way. Remove the fact that he was open carrying, and think to yourself, "if a man is being insulting, and creating an issue with his attitude/actions, should something be done?" The next two lines say alot to me. That he was using his "freedom of speech" to be insulting to others? Since, in my opinion, he basically started a confrontation with his speech, he follows up and says that he "was excercising his right to bear arms in case of confrontation." Ummm. Thankfully no one was injured, but this type of thinking is not good, in that, a person can go out, be insulting to start a confrontation, carry a firearm to defend himself in the confrontation that he started. It could have proceeded to have got worse... The feeling I get from the story is that the firearm was just there, and was not the issue. The issue seems to be the persons attitude, and that is more then likely why he was charged with trespassing in the end. It is interesting that he mentions he is an "advocate" of open carry, but yet he knew his birthday on his carry permit was wrong. I wonder if he has proof of where he tried to get that corrected, or just carried as is? I am unsure about Ga for sure, but here even on public property you can be charged with trespassing or another charge if you are causing a problem and refuse to leave, or there after hours, or there without paying admission when they have a concert/show with admission fees. Generally speaking though disorderly conduct or disturbing the peace would probably be a better charge in some circumstances. Last edited by Fishing_Cabin; May 4, 2012 at 01:56 PM. |
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May 4, 2012, 05:34 PM | #16 | |
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To be able to carry arms openly and publicly because it is your right and its not subject the good will of others. To be able to engage in activities without every little possibility dictated by law. Heaven forbid any part of life is unregulated....
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May 4, 2012, 09:08 PM | #17 | |
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May 5, 2012, 05:15 AM | #18 |
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Agreed Tom.
I for one am glad it did not go worse, as it certainly could have, at least in my view. |
May 5, 2012, 11:26 AM | #19 |
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I OC all the time (except in Winter when I have a coat on). I never go looking for trouble, and in over 40 years of OC, I personally have never had a problem....
However, when you do OC, and you do run into a problem, it is best to fight it without confrontation. Perfect example is Jeff in Spokane. (Jeff OC all the time also) Went to a Ron Paul political rally at the Spokane Convention center, and her and his companion, both OCing, were turned away and told they could not enter the convention center. They did not muss or fuss, they left and then filed a complaint with the parks board. Yes, Spokane has an ordinance about firearms in their convention center, and it to not a legal rule, the state in RCW 9.41.300 specifically states that a local governments cannot prevent CPL holders from carry in a convention center. This is now going through the complaint process to get Spokane to change their ordinance so it complies with state law. My personal feeling...Jeff is going about this the proper way...and he has standing without jepurdy. |
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