Seized by the Manchester, New Hampshire PD for Open Carry

[mvpel]

The following is a letter I have sent to the Manchester Police department regarding an interesting interaction I had with them while carrying openly in a book store last Saturday.

"Names have been changed to protect the guilty," for the time being. This has been posted for your information and discussion, please don't contact them on my behalf at this point - I've got the situation in hand and would like to see how it plays out over the next couple of weeks.

================

Michael V. Pelletier, xxxxxxxxxxxxxxxxxxxxxxxxx, (xxx)xxx-xxxx

Capt. xxxxxxxx, Public Integrity & Professional Standards, Manchester Police Department

March 29, 2004

Dear Captain xxxxxxxx,

I am writing to you in your capacity as head of Public Integrity and Professional Standards to lodge a complaint against your department and certain of your officers stemming from an incident that took place on Saturday, March 27 at about 9:00pm.

Background

My wife and I had just finished our 11th anniversary dinner at Kobe Japanese Steakhouse on Second Street, and had stopped in to the Barnes & Noble bookstore on South Willow Street for a cup of latte and a few books and DVDs. I was dressed neatly in slacks and a purple oxford shirt, and was clean-shaven.

Due to the pleasant evening air, I left my coat in the car. Since I had neglected to tuck my shirt over it, my holstered Glock 30 sidearm was thus visible in the small of my back in a Workman IWB holster.

For about 10-15 minutes, I chatted with my wife about choosing a sweater from a selection of knitting books she was reviewing, browsed the history and political sections near the restroom, and then made my way over to the Science Fiction aisle.

I was idly leafing through an interesting book, minding my own business, when suddenly I found myself seized by the right shoulder and my holster, pushed towards the corner of the bookcase, by either Officer xxxxxxx or Officer xxxxxxx, I’m not absolutely certain which of them.

I exclaimed, raised my hands up to prevent myself from going face first into the bookshelf. I dropped the book, and upon glancing over my right shoulder, saw another uniformed officer at my right flank. The officer holding me requested that I relax and place my hands on my head. I immediately complied.

I was then disarmed, the holster being unsnapped and removed from my waistband. I informed the detective to whom the firearm was handed that it had a round in the chamber upon his inquiry. I believe the individual who unloaded it was one of the detectives, either xxxxxxx or xxxxxxx.

I was then asked to go outside the store with them, and I agreed. I was released and walked to the doorway, handing over my driver’s license and New Hampshire pistol license on the way out.

Once my record came back clear, naturally, I was subjected to a condescending lecture about the carrying of arms, quizzed repeatedly as to why I carry a firearm.

I replied “to protect myself and my family,�[1] which yielded a number of derisive comments about the effectiveness of firearms in self-defense and defense of others – hmm, why do cops carry them, I wonder? “We have to,� one of the detectives whined. They also lectured on liability issues, terrorism, and other such topics.

I informed them that I am trained, having completed the Lethal Force Institute’s Judicious Use of Deadly Force course, as well as handgun licensing requirements in California and for a Utah Concealed Carry license.

Given the crowd of talkative uniformed officers and detectives around me, and having been somewhat rattled by the ambush, I had difficulty finishing a sentence, and in hindsight I should probably have told them it was none of their damn business why I carry a firearm or whether I was trained.

After about 5-10 minutes of my polite endurance of various disrespectful and arrogant statements and questions by the officers and detectives, my firearm was returned to me, and I reloaded it and placed it back on my belt, this time tucked under my shirt. Upon completing a contact card with one of the officers, at his vehicle, I retrieved my coat, and returned to the store to find my wife.

We purchased about $200 worth of books and DVDs, and then went home.

Points of Complaint

Simple Assault – RSA 631:2-a-I(a)

At no time until, during, or after the officer laid his hands on me, was there any legal cause for his touching or restraining me.

The irrational alarm induced by the sight of my holstered handgun among those who called 911 aside, I was conducting myself in a calm and reasonable manner, merely browsing the books and minding my own business, occasionally chatting with my wife, not posing any threat or menace to anyone else in the store.

RSA 631:4, Criminal Threatening, does not apply as I was not engaging in any manner of physical conduct that purposely placed or attempted to place another in fear of imminent bodily injury or physical contact.

RSA 644:2, Disorderly Conduct, does not apply as I was not engaging in “violent, tumultuous, or threatening behavior,� either knowingly or purposefully. The open carrying of a firearm is not inherently threatening behavior, even when it makes someone from Massachusetts pee their pants and hyperventilate.

Unlike Illinois,[2] New York, or Washington, DC, where an openly carried firearm is prima facie evidence of a violation of the law, there is no New Hampshire statutory provision against open carry. In fact, it is a right guaranteed explicitly in the Constitution of the State.

Your officers should have enough experience and common sense to evaluate the totality of the circumstances – my attire, my demeanor, the fact that most armed criminals don’t carry openly, etc. – and take action on that basis, rather than on the basis of a paranoid fear of armed citizens which they evidently share with those who called upon them.

Public Duty – RSA 627:2

Given the fact that there was no violation of the law taking place or reasonably suspected when I was seized, the officer’s use of physical force was not authorized by law, and thus does not fall under the exemptions offered to public servants by this section of New Hampshire law.

The irrational concern expressed by others at the mere sight of a well-dressed individual openly carrying a firearm “near the children’s section� has no legal standing, and does not afford any credible justification. Another’s belief in “evil gun radiation� has no bearing on law or reality.

Physical Force in Law Enforcement – RSA 627:5

This statute provides that “[a] law enforcement officer is justified in using non-deadly force upon another person when and to the extent that he reasonably believes it necessary to effect an arrest or detention or to prevent the escape from custody of an arrested or detained person, unless he knows that the arrest or detention is illegal…�

Again, the officer should have known, and can reasonably be expected by a court and a jury to know, that there was no legal justification for seizing and detaining me under the laws of New Hampshire, and his detention of me was therefore illegal and unjustified.

Fourth Amendment

My Fourth Amendment right against unreasonable seizure was violated, as there was no reasonable basis to believe, given the totality of circumstances and New Hampshire law, that a violation of the law was underway or planned before I was grabbed by the officer.

Defamation of Character

The seizure of my person under false and illegal pretenses, being ordered to place my hands on my head, and my being escorted from the store by a crowd of police officers had a clear and unmistakable tendency to expose me to public hatred, contempt, or ridicule[3] by all the patrons of the store who witnessed the incident, and by anyone who might read about the incident in the newspaper were it to be reported in the media’s usual breathless and inflammatory style.

Conclusion

I understand that your officers often face difficult, dangerous, and demanding situations, and that they must conduct themselves in such a way as to minimize the risk they face while carrying out their duties.

However, this necessity to minimize risk does not override the fundamental right guaranteed to all citizens of this State and Nation to be free from arbitrary exercise of the police power while lawfully going about their business.

If they had approached me, I would have greeted them politely. If they had requested that I tuck my shirt over my firearm due to the irrational concern expressed by other patrons of the store, I would have politely complied.

Even if they felt the need to have one officer sneak up behind me, ready to tackle me, while another officer engaged me in conversation, that would have been fine too.

But to have their first interaction with me be an ambush, to find myself grabbed and restrained for no justifiable reason while peaceably going about my business, is far beyond the pale. And to then be subjected to a condescending interrogation about my choice to exercise my fundamental human right to carry a firearm for the defense of myself and my family was even more irritating, in light of the fact that I’ve undergone about half a dozen federal background checks and fingerprinting in the process of obtaining my CCW cards.

Whether or not your officers and detectives realize it, and whether or not you even like it, the armed citizen in New Hampshire is your ally and friend in the endless struggle against dangerous criminals. We are part of the reason that the violent crime rate in New Hampshire (175.4 per thousand[4]) and Vermont (113.5 per thousand) is a fraction of that of Massachusetts (476.1 per thousand), a state where women living in a town with an at-large serial rapist must go begging to the police for pepper spray. Thomas Paine expressed this principle eloquently, saying:

“...arms like laws discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. ... Horrid mischief would ensue were the law-abiding deprived of the use of them; ...the weak will become a prey to the strong.�[5]

There are far too many instances – as I’m sure you are well aware – where the weak, deprived by law of effective tools for self-defense, have fallen prey to the strong, such as the Manchester high school girls who were brutally raped in recent weeks.

Just have a look at page A8 of the March 29 Union Leader, and every month, for crimes prevented or ameliorated by armed citizens.

Reflecting on the incident the following morning, I realized that I had forgotten Massad Ayoob’s point that sheep can’t tell the difference between the sheep-dog and the wolves, even though the sheep-dog would risk his life to save the sheep from hungry wolves.

I realize that some of the patrons of Barnes & Noble thought of me as a wolf, rather than a sheep-dog, and reacted accordingly by calling in the authorities. Needless to say, I will be careful to carry my firearm more discreetly in the future to avoid spooking the sheep.

However, I expect better discernment from fellow sheep-dogs.

I have not yet decided whether or not to file a lawsuit on the basis of the aforementioned violation of my rights and New Hampshire law. If I do, I will copy you on the service as a courtesy.

Thank you for your attention to this matter, Captain xxxxxxx. If you wish to discuss this matter further in a meeting, please feel free to contact me at the phone number indicated on the first page, or via e-mail at mvpel@yahoo.com, and we can arrange something.

Sincerely, Michael Pelletier.

-------------------------------------------------

[1] New Hampshire Constitution, Article 2-a

[2] 720 ICLS 5(a)(10), unlawful use of weapons.

[3] RSA 644:11, Criminal Defamation

[4] Federal Crime Statistics, 2000 - http://www.disastercenter.com/crime/macrime.htm http://www.disastercenter.com/crime/nhcrime.htm

[5] Thoughts On Defensive War, (1775) in 1 Writings of Thomas Paine, at 56, M. Conway ed

[Langenator]

Excellent letter. Clear, calm, and factual. Let us know what kind of response you get.

[tetchaje1]

Good letter. I believe you have a good case.

[fjolnirsson]

A beautifully written and well thought out letter, sir. What happened tp you was inexcuseable. I am glad to hear you came through ok. It could have gone worse.

[SAG0282]

Very well-written letter...........I'm sorry to hear that crap happened to ya. Pretty much every cop I've encountered while armed has been completely different and much more professional.....hopefully that won't ever change.

[Zedicus]

Good Letter!, Those Cops Crossed the line IMHO and could quite possible loose there badge's over that, I'd be looking for a Lawer if i were you....

[MissileCop]

*giggle-giggle-snicker*

I'm sorry, I can't help but chuckle.

That is some of the best first rate verbal smackdown that I have ever seen in print. I bow to you, Sir.

I'm sorry that you had to endure such an incident. Unlike yourself, I doubt if I would have dropped $200 into Barnes and Nobles until I knew whether they had been the ones to start this unpleasant chain of events.

Also, you may want to send a copy to the chief, who would be John A. Jaskolka, just to make sure that this incident doesn't quietly find its way into the circular file.

Be sure to let us know what their response is. It's hard to argue with such a factual, well-documented letter.

[PATH]

A little bit over the top by the officers. Bad guys usually don't hang out with their guns exposed. Further, most bad guys don't carry their firearms in expensive holsters.

A lot may depend on what kind of call the PD recieved. SOmeone may have said you were menacing. A quick assessment of the situation would show that you were posing no danger. The officers should have acted accordingly!

I also am sick to death of some LEO's questioning of my decision to carry a firearm! If I am legally carrying it then they have no damn reason to ask why? How about I ask about the LEO's sexual proclivities? None of my business, eh! Well my right to legally carry a firearm is none of his damn business!

I have got ot watch my pressure! In my opinion a writen apology is warranted. No apology would result in my retaining an attorney.

Anyone up for a New Hampshire road trip?

LIVE FREE or DIE!!!! I guess Manchester's finest are not aware of the state motto!

[Quartus]

Oh, please sue. PLEASE SUE! PLEASE SUE !!!!!


DON'T let these Nazis get away with trampling the Constitution yet again! It's worth th fight!

[mpthole]

I have not yet decided whether or not to file a lawsuit on the basis of the aforementioned violation of my rights and New Hampshire law.

Please, please sue the pants off them.

[tc300mag1]

Very Nice letter very smooth hope they give you a responce let us know.

[pax]

What an excellent letter!

I'm impressed.

Please keep us all updated about what happens next.

pax

To express the most difficult matters clearly and intelligently, is to strike coins out of pure gold. -- Geibel

[Master Blaster]

One small comment, this could have potentially had very serious negative consequences for the officer who grabbed your holster from behind.

Lets suppose that you were a stranger visiting town, and it happened that you were a DEA or FBI agent who daily deals with dangerous crimminals, some of whom would like to kill you if they had the chance.

Lets also suppose that you carried say a .357 magnum airweight revolver
in your left pants pocket as a backup.

At the point where officer friendly grabbed you from behind and went for your holstered firearm, you say reached into your left pocket out of reflex and stuck into the officers eye socket a loaded .357 revolver. A very nasty shoot out resulting in the death of officer friendly and possibly you could have very easily been the result.

There are also some non-LEOS I know who train for just such an event and carry a second gun or a large knife which could have been protruding from officer friendly's neck before anyone realized what was happening.


Just an asside.

[tc300mag1]

Master blaster you bring up a very valid point i hadnt thought about ti till you said it . A firend is a State trooper and carry a 357 in front pocket just for this reason. The way the officers handled it was very piss poor indeed.

[mvpel]

Thanks for the compliments, everyone, I appreciate it. I'll certainly keep y'all posted as the situation develops.

One of the mistakes I made, aside from forgetting to tuck in my shirt when I took off my coat, was that I was essentially in "condition white," browsing an interesting book. I had no idea anyone had any issue with me until I was grabbed.

I was advised by a respondant on Free Republic that if I want to get engrossed in a book, do it with my back to the wall or in a chair if I'm using a SOB holster - a very sage piece of CCWisdom.

[geekWithA.45]

The more people that convey this message in terms as clear and concise as yours, the better!

[P95Carry]

Michael .. OK everyone has said it but damn! I want to as well!!

EXCELLENT piece of writing sir ... quite inspired. It would be hard to imagine a more balanced, logical and cogent construction. I shall be more than interested to know how this plays out.

I see you have been a member as long as I have .... and yet we have not had the benefit of your posts very much!! I feel we may have missed out ..... please continue with your erudition.

[Treylis]

Superb letter. I sincerely hope it turns out for the best.

[Desertdog]

You have sang loud and clear it to the chorous.
Now sing it to every newpaper you can find via letters to the editor and maybe even get yourself interviewed by some gun friendly local news media persons.
Try to let the sheep know that guns are not evil, that good people carry them also.
I think that sueing the cops over this should generate a some lines in the news media where the sheep can learn something about the law.

[Frohickey]

What kind of book was it?

[Ironbarr]

First, your letter is everything it should be - no rant - factual - calm - citations.

Second, and others have mentioned possible "different" events... here's one more, which may or may not be included in your advanced training:
RETENTION training.

As we "act as we train", whether it be shooting methods or otherwise, what would have happened if you had acted/reacted as a trained & practiced retention procedure suggests (or martial arts, for that matter)???

Probably you had little chance to respond physically - but suppose you were highly adept at the retention/MA moves - and had automatically reacted?

For my money, anyone - family included - who reach for a person's weapon without permission is asking for a strong response - probably a physical response detrimental to immediate good health. It's just a bad idea.

In the case you enumerate, the initial "hold" was your gun and your shoulder. No doubt this began an off-balanced motion situation. But suppose you had it holstered elsewhere - side/front, wherever? The event may have given you the opportunity for a (trained) retention action - before you recognized that it was "the Law" and not a bad guy.

And another thing - what of the gun itself? Make/model? Hammer back? Down? Safety'd? One chambered? Light trigger? Whatever. Seems to me a grab for someone's handgun - holstered or not - is... well, it's a dubious move rift with safety considerations. Almost equates with someone jerking a hand grenade from your vest, huh? Anything - or nothing - could happen. But then, considering you were in B&N, as were other customers, I'd say they took a gamble.

Suppose they'd erred in some way and your weapon discharged and hurt someone (including you - or another officer)??

Yes - a lot of "if's" and "suppose's". The pure fact is that they acted to defang you then to find out who/what you were. Your back turned made it easier - but WHAT IF?

Situational awareness. You're right... White was the wrong condition, but it easy to fall into, huh? I know that, too.

Hope it works out.

-Andy

[7.62FullMetalJacket]

I was thinking the same thing. What if the JBT was clumsy and missed restraining you and, under condition red, you drew and fired

If you yank the tail hard enough, you will get the claws and the fangs.

Oh, and condition white is for the herbal tea crowd

[mvpel]

Oh, and condition white is for the herbal tea crowd.

Ow!

Thank you sir, may I have another?

And thanks, Ironbarr, for your advice and suggestions, I'll definitely plan on taking a retention course in the very near future.

[12-34hom]

Excellent & eloquently written, mvpel.

To bad those who refer to the police as JBT's and Nazi's in this post couldn't learn, from your style of expression that it = garners & commands respect.

Instead of name calling, which portrays a parochial attitude that is only self serving.

It appears that this incident will serve as a learning experience for you and those police officers involved.

12-34hom.

[kbr80]

It appears that this incident will serve as a learning experience for you and those police officers involved.

I find it almost funny, in a knock my head up against a brick wall kinda way, that when a citizen mucks up, we pay the price, but when an LEO mucks ups, its a learning experience. Just more fuel to add to the us v them fire. These guys were JBT's. First off, there is no reason for a cop to ask anyone who has a permit to carry, "why are you carrying a gun". Its none of their business. My reply is, "because the state of (insert your state here) says I can." This is an assault, plain and simple. Your letter was brilliantly written, but go that extra mile, and retain a lawyer. Make sure that no one else will have to go through the aggravation and humiliation that you suffered at the hands of these JBT's.


Learning experience??? If the cops have not learned how to conduct themselves before they pin on a badge, it wont help now.

SUE their A$$ES off. Forward a copy of that letter to the Chief of Police, each city council member, city manager, local tv station, anyone that would possibly take an interest. Any more correspondence with them should not be done by you, hire a lawyer and make a statement.