Man’s arrest on gun charge prompts lawsuit

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Desertdog

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We need many more of these lawsuits in places where they may be won.

Man’s arrest on gun charge prompts lawsuit

By SONYA KIMBRELL
Advocate staff writer
http://www.2theadvocate.com/news/police/3100841.html?showAll=y

Story originally published in The Advocate


A Baton Rouge man has filed a civil rights lawsuit in U.S. District Court against the Gonzales Police Department, the Ascension Parish Sheriff’s Office and five Gonzales police officers.

In the lawsuit, Mark Edward Marchiafava claims he was the victim of false arrest, false imprisonment, assault and battery and unlawful seizure of property.

Marchiafava said Friday afternoon that on Jan. 28 he was in the parking lot at the Tanger Outlet Mall in Gonzales and was wearing an unconcealed blue-steel .357-caliber Magnum in a holster on his right hip.

A Gonzales police officer asked Marchiafava why he was carrying a gun and asked for Marchiafava’s driver’s license. The lawsuit, filed Wednesday, alleges that the officer checked Marchiafava’s license for violations and returned it. Marchiafava claims that he left as a passenger in a vehicle driven by a friend along with his adult daughter and a child.

According to the lawsuit, as the vehicle Marchiafava was riding in approached the exit at La. 44, an unmarked Gonzales police unit and four marked police units forced the vehicle onto the median. Five officers surrounded the vehicle and at least one of the officers drew a weapon and aimed it at Marchiafava, the lawsuit says.

Marchiafava claims he was arrested and taken to the Gonzales police station where he was shackled to a wall.

He was booked into the Ascension Parish Prison in Donaldsonville on a count of illegal carrying of a weapon. He posted the $200 bail within a few hours and was released.

Marchiafava, in his lawsuit, claims his constitutional rights under the Second, Fourth and 14th amendments were violated.

Marchiafava said Friday he also carries a gun for protection. “If you ever need one (a gun), you don’t have time to run home or run to your car,” he said.

Gonzales Police Chief Bill Landry declined to comment Friday afternoon.

Ascension Parish Sheriff Jeff Wiley was on vacation and Chief Deputy Tony Bacala would not comment Friday afternoon.

Ascension Parish deputies were not involved in Marchiafava’s arrest.

He said the Sheriff’s Office was included in the lawsuit because he was wrongfully imprisoned in the parish jail.
 
good I hope he gets enough to retire and buy a lot more guns and a lifetimes supply of ammo.

Problem is the county wont care. They know all they need to know is raise taxes and the people who do decide to sue will be scorned when they ask why their taxes are being raised and the county points to the people with lawsuits.
 
There was an article posted on this incident a month or so ago. There were some law references in that thread.
 
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The Law

14:95 is still valid.

A. Illegal carrying of weapons is:

(1) The intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one's person; or

(2) The ownership, possession, custody or use of any firearm, or other instrumentality customarily used as a dangerous weapon, at any time by an enemy alien; or

(3) The ownership, possession, custody or use of any tools, or dynamite, or nitroglycerine, or explosives, or other instrumentality customarily used by thieves or burglars at any time by any person with the intent to commit a crime; or

(4) The manufacture, ownership, possession, custody or use of any switchblade knife, spring knife or other knife or similar instrument having a blade which may be automatically unfolded or extended from a handle by the manipulation of a button, switch, latch or similar contrivance.

(5)(a) The intentional possession or use by any person of a dangerous weapon on a school campus during regular school hours or on a school bus. "School" means any elementary, secondary, high school, or vo-tech school in this state and "campus" means all facilities and property within the boundary of the school property. "School bus" means any motor bus being used to transport children to and from school or in connection with school activities.

State v. Fluker
The appropriate test to be applied in prosecutions for illegal carrying of weapons is whether, under the facts and circumstances of the case as disclosed by the evidence, the manner in which defendant carried the weapon evinced an intent to conceal its identity. Applying this interpretation of the statute to the facts of this case, we find no evidence of an intentional concealment of the weapon. Defendant wore the gun in a holster on his hip in open view. The gun was exposed, except for that portion in the holster. There was no attempt to conceal its identity. It was fully admitted by the arresting officers that the weapon was sufficiently exposed to be fully recognizable as a pistol. Hence, we find no evidence to substantiate this conviction.

State v. Fluker, 311 So.2d 863 (LA 1975).

Defendant wore the gun in a holster on his hip in open view. The gun was exposed, except for that portion in the holster. There was no attempt to conceal its identity.

The most important excerpt you are looking for from the case above.


Another case

In the instant case, we find no evidence of defendant's intentional concealment of the weapon on his person. Defendant wore the pistol in his waistband in plain view in such a way that it was immediately recognizable as a gun. This manner of openly carrying the pistol contradicts a finding that defendant intended to conceal the weapon. When defendant removed the pistol from his waistband and placed it on the window ledge, the weapon was in full view. Finally, when defendant placed the pistol in his wife's open purse on the floor, it was clearly visible to anyone who passed by. The placement of the pistol in the purse in this manner negates a finding that defendant either intended to conceal the weapon or have the weapon on his person. Hence, we find no evidence to support the conviction.

State v. Bowen, 376 So.2d 147 (La. 1979).

Find and Print This One!

The officer freely conceded at the hearing that he did not have probable cause to arrest defendant Ferrand when he entered the home. The report of drug dealing in the alley way did not identify Ferrand by name or appearance; the alley way was deserted when the officers arrived before Ferrand walked out of his apartment and stood on the porch with the handgun approximately two feet away from his front door; and the officers were not aware at the time of Ferrand's convicted felon status. As the officer acknowledged, the public possession of an openly displayed handgun is not a crime in Louisiana and does not alone provide probable cause for an arrest.

State v. Ferrand, 664 So.2d 396 (La. 1995).

Hope that helps. :)
 
Questions?

Yeah, what questions?

He was booked into the Ascension Parish Prison in Donaldsonville on a count of illegal carrying of a weapon. He posted the $200 bail within a few hours and was released.

Is there another side to the story floating around out there somewhere? Link us to it, please.

The charge is the law posted above. I don't even see an allegation of any of the five things listed in the statute.
 
(1) He was carrying openly.

(2) There is no allegation that he is an "enemy alien."

(3) No mention of dynamite.

(4) No mention of a knife.

(5) Maybe he was near a school?

:neener:
 
There have been several posts over at packing.org about Louisiana in the last three days. Apparently, this is a more widespread problem than just this one arrest.
 
Gonzales settles gun-carrying man’s lawsuit

Gonzales settles gun-carrying man’s lawsuit
By BILL LODGE
Advocate staff writer
Published: Aug 31, 2008 - UPDATED: 12:05 a.m.
Comments (0)

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.’

Source: http://www.2theadvocate.com/news/27706824.html?showAll=y&c=y
Click to expand...

Sounds like the settlement is not enough to retire on, but hopefully enough of a sting that those who run the city are promted to remind their police that it is NOT good policy to violate the rights of the citizens.
 
has been discussed more fully at opencarry.org.

personally I applaud his spunk. not sure I would want to go through what he did to earn his small settlement. that is of course what "they" are relying on. most of us just are not in a position to face down evil government officials when it really needs to be done.
 
Let the cops in Gonzales know how you feel:
Click to expand...
Do you think any of them care one whit? It did not come out of their pocket. It was paid by the municipal insurance co-op.
 
They may not care, but that didn't stop me from rubbing it in a bit. Told them I was planning my next vacation there, so I could O.C., get arrested, then get a big fat payday from them. If they cost the city *enough* money, the city council will can him. :)
 
Whether gun is carried concealed or not or with a permit or not, shouldn't the police / courts have to prove or cite some kind of criminal history or nefarious intent on your part? For instance, it isn't legal to constrain speech, unless it isn't true or is dangerous (fire in crowded theater where there is no fire). Take me for instance, me carrying a weapon isn't dangerous to anyone unless the situation is dangerous to me.

Since yelling fire in a crowded theater is dangerous, but carrying a gun isn't necissarly dangerous, shouldn't they have to prove (as above) some kind of evil / criminal intent?

I think we have let the law go to far.
 
The police do need to believe a crime is being committed, and when carrying a weapon openly is not illegal, carrying said weapon is not a reason for which they can detain and/or arrest you.
 
It takes test cases like this for some places to admit open carry is legal there.
Ohio has dealt with this recently and through some hard work by OhioCCW.org and a couple of test cases, the police are starting to fall in line with the law. It not so much ignoring the law as it is misunderstanding it, though there are always those exception that are trying to make a point.
 
If only more people were to stand up and be counted

Good on ya buddy! Thank you for your service! Yes I consider it a service to your community. Unfortunately though, too bad the tax payers had to foot the bill instead of those directly responsible. I have always had a problem with public funds going to repair what a few overzealous politicians and others do, but I guess it is the public that voted them in and the public must then pay for that decision. I guess I want more of a scalpel to excise the money directly from the individuals' accounts rather than from public funds which punish all, even those that didn't vote for these sods! Sigh... If only I were King/ Dictator :rolleyes:
 
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Should the settlements be higher?

The person that is arrested will still have an arrest record that will follow them for the rest of their life.

Arrests of the kind described in this thread won't mean much to a middle aged tractor mechanic but to a 23 year old rising star in one of the fields that require a security clearance it could be very damaging.

I'm no rising star and don't require a security clearance but an arrest record, even if the charges were thrown out would have a negative impact on my career. That's why I toe the line and don't place myself in situations that are likely to get me arrested unlawfully. Wow, that sounds strange to say that!

I don't think the settlements are high enough because these unlawful arrests keep happening. If the settlements were higher or maybe knowledge of them more widespread perhaps these unlawful arrests would stop happening.
 
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.’
Source:
Click to expand...

We, the people need to fire our self-appointed rulers and hire public servants.
 
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