A Right To Carry Guns in Public?

Brian Doherty | December 10, 2008

In keeping one's eye on the ferment in lower courts on gun issues post-Heller, Eugene Volokh at the Volokh Conspiracy finds an interesting footnote in a U.S District Court for Utah memorandum opinion and order.

The order allows the (partial) moving forward of a lawsuit charging some police officers of 4th Amendment excessive force violations due to their ruffian behavior against a man in Salt Lake City who didn't, because he was physically unable to, raise both hands above his head when ordered to by the cops. The details of the story in Volokh's post make for aggravating reading, to be sure.

While the case was not a Second Amendment one, the fact that a gang of cops were accosting Miles Lund in the first place was because of a call in about a "man with a gun" in the park. As it turned out, Lund was not that "man with a gun." But the footnote avers interestingly, among much discussion of specifically Utah constitutional provisions and policies:

By itself, mere possession of a firearm in public is not unlawful and may well represent the exercise of a fundamental constitutional right guaranteed by the Second Amendment to the United States Constitution..... See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008) (“There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.”)..... Salt Lake City’s asserted governmental interest in its police officers’ response to a report of a “man with a gun” in a public park cannot be weighed in isolation....there may well be more individual constitutional rights at stake than the Fourth Amendment freedom from unreasonable searches and seizures.

For the history of the case that started this new wave of Second Amendment judicial musings, see my new book Gun Control on Trial.

Comments

|12.10.08 @ 10:08PM|#

I believe Obama will put forth two bland and contradictory opinions on the court's order.

Paul|12.10.08 @ 10:12PM|#

We should bail out the gunmakers.

Oh wait, they make a product that works and people want.

|12.10.08 @ 11:51PM|#

If only there were a man with a gun at the park to protect that guy from those violent criminals.

|12.10.08 @ 11:52PM|#

Take heart, ye libertarians. Amidst all the days doom and gloom over bailouts, corruption, and pinheadism - we may have overlooked a solid reason to be happy. The supreme court is unarguably further right than it was before Bush - and further right in a good constitutional minimalist states rights sort of way. Perfect? No. And I'm sure some of you will tell me why, but I remain optimistic that at least one of our enumerated rights may be substantially restored over the next decade. Call me an optimist if you must, but damn, Roberts is a good jurist. And young enough to imprint the court for many decades. To his health!

Dello|12.11.08 @ 12:25AM|#

"The order allows the (partial) moving forward of a lawsuit charging some police officers of 4th Amendment excessive force violations due to their ruffian behavior against a man in Salt Lake City who didn't, because he was physically unable to, raise both hands above his head when ordered to by the cops."

McCain would have been so tazed!!!

Mister DNA|12.11.08 @ 12:44AM|#

The surprising thing about this article is that the Supreme Court hasn't ruled that physical disabilities shouldn't impede citizens from obeying an law enforcement officer's commands. I mean, hell... if an officer tells you to get out of your wheelchair so that you can be frisked, the fact that you're a paraplegic shouldn't make any difference; the cop gave you direct order. Any injuries incurred are simply the result of these New Professionals doing their their job in that New, Professional manner.

|12.11.08 @ 8:45AM|#

Any injuries incurred are simply the result of these New Professionals doing their their job in that New, Professional manner.

How does this tie in to the New Traditionalists? Remember, nobody knows, so let's find out.

Rust Belt|12.11.08 @ 9:03AM|#

"We should bail out the gunmakers.

Oh wait, they make a product that works and people want."

...and with minimal maintenance the product will function flawlessly for 75+ years.

|12.11.08 @ 9:37AM|#

...and with minimal maintenance the product will function flawlessly for 75+ years.

Unless, of course, they are in a "secure storage" barrel, with New Orleans Police Department, "awaiting disposition".

Well.... Rust Belt DID say minimal maintenance.

robc|12.11.08 @ 9:48AM|#

Conversation in a free America:

911: What is the emergency?
Caller: There is a man with a gun in the park!!!
911: So fuckin' what?

hotsauce|12.11.08 @ 11:17AM|#

Let me fix that for you robc.

Caller: [punching numbers on phone] 9-1-1

...

....

.....

rockymntn|12.11.08 @ 12:51PM|#

Before you get all hot and bothered, recall that the facts in the case are disputed. That is the reason the Court denied summary judgment. The officer's side of the story, which the post and subsequent comments fail to acknowledge, is below. Now perhaps a trial will show that Lund was an innocent victim. Perhaps. But that's why we have trials when there are conflicting stories about what happened.


Officer Curdie's summary judgment memoranda dispute Lund's narrative of the events of
November 25th, alleging inter alia that Curdie told Lund that he was a police officer and that
Lund was considered armed and dangerous; that Lund did not comply with his thrice-repeated
order to face away from him, place his hands on the back of his head, interlock his fingers, and
separate his feet, instead turning to face Curdie with both of his arms at his sides. Not only did
he fail to comply with his verbal commands, Officer Curdie asserts that Lund was moving his
hands and shuffling his feet, and that he also reached for the waistband of his pants with his right
hand, which Curdie interpreted as a "very, very threatening" movement. Curdie asserts that he
repeatedly ordered Lund to go to his knees or to lay prone on the ground, but that Lund refused to
comply, saying that he was "crippled." Yet Officer Curdie's observation of Lund gave "every
indication that he [Lund] was able to perform the tasks that I was asking him to perform," and
Lund did not appear to Curdie to have limited mobility or some kind of physical ailment.

grizzly|12.11.08 @ 2:28PM|#

Officer Curdie's summary judgment memoranda dispute Lund's narrative of the events of
November 25th, alleging inter alia that Curdie told Lund that he was a police officer and that
Lund was considered armed and dangerous; that Lund did not comply with his thrice-repeated
order to face away from him, place his hands on the back of his head, interlock his fingers, and
separate his feet, instead turning to face Curdie with both of his arms at his sides. Not only did
he fail to comply with his verbal commands, Officer Curdie asserts that Lund was moving his
hands and shuffling his feet, and that he also reached for the waistband of his pants with his right
hand, which Curdie interpreted as a "very, very threatening" movement. Curdie asserts that he
repeatedly ordered Lund to go to his knees or to lay prone on the ground, but that Lund refused to
comply, saying that he was "crippled." Yet Officer Curdie's observation of Lund gave "every
indication that he [Lund] was able to perform the tasks that I was asking him to perform," and
Lund did not appear to Curdie to have limited mobility or some kind of physical ailment.

Which basically adds up to: "he didn't do what I told him to do, as fast as I told him to do it. And he don't look crippled to me"

ie: typical police BS

|12.11.08 @ 4:20PM|#

Curdie told Lund that he was a police officer and that Lund was considered armed and dangerous

On what basis was Lund considered dangerous? Merely because he was armed? Since when does exercising a Constitutional right mean that you can, without anything more, be arrested?

instead turning to face Curdie with both of his arms at his sides

Boy, talk about your threatening postures! I bet Officer Curdie had to change his shorts after that!

Officer Curdie asserts that Lund was moving his hands and shuffling his feet,

I would have called in SWAT at this point.

and that he also reached for the waistband of his pants with his right hand

Finally, something that might be considered threatening, or might not, of course.

|12.12.08 @ 10:02PM|#

When is Gun Control on Trial being released? I was going to give it to my dad for Christmas, but it doesn't look like it will be out in time. Sadness abounds.