Monday, July 1, 2013

Gun Rights vs. Property Rights

By Dave Dargo

A few years ago I was taking an Arizona Concealed Weapons class from an ex-Phoenix police officer. During the class he spoke of the issue of private property rights and the ability for a business to prohibit weapons from their property.

For most cases, it is perfectly legitimate for a business to prohibit you from taking firearms onto their property. The second amendment protects you from governmental violation of your rights and when it comes to the rights of a property owner the property owner can pretty much dictate the rules you must follow while on his or her property.

In Arizona, as with most jurisdictions, the extent of the power of the business is to eject you from their property; basically, they can kick you out. If you fail to leave someone's property after being asked or ordered to do so then you are trespassing.

That ex-police officer in Arizona, in explaining this particular legal issue, went on to say that one of the most difficult things to get arrested for was trespassing. In Arizona, the police officer would be called to the scene and would approach the trespasser with the owner of the property or the owner's agent. The police officer would ask the owner if he or she wanted the trespasser to leave. After answering yes, the police officer would ask the owner to tell the trespasser directly to leave. After that directive the police officer would then explain that the they've been asked to leave, they are trespassing and if they refuse to leave then they will be arrested.

Even after all that, this particular police officer said he made four or five arrests for trespassing every week. Usually it was someone arguing that they had a second amendment right to carry their gun anywhere they went. The trespasser simply didn't understand that the private property owner had the right to pick who they wanted to allow on their property.

The rules related to trespassing and gun rights is generally the same across the country.

Nevertheless, we end up seeing situations that we should never see.

In the video here, a Mr. Monaco was shopping in a Whole Foods store in New Orleans when the police officer acting as store security disarmed him, detained him and caused a lot of issues. Mr. Monaco was never asked to leave, Whole Foods at the time had no sign prohibiting weapons on their property and Mr. Monaco was a regular and recognizable customer of this particular store.

As gun owners we have a responsibility to respect the property rights of others. Unfortunately, even when we are respectful of those rights we often hear about property owners and the police not being respectful of our rights and recognizing that we tend to be a pretty law-abiding group of folks.

If Whole Foods and Sergeant Bowser of the New Orleans Police Department had shown some respect and a little common sense then we probably wouldn't be seeing the federal lawsuit that Mr. Monaco filed. You can read the lawsuit here.

I've read the end result of a lot of lawsuits like this one that have been filed across the country and the results are generally not so good for the government organization. There's already a lot of case law about the rights of citizens who happen to be armed and the mere fact that someone has a gun is not probable cause enough to detain and question someone. The flip-side of this issue is that police officers who are not used to dealing with an armed citizenry are at a disadvantage in that they lack experience on appropriate ways to approach the "problem".

I wasn't there and don't know what happened, though the lawsuit and the video, to me, appear to be pretty damning and indicate an overreaction in dealing with an armed citizen who was buying cheese in a grocery store.

Mr. Monaco is getting a lot of grief about his situational awareness and pistol retention abilities. Sergeant Bowser is getting a lot of grief about putting an apparently innocent man in a choke-hold and disarming him. If not for Mr. Monaco's poor pistol retention abilities we may have had a tragedy here rather than a lawsuit.

Based on the cases I've seen previously I would expect, at a minimum, that Mr. Monaco will receive an apology, a commitment to better training by the police department, a potential reprimand or re-training requirement on Sergeant Bowser and payment of his legal fees. Other municipalities have had to pay as much as $100,000 in damages for similar actions by their officers.

Perhaps something will come out in the lawsuit depositions that point to a problem with Mr. Monaco's behavior. Thus far, though, I'm lead to the conclusion that a police officer took his charge of protecting private property rights too far and ended up violating the civil rights of an armed citizen. Interestingly, as I've discussed before, carrying concealed in this particular situation would have most likely avoided the problem entirely.

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