District Court Suggests Second Amendment May Protect Possession of Firearms in Public:

From Lund v. Salt Lake City Corp., 2008 U.S. Dist. LEXIS 98722 (D. Utah Dec. 4):

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 and Article I, § 6 of the Utah Constitution (recognizing the "individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes," subject to the power of the Legislature to define the "lawful use of arms."). 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.") ....

This doesn't contradict the Heller Court's assertion that concealed carry might be limited on the historical grounds that "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues."

Here are a few excerpts from the rest of the decision, that help show what this Fourth Amendment case was about:

On November 25, 2006, plaintiff Miles Lund was visiting Liberty Park, a public park located in downtown Salt Lake City, and feeding the ducks that gather on the large pond in the southeast quadrant of the park. Responding to a report of a man with a gun at the park, Officer Curdie arrived, identified Lund as the suspected man with a gun, and approached Lund from behind. When Officer Curdie first saw Lund, he was facing away from Curdie and feeding the ducks in the pond. Curdie drew his firearm, pointed it at Lund and verbally ordered Lund to raise his hands above his head. Lund heard an officer say "Get your hands up or I'll shoot you," placed his left hand on his head, and told Officer Curdie that he was physically unable to raise his right arm above his head. Lund held his right arm away from his body, as high as shoulder level, but could not reach his head. Officer Curdie ordered Lund to go into a kneeling position. Again, Lund told Curdie that he was physically unable to get into a kneeling position. Lund made no hostile or threatening movements or gestures while responding to Officer Curdie's commands, and was described by one witness as being very cooperative.

At the same time, Officers Max Nelson, Jeremy Crowther, Christopher Johnson and Jeremie Foreman had arrived at the scene, and Officers Nelson and Crowther drew their weapons and also held Lund at gunpoint. Officer Nelson told Officer Curdie that he wanted to have Officer Crowther place Lund under arrest. Disregarding this, Officer Curdie holstered his weapon, approached Lund from behind, pinned Lund's arms and shoulders in a "bear hug" embrace and knocked Lund to the ground. Lund's head hit the ground, sustained an abrasion to his forehead and broke his glasses. He was then handcuffed, lifted by the handcuffs, dragged across the sidewalk and placed roughly on a park bench. He then fell off the bench to the ground, in extreme pain caused by the handcuffs forcing his immobile right shoulder into posterior extension.

Lund was found to have no weapon of any kind on his person, and was subsequently released without charge. He was subsequently diagnosed in March of 2007 as having a large intracranial hematoma that more likely than not was the result of his head striking the ground on November 25, 2006, and required surgical treatment....

No one at the scene had observed Lund carrying, brandishing or threatening anyone with a firearm or other weapon in any fashion, and no weapon was found. [Footnote call to the footnote about gun rights that I quoted above; the footnote also discusses Utah statutes' general provision for licensed concealed carry. -EV] Moreover, Officer Curdie was not alone in facing the perceived threat of an unseen weapon. Other officers were present at the scene, two of whom were already holding Lund at gunpoint when Officer Curdie decided to tackle him to the ground. All of them were available to assist Curdie in taking Lund into custody. According to plaintiff Lund's factual allegations, here taken as true, Lund had complied with Officer Curdie's commands as best he could, explained why he could not fully comply and made no threatening movements or gestures towards Curdie or anyone else at the scene. Lund did not actively resist arrest; nor did he attempt to evade arrest by fleeing the scene.

By pointing their weapons at Lund, the officers made an immediate threat of use of deadly force -- which itself represents the use of force under the Fourth Amendment -- in seizing Lund and taking him into custody. See Holland ex rel. Officer Curdie decided to further escalate that use of force by physically taking Lund down to the ground, based upon facts from which Curdie inferred an immediate risk of injury -- factual allegations that Lund disputes. Based upon plaintiff Lund's version of the facts, and considering factors such as the severity of the alleged crime at issue, whether Lund posed an immediate threat to the safety of the officers and others, and whether Lund was actively resisting arrest or attempting to evade arrest by flight, Curdie's escalation of the use of force in taking Lund into custody was unreasonable and excessive....

J. Aldridge:

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.")

Oh, like there could be NO DOUBT "Protestants would never be disarmed" under the provision of the English Bill of Rights that read: "That the subjects which are Protestants may have arms for their defense, suitable to their conditions, and as allowed by law."?

uh huh.

"[T]here is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states."

—Antoin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997)
12.9.2008 12:31pm
therut (mail):
One of my greatest fears. I really hurt my shoulder in July and if someone tried to make me place my hands behind my back to be handcuffed I think I would scream and cry in pain. Police scare me.
12.9.2008 12:46pm
Allan Walstad (mail):
Wow. Just, wow. Is this guy going to get any justice?
12.9.2008 12:49pm
Midnight Rambler:
Sounds a clear case of excessive force. I wish Lund all the best in his quest for justice, financial and medical compensation.
12.9.2008 1:07pm
Milhouse (www):
J Aldridge, what is your point? The quote from Heller says there is no doubt what the 2A means, not that there's no doubt the right it protects will actually be respected. The fact that the English Bill of Rights proved ineffective says nothing at all about its meaning (beside the fact that the English BoR was not a constitutional provision, and thus never bound Parliament in any way).

And Scalia is quite right that the original 2A left the states just as free to restrict guns as they were to restrict religion, to search people's homes, to take their property without compensation, etc.

About the case, how is it that these policemen are not in jail right now?
12.9.2008 2:20pm
NickM (mail) (www):
IMO it should be renamed Loss of Liberty Park.

12.9.2008 3:00pm
RobL (mail):
I wonder if the officers involved were following that "new professionalism" playbook?
12.9.2008 3:10pm
David M. Nieporent (www):
J Aldridge, what is your point?
Aldridge doesn't believe in the 14th amendment, and like other constitutional irrationalities, believes if he wishes hard enough it will disappear.
12.9.2008 4:00pm
David M. Nieporent (www):
The "irrationality" being his theory, I mean, not the actual 14th amendment.
12.9.2008 4:00pm
Ed Scott (mail):
The interpretation of the Second Amendment is very confusing. The Founders considered the right to keep and bear arms to be inherent to the individual. Its inclusion in the Bill of Rights was to emphasize that the government could not infringe on that intrinsic right.

Do the states have the right to infringe on an inherent right that the federal government cannot infringe upon (but does). If this is true, the definition of inherent has been drastically altered.
12.9.2008 5:16pm
Thief (mail) (www):
Ed Scott:

And that's why I think Justice Hugo Black got it right in Adamson v. California, when he said that the Bill of Rights was completely incorporated against the states, down to the very last dotted i and crossed t.
12.9.2008 5:43pm
Flash Gordon (mail):
These cops ceased to be law enforcement officers at the moment they approached Lund and became common street thugs. They deserve to be treated as such.
12.9.2008 11:58pm
J. Aldridge:
Milhouse wrote: "J Aldridge, what is your point? The quote from Heller says there is no doubt what the 2A means, not that there's no doubt the right it protects will actually be respected. The fact that the English Bill of Rights proved ineffective says nothing at all about its meaning (beside the fact that the English BoR was not a constitutional provision, and thus never bound Parliament in any way)."

Uh, my point is Scalia made up the right of individuals as individuals to possess private firearms under the 2A. In doing so he greatly distorted the historical meaning and understanding of the words to achieve the NRA's prefered interpretation. In doing so, he made false assertions such as Protestants could never be disarmed under the English bill of rights.

See here Scalia's many falsehoods in Heller.
12.10.2008 12:07am
J. Aldridge:
Thief: Did Justice Black explain why many of the same members of Congress and President (Grant) who had adopted the 14th attempted to amend the Constitution in order to make the First Amendment binding against the states in 1875?

Seems to me if Congress and the States through the 14th amendment incorporated the bill of rights against the States no additional amendment would be needed.
12.10.2008 12:14am
Ahcuah (mail):
Full opinion available here (PDF).
12.10.2008 12:54am
Gene Hoffman (mail) (www):
J Aldridge continues to have a... unique... view of the Fourteenth amendment and the Constitution generally.

For anyone who would like to see if, I've posted the District Court's opinion:

12.10.2008 12:55am
J. Aldridge:
Nothing "unique" about my view, Gene. Why don't just be honest and say I have an "honest" view of the Fourteenth Amendment per its text and drafters?
12.10.2008 2:13am
Railroad Gin:
Most of the 19th century courts upholding bans on concealed carry did so on the grounds that the laws still allowed open carry. I think the state has to allow people to carry one way or another.

I really don't understand why so may places (NC, PA, and sadly UT) have such hoplophobia. It is not at all uncommon in AZ for people to carry openly, even in downtown Phoenix. No one calls the cops over this. On the rare occassion they do, the dispatcher will ask if the person is threatening anyone, etc. or just has a gun.

Even if the person is breaking the law by carrying a gun in to a restaruant licensed to serve alcohol, more often than not, the police will just ask the person to leave or put the gun in his car. If the person isn't a jerk, that's usually the end of it. I don't know if its culture or training, but this sort of nonsense doesn't happen in AZ which has a long tradition of open carry. Given the vast influx of out-of-staters moving here in recent years, I suspect training has a lot to do with it. Gun owners are very active politcally too which makes a difference.
12.10.2008 2:03pm
Retired LEO (mail):
The court in Lund at p 17 discusses a case: Chidester, which I will paraphrase as I understand it:

At 10:30 pm, the plaintiff steps outside his residence to investigate loud noises coming from nearby. The noises are caused by a SWAT team executing a no-knock warrant next door. Doors crash open. Flash bangs explode.

Plaintiff is standing on the sidewalk in front of his house observing the commotion, interfering with no one. Deputy Do Right comes by and tackles plaintiff for no reason.

The court finds this unreasonable seizure under normal circumstances. But this raid gone to Keystone Cops stage
creates exigent circumstances. So Deputy Do Right gets qualified immunity.

IANAL, and long ago retired, but this is a weak, circular argument. "It is ok to violate a citizen's rights and act like an idiot when 'The Plan' falls apart."

Is that what the Chidester court said?

And as far as I can tell from the Lund court's analysis, it is perfectly legal to carry a gun in Utah while in a city park feeding the ducks.

Loss of Liberty Park, indeed. A statue of Lund should be erected at the scene to memorialize this disgrace. Curdie should be made to pay for it. And, no more donuts for him.

I simply do not understand the "New Professionalism."

Best to all.
12.11.2008 1:28am
Gene Hoffman (mail) (www):

Why don't just be honest and say I have an "honest" view of the Fourteenth Amendment per its text and drafters?

I actually believe your position to be quite dishonest. Your favorite cite for your position is a southern Democrat while he was advocating for a KKK defendant.

12.11.2008 4:48am
rockymntn (mail):
Before we accuse the police officers of being mere thugs, etc., let us recall that the facts here are disputed--hence the denial of summary judgment. Here is the officer's version of events, from the full opinion posted above:

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.
12.11.2008 12:20pm
guest (mail) (www):
Anyone who can excuse police behavior, directed toward a citizen, innocently feeding ducks, unarmed, crippled and beset upon by thuggish behavior then demanded and forced to comply with unconstitutional orders to satisfy curiosity by minions of criminals criminal justice through an unsubstantiated report (by whom?), is cruelly arrested, injured, tortured with handcuffs and arrest, made to answer false charges while further being prosecuted to cover up an illegal arrest and confinement while being suffered to pay for this fiasco in his own defense (of what?) and further be exposed to liberal accusations and nit picking on a public forum by those in defense of the indefensible simply because they have an agenda to further limit the Second Amendment Constitutional Right To Keep and Bear Arms at any price is sheer insanity and ought to not be allowed!

I see people trying to justify police action through policy after the fact as though any excuse could save these actions or officers or the dept. when such actions have no legal merit to stand on.
12.12.2008 5:24am

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