Carrier illegally detained and falsely charged in Pittsburgh

[gnbrotz]

This story was originally posted over at OCDO, but needs to be made public here as well.

Earlier this morning, around 3am I was a bit hungry so I went to my local McDonalds to get a quick burger. I was open carrying as normal. This is what ensued:

Friday morning at 3:10 I was approached by Officer Klazcyk at the McDonalds on Forbes avenue in Oakland. The officer proceeded to voice his opinion that my firearm, which was not in any way concealed, was illegal. He asked me if I had a concealed permit to which I answered that I did. When he asked for it I refused stating that my weapon was not concealed and therefore, being over 18 years old, with no criminal record or mental instability, was allowed to carry it openly without a permit. The officer refused my explanation and continued to state that this was not the wild west and that my weapon had to be concealed. He went on to state his opinion that my open carrying was causing a disturbance. When i calmly tried to explain the case law and statutes that exist in the commonwealth he said: "you want to be a punk and do this the hard way". I reminded him that I have been nothing but calm and polite but unless I was driving, carrying concealed, in the city of Philadelphia or acting in a criminally suspicious manner I was under no obligation to show him my permit. I offered to tell him my name but he refused to listen. The officer then stated the he could just call the "wagon" and book me and then asked if that was what I wanted.

I told him that I did not want to be falsely arrested but if that's what he wanted to do I couldn't stop him. I then asked if I was being detained and he said that I was. I asked on what charge was I being detained and he said for carrying the way I was. I stayed where I was and ate my burger. At this point I offered my ID (not my permit), since i was officially being detained but the officer had no interest in seeing it at that point stating it was "too late". He called for backup and by the time I had finished my burger an excess of a dozen Pitt and City police officers were in that McDonalds.

A tall African American Sgt approached me and requested my ID which I gave him. It was my hopes to speed the process along since it was closing in on 3:30 in the morning. He asked for my permit which I refused to give him because they had no legal standing in which to make that demand since my firearm wasn't concealed. It would be like demanding my permit if I wasn't carrying at all. At this point he threatened to contact the sherriff and ahve my permit revoked. I tried to explain that a permit while OC'ing is needed only when in a vehicle or a city of the first class which, in Pennsylvania is only Philadelphia. Seeing that I was in Pittsburgh, on foot, I did not need to produce my permit. The Sgt. mocked me for being a "knowitall" and dismissed what I had said. A Pitt Police officer and I conversed and stated that while it was legal it may not be the wisest choice to OC. I told him I appreciated the concern. I wish his city police comrades had the knowledge and professionalism that he possessed.

After that, all but 3 officers went outside (the three surrounding me so I wouldn't go anywhere) and I was still being detained, not allowed to even make a phone call. When I flipped my cell phone open to check the time a female city officer told me to hang it up. Almost 30 minutes later the Sgt. come back and produced a city ordinance book from 2005 that stated open carry is against city code. I began to inform him of state preemption in statute 6120 that:

a) General rule - No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of the commonwealth.

The Sgt simply walked away halfway through my explanation.

Officer Klazcyk returned and handed me a citation for violating a city ordinance. Then he ordered me to conceal my firearm. I told him he had no authority in which to tell me that and i I didn't have a permit on me I would be breaking the law. Part of me believes that he intended on making me conceal in order to force me to produce a permit. After my refusal he threatened to keep giving me citations and that he would see me in court.

To which I simply responded with a grin: "Looking forward to it"

So, I plan on suing the police department for unlawful detainment or false arrest. On my citation the box that says On-view arrest is checked.

Also i want to sue for the public embarassment of being detained and having over a dozen officers surround me like I was a criminal.

I also plan on suing the city of Pittsburgh for making a law that goes against state preemption.

Anyone have any suggestions about what I should do, or what other laws the officers or city have broken that I can sue them over?

Pa. Patriot has already been in touch with this gentleman, and he has been referred to Kim Stolfer as well. Several of the following posts have been moved from another thread, as they belong with the discussion of this incident.

[mjf]

Someone received a ticket for OC in Pittsburgh: http://opencarry.mywowbb.com/view_to...203192#p203192

After some digging I found the ordnance listed here:
http://www.municode.com/resources/ga...d=13525&sid=38

§ 607.06 CARRYING OF OPERABLE FIREARMS PROHIBITED.
No person shall carry in any vehicle or concealed or unconcealed on or about his person except when on his or her land or in his or her own abode or fixed place of business any firearm; provided that this section shall not apply to:
(a) Those persons specifically exempted under 18 P.S. Sec. 6106(b)(1-10); or
(b) Any person issued a valid license to the Pennsylvania Uniform Firearms Act when carrying the type of weapon for which such license was issued.
(Ord. 11-1980, eff. 7-25-80; Am. Ord. 30-1993, eff. 12-9-93)

The legal carry, without a LTCF, is "prohibited".

[Statkowski]

Rules, regulations, ordinances, whatever - as a government entity, in no manner may it regulate firearms. Section 6120(a) makes it about as plain as you can get.

[Pa. Patriot]

Originally Posted by mjf

Someone received a ticket for OC in Pittsburgh: http://opencarry.mywowbb.com/view_to...203192#p203192

After some digging I found the ordnance listed here:
http://www.municode.com/resources/ga...d=13525&sid=38

I've contacted the OP of that incident report and encouraged him to come to PAFOA for support/help.

Additionally, it looks like Pittsburgh City Council meeting is going to have some visitors at a meeting in the not so distant future

[LittleRedToyota]

Originally Posted by Pa. Patriot

I've contacted the OP of that incident report and encouraged him to come to PAFOA for support/help.

Additionally, it looks like Pittsburgh City Council meeting is going to have some visitors at a meeting in the not so distant future

if you could, please keep us updated of when the city council meeting "visiting" will take place. i want to attend as well.

[LittleRedToyota]

also, unless PA PATRIOT or someone else tells me i should not, later today or this weekend, i will be drafting a letter to my city council rep, cc'd to the mayor and chief of police, explaining that i read of this case and am concerned that these officer's actions are illegal and going to cause the city to have to use my tax dollars to settle the lawsuit and to please repeal this illegal ordinance and, in the meantime instruct city police officers to stop enforcing this illegal ordinance.

i'll post a copy of it.

[Pa. Patriot]

I see no problem with that, LRT.

There will be a new post concerning this incident and the issues at some point. Still gathering details, etc.

[LittleRedToyota]

Here is the text of the letter I have drafted and will be mailing on Monday. Please give me any feedback before then.

Councilman Patrick Dowd
510 City County Building
414 Grant Street
Pittsburgh, PA 15219

RE: Enforcement of illegal ordinance(s) leading to tax-payer funded lawsuit payouts

Councilman Dowd:

It has come to my attention that the Pittsburgh City Police recently (sometime between 3AM and 4AM at the McDonalds on Forbes Avenue in Oakland) cited an individual for violating city ordinance 607.06:

Code of Ordinances of City of Pittsburgh

CHAPTER 607: FIREARMS, AMMUNITION AND OTHER WEAPONS

§ 607.06 CARRYING OF OPERABLE FIREARMS PROHIBITED.
No person shall carry in any vehicle or concealed or unconcealed on or about his person except when on his or her land or in his or her own abode or fixed place of business any firearm; provided that this section shall not apply to:
(a) Those persons specifically exempted under 18 P.S. Sec. 6106(b)(1-10); or
(b) Any person issued a valid license to the Pennsylvania Uniform Firearms Act when carrying the type of weapon for which such license was issued.
(Ord. 11-1980, eff. 7-25-80; Am. Ord. 30-1993, eff. 12-9-93)

Enforcement of this ordinance is illegal as per the preemption clause of the Pennsylvania Uniform Firearms Act (UFA) which prohibits municipalities such as the City of Pittsburgh from regulating the carrying of firearms:

Pennsylvania Consolidated Statutes
Title 18: Chapter 61:

§ 6120. Limitation on the regulation of firearms and ammunition.
(a) General rule.--No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth.

This preemption clause has been upheld by the Pennsylvania Supreme Court in Ortiz v. Commonwealth, - Pa. - (1996).

While the UFA does require a License to Carry Firearms (LTCF) for concealed carry, there is no state law requiring an LTCF for carrying a firearm unconcealed (i.e, openly) outside of the city of Philadelphia. Further, the Pennsylvania Supreme Court has confirmed in the case of Commonwealth v. Hawkins, - Pa. - (1996) that unconcealed (open) carry outside of Philadelphia does not require an LTCF:

In all parts of Pennsylvania, persons who are licensed may carry concealed firearms…Except in Philadelphia, firearms may be carried openly without a license…(only in Philadelphia must a person obtain a license for carrying a firearm whether it is unconcealed or concealed; in other parts of the Commonwealth, unconcealed firearms do not require a license).

Because there is no state law against carrying an unconcealed weapon without an LTCF, and because the preemption clause of the UFA prohibits the city (or county) from enacting such a requirement, a person who carries an unconcealed weapon in the City of Pittbsurgh without an LTCF is not violating any legitimate law or ordinance.

In spite of this, an individual was illegally cited by the Pittsburgh Police for violating city ordinance 607.06 in relation to carrying an unconcealed firearm. This person is most likely going to sue the city. He will most likely win as both statutory and case law are clearly on his side. This will most likely result in some of my tax dollars having to be used to pay damages to the individual as a result of the lawsuit.

Given how financially strapped the city already is, I urge city council to please repeal this illegal ordinance (and all other ordinances which are in violation of the UFA’s preemption clause such as § 607.08, § 607.09, § 607.10, § 607.11, etc.) as soon as possible.

Further, until the ordinances can be repealed, I ask you to encourage the Mayor and Chief of Police to direct all city police officers to stop enforcing these illegal ordinances until such time as they can be repealed.

The City is already in enough of a financial bind. We do not need to put ourselves further in the hole by enforcing illegal ordinances and, thus, opening ourselves to lawsuits.

Thank you for your attention to this matter.

Sincerely,


{my real name}

Cc: Mayor Luke Ravenstahl
Council President Doug Shields
Chief of Police Nathan Harper
City Solicitor George Specter

[gnbrotz]

Bump to top after splitting off of another thread.

[headcase]

Un-F'ing-believable!!!! When is this nonsense going to stop????? It is my sincere hope that every cop that responded to that call loses their job, and their major personal possessions. Every single one. To all the law enforcement types on this board I ask this, why, in almost every one of these stories, is there a police officer who says he knows OC is legal, yet stands around watching a citizen's rights get abused???? Why do these officers not stand up and inform their colleagues that they are committing crimes????