Painter v. Robinson - Armed AND Presently Dangerous

Discussion in 'Off-topic' started by Malum Prohibitum, Mar 12, 2006.

  1. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    So sue them?

    No, you'll probably lose, BUT

    In the following case, in which the person frisked and disarmed sued, the officers knew this guy had a gun, and he refused to consent to the Terry frisk. The officers testified that Painter had not threatened them, but he was "cocky and evasive" when they questioned him about whether he had a gun. Painter refused to be frisked and an officer drew a gun on him. He was frisked at gunpoint. Painter was arrested, and he subsequently sued the police officers who participated in his arrest. The officer who knew Painter was not presently dangerous was found liable and stripped of his immunity. The officer who did not know the facts (he arrived as backup) was held to still be immune (the same as no liability, in his case).

    The court held as follows:

    Painter had done nothing to suggest that he had committed any crime that night, or that he might pose any danger to the officers or to any civilian who had not threatened his safety. Thus, on the summary judgment record construed most favorably for the plaintiff, Robertson lacked any reasonable suspicion which could be supported by articulable facts that Painter might aggressively menace any person; hence the faulted body search was unconstitutional. Moreover, as a matter of law, qualified immunity could not excuse Robertson from potential liability for that body search, at least on summary judgment, because clearly established law, including Terry , Sibron , and Adams , dictated prior to November 19, 1995 that a Terry frisk must be supported by an objectively reasonable suspicion that the subject was potentially dangerous.


    "MUST BE SUPPORTED BY AN OBJECTIVELY REASONABLE SUSPICION THAT THE SUBJECT WAS POTENTIALLY DANGEROUS."

    The court held that Robertson knew enough about Painter to know he was a "model citizen," and thus "he knew prior to searching Painter that, if he indeed had concealed a loaded firearm on his person or within ready access inside the bar, he had a legal justification for that possession, and no articulable facts supported a suspicion that the plaintiff posed a potential safety hazard to any law-abiding person.

    Nevertheless, Robertson elected to treat the crime victim as a criminal offender . . ."


    And so he is held liable. Something to think about.

    Here is a Findlaw link to the entire, lengthy case for anybody to read who has the time. Please do not draw crazy conclusions from it. The point is that if the officer thinks one is armed, the officer must also have a reason to believe one is presently dangerous, and the officer cannot create that "reasonable belief" by giving the person stopped attitude until the person stopped reciprocates, then claim he felt he was in danger . . .

    Painter's "nervousness, evasiveness, and disposition towards the officers during their consent search of the inn was a byproduct of [Officer] Robertson's questions, demeanor, and attitude . . ."

    The link.

    http://caselaw.lp.findlaw.com/scripts/g ... o=99a0259p
     
  2. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I put this in Off Topic because it is not Second Amendment related. It is Fourth Amendment related. :wink:
     

  3. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    Underlying Attitude

    It sounds like the cops just wanted to disarm this nightclub manager because they thought that a seedy bar with a rough clientele prone to fighting and making threats is the kind of place where EVERYBODY ought to be disarmed, including the bartender and other employees, even the manager of the place.

    So when they heard about the confrontation between the drunk and violent big thug and the bar manager, who tried to avoid trouble and drew his gun (but didn't have to fire it) to turn back his attacker, they seemed to want to go after the bar manager for even having a weapon in the bar in the first place. Don't we all agree that's a stupid thought? The Sixth Circuit's opinion shows that those Judges approve of the bartender keeping mace and a club behind the bar, and they approve of the bar manager's actions in arming himself with a 9mm pistol in response to a threat against his person.

    However, this case would have played out differently in Georgia. The law banning guns in places that serve alcohol by the drink doesn't have an exception for pistol permit holders, or the owners of the businesses in question, or even bouncers or other security personnel, unless those persons are employees of a licensed security agency / guard service company and properly registered as "armed guards" by the Secretary of State. So here in Georgia, there WOULD HAVE BEEN reasonable suspicion, if not full-blown probable cause, to question the bar manager about weapons and pat him down, looking to confiscate any weapons he might be carrying as evidence in a misdemeanor criminal case.

    We really need to get that public gatherings law changed, or at least allow civilians to get "armed guard" credentials to protect their own persons and property and that of their employer, without having to be an employee of some security guard company.
     
  4. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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