D.N.M.: Arrest of man without any reasonable suspicion or PC for carrying a gun in a move theater in a holster was unreasonable under the Fourth Amendment
Police removed a man from a movie theater. He entered with a gun in a holster on his hip, and the theater operators called the police. The plaintiff’s seizure violated the Fourth Amendment because it was not against the law to “open carry.” St. John v. McColley, No. 08-996 (D. N.M. September 8, 2009). See article: Federal judge rules police cannot detain people for openly carrying guns.
Applying the Hill [United States v. Hill, 199 F.3d 1143 (10th Cir. 1999)] factors, it is evident that Mr. St. John was seized. While watching a movie, Mr. St. John was approached by four armed officers who instructed him to stand up and and led him outside, away from the crowd, where they continued to restrain him until they had removed his lawfully possessed weapon. At his deposition, Officer McColley testified that, had Mr. St. John asked Defendants to release him, he “wouldn’t [have felt] safe letting [Mr. St. John] go at that point.” McColley Depo. 13:21-4 13:32. While outside, Defendants removed Mr. St. John’s wallet and handgun. They ran a check on the latter and only returned it at the end of their encounter. Because, from the time that Defendants approached Mr. St. John to the time when they physically released him, Mr. St. John reasonably believed that he was not free to leave, a seizure occurred.
But the inquiry does not end there. The Fourth Amendment does not protect individuals from all seizures—only unreasonable seizures. See, e.g., United States v. Sharpe, 470 U.S. 675, 682 (1985). Under the Fourth Amendment, seizures such as Mr. St. John’s, termed investigatory detentions, are reasonable if they are (1) justified at their inception and (2) reasonably related in scope to the circumstances which justified the interference in the first place. U.S. v. DeJear, 552 F.3d 1196, 1200 (10th Cir. 2009) (quoting United States v. Johnson, 364 F.3d 1185, 1189 (10th Cir. 2004)). An investigatory detention is “justified at its inception” if “the specific and articulable facts and rational inferences drawn from those facts give rise to a reasonable suspicion a person has or is committing a crime,” id. (quoting United States v. Werking, 915 F.2d 1404, 1407 (10th Cir. 1990)), or where officers have a reasonable suspicion that a crime may be afoot. Id. See also, e.g., Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir. 2000); United States v. Sokolow, 490 U.S. 1, 7 (1989). “[I]nchoate suspicions and unparticularized hunches” are insufficient bases for a reasonable seizure. United States v. Lyons, 510 F.3d 1225, 1237 (10th Cir. 2007).
The undisputed facts establish that Mr. St. John’s seizure was unreasonable. Defendants lacked a justifiable suspicion that Mr. St. John had committed a crime, was committing a crime or was about to commit a crime. Indeed, Officer McColley conceded that he did not observe Mr. St. John committing any crimes and that he arrived at the theater with the suspicion that Mr. St. John was merely “showing a gun”, McColley Depo. 14:4, which is not illegal in the State of New Mexico. See N.M. Stat. § 30-7 et seq. Nor was there any reason to believe that a crime was afoot. When they found him, Mr. St. John was peacefully sitting through the previews for his second movie of the day. Officers had no reason to believe that Mr. St. John had been, was, or would be involved in any criminal activity whatsoever.5 Candidly, as the Ninth Circuit noted in a somewhat similar case, one would expect someone engaged in shady business to act in a more stealthy fashion than Mr. St. John did here. See Duran v. City of Douglas, Arizona, 904 F.2d 1372, 1377 (9th Cir. 1989).
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
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—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
