Posted by Eugene Volokh:
District Court Suggests Second Amendment May Protect Possession of Firearms in
Public:
http://volokh.com/archives/archive_2008_12_07-2008_12_13.shtml#1228842974
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, ยง 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....
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