14 December 2010

Did the Police Officer Act Incorrectly?

Over the last week or so there has been much written on the blawgs about the arrest of Joel Rosenberg. I'm not going to write about the propriety of Mr. Rosenberg's behavior after the incident or the officer's decision to charge him. However, there is a video which raises the question, "Did the officer act inappropriately?"

Just watch until the firearm is given back and taken out of the building

I've looked into the statute which Mr. Rosenberg quotes and, as best I can tell, it looks as though he is right in stating that the judge could not ban firearms from the public building. Minnesota Code 642.714 subd. 17 allows firearms to be banned from "private establishments", but they are obviously not in a private establishment. And then there's subd. 23 of the same code section:
This section sets forth the complete and exclusive criteria and procedures for the issuance of permits to carry and establishes their nature and scope. No sheriff, police chief, governmental unit, government official, government employee, or other person or body acting under color of law or governmental authority may change, modify, or supplement these criteria or procedures, or limit the exercise of a permit to carry.
A judge is clearly a person acting under color of law or governmental authority. This appears to absolutely bar a judge from banning firearms from any place at any time.

Of course, that's insane. And before anyone starts telling me that's just the prosecutor in me speaking, I'm pretty sure anyone who has been in a courthouse when emotions are running high, on both the victim's side of the aisle and the defendant's, has been glad that no weapons were allowed. Just imagine a trial in which the victim was a 3d Street Samurai Crip and the defendant is a 7th Street Banzai Latin King. Do you think the judge should be absolutely banned from keeping members of the two sets from bringing firearms to the courthouse?

Nevertheless, I couldn't find an exception to the law. That doesn't mean there isn't one somewhere, just that I couldn't find it in the statute or the case law addressing the statute. So, as far as I can tell the judge was wrong to banish firearms from the building.

On the other hand, consider the officer's situation. He has an order from a judge banning firearms. The judge is higher on the food chain than the officer. The officer is going to obey the command of the judge. So, it's no surprise that he acted to enforce the judge's order.

What's the solution here? In Virginia the technically correct solution is go over the judge's head and get an order of mandamus requiring the judge to withdraw his order or an order of prohibition to keep the judge from enforcing the order. However, this is time consuming and not practical for someone who is not going into the building often. In this case you could run up and punch the bear in the nose, trusting that he won't figure out how to get free of the chains and maul you.


shg said...

The state law prohibiting the limitation of the right to carry by a state actor, in this case a judge, may seem too extreme, but it remains the law and, bearing in mind that it applies only to those who are granted a permit to carry, may not eliminate the problem but certainly mitigates the risk to some significant extent.

That said, Sgt. Palmer's conduct in enforcing an extant but unlawful order is fine, but the question remains whether his handling of disarming Joel was handled lawfully, including the touching and sweep of the weapon. Had he requested compliance (bearing in mind it's an order, not a statute, and certainly not a criminal statute), it might be a very different scenario.

But then, arresting Joel for noncompliance, not to mention "constructive contempt," is another matter altogether. Violation of a court order should result in the judge who issues the order determining whether someone is in contempt of his order. It does not give rise to a basis for an arrest. To that extent, the arrest cannot be justified under any cognizable theory of law.

Anonymous said...

What do you think of this analysis:


ParatrooperJJ said...

One thing to keep in mind is that the judiciary is a separate branch of government can can generally set their own rules in their facility.