Federal Judge: Open carry searches violate 4th Amendment

If there is no reason to think that a crime is being committed, the judge says that it's settled law that a police search based solely on open carry violates the 4th Amendment protection against unreasonable searches:

On September 8, 2009, United States District Judge Bruce D. Black of the United States District Court for New Mexico entered summary judgment in a civil case for damages against Alamogordo, NM police officers. The Judge's straight shootin' message to police: Leave open carriers alone unless you have "reason to believe that a crime [is] afoot."

Emphasis in the original.

Even more importantly, the judge denied the police's motion for "qualified immunity":

Notably, Judge Black denied the police officers' requested "qualified immunity," a judicially created doctrine allowing government officials acting in good faith to avoid liability for violating the law where the law was not "clearly established." In this case, Judge Black concluded that

"[r]elying on well-defined Supreme Court precedent, the Tenth Circuit and its sister courts have consistently held that officers may not seize or search an individual without a specific, legitimate reason. . . . The applicable law was equally clear in this case. Nothing in New Mexico law prohibited Mr. St. John from openly carrying a firearm in the Theater. Accordingly, Mr. St. John's motion for summary judgment is granted with regard to his Fourth Amendment and New Mexico constitutional claims. Defendants' motion for summary judgment is denied with regard to the same and with regard to qualified immunity."

Emphasis in original, again.

This seems like good news. While this isn't Second Amendment per se, it establishes the legality of open carry in no uncertain terms. This was district court, so it only applies in 10th Circuit (NM, UT, WY, CO, KS, OK). We'll see if there is an appeal.

Nice picture by Oleg Volk in the Examiner article, too.

Hat Tip: Arms and the Law.