Albuquerque Police Arrest Man For Carrying Legal Weapons

Published On November 5, 2012 | By CopBlock | Articles

Albuquerque police recently arrested and charged a man who was apparently doing nothing more than carrying a firearm.

According to public records obtained by Police Complaints, the man was seen near San Pedro and Central one evening in August, riding a bicycle and carrying a rifle. Out of respect for his privacy, we have chosen not to release the man’s identity. But we can tell you about the officers who stopped him.

At least six of them were on the scene, several with weapons drawn. Officers on the scene included Marcia Benavides, David Taylor, Peter Silva, Sergeant Bruce Werley, Sergeant Brian Maurer and Lieutenant Gregory Brachle. According to a criminal complaint obtained by Police Complaints, Officer Silva was armed with a taser. Police lapel camera footage shows cops with rifles drawn while questioning the disarmed and seated suspect.

Police arrested the man and charged him with disorderly conduct and concealing identity. No firearms-related charges were filed. However, Officer Marcia Benavides is heard on video explaining that they stopped the man simply because he was seen carrying a weapon:

Marcia Benavides: We’re out with you because somebody called and saw these weapons all on your person. That’s why we’re stopping you right now.

Arrestee: It’s not against the law for me to have weapons.

The arrested man is correct. According to the New Mexico Department of Public Safety Web site, New Mexico is an “open-carry” state, which means citizens have the right to carry weapons in open view. Second Amendment rights are even more strongly protected in vehicles, including the vehicle the arrested man was riding—a bicycle.

In a conversation recorded at the police station, officers say they understand what open-carry means…

Arrestee: This is an open carry state.

Officer David Taylor: It is an open carry state.

But as officer David Taylor went on to explain, Albuquerque police apparently imagine there is a more important right not to be upset by the sight of weapons.

Taylor: Just like you have the right to carry arms, everybody has the right to not have their peace disturbed by somebody that’s stupid as going down the road like that, that’s just dumb man. It is.

Police claim that they were called to the scene by a someone who was frightened by the sight of a man carrying a gun. However, according to the criminal complaint, officers were never able to identify that caller. This anonymous complaint amounts to a “heckler’s veto,” which led to a citizen being arrested for exercising his Second Amendment rights, simply because someone else didn’t like the look of it.

One unidentified officer went even further, asserting that police have the power to stop and question anyone they see carrying a weapon:

Officer: So based on the fact that you are in simple possession of a hand gun of any type, we need to identify you and make sure you’re not prohibited or one of those people with a domestic violence charge or you’re not a convicted felon. Would you agree with me on that part?

Open-carry is a constitutional right specifically protected by New Mexico State Law. But according to these officers, exercising that right creates reasonable suspicion of criminal activity, and justifies a detention—or even an arrest.

The cops were quick to point out that they personally love guns:

Taylor: I’m all about people having guns. I love for people to own guns. Okay.

Arrestee: Well, you see I’ve done nothing wrong.

Taylor: I kn[ow]— uh, but when you do— uh— the way you did something tonight, it just wasn’t smart. It’s not smart at all.

It sounds like Officer Taylor is about to agree. He starts to say “I know”, before he catches himself.

Later on, Officer Taylor and the other officers are seen on video admiring the arrested man’s weapon.

Shortly after this incident, gun-lover David Taylor was placed on desk duty pending an internal affairs investigation. Taylor’s wife, Elizabeth Taylor, was arrested in August on suspicion of acting as a straw buyer to purchase firearms illegally for a convicted felon, a felon who went on to open fire on police officers who came to arrest him for murder. Now the Albuquerque Police Department is investigating how much David Taylor knew, or should have known, about his wife’s illegal firearms purchase.

Arrestee: Since when is it against the law for me to carry a weapon?

It seems that Albuquerque police may be willing to turn a blind eye to illegal firearms purchases when done by one of their own, but are ready to arrest every day citizens who carry firearms legally.

The arrested man is being represented in Metropolitan Court by well-known civil rights attorney Joseph Kennedy. It seems likely that, after beating the trumped up criminal charges, Kennedy is looking forward to a juicy civil rights lawsuit against the Albuquerque Police Department, a department whose misconduct has cost city taxpayers more than 30 million dollars in the last decade.

This information was uncovered and reported by Police Complaints of Albuquerque, empowering direct and local police oversight, by citizens, for citizens. Visit our Web site or find us on Facebook where we will be posting updates as the case progresses.

 

Submitted by Mike Moya.

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  • Jean

    Begging the question, perhaps – but what would be the “not dumb” way to carry a rifle while on a bicycle? I’m imagining a normal, upright-posture bicycle here…

    Any of the normal bacon bits have an answer? ;-)

  • certain

    With cops being as murderously trigger happy as they are these days, I can’t believe your 2nd Amendment rights (to carry a rifle around on your bicycle)are worth your life. Because legal or not, one of you open carry guys is going to be shot and killed one of these days, and do you think the PD response will be anything other than “justified shooting”?

  • Burn The Obedient

    Another story of a citizen getting paid from police overstepping their authority. I hope this man can follow through with his lawsuit, and hold the officers personally responsible for the crimes committed. Lets hope.

  • Common Sense

    Ask for a billion!!!

    Make sure they pay you in silver!

  • shawn

    It doesn’t cease to amaze me. I can call the cops because some drugged up nut doesn’t understand it isn’t his home. Takes more than 40 min for a cop to arrive.
    But cops have the time to waste bothering someone for what the law says is a legal activity? I get that it is a little odd, but odd doesn’t make a crime.

    What the officers forgot, and some here too, is that our personal views on open carry are not relevent. It doesn’t matter if we think, legal means cops shouldn’t be stopping someone on that basis alone. When cops constantly stop someone for a legal activity, they are in effect trying to make it impossible to exercise that right.But cops were not empowered to decide what is or isn’t legal.

    You might think these guys doing open carry demonstrations is silly. What you aren’t seeing is that they are done to show cops are ignoring the law and doing as they please. There would be no story, but for the police doing something stupid and ignoring the law.

  • Common Sense

    And he was arrest for disorderly and concealing his identity, nothing firearms related…this happened in 2007, atleast that’s the date stamp on the video. The police had authority to stop and detain under RS.

    Sorry hippies, you’re not gonna win this one.

  • http://www.policecomplaints.info Mike Moya

    The arrest happened in August 2012. Timestamp on video only shows technical ineptitude of police. Trial is today, if not continued, as is likely. We will be posting follow up. If anyone wants to bet against this guy, contact me with your wager. I’ll be happy to take your money.

  • shawn

    And what exactly is the disorderly? DC has become nothing but contempt of cop. The charge they use when they have nothing else.

  • arthur berg

    someone needs to blow your copfucking brains out common

  • unclezip

    Do not frighten the horses. What he did was stupid.

  • Pep

    Common, being the usual dolt that he is ignores their CAUSE for the stop, which was the open carrying of a weapon. Where is the disorderly conduct here? Since you have vowed to give cops the benefit of the doubt on every issue you don’t have the opportunity to be taken seriously.

  • Otto Maddox

    Common has the right to his opinion. No need for death threats.

    The police are trained to confront anyone overtly demonstrating their rights.

    Be it a guy on his bike with a rifle slung over his back or three people holding a sign on an overpass.

    Get out of line and the police are “obligated” to talk to you about it.

    It’s not just the individual officers. They are trained this way from the start and their departments expect them to focus on people making noise. Legal or not.

    And even the public is trained to think this way. They see a guy on a bike with a rifle on his back and think “That can’t be right, I’m calling the police.”

    They see guys holding up a sign on the overpass with a message they don’t agree with like “9/11 was an inside job!” and they call the police.

    I think we, as a society, have lost sight of what freedom really means. It means having to put up with things you object to as much as anything else.

    This case, despite Common’s strange comments about things happening in 2007, will most likely be settled out of court. The police will not have to admit fault and nothing will actually change other than the plaintiff’s bank account balance increasing.

  • Bill

    “Open-carry is a constitutional right specifically protected by New Mexico State Law.” That is incorrect. Open carry in the state of New Mexico is a state law and is not considered a “constitutional right”. The state can take that right away as easily as they passed it. Next time you decide to write an article, make sure you have your facts straight.

  • Common Sense

    I guess the liberal doesn’t know how to set the time on his video. Oh well, maybe when he wins the 122 zillion dollars in silver, he can buy a better camera that auto-sets the date.

  • shawn

    @arthur

    You better use a special forces sniper to hit common’s brains. It might be easier to shoot a cop in the ass. The bullet will go through and find common’s mouth on the other side.

  • http://www.policecomplaints.info Mike Moya

    Common Senseless, we got all the video from the police lapel cams, not from the arrestee. You’re just a blathering comment machine, aren’t you? Have fun.

  • Common Sense

    ah I see, it was from the cops camera. I stand corrected.

    Nonetheless, the stop was legal without question. Carry an assault rifle and a pistol, expect police contact. Don’t want to answer questions, fine. If only you liberals would just shut up, you’d be alot further ahead in your run-ins with the police. Act like a clown, get treated like a clown.

    Its always so funny, when you liberals think that your ‘rights’ are whatever you want them to be.

    …and I notice he wan’t shot, beaten, tased or clubbed.

    Another good job by APD!

  • HONORYOUROATH

    Yeah Common,so many “liberal hippies” are second amendment activist right?

  • Yankee Fan

    This case if as reported, highlights the woeful lack of training in constitutional law. If it is legal to open carry, it is not suspicious. This will be settled and not see the inside of a court room because these 6 officers will need to justify their arrest of a law abiding, constitutional following citizen and someone will urdge to settle to prevent further embarrassment.

  • Yankee Fan

    Common, yes, you are correct an action will summon a reaction. This is legal, however and someone lawfully open carrying is not engaged in suspicious behaviour and the fact he chose to keep quiet to a contingent of police officers who lack training on their states laws and constitution on open carry is a smart one. It is also not what we think we want them to be. If open carry is legal…then it is legal. There is no further definition. The police did this arrest to cover for their neo-lithic incompetence because they will lose in the lawsuit to follow.

  • DKSuddeth

    common, you have no clue what you’re talking about this time. Carrying a weapon openly is considered a RIGHT in the state of New Mexico. The USSC has affirmatively said that the states cannot convert a right in to a crime, therefore no crime was being committed, therefore the stop was not legal.

  • shawn

    @Common

    “Nonetheless, the stop was legal without question. Carry an assault rifle and a pistol, expect police contact.”

    Let’s start with the legality. Is a job legally able to forcibly stop you for carrying a wallet or purse? How about for the simple act of driving a car? No.
    And the state law views open carry of guns as the same. You willingness to allow cops to stop and harass people for doing something legal is tantamount to say “Let the cops write our laws for us. Let them decide what we can or can’t do.”
    What you’re saying is that if the cops don’t like a law or right, they’re free to ignore it.

    Well, guess what, that isn’t how our society is supposed to work. Rights, by definition are not suspicious activities.

    Maybe cops need stopped ten times going to and from the department. Prone them out in the dirt, aim guns at them, yell at them, ect. After all, we don’t know they are actually cops until we verify their identities.
    Hey, it’s their logic that we must assume someone is a criminal until proven otherwise.

  • shawn

    @Common

    Job was supposed to be cop. Don’t ask me how that happened.

  • http://www.policecomplaints.info Mike Moya
  • Yankee Fan

    Officer Marcia Benavidez was a no-show?If I am going to die, it is going to be because of not surprise!

  • Dr Kranknstein

    These officers make me laugh. The just make up shit to cover how woefully inept they are. As so many comments have said…IT’S LEGAL. I am abiding by the law…You are a law enforcement officer…Not a care or concern enforcement officer. If someone feels concern for me exercising my gun rights in a law abiding manner then move to California, Chicago, DC, or New York where anything gun related is illegal. Funny how the places with the toughest gun laws also have the highest crime rates.

  • t.

    YF: Alberqerque isn’t some little backwater community. Its a major city. In the world today gun violence is rampant. Think back just a few months to the attack in Colorado. That wasn’t a joke or a social experiemnet. That was someone, heavily armed, intent on killing people for no reason. It was very real. And people still remember.
    I strongly believe in an armed, responsible populace. RESPONSIBLE. Strapping on your pistols and rifles and going out tooling around a major city on a bike…could very likely put a reasonable person in fear and cause them to question why someone would do things like that.
    We had a long exchange about police dogs. And opinions split. And that’s OK. But this is something entirely different. If the current administration retains its power today (election day) it will likely have the opportunity to change the make up of SCOTUS in the next 4years. Actions like this guy took, irresponsible gun ownership, can quickly be changed. You worry about surrendering liberties…this type of action, with that type if court…and gun ownership gets harder. Gun registration gets mandatory. Carrying a gun will be harshly cut back or even outlawed.
    Most SCOTUS type cases involving law enforcement occur because an officer did something dumb. And the cases isn’t dismissed. Arizona v Gant springs to mind. And law gets made or changed because of that action. Well the same goes to citizens. Groofy actions taken by people that then get the police involved ( lots of times they are taken specifically to try and get the police involved ) have the same effects.
    The police stopping and talking to this guy…looks at a distance, fine. The arrest sounds like he turned things south because he wanted to do something goofy and terrorize people ( remember the idiot with the rocket launcher on the street wanting to test police response a couple of weeks ago…real fun to terrorize your fellow citizens) and probably intended to get the police involved to “prove he has the right to do it”. That’s dumb. And as I said above, 1 justice away from likely loosing those rights.
    Responsible gun ownership, management and use is a rights to be cherished and one welcome by the overwhelming number of cops. Its not one to be tested for sake of just being stupid.

  • Common Sense

    You all fail to understand that every right as exceptions and conditions.

    1st – say what you want, but what of libel, slander, defamation
    2nd – take a pistol into church or the Senate
    4th – a dozen there
    5th – numersous conditions when rights start/end

    perhaps he’ll win a civil suit (the burden is far less to prove) but in the end, the police were correct. had they been the ‘nazi thugs’ you so frequently refer to them, and so wanted to turn him into a strainer, all that had to be said was ‘he went for his gun’ – case closed. funny, seem to recall and ‘activist’ still on a ventilator in a similar situtation. How is Jeffrey doing? In the end, when a OC person decides to stop answering questions, instead of arrest, it will be a 72 hr psych hold.

  • shawn

    @T

    You still seem to miss that the action was legal by law. Not your opinion of the intelligence of the act, my opinion, or someone elses unreasoned fear of a gun can change that.
    You are arguing that because it is unusual, and to your mind stupid, that it should be stopped. Damn what the law says, the cops should be allowed to decide if an activity is lallowed or not, not the voting public. Do you not see the arrogance in that?

    What if i decided i was afraid of cops having guns? After all, they jump at shadows and shoot innocent people. Would you now agree cops should give up their guns? After all, i’m afraid of of something legal, and i have a ‘right’ not to be afraid of anything.

  • shawn

    @T

    Oh, if you were to ask me about whether i believe someone should do that, then my answer would be no. We do have to protect gun owners simply transporting their weapons, not all have CCW and rifles don’t fit in the pocket well. Least an overzellous gun hating cop arrest someone because they carried their rifle to the truck, or saw it in a truck as he drove by.

    But the place to decide all that is the voting booth, not the squad car or sheriff’s office.

  • t.

    @Shawn: You’re right but you missed it…the action was legal…as was the stop. The question, if their is one, concerns what happened after.

    As for your place to decide…if you were there to see Batman in Colorado a few months back…that voting booth is a long way off.

  • Yankee Fan

    T,

    I will not disagree with what you have stated. I know that when anyone engages in something then it always summons a response. People do not live in a vacuum. The mian issue is was he acting irresponsible with his weapons? If yes then he was a moron and makes everyone look bad who takes gun ownership serious. If no then this was an illegal arrest. Remember she did not show up. I know it was dismissed without prejudice but a reasonable person might conclude she was looking for a way to bow out of a case with as little embarrassment as possible. I would make the choice to personally not open carry but thats me.

  • shawn

    @T

    I don’t see how the stop is supposed to be legal. They saw no crime, and had no report of a crime. What is the RS? Carrying a gun? Legal.
    The stop was done for the simple act of doing a legal act. In an east coast state, police had hated new open carry laws. Their answer was to stop everyone exercising a right the voters demanded. They would prone them out and do complete checks, using as much time as possible. This was their way of keeping people from doing something they didn’t like. It was deliberate harassment. Courts shot it down.

    As for ” As for your place to decide…”
    No matter what a cop thinks or wants regarding law,(or me), cops don’t get to decide what is or isn’t legal.

  • Real Sense

    @Common

    So if a guy is walking down the street and he looks Mideastern, and is holding a Koran, does that gives the cops RS to stop him because your aunt Jenny thinks he might be a terrorist?

    The answer is NO.

    The courts have already said doing something that is your right, freedom of speech, expression carry of a gun, is not RS. Period.

    You Common, or anyone else does not have a right to not be offended.

    Now if the guy was yelling fire Ina theater, some designed to cause disorder and pain, or waving a gun at people and issuing threats of harm, then yes the police have a reason to stop him, and in most cases will be rightly charged.

    Saying they have to stop to make sure it is legal for Hinton have a gun is has also be tossed out of courts. That is the same as saying a cop can pull over a car at anytime to see if you have a drivers license. How about coming in your house to make sure you really are a US citizen. It is correct that a felon my not have that gun, but nothing he did is RS or PC that he was a felon…. And remember just having a gun in plain sight is not RS or PC.

    The cops may not like it, your stupid aunt Jenny might be saying, “Oh dear the man looks scary with gun”, but none of that matters.

    No on the refusing ID. If it is not a legal stop by the police, and by the very simple logic I presented it was not, then they have no right to ask for ID.

    Read what the cops already know and tell other cops.

    http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=757&issue_id=122005

    Oh it also has references to court cases. See what 30 seconds of Google can do.

    So Common do you want do disput the police and the courts that they had no right to stop him?

  • DKSuddeth

    t, how can the stop be legal if there is no reasonable suspicion that a crime was committed, is being committed, or will be committed? mind you that it is supreme court precedent, therefore clearly established law, that the mere carrying of a firearm is not a crime.

  • http://www.policecomplaints.info Police Complaints

    @Real Sense, thanks for the link to that great article. Excellent info. I’m sending it to our local Independent Review Officer, who is investigating these cops for misconduct.

  • http://clarkcountycriminalcops.wordpress.com clarkcountycriminalcops

    @certain

    “I can’t believe your 2nd Amendment rights…are worth your life.”

    I would wager that there are hundreds of men and women in our armed forces that would disagree. They, as well as the thousands that went before them believe(d) that each and everyone one of our Constitutionally protected rights are worth dying for. Perhaps you disagree and feel that these rights are not worth defending, Or perhaps these rights are worth OTHERS dying for just as long as it isn’t you.

    When would you make a stand? Would you stay at home if the police decided to just start arresting people at will? Is your right to freely move about in your community a right worth defending, no matter the cost? If not just lock yourself in your home, but how safe would that be if no one took a stand for your 4th Amendment rights?

    Just what rights do you enjoy as American are worth laying down your life for?

    AND…….

    @Common…Lawful activity is presumed lawful unless there is reason to believe otherwise. Since Terry v. Ohio mandates that police detain citizens only if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person “may be armed and presently dangerous.”

    While the individual here was armed, police gave no reason to suspect he was “presently dangerous,” (in fact stated the exact opposite several times) nor did they even attempt to provide any articulable reason to make a Terry stop in the first olace.

    But why should I even expect these bozos to understand Constitutional law when they don’t even have a working knowledge of the statutes in their own state,

    NM Stat 30-20-1. Disorderly conduct.

    Disorderly conduct consists of:

    A. engaging in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct which tends to disturb the peace; or

    B. maliciously disturbing, threatening or, in an insolent manner, intentionally touching any house occupied by any person.

    They cited him for a noise ordinance because they FELT “the way you [exercised your 2nd Amendment Rights] tonight, it just wasn’t smart. It’s not smart at all.” They cite no actions that were “violent, abusive, indecent, profane, boisterous, unreasonably loud …” Yet they signed an affidavit swearing under the penalty of perjury that they had.

    When the reality is these six bozos are the last ones to determine what is “smart,” because they have no concept of the word.

  • T

    @clark: No. Lets se if I can explain it in a way you can get. Lets say I work a suburban middle class area as my beat. Say I’ve worked that area for several years and that specific beat for a couple of years. Now in that time I’ve never seen anyone riding around on a bicycle with a PISTOL and a RIFLE on his back. Never even heard of anyone doing it. Now YOU brought up Terrry V Ohio. It’s a pretty good match. The police officer relied on his training, experience and knowledge of the area to realize that something wasn’t right with what he was seeing. And SCOTUS right agreed. May be that there isn’t crime afoot and he’s just transporting his gun somewhere or whatever. YOUR chosen case demonstrates that the stop clearly meet those requirements for RS. ( the stop doesn’t have to be PC or BRD standard ). What he got arrested for was for a crime that took place after the stop. Not unheard of. And YES, you can definetly violate a noise ordinance while “exercising” your “rights”. They were t regulating what he said ( protected ). Just the way he said it ( frequently not protected )

  • http://www.policecomplaints.info Police Complaints

    People here have this completely mistaken idea that the cops are powerless to do anything except detain and arrest people. These cops used threat of deadly force to detain and then arrest this man. That was ridiculous and they’re going to lose the lawsuit. What they should have done was attempt to make a consensual encounter or, if the man declined, observe his behavior. If they wanted, they could have followed him to his destination, keeping him under observation all night. They need no probable cause or reasonable suspicion to observe anything. That would have been the smart thing to do, but they’re trained to storm in with rifles drawn. Ineffective. Now these cops are going to get black marks in their retention files and remedial training, all because they wanted to act like soldiers instead of like peace officers.

  • t.

    @complainants: Oh. OK.

  • http://clarkcountycriminalcops.wordpress.com clarkcountycriminalcops

    @T…So your assertion is that a cops ignorance and inexperience allows him to determine that criminal activity is afoot. If the standard is now anything a police officer has “never seen..[or]… Never even heard of anyone doing…” then anyone carrying a book without pictures is subject to be harassed by law enforcement.

    Terry is very clear. Police “must be able to point to specific and articulable facts” that a crime is being committed or about to be committed. Not merely “that something wasn’t right with what he was seeing” Hunches and feelings are not enough as acting on them would “invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction.” (Terry V. Ohio).

    Just because the cops didn’t like it…even if the suspect’s perfectly legal actions made them uncomfortable or frightened ignorant citizens, that, isn’t enough to warrant government intrusion. Because SCOTUS consistently ruled “good faith on the part of the arresting officer is not enough.” . . . If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be “secure in their persons, houses, papers, and effects,” only in the discretion of the police.” Beck v. Ohio.

    But maybe your right and I was able to earn my JD and pass the bar in two states without having a fundamental grasp of Terry V. Ohio.

  • t.

    @Clark: Clearly, even by your own interpretation, the “stop” as it described…and for the reason it occurred…is clearly within the “Trey” standard. You can try and play little word games and “lol” all you’d like. But in the end, your own noted case is the one the gives the officers the authority to do what they did. Its not about “because the cops didn’t like it”, its about activity that is so far from the norm, activity that instantly raises suspicion in the rational mind. That training, experience and knowledge all comes into play. You appear to not understand that (well, I knew you don’t from your previous posts) and clearly you don’t like it, but JUST BECAUSE YOU DON’T LIKE IT…doesn’t make it wrong.

  • 2minutes

    @T

    From Wikipedia:

    “On October 31, 1963, while on a downtown beat which he had been patrolling for many years, Cleveland Police Department detective Martin McFadden, aged 62,[1] saw two men, John W. Terry and Richard Chilton, standing on a street corner at 1276 Euclid Avenue and acting in a way the officer thought was suspicious. Detective McFadden, who was well-known on the Cleveland police force for his skill in apprehending pickpockets,[1] observed the two proceed alternately back and forth along an identical route, pausing to stare in the same store window. Each completion of the route was followed by a conference between the two on a corner. The two men repeated this ritual alternately between five and six times apiece—in all, roughly a dozen trips. After one of these trips, they were joined by a third man (Katz) who left swiftly after a brief conversation. Suspecting the two men of “casing a job, a stick-up”, detective McFadden followed them and saw them rejoin the third man a couple of blocks away in front of a store.”

    So, in the Terry case, the officer observed several activities, which, taken together, added up to reasonable suspicion. Multiple individuals performing the same activities, repeatedly, with a pronounced interest in the same (storefront) location, and a discussion occurring between the circuit made by each. A
    discussion involving another individual. Note that the route
    was completed 5-6 times by each individual involved before the
    officer decided to make the stop.

    How is that the same as this stop? This individual was not seen
    acting suspiciously, or making circuitous routes repeatedly, or
    showing overt interest in a specific location; no, all he was
    seen doing was to be riding a bicycle and carrying a rifle in
    an open-carry state. Both are legal activities. Neither are
    grounds for probable cause or reasonable suspicion. It does
    not matter what the officers involved feel is the “norm” ; all
    that matters is if the activity is potentially indicative of
    criminal behavior. Open-carry in a state that allows it is not
    indicative of criminal behavior by itself; the state, by
    allowing open-carry, has made that decision already.

  • Chris Mallory

    Jean, as to your comment about being armed while on a bicycle. Numerous armies have used bicycles for armed troops. They carried rifles.

  • Jean

    @Chris:
    Your comment is relevant… How, please? (Meaning to mine.)
    Did you mis-address that response?

    I know that bicycles can be used to transport troops. What’s the point? He’s an insurgent because he’s armed?

  • t.

    2: While certainly not exactly the same….very similar. Sorry if you can’t see the similarities. You wrongly mentioned PC again. You came back with RS, but even the mention of PC is wrong….typical Cop Block kind of wrong…but still wrong. Each and every action / stop has to have its own merits. The officer need to be able to “articulate” what those suspicions are and they must be determined to be “reasonable” (there is that pesky word again…the baine of the Cop Blockers existence) All of the things I mentioned can be use to determine the reasonableness. Everything that you dismiss…is exactly what can and should be used to help make that determination. The courts have ruled…do rule…and will most likely continue to rule…that the determination of RS to stop..and / or PC to arrest, is to be made through the eyes of the officers on the scene. And they must be viewed through the eyes of a what would a an officer reasonably believe / think. Its not what you think. Its what would a reasonable officer…reasonably believe.

  • Joey Joe

    I don’t know why all this bickering is necessary – The bottom line here is that the dude has a right to excercise his legal right for carrying a fire-arm in open sight – however, I’m assuming it still doesn’t mean that you can posess as such without a license, and there are certain groups of profiles which are prohibited from carrying as such because of what’s on thier rap-sheet or because of thier documented pre-disposed tendencies. So therefore, even though the cops failed to behave as properly as they should have, none the less, they had a right to stop the guy, just long enough to check out his license for posessing, and to make sure that the firearm matched with what came up on the registration. Also, it doesn’t hurt to make sure that there is nothing out of place on ones record, so far as any recent grudges against someone to avenge or ‘take out’. Yes, the cops were stupid for arresting the dude, but he didn’t react as methodically as he could have. Instead of blabbing about your rights in an open-carry state, I would of simply stated how the weapon is licensed, and produced any paperwork to confirm as such, along with any matching identification. That would of probably defused everything right there, and if not, then there is definitely a case to file for, in civil and criminal matters of conduct as well. By the way, I believe that there is something in the US constitution which mentions how citizens do have the right to bear arms, so this is not just a state issue, contrary to what somebody said earlier.

  • Common Sense

    I wonder if the liberals think about the appointments to the USSC. It makes a big differenct who you elect to the room with no corners. Something tells me that ‘reasonable’ will be a key word if/when this goes to them.

  • http://clarkcountycriminalcops.wordpress.com clarkcountycriminalcops

    @T…”Clearly, even by your own interpretation, the “stop” as it described…and for the reason it occurred…is clearly within the “Trey” standard….” That would be a pretty nifty trick, considering that I specifically said the suspect’s actions lacked the “specific and articulable facts that a crime is being committed or about to be committed that Terry requires.

    While the suspect’s actions may have been ” so far from the norm,” as to earn attention, SCOTUS specifically states that even if the “activity instantly raises suspicion” that type of “inarticulate hunch” is not sufficient. If the suspect had been walking backwards would police be justified in detaining him? Such behavior is “far from the norm,” yet it doesn’t indicate criminal activity, as it is perfectly legal to walk backwards.

    You do, however, provide a concise statement demonstrating the fundamental problem with today’s law enforcement officers. You argue that the subject’s perfectly legal behavior was enough to “instantly raises suspicion in the rational mind,” yet “rational minds” don’t see things that are not there. Rational minds witness a man obeying that law and see A MAN OBEYING THE LAW. Irrational police officers who have been fed a diet of false fear see A MAN OBEYING THE LAW and instantly become suspicious. That type of thinking is what one would expect from a paranoid schizophrenic, not a seasoned law officer.

    So either the officers were experiencing a mass hallucination, or they were showing complete ignorance and disdain for the U.S. Constitution. Either way, we should all expect and DEMAND more from our public servants than that.

  • Yankee Fan

    What is the law where he was stopped regarding how far the police can go? I remember the case of Mark? Fiorino and his open carry case. In Philly, the police can, by law, stop and check out the open carry and even have an internal directive on what to do. Once realized the person is “good to go” they are to be sent on their way with no further impediments from the law. I personally have no issue if the police get called, with them showing up and checking the scene out. The issue is that a weapon being open carried, regardless of what an officer personally thinks, is not in and of itself suspicious behaviour and just because they had a call of someone carrying a weapon does not raise the situation to suspicious in nature.

  • 2minutes

    @T

    Not exactly the same, and not remotely similar, either. Sorry if you can’t see the very large differences. As for PC -they had none; or RS. I know the difference, and both did not exist in this case. The officers in this case were not even able to articulate a reasonable suspicion that would justify a stop, much less PC for an arrest.

    What, exactly, is their articulable RS? A man is legally carrying a firearm and riding a bicycle? Both of these activities are legal, and neither is justification in and of themselves. There is no other activity mentioned that would arouse suspicion in a reasonable mind; but then again, that “bane of copblockers” – reasonableness – seems to be a completely alien concept in a cops mindset. After all, we have seen cops who pull on gloves and say “see these fists? These fists are gonna fuck you up” before beating an innocent homeless man to death; we have seen cops shoot a 10 y/o student with a taser for not wanting to clean the officers car; we have seen cops who rape, steal, traffic drugs, assault innocents, kill innocents, break into
    the homes of innocent people; hell, even cops who like to finger bang suspects in the street on the pretext of looking for drugs.
    Don’t even try to pass off cops judgment as an example of rational
    thought. There are too many examples that give lie to the claim. An
    officer is not, and cannot be, the final arbiter of reasonableness,
    hence the requirement for specific and articulable facts. FACTS, not
    supposition, or belief. Facts.

    So, what crime did these officers suspect, and what were the specific articulated facts that led to this suspicion? I see
    none listed in the article; only that the police felt that it was “not smart” to open carry; even though it is perfectly legal to do so. It appears that the only articulable fact involved was that the officers held the opinion that his actions were not smart. That is
    not reasonable, its petty tyranny. Tyranny inflicted on a citizen by these so-called reasonable officers.

  • t.

    No matter what I say to you guys…how far off the mark you are…how reasonable and articulable the officers decision to stop was…you just simply don’t like it. And that’s that. You don’t like any police involvement ever. The constitution that you claim to love and claim to understand doesn’t mandate “no government interaction”.
    Just has to be “R E A S O N A B L E”. You guys always get that one wrong. Heck..you buys frequently quote the 4th amanedment, including what I just said….and still don’t get it.

  • Yankee Fan

    It is not that we don’t like police involvement, we want the involvement done right. Florida v. JL says that a call about a weaon only and nothing else is not cause for a stop and search under terry v. ohio. Here is the summary of the opinion:

    Holding
    A police officer may not legally stop and frisk anyone based solely on an anonymous tip that simply described that person’s location and appearance without information as to any illegal conduct that the person might be planning.

    http://en.wikipedia.org/wiki/Florida_v._J.L.

    This case was about a black male youth with a weapon and the police interacted with no REASONABLE suspicion other than a call. The courts are to determine that you are wrong or right. There is no case law or SCOTUS case that supports police being able to stop a legal open carry based solely on a tip that someone had a weapon unless there is some state or city law that gives them that power such as in Philadelphia.

    As far as we know, this guy was exercising his right to open
    carry and absent some other facts that would allow a reasonable officer to interpet behaviours as suspicious, he was legal and should have not been molested in any way other than a consensual stop.

  • http://clarkcountycriminalcops.wordpress.com clarkcountycriminalcops

    @T..Let’s take your latest offering to the Church Of Law Enforcement piece by piece.

    While it’s USUALLY a good idea to let the reader know how credible you are, it us never a good idea to remind the reader that you can not be trusted.

    “No matter what I say to you guys…” — Since all your posts are right in front of us, we can all see how truth is not something you intend to pursue. Because had you actually said something, anything on the central subject — the articulable facts by the APD officer s that led them to suspect criminal behavior..” this would have been a short discussion.

    Yet despite asking exactly what the officers said to support “how reasonable and articulable “the officers decision to stop was…” you have done nothing but dodge the issue.

    The closest you come was the parable of the “suburban middle class” neighborhood where an officer who has “worked that area for several years and that specific beat for a couple of years” encounters a man “riding around on a bicycle with a PISTOL and a RIFLE on his back.”

    And this officer, who has “never seen anyone riding around on a bicycle with a PISTOL and a RIFLE on his back. Never even heard of anyone doing it” applied all “his training, experience and knowledge of the area” and determined that something criminal was taking place.

    I call this a parable because it is actually quite miraculous. You see, if the officer actually applied “his training, experience and knowledge of the area” to this event what would he reasonably conclude?

    Having “never seen anyone riding around on a bicycle with a PISTOL and a RIFLE on his back” his experience working “that area for several years and that specific beat for a couple of years” can only result in realizing that he has “never seen anyone riding around on a bicycle with a PISTOL and a RIFLE on his back” commit a criminal act. He has never experienced a “anyone riding around on a bicycle with a PISTOL and a RIFLE on his back” act in anyway contrary to the law.

    But then we can not ignore “his training.” What has the APD taught him about how he should expect a person “riding around on a bicycle with a PISTOL and a RIFLE on his back” to behave? Did the APD warn him about how criminals often abuse New Mexico’s open carry law by “riding around on a bicycle with a PISTOL and a RIFLE on his back” on their way to commit heinous criminal acts. Luckily we know that since he admits he “Never even heard of anyone,” (and he did pay attention during all those weeks of training) “riding around on a bicycle with a PISTOL and a RIFLE on his back…” who had committed a criminal act.

    Yet, despite having no experience or training to tell him that the perfectly legal activity of “riding around on a bicycle” combined with the perfectly legal activity of carrying “a PISTOL and a RIFLE on his back…” has never, NOT ONCE, in all his years of patrolling the streets, has this suspects actions been associated with criminal activity.

    I mean even though this man’s actions has never been indicative criminal behavior, it would be reasonable for an officer to suddenly disregard all “his training, experience and knowledge of the area” and conclude an activity he has “never seen…Never even heard of” being associated with dangerous criminals is actually a cause to suspect dangerous criminal activity.

    Now unless your argument is that “R E A S O N A B L E” officers routinely ignore what their “training, experience and knowledge of [an] area” has shown them and make decisions entirely contrary to all the “training, experience and knowledge of [an] area.” If that is how “R E A S O N A B L E” officers think, then we have made some serious errors in the screening an hiring of these particular public servants.

  • http://www.policecomplaints.info Police Complaints

    A reasonable officer would walk up to the guy and say, “Hi there, how’s it going?” and gauge the reaction. Does the guy say, “Hello officer, just fine, how are you?” Or does he break down in tears and say, “They’ll pay, I swear I’ll make them pay!” Then the officer tries to continue the conversation till he can make a good judgment about just what the heck is going on.

    A reasonable officer does NOT swoop in with overwhelming force and rifles cocked. That is how you heat things up and create tragedies. By all means, approach and investigate any unusual situation. Do not immediately turn it into a war scene.

  • t.

    @complaints: In your “article” you say there are videos showing the gross overreaction by the officers….post them. YOU a reporting in a very biased way something that can’t be verified. “With guns out” isn’t necessarily an improper response when dealing with an obviously armed subject…who apparently got pretty mad at the police interaction / encounter.The only info we have about the police”swooping” comes only from you.

    @clark: I dodge nothing. You want to just ignore simple truths. I don’t’ know the spe iifcs of this incident. I spoke in a very generic sense about interactions of this type. As I tried to explain to you, the police (as can lay persons as well) can draw upon information and experiences of various types to make decisions. “Terry” is the excellent example. As I pointed out…that officer, used his training and expereicne to se that the observe red behavior was outside the norm, and it raised his suspicions. BTW, the real issue in “Terry” was more about the “frisking” (hence the term Terry Frisk) then it was about the initial interaction / encounter / “stop”. (Although part was looked at as well of course). You, for the reason of trying to make a bad point, keep wanting to dismiss that SCOTUS and other courts look at it just the way I explained. What would a similar officer with similar experience and trading, in asimilar circumstance….think and do. From tthe info available (even from a very biased source), the decision to “stop” and interact with this person looks very proper. Note that they didn’t charge him with anything about the weapons or his “exercising his second amendment rights”. The intended only charges came from his behavior. The example I gave was perfect. You can change it to just about any kind of neighborhood you want. I worked in a tough innercity neighborhood of a large city for a long time, as patrol, special ops and as drugs and vice. I saw lots of guys walking. Lots of folks on bikes. NEVER saw anyone riding around with a rifles strapped on his back. (Saw a couple carrying shotguns / rifles a few times) . Had I, he would of certainly been contacted. (As the Ines walking and carrying were). Why? Because the very nature of doing something, so far from the normal behavior of the areas / neighborhood in and of itself raises suspicion. In Terry, that’s exactly what happened. The officer had seen lots of folks hanging out on lots of corners in his career. The suspects behavior, the actions that they took that was also “legal” (walking on the sidewalk, talking, etc…). But his experience showed him that their “legal:-) ‘ behavior was outside the norm, and it raised his suspiscions. Again, I spoke / speak of it very generically. I wasn’t there. I don’t know the officer or the bicyclist, I don’t know the training, the experience, the knowledge of any of them. I don’t know what they said about why they stopped this guy. I don’t know what tactics they used or how they handled the stop or about what went into their decision to charge him for whatever other crime. In a generic sense, their suspicions certainly look to be very reasonable.

  • t.

    Clark? Are you there Clark?

    Hmm. Guess not.

  • http://www.policecomplaints.info Police Complaints

    @Joey Joe, you assume wrong. No license required in NM. And even if there were, it still wouldn’t justify a detention. Do you think cops are allowed to stop cars at random just to check the drivers licenses? No, they need reasonable suspicion.

    @t, in your “comment” you ask to see video. Guess you didn’t click the link. But by all means, keep lecturing me about not doing my homework…

  • t.

    @complaints: I saw that. I meant do you have any video of the police doing something wrong. You know, like you alledge they did. The video you have doesn’t show them swatning, or pouncing, or point guns at anyone, or anything that looks even a little bit improper concerning their actions in the street. I’m looking for the video that shows them doing it wrong g…not the one showing them not, not doing wrong g.

  • t.

    I don’t think Clark is there.

  • http://clarkcountycriminalcops.wordpress.com clarkcountycriminalcops

    I’m here, but since you simply want to ignore what SCOTUS actually said in Terry V Ohio what more can I do? I even cited the actual ruling where SCOTUS ruled that suspicions raised merely by “behavior..outside the norm,” was not sufficient to prompt a stop under Terry. In fact argued that even without any training or experience in situation, that is reasonable to become suspicious.

    You were provided with Florida v. JL which found that, in open carry states, merely carrying a weapon isn’t enough to meet the Terry standard. Yet the officer stated, “So based on the fact that you are in simple possession of a hand gun of any type, we need to identify you and make sure …..”

    That’s not what Terry States is a reasonable suspicion and it sure isn’t how SCOTUS ruled in “Florida v. JL.”

    The cops here overstepped the authority we have lent them.

  • t.

    And you come back with that? Hardly worth checking back on. But again, EVERYTHING that the suspects did in Terry v Ohio was what? No, its OK, go ahead and say it…. it was legal behavior. They didn’t violate any city ordinance…state or federal laws or statutes. But what was it again….oh the “totality of the circumstances” of their behavior…when seen through a trained and experienced eye…was correctly seen as suspicious.

    Well, since the review falls on dumb ears, I’ll just say thanks for playing…better luck next time when maybe you’ll have a better set of facts to argue. Because on this one…you got nothing.

  • http://clarkcountycriminalcops.wordpress.com clarkcountycriminalcops

    @In usual, and in typical police fashion, you refuse to acknowledge the forest,instead insisting you are at the beach. Yes, in Terry V. Ohio, the suspects legal actions were seen as suspicious in their repetitiveness and the reasons for this suspicion as well as the crime they indicated was about to take place. These reasons were given in great specificity and thus is the Terry Standard. When I ask what crime did this man’s riding a bike carrying weapons indicate was about to take place you gave nothing. The officer’s themselves admit they were suspicious of no crime, but stopped the cyclist, “based on the fact that you are in simple possession of a hand gun of any type.” This not only fall far short of the Terry standard, it is clear violation of Florida v. JL.

    Now in the example you gave you state the person’s actions be viewed, ““totality of the circumstances” of their behavior…when seen through a trained and experienced eye,” even though your example admits the officer has no training or experience with the situation described. Therefore he can not view those activities through a “trained and experienced eye.”

    Now, considering no crime was being committed here, it seems the most appalling thing the one learns here is how whatever training these officers are receiving (if they can see a citizen conducting himself within the bounds of the law as suspicious), it is a complete failure, to both the police and the community as a whole.

  • Yankee Fan

    Clark,

    It is irrelevant what SCOTUS rulibg you offer. T is no different than any other cop. He believes wholeheartedly that the police in this had reasonable suspicion that a crime was about to happen or did happen. Unless there is something missing, all we have is a guy riding his bike with an open carry and the police arresting him absed on their dislike of open carry weapons or whatever. If you ask T what does he think the RS was, he will not answer because he can’t. The police here were wrong and no fuck way will he admit that. Florida V. JL is clear and they were in violation of that. 5 will get you 10 that someone mentioned to the prosecuting officer that we need to let this one go to avoid an further embarrassment and she did not show…no big surprise and this will be settled out of court so they do not have to explain what their RS was that this guy was about to commit a crime. Thats what RS is supposed to be used to examine…future criminal activity by using the totallity of the circumstanxces. They are supposed to use the same to examine factors that would cause a reasonable officers suspicions to be lowered and the fact they were in an open carry state and received a tip some guy was riding his bike with an open carry is enough for a consensual stop..not an arrest because they think he really was disturbing the peace.

  • adam

    i would like to say that if the officers had RS i would have given my identity …. it was only after being arrested and placed in the back of a patrol car that the officer asked for my information… officer benividez stated ” you are not under arrest you are only being detained so we can make sure you are not a felon or that you are even able to posses weapons.” i refused and stated that it didnt seem legal but i would comply if they could articulate what crime they believed i had or was about to commit….the officers were unable to articulate…. so i was arrested for disorderly and concealing… the report was riddled with false statements meant to mislead and feebly support the accusations for disorderly conduct…. i was in fact carrying 2 pistols…. contrary to the report…

  • http://n/a John Boyd

    Does anyone believe there is an Illegal “posture” for open carry e.g. carrying on a bicycle going down Central, or Carrying in front of the Grocery Store while your Signf. other does the bargain hunting, You have a belt holster over your coat, clean shaven, e.t.c.
    I just bought a “The Judge” handgun, and a “The Circuit Judge” long gun, and I am a Veteran, Disabled Veteran, Retired State of New Mexico Employee, and I do NOT want to “get arrested.”
    Thank you for any reply’s by email please. I just desire to carry openly for the benefit of safety for all. I do not consider myself a “gun nut” but I haave hunted since childhood. Please give me the straight skinny please.

  • http://yahoo.com John Boyd

    I am sure the albuquerque PD arrested this man because he was going down Central Ave. on a bike. I can imagina a sort of bizarre appearance – you might think this man is making himself a “target.” There are alot of people with concealed carry permits and many who concealed carry illegally; remember only law-abiding citizens obey laws enacted for ther own safety.
    I would hope that the “arrestee” here would be able to iron things out amongst themselves. What would be the purpose of a law suit, of course besides personal enrichment.
    I would hope some “right” minded judge would throw this case out of his docket with true force.

  • http://clarkcountycriminalcops.wordpress.com clarkcountycriminalcops

    @John Boyd …”What would be the purpose of a law suit, of course besides personal enrichment.”

    Well, John, the that personal “personal enrichment” will come out from the taxpayers, and hopefully they will motivated by these payouts to demand change and accountability.

    Since police refuse to hold themselves accountable criminally or even by simply firing offending officers, the only recourse left to the public are lawsuits. I know that I would feel better having these bad cops fired than I would paying the cyclist a six-figure settlement. Sadly, those in charge would rather spend your money and protect the job of dangerous officers.

    Hopefully “RIGHT” minded voters will demand departments rid themselves of these entitled public employees who do nothing more than create a huge fiscal drain on a community.

    The father of the man recently murdered by Fullerton police has stated he would forgo any civil action if the officers who killed his boy were simply fired. The department refused and Fullerton taxpayers will pay millions fore the luxury of having four violent cops permanently latched onto the public teet.

  • MoneyT

    Officer Marcia Benavides is a hottie she can put me in handcuffs anytime.