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Issued Citation for OC'ing In My Driveway Tonight... 5 Squad Cars Necessary?

Fallschirjmäger

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While I'm not a Maine resident, I thought they had complete state preemption?
http://www.mainelegislature.org/legis/statutes/25/title25sec2011.html

387412

Complete. Preemption.


I'd be very surprised and immensely disappointed if a competent District Attorney (or equivalent in Maine) didn't Nolle Prosequi the charges immediately upon being presented with them.
 
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majorwoo

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Late to the party (Fallschirmjäger linked it over on georgiacarry.org - thanks! )

It appears that Maine has state preemption making the Portland ordinance illegal and unenforceable - but I still suspect you will have to fight the charge with a lawyer. While I would like to believe you can have the charges dismissed without a lawyer I am hesitant to put much faith in the government to get it right. Find yourself a good 2A attorney and this seems like a perfect opportunity for a suit - hopefully you can find someone willing to work with you on the cost.

I am not a lawyer and I didn't stay at a Holiday Inn last night either but please check into an attorney for your sake and all the other residents of Maine.

Best of luck!
 

carolina guy

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Sec. 17-42. Same--Carrying at nighttime prohibited; exception.
(a) No person shall have in his possession in or on any street, way, sidewalk, park or other public place, or in any motor vehicle on or in any street, way, sidewalk, park, or other public place between the time of sunset of any day and sunrise of the following day any loaded BB gun, air gun of any kind, gas pellet gun of any kind, firearm of any kind or description or any other such weapon.
(b) This section shall not apply to any law enforcement official in the performance of his or her official duties or to any person defending himself or herself or his or her property.
(Code 1968, § 703.6; Ord. No. 155-72, 5-15-72)

I think that the portion in RED along with recent SCOTUS rulings makes the entire citation moot. How are they going to prove you were NOT defending yourself? You stated that you had it for personal protection for this very circumstance. The entire purpose of you OC was self-defense, case closed.
 

davidmcbeth

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I think that the portion in RED along with recent SCOTUS rulings makes the entire citation moot. How are they going to prove you were NOT defending yourself? You stated that you had it for personal protection for this very circumstance. The entire purpose of you OC was self-defense, case closed.

This is an affirmative defense .. and its a hard one to justify. He had 5 squads around him .. clearly the man in his driveway was no longer a threat....
 

carolina guy

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This is an affirmative defense .. and its a hard one to justify. He had 5 squads around him .. clearly the man in his driveway was no longer a threat....

Yes...that was afterwards...but since the police have no obligation to "protect" he still has the right to carry for self defense. That did not start with the vagrant, and did not end with his removal. It was simply a very visible reason for the OC to begin with for the LEO, true?
 

carolina guy

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This is an affirmative defense .. and its a hard one to justify. He had 5 squads around him .. clearly the man in his driveway was no longer a threat....

How is "self defense" hard to justify at night in a large city? The police are NOT there to protect you, they are there to preserve public order...nothing more, and nothing less. He stated his reason was self defense, so it becomes the state's burden to show it was not.
 

SPOProds

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Self defense justification doesn't matter. And while i agree with a nolle prosequi, I would assume a complete dismissal would come instead. A nolle is irrelevant because the case can't be brought back up with new evidence since the ordinance is moot. A "real" judge would dismiss, not nolle. A lawyer shouldn't be needed, but if you are doubtful in your pro se abilities, a lawyer would be a good idea.

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carolina guy

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<snip>

As my uninvited guest was being dealt with and dragged out of my driveway by other officers who had shown up (totaling 4 or 5), a Sgt. by the name of Calloway approached me and asked for I.D. I told him it was in my house, and he asked me to leave my firearm outside. I told him I was not comfortable doing so, and he said "Ok, I will have an officer escort you inside to grab it". I told him that I did not give permission for any of them to enter my household. This seemed to aggravate him, and he told me I was violating a city ordnance by open carrying after dark. I asked him which one, and he replied that he didn't know it off the top of his head, but if I let an officer hold onto my gun he would take me into his squad car to show me. I told him no thank you, and that I would just Google it later. He said that if I don't comply with one of the orders gave me, I would be issued a citation. I told him that if he felt it was necessary to write one that he should, and that as soon as the man in my driveway was removed from my property (who was being restrained and cuffed) I would be more than glad to go inside with my firearm, but that I would keep it on me while I was outside for my protection. He continued to lecture me on not cooperating with him and the other officers (5 of which were standing around me by now, blocking me from entering my driveway and forcing me to stand on public property), jeopardizing their safety, how this was his first "open carry advocate call", how he was trying to "Educate me" and didn't understand why I didn't want to learn the laws, why was I being difficult, how I was making people around me unsafe and uncomfortable, yada yada yada. Also told me how bad of an idea it was to have a gun when I knew cops would be coming, and I told him that I had no idea long it would take for them to arrive. I told him that it took 3 or 4 minutes for them to arrive, and a lot could have happened in that time. He made a remark about how hurt he was that I didn't have faith in the police (with much sarcasm) and I asked him where they were when I got stabbed. (sarcasm on my part). I nodded my head and stayed silent through most of this, though. He said since i was being issued a citation that I would need to give him ID, so I provided him with my name, DOB, and license number.

<snip>

EDIT: While he was filling out the citation, Officer Callway asked me if I was still recording with my phone. I remained silent, and he said "you're not recording? this is one of my finer moments! Maybe I wanted to end up on YouTube." To me, this suggests that after the video one of our members took in Portland of his illegal search that the officers were made aware of it. Which is good if you ask me. But clearly not enough.

I now have a court date set in November for violating a city ordnance. What started as getting a drunk man removed from my driveway turned into an whole ordeal that lasted an hour.

Do I need a lawyer? Should I delete this immediately and call one? As a full time student, I definitely do NOT have the funds for one, so hopefully I won't. I don't want this on my record, though. It's already going to be in public record which sucks enough. Any advice is greatly appreciated.

Sec. 17-42. Same--Carrying at nighttime prohibited; exception.
(a) No person shall have in his possession in or on any street, way, sidewalk, park or other public place, or in any motor vehicle on or in any street, way, sidewalk, park, or other public place between the time of sunset of any day and sunrise of the following day any loaded BB gun, air gun of any kind, gas pellet gun of any kind, firearm of any kind or description or any other such weapon.
(b) This section shall not apply to any law enforcement official in the performance of his or her official duties or to any person defending himself or herself or his or her property.
(Code 1968, § 703.6; Ord. No. 155-72, 5-15-72)

If you recorded this, I would try calling the prosecutor and ask them to drop the case without you needing to come down. If they do not, and you have this all recorded, I would see about finding a 2A friendly attorney that would like to help you make some $$.
 
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WalkingWolf

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387412

Complete. Preemption.


I'd be very surprised and immensely disappointed if a competent District Attorney (or equivalent in Maine) didn't Nolle Prosequi the charges immediately upon being presented with them.

Not sure about Maine laws, but I believe the City attorney/prosecutor will have to prosecute the charge on a city ordinance. Rather than a state or county prosecutor. If Portland has a municipal court the OP is going to run into problems, as they usually are very bias towards the municipality.
 

davidmcbeth

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How is "self defense" hard to justify at night in a large city? The police are NOT there to protect you, they are there to preserve public order...nothing more, and nothing less. He stated his reason was self defense, so it becomes the state's burden to show it was not.

I would agree BUT the ordinance is there and its presumed to be OK. And the "self defense" because its dark? It would void the ordinance altogether.

He stated the reason for self defense but I read the post and do not find it. A magistrate won't either. Its an affirmative defense - you have to show an immediate danger, not mere conclusions, and with 5 squads around you its hard to say you felt a need. Look at this from another person's viewpoint because you nor I will be the decider in the case.

The preemption and 2nd amendment and estoppel defenses offer the most hope; the self defense is DOA IMO.

Unless the OP has been in a courtroom about 100 times before, I suggest he gets a lawyer.
 

carolina guy

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I would agree BUT the ordinance is there and its presumed to be OK. And the "self defense" because its dark? It would void the ordinance altogether.

He stated the reason for self defense but I read the post and do not find it. A magistrate won't either. Its an affirmative defense - you have to show an immediate danger, not mere conclusions, and with 5 squads around you its hard to say you felt a need. Look at this from another person's viewpoint because you nor I will be the decider in the case.

The preemption and 2nd amendment and estoppel defenses offer the most hope; the self defense is DOA IMO.

Unless the OP has been in a courtroom about 100 times before, I suggest he gets a lawyer.

You are correct...the ordinance invalidates itself. I am looking the numbers to back a pretty good "gut" feeling that there are more violent crimes (thus creating the necessity for self defense) in the evening and nighttime when compared to the early morning and around lunch time. ;)

However, I would argue that it would be virtually, legally impossible (sans either "pure blind luck" or the ability to see the future) for anyone (even off-duty LEO) to be able to comply with this ordinance outside their own home, or the city limits.

Additionally, to be in FULL compliance with this ordinance, one would have to ensure that they never have a firearm in their possession to be able to defend yourself, except the exact time that it is necessary...not a single moment before and not one afterwards. "Scotty, beam me one medium-caliber pistol, early 21st century style..."



Sec. 17-42. Same--Carrying at nighttime prohibited; exception.
(a) No person shall have in his possession in or on any street, way, sidewalk, park or other public place, or in any motor vehicle on or in any street, way, sidewalk, park, or other public place between the time of sunset of any day and sunrise of the following day any loaded BB gun, air gun of any kind, gas pellet gun of any kind, firearm of any kind or description or any other such weapon.
(b) This section shall not apply to any law enforcement official in the performance of his or her official duties or to any person defending himself or herself or his or her property.
(Code 1968, § 703.6; Ord. No. 155-72, 5-15-72)
 
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MainelyGlock

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Portland, ME
The cops KNEW you were armed. You have the 911 tapes to prove it if they lie. Under color of authority, they told you to step off your property. This is lawsuit #1.

State preemption violated by citation from the city and its enforcers. Lawsuit #2.

Should I go ahead and MFOIA the 911 recordings?

It's awesome that all the criminals go home at sunset.

Hahaha, if only. It doesn't help that I live right next to a bar either.

Be sure to have your recorder running when you go in to talk to the captain!

Most definitely! I will be buying one either tonight or tomorrow before I go in.

This is an affirmative defense .. and its a hard one to justify. He had 5 squads around him .. clearly the man in his driveway was no longer a threat....

I was told I was violating the ordnance prior to the man being removed from my driveway. Sure, he was surround by EMTs and an officer, but does that make him less of a threat if he's still acting disorderly and trespassing on my property? No. Not in my eyes, anyways.

If you recorded this, I would try calling the prosecutor and ask them to drop the case without you needing to come down. If they do not, and you have this all recorded, I would see about finding a 2A friendly attorney that would like to help you make some $$.

I unfortunately did not record any of this, which was very very stupid of me.




Thanks for all of the input everyone. Tomorrow I will be going in to speak with the Captain and will be bringing a recorder, as well as copies of the State Preemption laws. If the Captain is "busy", then I'll either speak to second in command or just come back another time.

One thing I am split on is the need for an attorney. I have been in court once before, and that was only a few months ago. I am completely comfortable representing myself, but I'm not sure how much weight it would hold. This is a civil offense that I am being charged with, and it is taking place in a district court. If it's anything like traffic court, there will be myself, a judge, and the officer who wrote the report.

My plan is to talk to the Captain. Not sure if he can drop the charges or not, but I plan on educating him to the best of my ability on how this city ordnance is in violation of Maine State Law. If he is unable to make the citation go away, I will call the courthouse and ask to speak with the prosecutor, if there is one, and possibly arrange a meeting before my court date. If that doesn't work, I'll (obviously) attend my court hearing, and if it goes south, file for an appeal. I'm thinking that if I am armed (get it?!) with enough information, I should be OK on my own. If I need to file an appeal, I will hire an attorney. Which probably means I will need to sell my AR :(
 

Red Dawg

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IANAL But, I have had dealings in District and Circuit courts for various things. For most jurisdictions, you will check in with a states attorney/commonwealth attorney, and if you show them the "indiscretion" of the LEO...Where you did not break a law or ordinance, and wish it to "go away" they will look into it and it's highly likely that it will. If there is jail time involved, and you can not afford an attorney, they will assign one. That all being said, talking to a 2A, gun friendly lawyer is always an excellent idea. I'm willing to bet a dollar to a donut there is one on the state forum, or lurking here...They may not want to just jump out and "ambulance chase"...
 

MainelyGlock

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IANAL But, I have had dealings in District and Circuit courts for various things. For most jurisdictions, you will check in with a states attorney/commonwealth attorney, and if you show them the "indiscretion" of the LEO...Where you did not break a law or ordinance, and wish it to "go away" they will look into it and it's highly likely that it will. If there is jail time involved, and you can not afford an attorney, they will assign one. That all being said, talking to a 2A, gun friendly lawyer is always an excellent idea. I'm willing to bet a dollar to a donut there is one on the state forum, or lurking here...They may not want to just jump out and "ambulance chase"...

Thank you for the info. I'm going to try my best, but it's still the word of 6 officers against mine. Currently being put in touch with two different 2A-friendly lawyers in the state should I need them. If any of those lurkers happen to stumble upon this thread, please contact me!
 

MAC702

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...I'm going to try my best, but it's still the word of 6 officers against mine....

Does each officer file their own report? You can request all the reports and the 911 recording that has you telling the dispatcher that you are armed and on your property when they arrive. You should also be able to get recordings of all their radio communications to each other regarding this incident. There's a lot more to it than the "word" of six cops versus yours.
 

MainelyGlock

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Good news: the PPD ordnance prosecutor called me, and after we talked for a little while she told me she would dismiss the charges and was aware that the ordnances are invalid.

So, this leaves me wondering where to go. I will be talking to two lawyers tomorrow. The only reason I want to pursue this is to ensure that it doesn't happen again, and I want to make sure that all officers get proper training on how to handle (or not handle) an OC call. Thoughts?

I want to make sure that this incident virtually doesn't exist, and is NOWHERE near my record. I also want to do my part in getting these void ordnances removed. The prosecutor said she has brought them up at the last two city hall meetings, so I'm thinking I will be attending the next one to bring it up as well. Anyone in the SoMe area who can join should.
 
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thunderbolt

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Much appreciated. I'm drafting a letter to Officer Callway. He was so keen on "educating me" last night, I feel as though I owe him the same favor now that the charges have been dropped. :lol:

Uh, I would not do that, but I appreciate your motive.

Keep your mouth shut and check with your lawyers first.

Thumbing your nose at local cops, no matter how right you are, isn't a good idea.

Let your lawyer do your talking.

Just my .02c

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Fallschirjmäger

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toto-witch.jpg

"You may have gotten away from me This Time, but I'll get you, my pretty, and your little dog, too!"


OR

dr-claw_.jpg

"Curses, foiled again. I'll get you next time, MainelyGlock!"
 
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