Well, the
Dickson City Police Report was released on Monday. It's a mix of CYA and surprising honesty as to some of the illegal acts they committed. Apparently they can't comprehend the simplicity of some of these legal points, despite being informed in person the night of the incident, again by many of us attending the City Council meeting the following Tuesday and numerous times in print as wells as on TV and radio. I predict there will some very interesting testimony when this finally makes it to court.
The entire fiasco began with the illegal detainment of those involved. The police can ask you anything you want, and you're free to ignore them. In order to 'detain' you, they must have "
Reasonable Articulable Suspicion" that a crime has occurred, is occurring now or is about to occur
AND that the person who is about to be stopped is the person who meets the prior criteria.
Here are some quotes directly from the police report:
The caller stated that the males were not doing anything wrong but the guns were on their sides visible and there were no badges displayed and felt this was wrong with children running around and requested police to check on it.
Ofc. Mariano and I (Gallagher) entered the restaurant and observed several males sitting at tables with what appeared to be their families. The above mentioned males had firearms (handguns) in holsters on their sides. Ofc Mariano approached one table while I went to another. I observed a male sitting at this table feeding his infant; the male had a handgun in a holster on his right side. I informed the male that we were called to the restaurant because people were concerned about the guns that he and other males had on their sides.
Even assuming that these officers are unfamiliar with
Commonwealth v. Hawkins, both the caller and their own observations failed to note any 'suspicious' activity. Since RAS did not exist, ALL further actions were illegal
I should probably state 'for the record' that I was not present at the Old Country Buffet on the night in question, but I do know Rich Banks personally, and absolutely believe his version of what happened.
As I understand things, Officer Mariano asked for "weapons permits - concealed weapons permits" from "all you guys", not just from those who were concealing that night. In PA, there is no such thing as a "Concealed Weapons Permit". PA issues a License To Carry Firearms, which among other things, permits the holder to conceal a firearm on or about their person, but does not require them to do so, and does not bar them from open carry if they also hold a LTCF. Further, without RAS the request for LTCFs and IDs was also not proper, both in and of itself, and also because the original detainment was itself unlawful.
The report also alleges that Officer Gallagher "asked" that a video camera be turned off. My understanding is that consent to turn the camera off was declined, but it was indicated that if Officer Gallagher "demanded" that it be shut off, that they would comply (it's important to understand the difference between 'consent' and 'comply'). At this point, Officer Gallagher "demanded" that the camera be turned off, and it was.
Next, the report claims that Rich Banks "stated that he was concealing a weapon" and that he "stated that he would not provide us with identification". Rich's version is that he did not disclose the fact that he was concealing a B.U.G. until he was placed under arrest. Rich also maintains that he was not
Mirandized at the time of arrest, or at any point during the encounter.
The report states that the reasons for Rich's arrest were:
1. Disorderly conduct - this charge is typically tacked on to almost anything as a 'catch all'. Neither the act of OC, knowing the law and your rights or asserting those rights comes remotely close to satisfying the legal standard.
2. Failure to provide ID - There is no such crime. There is absolutely no legal obligation to even posses, let alone present paper ID to the police. Rich offered to verbally identify himself if he was being 'detained'. The police either could not decide or chose not to articulate that he was being detained. Rich apparently went directly from a consentual conversation to being placed under arrest.
3. Failure to provide "concealed weapons permit" - Again, no such item in PA. Rich was open carrying a firearm, which requires no LTCF (Officer Mariano eventually stated he knew as much). His concealed B.U.G. was not disclosed until he was placed under arrest, and as they had no prior knowledge of that gun, the request for his "concealed weapons permit" while OCing was bogus.
Some more quotes:
Chief advised us to run identification and permits on all parties. He further advised us that we may run serial numbers of the weapons to be sure the weapons belonged to the carriers
I was told [by another officer] that as long as it was carried without being concealed that he could carry without a license to carry it if it was registered to him.
Upon checking with the chief of police I was advised that if it was not registered to him that he may not carry it and could release it to the registered owner Darcie if on scene, if she was not then I was to take the weapon and the owner would have to come to Police Headquarters to retrieve it.
Comm. Center advised me to call them in reference to the two weapons of Mr. Banks and was informed that the weapon he had concealed on his ankle a 9mm para serial number xxxxxxx was not registered and the other weapon that he had on his right side was registered to Mr Banks. I then received a call from another officer that they had spoken to the ADA and he was requesting to speak with me. I returned a call to ADA Kolcharno and informed him of the situation. He stated that he had just been reading the latest case laws after speaking with the other officer, He stated that a person cannot carry a firearm that is registered to someone else. I informed him of the 9mm of Mr Banks that it was not registered and the ADA informed me that he cannot carry a firearm that is not registered. He also approved the charge of Disorderly Conduct and would look into the failure to provide id and concealed weapons permit, but stated that I should release Mr Banks for the evening and file the charges. I asked ADA Kolcharno again about the weapon and he stated to take the weapon due to it not being registered. I then released Mr Banks and informed him of the above. Mr Banks stated that he is a federal firearms dealer and does not have to register a weapon.
Well....at least Officers Gallagher and Mariano won't be in this alone. Yet again, without proper RAS at the beginning of the encounter, each and every one of these continued actions have no basis in law. Since there is no registry in PA (and such 'registration' is specifically prohibited by
§6111.4), I'm not sure what the purpose of this act was. There are numerous scenarios where a legally possessed firearm is either not listed in the PSP database of sales and transfers or is listed under a name other than the person possessing or carrying it. Whether or not a gun comes up in the database, or who's name it comes back under is completely irrelevant.
Furthermore, the fact that Rich is a FFL has nothing to do with not having to 'register' a firearm, and he would not have done something as silly as suggest such a notion. NO ONE in PA is required to register a firearm.
Mr Banks informed me that if I took his weapon, from him that he would file a lawsuit.
Personal note: I know Rich to be an honest guy, and I fully expect him to keep this promise.
I secured the weapon in my vehicle and went to headquarters to place a property/evidence tag on it and lock it up. I also called the chief of police to update him and advise him that Mr. Banks would be in on Monday for his weapon and that I asked Mr. Banks to bring id showing he was a federal firearms dealer.
To date, the police have not returned Rich's firearm. Rich
will not be providing proof of ownership or exemption from 'registration' to the Dickson City PD.
I noticed that the report posted by the newspaper indicated pages 3-5 of a 6-page fax. I wonder what the other 3 pages were? I also have a feeling that I know which side of the story the video will support.
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