Police Department Backs Down After Exceeding Authority on Gun Carry

by Charles Heller

April 27, 2003

Today [4/26/2003] I had an encounter with 6 of Tucson Police Department's finest. Long story, short point. I held my ground and won. 

This morning at Reid Park in Tucson at the band shell I attended a "Support the Troops" rally -- representing KJLL Radio and Liberty Watch. As a free person, I open carried my Glock 27 in a black leather strong side thumb break holster with an offside mag pouch. I wore a KJLL AM 1330 t-shirt and BDU slacks. 

About half way through the event, I was at the front, in the shade, next to the News Director Nicole Cox when TPD Sgt. Stoutmeyer walked up. He was eyeing the crowd very pointedly. He was very alert and observant. I struck up a conversation with him for about 10 minutes as he scanned the crowd, then walked off. My open carried magazine was within 20 inches of him. 

At about 11:20, I visited the latrine. On the way back, I was politely hailed by 2 TPD officers -- one fellow was named Brown. They told me I couldn't be in the park with a gun. I thanked them for being observant and gave them a business card. (They had not asked for I.D. but I wanted to be open with them.) 

I told them, respectfully, that ARS 13-3108 prevented them from regulating my firearms possession when I had a CCW permit -- and I showed them my permit. Brown asked me if that was an ASP in my front belt line. When I replied in the affirmative, he asked to see it, and I handed it to him. He commented how light it was, then hung onto it. (Smart cop. The baton is far more of a threat to him at our range than the gun.) They never took the gun or assumed an offensive posture with me. They asked nicely if I'd wait for their Sergeant, and I said, "Sgt, Stoutmeyer? I just talked to him." 

Stoutmeyer came over looked at me, and said, "You? I stood next to you for 10 minutes and saw no gun." I replied, "Yeah, I talked to you in part so you could discuss the gun if you were going to. I was really admiring your alertness. I'm left handed, so that's probably why you missed it standing to my right. As a CCW instructor, I teach people to not miss the obvious." (He winced.)

He told me that the gun was legal only if concealed, according to the Tucson ordinance. I told him that the ordinance was silent on concealment, and that if he tried to enforce what was not the law in a policemen's uniform it would be a deprivation of civil rights under color of law. 

"Sgt. Stoutmeyer, what is the TPD policy on officers who exceed their authority?" 

"There are sanctions for that." 

"Sgt., I can't protect you if you don't obey the law. I am trying to shield you from harm here, and I am not giving you a hard time. If you are not enforcing the law you swore to uphold, what good are laws? 18 USC 241 is a felony sir."

"Good point. I'll call the legal advisor." 

"OK. I'll be under that tree over there if you want to talk, except when I'm on stage. Brown said, "What do I do with this? (He was referring to my ASP baton.) I stepped forward and took it as Stoutmeyer said, "It's his." 

15 minutes later, Stoutmeyer beckoned me to the tree. "Legal advisor says it must be concealed. If you carry openly then the next guy without a permit will see it and think he can do it without a permit. I have to ask you, since you are tape recording this, to either cover it, put it in your car, or my lieutenant says I have to cite you." 

"OK Sgt. This is not the hill I want to make my stand on and disrupt these activities. I'll untuck my shirt so as not to back you into a corner, but we are not through. Please show me the written law that you are enforcing. I am not mad at you personally, but the law is silent on this and you are exceeding your authority." 

"I thought you'd say that so the legal advisor is on her way here with it in writing." 

"OK. When it gets here, we'll take the next step. This is not my forum, but we are not finished." 

20 minutes later, he beckons me over. "OK, here is the law." (Hands me a Xerox copy.) 

Tucson City Code, S 21-(3) Relating to recreation. No person in a park shall: (2) Hunt, trap, or pursue wildlife at any time: use carry or possess firearms of any description without possession of a concealed weapons permit issued pursuant to ARS 13-2112..... 

"Hey, it says nothing here about concealed. You have a point." 

"Yes Sergeant. And if you tell me it has to be concealed, and it doesn't, you have exceeded your authority under color of law. Now the city council may have intended that it be concealed, and if they write the ordinance that way I'll do it. But preemption doesn't give them the authority to regulate that, and if you try to enforce it, what sanctions might you suffer? I'm trying to protect you, sir."

"I'll call the legal advisor."

(At this point, my Title 18 warning card is still rubber-banded to the tape recorder.)

12:50 PM, under the shade tree east of the band shell, witnesses Nicole Cox, Mike Fascetta, John Campbell, Pat Johnston:

"Mr. Heller you are right. The law doesn't say concealed. I apologize." 

"Seeing as how you were just doing what they told you, no need for an apology. I am, for the record, tucking my shirt in." 

"Thank you for your attitude of not being combative with us." 

"Thank you for understanding that government is the servant, not the master. (At this point, State Rep. Randy Graf walks up.) You know, if the North and South had treated each other with the same mutual respect as we did today, there might not have been a war between the states. I just watched 'Gettysburg' last night. I have the Director on my show tomorrow." 

"Will this be on the radio? 

"Oh, I promise you the oxygen of publicity, Sgt. Stoutmeyer."