Philadelphia Police Wrongly Accuse Man of Gun Violation in Abuse Confrontation And Then Charge Him Instead With Disorderly Conduct

There is an interesting audio recording (below) from a man, Mark Fiorino, 25, who was confronted by a Philadelphia police officer about carrying a gun in public. Fiorino is allowed to open carry in the city, but the officers appeared completely ignorant of their own directives and became increasingly hostile to Fiorino’s effort to show them that he was lawfully carrying the weapon. After concluding that he was right, he was released . . . only to be charged later with disorderly conduct based on his effort to show the officers that they were wrong about the law.

Fiorino carries a .40-caliber Glock on his hip in plain view. Sgt. Michael Dougherty spotted the gun and pulled his own weapon — shouting “Yo, Junior, what are you doing?”

What follows is an audio tape of the confrontation. The officers become increasingly profane and insulting — particularly after learning that they have been taped. Dougherty asked, incorrectly, “Do you know you can’t openly carry here in Philadelphia?: Fiorino responds by saying, correctly, “Yes, you can, if you have a license to carry firearms. It’s Directive 137. It’s your own internal directive.” He is right. You can carry if you have a concealed weapons permit (a slightly higher standard than the rest of the state).

I will not hide my unease about open carry laws and I am sympathetic with the difficulty that it poses for officers who have to determine if someone is a danger to themselves and others. However, the conduct of these officers in this case should be a matter of internal discipline. Instead, as is often the case with taped police encounters, the prosecutors are now seeking to convict Fiorino on a different charge after confirming that he was right. He is now being charged despite the fact that he never raises his voice and remains calm throughout the encounter.

Here is the directive that Fiorino referenced:

Police directive sent to all districts regarding open carry in Philadelphia, PA Sept 22, 2010

GENERAL: 1272 09/22/10 12:53:20

TO : ALL COMMANDING OFFICERS / DEPARTMENT HEADS
SUBJECT : FIREARM OPEN CARRY LAW IN PHILADELPHIA

1. DIRECTIVE 137, ENTITLED “FIREARMS” IS BEING UPDATED
CONCERNING THE PENNSYLVANIA OPEN CARRY LAWS
REGARDING THE CITY OF PHILADELPHIA. THIS TELETYPE
REFLECTS THE NEW POLICY AS IT WILL APPEAR IN THE
DIRECTIVE.

2. ALL OFFICERS SHOULD BE AWARE THAT PENNSYLVANIA IS
CONSIDERED AN “OPEN CARRY STATE” WITH THE EXCEPTION OF
PHILADELPHIA. IT IS IMPORTANT TO DEFINE A FEW TERMS USED,
WHICH ARE AS FOLLOWS:

“OPEN CARRY” REFERS TO THE ACT OF OPENLY AND VISIBLY
CARRYING A FIREARM ON ONE’S PERSON.

“OPEN CARRY STATE” REFERS TO A STATE THAT ALLOWS
PEOPLE TO OPENLY AND VISIBLY CARRY A FIREARM ON ONE’S
PERSON WITHOUT A SPECIAL LICENSE OR PERMIT.

“CONCEALED CARRY FIREARMS LICENSE” REFERS TO A SPECIFIC
LICENSE ISSUED TO AN INDIVIDUAL AUTHORIZING THE PERSON
TO CARRY A FIREARM CONCEALED ON HIS OR HER PERSON OR
VEHICLE.

3. IN PHILADELPHIA, UNLIKE ANY OTHER PART OF THE STATE, FOR
ANY PERSON TO LAWFULLY, OPENLY AND VISIBLY CARRY A
FIREARM, THAT PERSON MUST HAVE A CONCEALED CARRY
FIREARMS LICENSE. SO, IN PHILADELPHIA, IF A PERSON HAS A
VALID CONCEALED CARRY FIREARMS LICENSE, HE OR SHE CAN
LEGALLY CARRY A FIREARM EITHER OPEN AND VISIBLE OR
CONCEALED.

4. AN OFFICER ENCOUNTERING A PERSON CARRYING A FIREARM
OPENLY IN PHILADELPHIA SHOULD FOR THE SAFTEY OF PUBLIC
INVESTIGATE AS A POSSIBLE VUFA VIOLATION.

A. SINCE A SEPARATE LICENSE IS REQUIRED IN PHILADELPHIA
AND IT IS IMPOSSIBLE FOR ANY OFFICER TO KNOW WHO DOES
AND DOES NOT HAVE A VALID CONCEALED CARRY LICENSE, IT
IS ENTIRELY REASONALBE FOR OFFICERS TO TEMPORARILY
DETAIN AND INVESTIGATE ANY INDIVIDUAL CARRYING A
FIREARM EXPOSED TO DETERMINE IF THE PERSON IS
OPERATING WITH THE LAW.

B. IMMEDIATLEY SEIZE ANY FIREARMS FOR OFFICER SAFETY
DURING THE STOP AND UNLOAD THE FIREARMS IF POSSIBLE,
BUT ONLY IF IT CAN BE DONE SAFELY.

C. A 75-48A MUST BE COMPLETED AND THE BASIS FOR THE STOP
WOULD BE A “POSSIBLE VUFA VIOLATION”

D. ONCE THE OFFICER RECEIVES CONFIRMATION THAT THE
CONCEALED CARRY LICENSE IS VALID, AND THERE ARE NO
OTHER OFFENSE OR VIOLATIONS BEING INVESTIGATED,
OFFICERS SHOULD RETURN THE FIREARM AND AMMUNITION
BACK TO THE INDIVIDUAL AT THE END OF THE STOP.

E. HOWEVER, IF THE INDIVIDUAL CANNOT PRODUCE A VALID
CONCEALED CARRY LICENSE OR THE LICENSE IS NOT VALID
(I.E. EXPIRED OR REVOKED), PROBABLE CAUSE THEN EXISTS
TO ARREST THE INDIVIDUAL FOR THE VUFAVIOLATION AND
TRANSPORT THE INDIVIDUAL TO THE DIVISIONAL DETECTIVES
FOR PROCESSING. THE FIREARM AND AMMUNITION SHOULD
BE PLACED ON A PROPERTY RECEIPT (75-3) AND MARKED AS
“ EVIDENCE”. A 75-48A FOR THE INITIAL STOP MUST BE
PREPARD ALONG WITH A 75-48 FOR THE VUFA ARREST.

The District Attorney’s Office is pressing charges with reckless endangerment and disorderly conduct. I believe those charges are wildly excessive and retaliatory.

While he should have followed the directions of the officers in dropping to his knees, it is hardly the conduct to support a criminal charge. For gun owners, the prospect of being constantly told to drop to their knees while staring down a gun barrel may seem like retaliation by the police department, which is clearly hostile to the right created by law. There are ample reasons to oppose open carry laws, but the government has affirmed this right for citizens like Fiorino. There is an obvious need for better training of officers on the existence of the right. Moreover, regardless of the legitimate need to investigate, these officers were plainly unprofessional in their language and treatment of Fiorino.

Source: Philly

Jonathan Turley