Criminal: Police Harass Lawful Gun Owner, Citizen Charged With Disorderly Conduct (AUDIO)
posted at 8:37 am on May 18, 2011 by Diane Suffern
Mark Fiorino, a 25-year-old IT worker, is a gun owner. After he and his group of friends were victimized several times, he determined never to be powerless again. He researched Pennsylvania gun laws, obtained a firearms license and purchased a 40-caliber Glock. Because Pennsylvania is an open-carry state, Fiorino lawfully did so everywhere, although being routinely stopped by police to check his permit. In Montgomery county and other areas of the state, Fiorino admits that the officers were civil, simply checked his license and let him go immediately. Not so in Philadelphia. Although Internal Philadelphia PD Directive 137 unmistakably states that a gun owner with a valid concealed carry permit may also openly carry, there has been some…confusion. According to Philadelphia Daily News:
He also had encounters with Philadelphia cops last year near the Philadelphia Museum of Art and on South Street.
“Both times they told me what I was doing was illegal,” he said. “They patted me down and said, ‘We don’t care what you consent to.’
“The second time, they did an official confiscation, and it took me five months to get back my gun.”
Clearly they didn’t get the memo.
Fiorino then decided to bring a tape recorder every time he open-carried, wise considering what happened last February. Walking to a local AutoZone, he was stopped by Philadelphia PD. The officer was immediately hostile, drew his gun, and unleashed a barrage of profanity despite Fiorino’s calm explanation. After calling for backup, the officers patted him down, discovered the recorder and released Fiorino shortly afterward. Stunned at being treated like a criminal and mulling over a lawsuit, Fiorino posted the riveting 15 minute altercation (language warning) on YouTube:
Case-closed, right? Not quite.
After learning of the posted recording, the Philadelphia DA launched a new investigation and decided to charge Mark Fiorino with disorderly conduct and reckless endangerment—both laughable allegations given the audio.
John Stossel rightly calls this an abuse of power and further cause for citizens to record police activity. Couple this with the recent Indiana court decision revoking the common law right of property owners to refuse unlawful police entry, and we realize afresh that our liberties are but one power-grab (e.g. judicial appointee…eh hem) away from being lost. Every election counts. Since our government certainly isn’t self-limiting, it’s never a bad time to remind them who they work for.
Blowback
Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.
Trackbacks/Pings
Trackback URL
Comments
Haven’t courts determined that it’s against the law to record law enforcement officials abusing their power?
Fascist police state, here we come! /s
rmgraha on May 18, 2011 at 9:03 AM
Fascist police state, here we
comeARE!oldleprechaun on May 18, 2011 at 9:09 AM
PS
Lest we forget, the Fascist Police States were SOCIALIST.
oldleprechaun on May 18, 2011 at 9:10 AM
Just wait for the lawsuit. Wisconsin OC has proved that police departments CAN be held accountable and made to pay for their fascism.
MadisonConservative on May 18, 2011 at 10:01 AM
How can a citizen who is acting legally be held accountable for police officers’ ignorance of the law? The officer who stopped Fiorino is the person who endangered pedestrians or other officers and most particularly, Fiorino, by not knowing the law and escalating the situation beyond what was necessary.
How many criminals carry their weapons in plain sight?
mchristian on May 18, 2011 at 11:42 AM
Instapundit has this story, with an update mentioning having your recording stream to a remote server, something I’ve been recommending for a while. And it’s not just for gun owners; Tea Partiers should be using it too.
SDN on May 18, 2011 at 12:46 PM
Mr. Fiorino was wrong in this case. He was given a lawful order and failed to comply. According to the article (and the audio): “An unnerving back-and-forth started to unfold like a bizarre routine. Dougherty would bark an order, and Fiorino would make an alternative suggestion.”
Next time you’re pulled over for speeding, try telling the officer that instead of writing the ticket, he should wash and wax your car.
Yes, the officer was proven wrong in his knowledge of the particular ordinance. Yes, he made a mistake. But he seemed to honestly believe that Mr. Fiorino was committing a felony involving a deadly weapon and acted accordingly and within his training parameters. The article confirms this: “”Our officers weren’t up to speed [because] we never really addressed it,” said Lt. Francis Healy, the department’s lawyer.”
Sure, it looks harsh in the aftermath, but if you don’t know why someone is carrying a weapon in plain view it is your duty as a police officer to act on that; drawing his weapon is standard procedure and appropriate procedure in that case. Besides, in plain view surely didn’t mean Mr. Fiorino was carrying his Glock by the muzzle between his forefinger and thumb at arms length in front of his body; it’s likely that it was in either a holster or in his belt and only part of it was visible. If that’s the case, then there would be no reason for the officer not to expect a crime was about to be committed.
The language isn’t disrespectful either; it’s simply human interaction in a tense situation. The officer asked the guy to show him his hands and get on the ground. The “suspect” failed to do that, then -by the sound of it- tried to reach into a pocket to show the officer his license. He’s lucky he didn’t get shot right then and there. In that regard, the officer showed reasoned restraint.
What Mr. Fiorino should have done was complied to the point where he was restrained, then asked to speak and present all of the relevant information. Had that happened, I suspect the officer would have issued an apology and released him on the spot -once confirmation of his license and the language of the ordinance- and no further charges would have resulted. Then, this particular issue would be reviewed in future training sessions and pre-shift briefings for the entire department. (Reading through the rest of the article bears this out.)
Even the posting of the audio on YouTube in the appropriate context surely wouldn’t have led to the current actions by the State (though I do think they’re making waves over this for seemingly no valid reason.) I don’t find this to be harassment or fascism as some have suggested. A mistaken identity could have led to the exact same exchange.
BKeyser on May 18, 2011 at 1:04 PM
Guess what? Honest belief does not equal probable cause. That’s why open carriers all over the country have had the charges against them dropped and even won lawsuits against police departments for their unlawful conduct.
Dougherty pulled his weapon on a man displaying no bizarre conduct, and no, open carry is not bizarre conduct. The law is not relative. His actions were lawful, and Dougherty’s ignorance of the law is not a defense for his horrifically out-of-line actions.
You don’t need to know why if it’s legal to do so in your state. Police have no right to question your reasoning for lawfully carrying a weapon. If a permit is required, police have the option of requesting to see the permit. Otherwise, Fiorino displayed nothing that would demonstrate reasonable and articulable suspicion for the stop, MUCH LESS drawing a weapon on him.
This is a prime example of keeping law enforcement in line. While your statements are not uncommon and they are understandable, they are also inaccurate and a demonstration of the type of police-first-citizen-second mentality that unfortunately leads to the harassment of law abiding citizens.
MadisonConservative on May 18, 2011 at 1:39 PM
Sorry, I missed this mind-blowingly ignorant bit. Again…I’m staggered by the unbelievable police-state mindset these words belie. It’s truly breathtaking.
Open carry is legal. That means that open carry is not, in and of itself, reasonable suspicion of a crime. It’s remarkable that you would make such an argument.
MadisonConservative on May 18, 2011 at 1:43 PM
Oh, and just look how the Philadelphia media responds…by calling the open carrier irresponsible for open carrying.
Dare we get BKeyser’s opinion on open carrying?
MadisonConservative on May 18, 2011 at 1:47 PM
And before anyone tries the “if you haven’t been in a cop’s shoes, you can’t comment” bit…I would offer that if you haven’t been in the shoes of a lawful open carrier, being intimidated by heavy-handed or incompetent police officers while doing nothing wrong, illegal, or suspicious…the same applies. I, and unfortunately many others, have been in the latter’s shoes.
MadisonConservative on May 18, 2011 at 1:54 PM
Anyone in Wisconsin should have the following number programmed into their phone if they plan to open carry:
1-608-792-0669
That number will connect you to Wisconsin Carry, Inc. If you are stopped, you should call this number when it is possible. They will be able to help in numerous ways, including recording your encounter through the phone.
MadisonConservative on May 18, 2011 at 1:59 PM
You’ll get a lot of pushback on your comments, BKeyser. I am in sympathy with your point that Fiorino should have simply complied with the officer’s order; it’s possible that if he had done so — accepted the encounter going on the terms dictated by the policeman — he would have been released after the explanation.
I’m not sure of that, given that this wasn’t the first time Fiorino had been stopped by the police for legally carrying a handgun.
And that’s really the point. The attitude of the government and law enforcement, in too many parts of the country, has gone too far in the direction of requiring the honest citizenry to be disarmed and inert, regardless of situation. I would agree with you that there is no good excuse for Fiorino’s failure to comply with a lawful order from a police officer, but I assert emphatically that there is no good excuse for the police department’s failure to properly prepare for the open-carry law.
That preparation includes instituting better policy than demonstrated by the police — on three occasions — in dealing with Mr. Fiorino. Open carry means there will be citizens walking around with unconcealed handguns on their persons. That means that the presence of an unconcealed handgun is not automatically evidence of criminal intent.
The responsibility lies with the government authorities, including law enforcement, to institute policy that reflects that reality. No citizen should have to hear that the police weren’t aware of the law or local-department policy on open carry. The citizens have every right to expect that error to repaired. Those who are angry about police policy making their open-carry right effectively moot are justified in being so. It’s the policy of the authorities that needs to change, not the lawful practice of the citizens.
As far as I’m concerned, the police and I are on the same side. I’ve always been grateful for being raised on that principle; when a patrol car goes through my neighborhood (a rare sight in these parts), I’m always glad to see it, and I can’t imagine what it’s like to think of the cops as people to hide from or deceive. But keeping things that way doesn’t mean citizens have to be disarmed.
There are parts of the country, including major cities, where the police see dozens of lawfully armed citizens walking the streets every day. The difference in perspective, from locale to locale, is largely in the community attitude on gun ownership. I know as well as anyone that Philadelphia doesn’t share all the attitudes or the social condition of western Pennsylvanians, and that that poses a problem for advocates on both sides of the gun-rights issue. The police are to a large extent caught in the middle.
That’s why I would focus my concern up higher than the cop on the street in this case. Even the DA isn’t high enough, but the DA is a start. The wrong conclusion to this series of confrontations is for honest citizens to be effectively precluded from lawful open carry. Fiorino’s specific actions in this incident may not be the best method of pushing for the right outcome, but the outcome of lawful open carry, exercised without repeated counteraction by the police, is the right one.
J.E. Dyer on May 18, 2011 at 2:02 PM
Meanwhile the Feral Government is supplying all manner of weaponry to the Drug cartels south of the border:
Insert witty screen name here on May 18, 2011 at 2:12 PM
JE, you pose a far more fair-minded approach to the situation. The problem is in calling the officer’s actions “lawful orders”. If he had no reasonable and articulable suspicion to think that Fiorino was committing or about to commit a crime, then the orders he was giving him were no more lawful than if the officer picked a citizen at random and ordered the same thing. I’m not an expert on Pennsylvania case law regarding harassment of open carriers, but in Wisconsin it’s been repeatedly demonstrated that lawful open carry is not, in and of itself, reason enough for a Terry stop.
Now, that said, open carriers often comply even with Terry stops that are not reasonable, assuming the officer approaches them with a calm, professional demeanor and respect. I’ve done so myself. The officer walks away, potentially, with a greater understanding of the law and an ability to better handle future encounters with open carriers(though his understanding should indicate that less encounters will be necessary), and the open carrier walks away more comfortable with the police force as a whole.
However, in order for this situation to be facilitated, the first move has to be made by law enforcement, not us open carriers. We are just going about our business as law-abiding citizens. They are making the choice whether or not to initiate these dangerous, tense situations.
MadisonConservative on May 18, 2011 at 2:37 PM
I know BKeyser made a comment, but all I can hear is, “Baaa! Baaa!! Baaa!!!”.
Bleat, little sheep, bleat.
Dominion on May 18, 2011 at 2:42 PM
You okay Madison? Maybe a little ice on that collar would help.
Yeah, I’d figured I’d get pushback on my comments as well. That it’s from Madison is not surprising, and I understand his position on the matter. And I agree with much of your assessment.
However…
The fact that the officer on the scene was unaware of the open carry law in Philly was decidedly not his fault, as indicated by Lt. Francis Healy. It is unreasonable to expect that police officers are aware of every law on the books, especially when the department as a whole hasn’t taken the steps to inform them. The department is wrong for that, but not fascist. The officer was doing his job. Had he fired on Mr. Fiorino, then we’d be talking about a different situation. Instead, he detained him on reasonable suspicion that a crime was being committed.
There’s a pretty good website about this particular subject to help those who own fire arms in PA. The FAQ page notes this:
As for the conduct of the officer, I would like to point out Directive 137 that Mr. Fiorino references. From the document:
As for my views on open carry: I’m a six year veteran of the USMC. For the last 2+ years of that time I was a Military Police Watch Commander at HQMC in Arlington, Va. I trained with the FBI at Quantico in Hostage Rescue and Personal Protective Detail. We alternatively carried the M1911A1 and the M9, and I qualified as a Sharpshooter on the pistol range. I am all for open carry and I believe that open carry would greatly reduce violent crime in this country. I am pro-gun.
I stand by my opinion that the officer was correct in his actions based upon the information he had and the conduct of Mr. Fiorino. The State, however, should not pursue the ongoing investigation and subsequent charges however.
BKeyser on May 18, 2011 at 3:25 PM
Did you guys get a load of the Philadelphia PD motto?
“Honor Integrity Service” when it should read:
gryphon202 on May 18, 2011 at 3:28 PM
I won’t disagree with that. However, I would then argue that the fault continues to lie with the police department, not the law abiding citizen exhibiting no reasonable and articulable suspicion. However, the behavior of Officer Dougherty still remains his call, and the behavior was decidedly unlawful, not to mention dangerous and unprofessional. Fiorino was not brandishing the weapon. It was in a secured holster…much like the one carried by Dougherty.
This is the crux of my frustration with these kinds of situations. If you’re going to argue that a properly holstered firearm is an alarming or disruptive sight, then disarm all police officers. This wasn’t a gangbanger with a gat stuffed in the front of his pants. Dougherty displayed a serious lack of training and common sense. Claiming that it is policy to treat a law abiding citizen, who is displaying no suspicious behavior, like a criminal is garbage, as much as it was when the Milwaukee police chief spewed the same line of garbage.
MadisonConservative on May 18, 2011 at 3:44 PM
I did not see that in the article, but I may have missed it.
I did not make that argument.
I disagree. It seems he followed the directive, even if he wasn’t aware that the directive existed.
No doubt, but I don’t think the officer did that. I think he did what he was trained to do and then Mr. Fiorino took it to the next level by not complying. You can say that Mr. Fiorino should not have been stopped in the first place, but that is not the policy of the department. As I said, I believe the department is somewhat in the wrong, but Mr. Fiorino is equally at fault.
BKeyser on May 18, 2011 at 4:09 PM
I am pro-gun and I have had a CCW permit (first in PA now TN) since 1996. I think that this guy was totally with in his rights and should not have been treated this way… but I question why anyone would “open-carry”? You’re essentially asking for trouble. I am thinkin of this from a tactical standpoint. I don’t want anyone to know I have a weapon… until it’s time to use it to defend myself or my family. Open carry means a criminal can easily attempt to grab my weapon. It also means I’m the first guy shot by an armed robber or crazy gunman and opens me up to being treated like this guy by overbearing police officers who don’t even know the laws they’re supposed to uphold.
Now if more, or most, people open-carried, I would probably change my mind.
BadBrad on May 18, 2011 at 4:19 PM
It’s picking up, particularly with younger folks like Fiorino and myself. As to the point of open carrying, I offer two basic reasons. The first is community-oriented…getting people to not be so jumpy at the sight of a gun. I can relate, believe me. Not so many years ago, my father took me into a gun store and I felt intense fear, because of how firearms had been portrayed by the media. Now, I feel no fear whatsoever. I’d like others to be able to share that lack of fear.
The second is simply thus: if someone is considering perpetrating a crime, a concealed carrying society certainly does help with deterrence…but an open carrying society ensures that the criminal can be deterred. It’s one thing if a potential robber or mugger wonders if you might be armed, and sizes you up and makes their decision if it’s worth the risk. It’s another thing if they know that the risk is right there in front of them. While I agree that a concealed weapon most certainly gives you a tactical advantage, there are all kinds of pros and cons to each type of carry. I would suggest that an open holster is easier to draw from in a panic situation, but that’s just one argument.
And most of all, in Wisconsin, you open carry if you want to carry a firearm. Until CC legislation passes(and it’s going to, probably within the next couple of weeks), it’s the only lawful way to carry in this state.
MadisonConservative on May 18, 2011 at 4:33 PM
That the Philly PD needs some remedial education regarding this situation is not that surprising.
That the Philly DA needs it is just plain sad. (Of course the DA is most likely aware of the laws; it’s an agenda thing.)
hillbillyjim on May 18, 2011 at 5:30 PM
First, thank you for your service to this country as a Marine.
Second, your arguments were very good, as should a closing argument be in a civil trial.
However, acting a juror listening to your arguments and the other arguments here, I would hold for the plaintiff, Mr. Fiorino.
Bottom line, the police officer was uninformed regarding the law in PA. I don’t think I want to protect an officer in the wrong about something that is a fundamental Constitutional right- open carry.
BigAlSouth on May 18, 2011 at 6:58 PM
A few things stood out to me.
#1: The responding officer was overly aggressive and clearly acting more from fear then thought. (You hear him swearing at the citizen for “almost getting me killed”- how exactly?)
#2: The responding officer lied to the other police when they arrived to try and make the citizen seem more threatening. He tells the other officers that the citizen had his hands in his pocket and refused an order to remove them, when the audio tape clearly shows the officer repeatedly giving an order to “keep your hands where they are.”
#3: Someone was being rough with the audio recorder, perhaps hoping to break it? Additionally, the immediate response to discovering the recorder? “You were recording me? That’s against the law!”
Conclusion: I suspect this was a rookie cop (I heard something on the audio about being just out of training 2 weeks ago). He didn’t handle it well. I suspect a more seasoned officer would have handled it better.
Additionally, if you open carry, you have accept that police (and the public) are going to be very nervous about this, you will be inspected by police, and they may demand you kneel, or otherwise adopt a helpless position.
I wouldn’t really call this a lawsuit worthy incident- except, that after the tape was made public that charges were filed. A clear attempt at intimidation to suppress free speech.
Sackett on May 19, 2011 at 12:54 AM
Agreed with much of what you’ve said, although a couple of things need to be clarified.
Fiorino had grown to expect it and had been stopped multiple times in Philadelphia and throughout PA. He stated that cops outside Philly were civil, professional, asked to see his permit without incident and Fiorino obliged. It was within Philadelphia itself that a more aggressive approach was taken (I believe three times total) in spite of a clear directive which instructed officers to do precisely what every other officer in the state likely did. So, was it a rookie cop mistake? I’m not so quick to give an armed government employee a pass when it comes to information he clearly needs to be aware of within the state he’s sworn to protect.
I thought the response to the recorder was pretty interesting. At the very least, how odd is it that the cop would know to say the recording was illegal yet not know it was legal to open-carry?
The belated charges do smack of suppression. But why not charge Fiorino with illegal recording of an on-duty officer, instead? I believe PA was set to amend their expiring 2-party consent law for all recordings, so, Fiorino’s taping (then publishing) could potentially earn him a felony–unless Police fall under the category of individuals who have no reasonable expectation for their activities not to be monitored. But that’s the ongoing wiretapping debate, isn’t it? Either way, it’s a civil rights clusterfark. Wonder where the ACLU is? (Yeah, I just made myself laugh there.)
Bee on May 19, 2011 at 5:22 AM
BKeyser, “only in a police state is a policeman’s job easy.”
If ignorance of the law is no defense for any other citizen, it damn well isn’t for the cops.
SDN on May 19, 2011 at 7:12 PM
I believe I heard the officer say he was a sergeant, that makes it even worse. More armed honest citizens will make the streets safer for all, even the police.
gbear on August 27, 2011 at 1:25 PM