The Payson Police Department is making changes after a recent court ruling says officers can’t frisk an armed individual not suspected of a crime.
The change could not come soon enough for one pilot who says he stopped flying into Payson nearly a year ago after officers took his gun away even though he had done nothing wrong.
Mike Palmer had threatened to sue Payson for violating his Fourth Amendment rights, but dropped the threat after Police Chief Don Engler last week assured him the PPD will update its policy manual following the Jonathon Serna ruling.
In that case, the Arizona Supreme Court overturned the conviction of Serna, a felon, caught carrying a firearm. In October 2010, Serna was talking to a woman in the middle of the street of a Phoenix “gang neighborhood” when two patrolling officers spotted them and stopped to talk with Serna.
Serna was “very cooperative and polite.” But when officers learned Serna had a gun in his waistband, they ordered him to put his hands on his head and then removed his gun. When Serna admitted he was a felon, the officers arrested him as a prohibited possessor, according to court documents.
A jury found Serna guilty, but his lawyers on appeal argued officers violated his rights against illegal search and seizure. The Arizona Court of Appeals upheld the conviction, finding the frisk justified for officer safety. However, earlier this month, the Arizona Supreme Court overturned that conviction and ruled cops “must have reasonable suspicion that criminal activity is afoot before frisking” an armed individual.
Once officers “ordered Serna to put his hands on his head. At that point, because the officer had no reasonable suspicion that Serna had committed or was about to commit a crime, the officer had no justification for frisking Serna, and the frisk violated the Fourth Amendment,” the Supreme Court ruled.
Instead, the justices suggested the officers could have protected themselves by simply asking an armed person to remove the gun for the duration of the encounter.
“While we understand the need for officers to protect themselves in the course of their duties, we must balance that weighty interest against he inestimable right of citizens to be free from unreasonable governmental searches and seizures,” the court ruled.
In the Payson case in September, Palmer said officers violated his rights.
Engler would not discuss the case because of Palmer’s threatened litigation. He did share the call log for the case, which made no mention of the encounter with Palmer.
Palmer said that while staying at the Payson airport campground he heard a commotion outside the airport fence. He saw two vehicles parked along the old Airport Road, heard a door slam and what he thought was a woman yelling. He called police.
“While waiting for the police to investigate, I thought it would be prudent to retrieve my gun from the plane in case I had to take action to defend the woman or if I had to defend myself if her potential attackers came after me,” Palmer wrote.
“In massive overkill, at least four officers came in four vehicles, complete with spotlights.”
By then, the two vehicles had left the area.
Palmer was talking with Sgt. Jason Hazelo on the phone when officers Mike McAnerny and Paul Snyder approached.
McAnerny reportedly “came up close alongside of me (Palmer) and, without asking or telling me what he was about to do, grabbed my gun from my holster.”
Palmer said he asked if that was necessary and McAnerny reportedly said he didn’t know Palmer and they don’t like people with guns, Palmer said.
Palmer said he recorded the incident. The Roundup requested a copy of the audio file, but had not received it as of press time.
Then McAnerny reportedly told Snyder to run Palmer’s name.
The Roundup requested a copy of the PPD’s policy and procedure manual addressing search and seizures, which Engler furnished.
Officers are instructed that if they have reasonable suspicion of criminal activity, they can temporarily detain a citizen and pat down a suspect’s outer clothing for a weapon. It is unknown if officers suspected Palmer of a crime, because they did not file a police report. Engler said officers do not document every interaction they have with citizens, but write reports when making arrests.
Engler said he’s reviewing the policy manual for any changes based on the Serna ruling. Officers will then be trained on the new guidelines.
Engler wrote Palmer a letter saying the PPD is committed to following the law as the Arizona Legislature amends it and the court interprets it.
“Based upon the Serna case, the Payson Police Department is working on a training plan to clarify to all of its officers the principles set forth in Serna,” Engler wrote.
Palmer said he is glad the PPD is reviewing its policy and he may finally fly in to the airport again.
“As such, Payson’s (current) policy of grabbing guns off armed, law abiding, patriotic citizens is just simply bad policy. It is inherently dangerous,” Palmer wrote.