By Brent Curtis
| August 02,2013
Joshua Severance stands outside his father’s Library Avenue home in Rutland on Thursday afternoon. Severance has been toting a 9mm pistol on his belt.
RUTLAND — Joshua Severance says his Second Amendment rights to openly carry a firearm were violated, but Rutland police say they were following the law when they handcuffed and briefly detained the Milton man this week.
In a case that appears destined to end in a courtroom, Severance, 26, says he was walking down a residential Rutland street Monday afternoon with his shirt off and his 9mm Beretta semiautomatic handgun holstered on his hip when a city police cruiser stopped in front of him and an officer ordered him to place his hands on the hood.
“I figured they wanted to run the serial number and do a background check which is all well and good and part of being a responsible gun owner,” Severance said Thursday. “The next thing I knew I was being handcuffed, told I was ‘not under arrest’ and was put into the back of a cruiser.”
Severance said he remained in the back of the car for about 15 minutes while police ran record checks on him and the gun he bought in 2010.
In the end, he was released with no charges but he said the experience made him feel like a criminal for exercising his constitutional and state right to openly carry a firearm.
“It is my right to carry and there’s no way around that. It’s the law and where I’m from we were taught to follow the law no matter what,” he said, pointing to the fact that there is no law in Vermont that infringes on gun owners’ abilities to carry either a visible or concealed firearm without a permit.
Rutland Police Chief James Baker doesn’t deny that and, after watching dashboard video of the encounter, he agreed that Severance cooperated with police in a courteous fashion.
But he said the law allows officers to investigate and briefly detain individuals “who a reasonable person would believe to be suspicious.”
Citing the 1964 U.S. Supreme Court decision Terry v. Ohio, Baker said police have the right to stop and briefly detain people under certain suspicious circumstances.
In Severance’s case, Baker said the holstered firearm was only part of the reason officers chose to stop him.
“If it was the first day of hunting season and he walked into a Dunkin’ Donuts with a gun on his hip, that’s not going to raise anyone’s suspicions,” he said. “In this situation, however, you have someone walking around with no shirt and wearing a gun in a neighborhood where there have been three reports of shots fired recently.”
Only one of those incidents is well known — a shooting July 22 that involved a fight between a man and a woman. The other incidents police have investigated have included a late night report of gunshots in the area with no evidence found and another report of gunshots in which shell casings were found at the intersection of Library Avenue and Pine Street.
Baker said police are also investigating a number of burglaries in the area involving the theft of firearms and wanted to determine whether the gun was legally owned.
In fact, the officers who stopped Severance were part of focused patrols in the area designed to counter criminal activity in the neighborhood, the chief said.
Severance said the officers who stopped him told him about the recent shootings as well.
“I asked them what has that got to do with me?” he said.
From Severance’s standpoint, the criminal activity in the area is all the more reason to carry a gun where everyone can see it.
“The greatest thing about having a gun displayed in a defensive manner is that it’s a deterrent to anyone that sees it,” he said, noting that his father, whom he was visiting this week, lives in an area of the northwest neighborhood where criminal activity has been increasing.
Baker, and some other law enforcement officers in Vermont, agreed that openly carrying firearms and handguns in particular is a right — but not a wise one to exercise on all occasions.
“The story here to me is what’s legal and what are the community norms?” Baker said.
The Rutland police chief isn’t the only law enforcement officer in the area with that philosophy.
At the Vermont Police Academy, Executive Director Richard Gauthier said when he was chief of police in Bennington his department was called upon repeatedly to investigate complaints about a man in the community who also chose to openly carry a firearm at all times.
“Once he used glaringly bad judgment by carrying open when the Olympic torch came through. Most of the other times, people just felt threatened and called us,” he said.
The first time Gauthier was called to investigate the man, he said he handcuffed the gun owner while he checked out his criminal background and legal ownership and talked to the man about why he was carrying a gun in the first place. After the first encounter, he said the complaints involving the man amounted to conversations.
“I’d have chats with him about his use of judgment and he’d talk about his constitutional right to open carry which is his right,” Gauthier said. “I tried to use logic to explain to him that just because you could do something didn’t necessarily make it wise to do depending on the circumstances.”
As the head of the police academy that now trains all law enforcement in Vermont, Gauthier said he imparts to new officers that investigations involving individuals bearing firearms are part of their responsibilities at times. But he said new officers are taught to be as courteous as possible and to explain their actions.
“I absolutely understand why someone would feel like they’re under arrest in situations where they’re detained, but if you explain to someone that ‘We don’t know who you are and until we determine you’re not a threat to people in the area we’re going to detain you as a precaution,’ that usually helps,” he said.
But civil rights and gun advocates reached Thursday said no explanation would suffice for what amounts to unwarranted detentions by police.
“That’s kind of the definition of being under arrest when you take away their ability to go where they want to go,” said Allen Gilbert, executive director of the American Civil Liberties Union of Vermont. “Just because an officer feels threatened doesn’t give them the ability to handcuff and detain someone. There needs to be a proximate threat, not just because a guy looks scary, otherwise police could stop all kinds of folks for all kinds of reasons.”
Ed Cutler, legislative director for Gun Owners of Vermont, said what police in Rutland did wasn’t wrong, it was illegal.
“I think what they did was harassment and I would be happy to sue (Rutland),” he said. “Just because someone is carrying open the police have no right to detain them in any way.”
Cutler, who said he spoke with Severance late Thursday afternoon, said his group planned to help file a lawsuit against the city.