Philly 'open carry' case ends with not guilty verdict; civil rights claim expected to follow

By Jon Campisi | Oct 28, 2011

A Montgomery County, Pa. man who plans to file a federal civil rights lawsuit against Philadelphia police stemming from an incident that occurred last winter has cleared a major hurdle in his fight against alleged police abuse and ignorance.

On Thursday, Mark Fiorino, who has become the somewhat public face of the gun rights movement in Southeastern Pennsylvania, beat criminal charges that had been lodged against him by the Philadelphia District Attorney’s Office.

Philadelphia Municipal Court Judge Felice R. Stack found Fiorino not guilty of disorderly conduct and reckless endangerment, issuing a stinging rebuke to prosecutors, who filed the misdemeanor charges against Fiorino well after the actual incident occurred.

On Feb. 13 of this year, Fiorino was walking along the 8800 block of Frankford Avenue in Northeast Philadelphia when he was approached by 8th Police District sergeant Michael Dougherty.

Fiorino was carrying his holstered firearm in plain view on his belt at the time. The gun caught the eye of the sergeant, who admitted under oath in court on Thursday that at that time, he was unaware carrying a gun openly was, and is, legal throughout the commonwealth – including Philadelphia.

Both Dougherty and Melissa Francis, assistant bureau chief of the Northeast Division of the District Attorney’s Office, who prosecuted Fiorino’s case, admitted being ignorant on the open carry law until this case got under way.

Fiorino, however, was well aware of the practice’s legality. When he was held at gunpoint during the encounter with Dougherty last winter, he attempted to offer the officer his License To Carry Firearms and identification, but the officer told him to remain still with his hands in the air.

Fiorino was carrying more than a gun that day; he had an audio recorder playing in his pocket, capturing the day’s encounter.

On Thursday, that audio, which has become a Youtube sensation, was played in open court – by the prosecutor.

Francis contended that being prepared with an audio recorder showed Fiorino was trying to entice police into a situation, while Fiorino’s defense attorney, Joseph Valvo, merely stated many “open carriers” tend to use recorders to protect against potential police abuses.

“Any danger [that day] was created by overzealous law enforcement,” Valvo told the court.

Fiorino was made to drop to the ground during the encounter, at which time Dougherty had his service pistol trained on the man.

In the audio recording, Dougherty could be heard yelling, “Hey junior,” as soon as he approached Fiorino. The officer already had his gun drawn at the time.

Valvo maintained that Dougherty created a tense situation from the get-go, using a belittling phraseology from the very beginning of the encounter to make Fiorino feel inferior. Saying “junior” is one step away from calling out “boy” to an adult male, Valvo said.

“Starting with junior says it all,” he said. “That is a term of disrespect.”

On the witness stand, Dougherty admitted that Fiorino had been peacefully walking down the street when the officer stopped him.

But the officer said Fiorino’s stance and refusal to immediately drop to his knees put him on edge.

Valvo countered that Fiorino’s tone of voice and nervous appearance might have been due to the fact that he was being held at gunpoint, something that would make anyone nervous.

Valvo also sought to show that police weren’t in their right state of mind, and were already on edge, when they encountered Fiorino walking down the street.

Dougherty admitted under oath that police were mourning the death of a fellow officer, John Pawlowski, at the time they came across Fiorino. Pawlowski was shot and killed in the line of duty on Feb. 13, 2009. The anniversary date of Pawlowski’s death was two days after the Fiorino incident.

Under questioning by Valvo, the sergeant admitted that officers were operating at heightened awareness given the significance of the approaching anniversary date.

Valvo also questioned Dougherty’s apparent conflicting directives: at first, the sergeant asks Fiorino to put his hands in the air. Later, he accuses Fiorino of never producing any ID to show he was licensed to carry the gun.

Valvo said if Fiorino reached into his pocket for identification, he might have gotten himself shot.

Prosecutors only played a portion of the audio recording, right up until the time backup officers arrived. They could be heard yelling obscenities immediately upon their arrival, forcing Fiorino to the ground until the situation could be squared away.

Dougherty was also heard telling Fiorino, wrongly, that open carry was prohibited within the city limits. The officer later found out that was untrue.

Fiorino was eventually given back his belongings, including his firearm and audio recorder, and sent on his way. He wasn’t arrested the day of the encounter.

Outside the courtroom after the trial, Francis, the assistant district attorney, was asked by a reporter why Fiorino wasn’t charged with disorderly conduct and reckless endangerment the day of the incident, but instead was charged nearly two months later.

She said police and the D.A.’s Office wanted to conduct a thorough investigation.

During the trial, however, Valvo signaled that the criminal charges might have been retaliatory in nature, since Dougherty, coincidentally, didn’t talk to detectives about the incident until two days after Fiorino posted the audio clip of the encounter on Youtube.

On the stand, Dougherty couldn’t recall exactly when he discovered the audio clip online.

Francis didn’t dispute the fact that what Fiorino was originally doing that caught police attention – openly carrying his sidearm – was legal. She, and others in the Philadelphia legal community, now know the practice is OK, as long as the person has a valid carry license.

What she took issue with, she said, was Fiorino’s response to the police encounter, believing his actions amounted to disorderly conduct and reckless endangerment.

“He is reckless in his not complying with an officer’s simple instructions,” Francis said.

The judge saw things differently.

“I’m not convinced, beyond a reasonable doubt, that that’s what he did,” Stack said. “I have to find him not guilty.”

Fiorino’s legal victory Thursday was hailed by gun rights activists, who immediately began sharing the news of his innocence on Web forums.

Many Second Amendment supporters have been eagerly awaiting the outcome of the criminal trial, with the hope that once it was concluded, the civil litigation can move forward.

Radnor, Pa. lawyer Benjamin Picker, Fiorino’s civil attorney, attended Thursday’s proceedings as an observer. He confirmed that he is getting ready to file a civil complaint on behalf of Fiorino in the coming weeks.

Outside the courtroom following the verdict, Francis, the prosecutor, said she still felt as though her case was strong, yet she respected the judge’s decision.

“I’m disappointed,” she said.

Francis also said she felt police were right to act the way they did that day.

“The police are not only right, they must investigate that,” she said, referring to the sight of someone with a gun.

Gun rights supporters, however, see things differently. They maintain that police had no right to stop Fiorino for simply exercising a protected right, without having proof that an actual crime was being committed.

Thursday’s verdict was seen as a black eye for the Philadelphia Police Department, whose own commissioner, Charles H. Ramsey, had to issue a directive to all police personnel, following two prior open carry incidents, making them aware that open carry, with a valid license, is indeed legal in Philadelphia.

Fiorino, who became an Internet sensation, went on area radio programs to discuss open carry, and was even featured on the cover of the Philadelphia Daily News in a May feature story.

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