'Open carrier' files federal civil rights suit against city, police dept.

By Jon Campisi | Feb 14, 2012

The Pennsylvania man who claimed Philadelphia police officers were overzealous when they held him at gunpoint and forced him to the ground for no other reason than they saw a gun strapped to his hip has filed a federal civil rights complaint against the city and its police department.

Montgomery County resident Mark Fiorino claims officers violated his civil rights when they accosted him outside of a Northeast Philadelphia auto parts store last winter.

Fiorino was stopped by 8th District Police Sgt. Michael Dougherty on Feb. 13, 2011 while Fiorino was walking along the 8800 block Frankford Avenue in Northeast Philadelphia. .

After hearing “yo junior,” Fiorino turned to see Dougherty, a 23-year veteran of the police department, pointing his service pistol at the man in his mid 20s.

Fiorino, who captured the encounter on audio recording, was eventually made to lie down on the ground while Dougherty and backup officers checked his status, all the while cursing and berating the gun rights advocate, his suit claims.

Fiorino maintained he was doing nothing illegal, and accused the officers of stopping him simply because he was carrying his gun out in the open, which is allowed under Pennsylvania law.

It is also permissible under state law to record police officers carrying out their official duties.

The case was somewhat of a black eye for Philadelphia police, whose higher-ups admitted a lack of knowledge over the law allowing licensed citizens to carry their firearms out in the open within city limits.

Fiorino’s case landed him on the cover of the Philadelphia Daily News. It also got him on local radio shows, one opposite Philadelphia Police Commissioner Charles H. Ramsey, who, following the Fiorino incident, sent out a memo to police district commanders informing them on the legality of open carry, and instructing them to offer additional training to beat officers.

The civil rights lawsuit, however, shows that the police department changed its internal policy on dealing with open carriers months before Fiorino ever came into contact with Dougherty in Northeast Philly.

The September 2010 change, according to the lawsuit, came after Fiorino himself filed an Internal Affairs complaint highlighting two prior incidents, one in late July 2010 and the other the following month, in which Fiorino was also harassed by officers for open carry.

During the second incident, the suit states, officers confiscated Fiorino’s gun; it took Fiorino five months, and cost him financially, to get his weapon back from the department, he claims in the suit.

The suit also claims that despite the police department directive informing officers that open carry is legal with a proper carry license within the city limits, cops continue to harass those found to be carrying their firearms openly, either out of continued ignorance or mere dislike of the open carry method.


Fiorino’s case became public after he posted his audio clip of the encounter with Dougherty and the other officers on the video sharing website Youtube.

After police learned of the online audio clip, Fiorino learned the police department was charging him with reckless endangerment and disorderly conduct.

Fiorino, who contended the criminal charges were in retaliation for his posting of the audio online, was found not guilty of all charges following a trial at Philadelphia’s Municipal Court back in late October, a trial during which Dougherty himself took to the witness stand and admitted his ignorance on the state’s open carry law at the time of his encounter with Fiorino.

City prosecutors had contended that Fiorino created a public danger when he didn’t immediately drop to the ground at the officers’ requests.

Fiorino, however, was heard in the audio clip, which was played in court, calmly telling Dougherty he would answer all his questions, although he objected to being treated like a criminal.

Fiorino could be heard on the audio clip offering up his License to Carry Firearms, but Dougherty declined to check it out, instead opting to continue holding Fiorino at gunpoint until backup officers arrived.

During the trial, Fiorino’s criminal defense attorney, Joseph Valvo, had said any danger that day was not created by Fiorino, but rather was created by “overzealous law enforcement.”

Philadelphia Municipal Court Judge Felice R. Stack eventually ruled Fiorino did nothing wrong, and acquitted him of all charges during the brief bench trial.

The near 40-page civil rights lawsuit, which was jointly filed by the American Civil Liberties Union of Pennsylvania and attorneys with the Radnor, Pa. law firm of McCausland Keen & Buckman, accuses the defendants of violating Fiorino’s Fourth, Fourteenth and First Amendment rights, the latter stemming from the department’s filing of what Fiorino contends were frivolous criminal charges after police officials discovered Fiorino posted the audio clip of the Dougherty encounter online.

The suit contains counts of malicious prosecution, wrongful detention, retaliation, excessive force, and wrongful seizure of property.

Widespread pattern of abuse

The lawsuit accuses the City of Philadelphia and its police department of continually violating the rights of those who choose to openly carry their firearms, despite the practice being allowed under state law.

Fiorino, the suit states, was not the only one who fell into bad favor with the police department.

“These incidents were not isolated,” the suit states. “During this general time period, PPD officers often illegally detained, and firearms were often illegally seized from, citizens who were legally carrying firearms in Philadelphia.”

At the time of Fiorino’s August 2010 encounter with officers, the PPD had a policy in place that instructed officers to confiscate the guns of those discovered carrying openly, regardless of whether or not they were licensed or being charged with any crime, the lawsuit claims.

When Fiorino met with Internal Affairs investigator Maria Cianfrani, however, he was informed that the officers were wrong, and he was right, the suit states.

Cianfrani told Fiorino that the PPD’s then-policy of confiscating the firearms of law-abiding citizens was “outright illegal,” the lawsuit states.

Fiorino said he decided to file the lawsuit because it’s clear that he was not the only one harassed by Philadelphia Police for doing nothing other than exercising his Second Amendment rights.

“A person who hasn’t committed a crime shouldn’t be repeatedly harassed and retaliated against by the police,” Fiorino said in an ACLU news release. “If the Philadelphia Police Department trained its officers properly so that they actually knew the law, this wouldn’t have happened to me. My goal is to make sure this doesn’t happen to anyone else who, like me, is merely exercising their legal rights.”

Benjamin Picker, one of Fiorino’s attorneys from McCausland Keen & Buckman, agreed.
“Moreover, this case very clearly exemplifies why the police must know the laws they enforce, because when they don’t the inexcusable result is the violation of the constitutional rights of those same citizens.”

Reggie Shuford, executive director of the ACLU of Pennsylvania, said in a statement that his organization decided to get involved in Fiorino’s case because it was clear police criminally charged Fiorino after the incident with Dougherty simply because they were humiliated by the audio clip Fiorino posted online, which was his right under the First Amendment.

“This was a vindictive prosecution of Mr. Fiorino motivated solely by the fact that he publicly embarrassed the Philadelphia Police Department and threatened to sue them for their misbehavior,” Shuford said in his statement. “Citizens have the right to hold police accountable without fear that they will be harassed or prosecuted for doing so.”

In addition to the city and the police department, the co-defendants named in the lawsuit are Sgt. Michael Dougherty, Officers Daniel B. Rubin and Daniel G. Shellhammer, Detective Thomas F. Boyd, Jr., Police Commissioner Charles H. Ramsey, and an unknown number of John and Jane Does.

For each of the six counts listed in the complaint, which was filed at federal court in Philadelphia, Fiorino seeks declaratory judgment that the defendant’s violated Fiorino’s constitutional rights, as well as unspecified compensatory and punitive damages and attorney’s fees.

Fiorino is demanding a jury trial.

The federal case number 2:12-cv-00769-TON.

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