Ohio IRS Security Guard Draw Gun in Uniformed Sheriff’s Deputy

benenglish · Jul 17, 2019

Thanks, Cam.

“He came around the corner with his weapon out, telling me, ‘you had your chance, you’re not going anywhere, I’m detaining you’,” Gaston said.

That's new information.

The deputy has now reportedly admitted that he was informed he was being detained and he left, anyway, in violation of the orders of the guard. I have a feeling the case is going to start getting deep into the weeds, now, with lots of attention paid to the rights, if any, of security guards to direct and detain people, both under federal and state law. It's gonna get complex and there are players from whom we have not yet heard.

benenglish · Jul 17, 2019

BTW - That jump cut in the published security video now seems a lot more significant, doesn't it?

Renegade · Jul 17, 2019

Sublime said:
Again, why didn't the guard arrest him in his jurisdiction or if he lacked arrest power (which they don;t have) detain him with his drawn gun or used physical restraint to detain him?

You would have to ask him, but my guess is his job was to make sure nobody was armed on premises, not make arrests. He did his job.

Younggun · Jul 17, 2019

Sublime said:
We don't know all that was said but we do have the video and again, he was already in the office. The guard told him to disarm and the LEO rightfully stated he can't do that.

I dunno why you are stating the officer refused to leave when he left. He refused to disarm and there is a difference. You keep ignoring the "intent" of the officer. He had no intent to threaten the guard or do him harm so there was no justification to draw the gun, NONE.

I'm not stuck on the uniform since I stated many times in this thread that the guard should not draw down on a legally armed individual BUT the uniform is very relevant. The unifrom marks him clearly as a LEO and despite some here not liking it, it does him buy him more credibility. I like how you think the guard drawing his gun was "probably" wrong. It was clearly wrong and hence he went to jail. You do get there are stages of wrong right? Again, the deputy was technically wrong but that doesn't justify a guard threatening to use deadly force. I mean come on, really?

What you "feel" is of no value there and of limited value here. It's like you and others "Feel" that once the guard gave the order, the LEO should have immediately left and not said anything at all. He walked away and the guard went after him with a drawn gun....to do what exactly? Arrest him, then why didn't that happen?

Yes, I was LE and what you are asking is not the same as the situation here. I am just surprised you and others do not get it. I had arrest powers, the guard didn't. Actually, I can say I never answered a call where someone was armed and refusing to leave but I left the uniform a long time ago and OC was not even an issue.

Oh, BTW, you replied and didn't answer my initial question I asked that you quoted. Hopefully I answered the questions you asked.

The answer to your question is “maybe”.

Sent from my iPhone using Tapatalk

toddnjoyce · Jul 17, 2019

Bithabus said:
No, you are confused. The Feds don't want local and state LEOs entering their facilities armed unless on official business. That's the spirit of the law.

That’s not what 18 USC 930 says, though.

(a) Except as provided in subsection (d), whoever knowingly possesses or causes to be present a firearm or other dangerous weapon in a Federal facility (other than a Federal court facility), or attempts to do so, shall be fined under this title or imprisoned not more than 1 year, or both.

(d) Subsection (a) shall not apply to—
(1) the lawful performance of official duties by an officer, agent, or employee of the United States, a State, or a political subdivision thereof, who is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of any violation of law;

(2) the possession of a firearm or other dangerous weapon by a Federal official or a member of the Armed Forces if such possession is authorized by law; or

(3) the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes.

I’ll specifically point out the wording in (d) (3), which stipulates incident to hunting or other lawful purposes is an exception to the prohibition. How one can be excepted through the lawful carrying of a firearm incident to hunting, but not be excepted for other lawful purposes is beyond me.

Also, note that it includes the term dangerous weapon, which is defined in the code as:

The term “dangerous weapon” means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2½ inches in length.

That definition seems to include some, if not a majority of all non-lethal options issued to LEOs.

Renegade · Jul 17, 2019

toddnjoyce said:
(3) the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes.

I’ll specifically point out the wording in (d) (3), which stipulates incident to hunting or other lawful purposes is an exception to the prohibition. How one can be excepted through the lawful carrying of a firearm incident to hunting, but not be excepted for other lawful purposes is beyond me.

What was the Deputy (Or any LTC for that matter) lawful purpose to enter a Federal Facility with a firearm? He had none. He was on personal business that had nothing to do with firearms. Thus he was not engaged in any lawful purpose involving the lawful carrying of firearms.

jetcycles · Jul 17, 2019

Renegade said:
What was the Deputy (Or any LTC for that matter) lawful purpose to enter a Federal Facility with a firearm? He had none. He was on personal business that had nothing to do with firearms. Thus he was not engaged in any lawful purpose involving the lawful carrying of firearms.

You can say that 17483957 times, yet there are some here that will argue the point because they feel that LEO's are not subject to the letter of the law in the same manner as the rest of us. The deputy was on duty, yet he was not handling official business therefore he is subject to enforcement of the law no matter the clothes on his back, in my humble opinion.

Sent from my SM-G960U using Tapatalk

majormadmax · Jul 17, 2019

Sublime said:
Are you saying Gaston's refusal authorized the guard to draw his weapon??

Absolutely

Since when do LEOs take orders from contract guards?

Whenever they are on Federal property, where they have no authority unless on official business/

I am betting Gaston didnt say he was at fault because he wasn't?

Sounds like his attempt at Hitler's "Big Lie" tactic, where if you continue to repeat a fallacy, eventually people will believe it!

You are completely ignoring the facts, despite acknowledging the underlining factor behind the entire incident (""Technically" the deputy was in violation"). Your beloved deputy screwed up, got caught, and is now trying to spin story to where he is the "victim." Problem is, anyone who examines the facts will realize Gaston is the one who should be facing charges; and if he doesn't, he is extremely lucky.

The charge against the security guard will be dropped, it's another spin tactic to divert attention from the true culprit. A county DA pressing charges because a county deputy went somewhere he shouldn't and got caught. The only reason the Feds won't charge the deputy as it will confirm his mistake, but if he continues to a pursue civil lawsuit he may find his luck will run out.

Lastly, accusing people of being "anti-cop" because the realize the deputy is the one who messed up is exactly the same tactic liberals use against anyone who disagrees with them.

As soon as you can conjure up some facts to support your argument, we'll be more than happy to listen to them; but truth is the Federal law (USC 18, Sec 930) is clear and the deputy was at fault. Now way you can convince me otherwise.

Renegade · Jul 17, 2019

Sublime said:
I am betting Gaston didnt say he was at fault because he wasn't?

OJ Simpson says he was not at fault in the murder of his wife.

Bithabus · Jul 17, 2019

toddnjoyce said:
That’s not what 18 USC 930 says, though.

Not precisely. That's what "spirit of the law" means. "letter of the law" is what the law says. Also thanks for quoting the statute that I already quoted a few pages ago.

"Other lawful purposes" means what is says. Lawful purposes. It has already been established that authorization to lawfully carry outside of a federal facility does not equal "lawful purposes" inside the facility.

I agree that the LEO was required to remove other weapons in addition to his handgun, such as a baton.

Bithabus · Jul 17, 2019

ZX9RCAM said:
"When Toledo police arrived, Mr Gaston recounted, they told Mr Eklund: “You know he’s a uniformed deputy sheriff, right? We can go anywhere in this building we want.”

This is the crux of it right here. The "I'm a cop and you're not" attitude.

toddnjoyce · Jul 17, 2019

Bithabus said:
Not precisely. That's what "spirit of the law" means. "letter if the law" is what the law says. Also thanks for quoting the statute that I already quoted a few pages ago.

"Other lawful purposes" means what is says. Lawful purposes. It has already been established that authorization to lawfully carry outside of a federal facility does not equal "lawful purposes" inside the facility.

I agree that the LEO was required to remove other weapons in addition to his handgun, such as a baton.

And what I alluded to in post #25. The only case I could find (and not really similar) re: 18 USC 930 (a) the subsection (a) charge was dismissed by the NM Federal District, citing the subsection d (3) exception in that it was specifically lawful in NM for a citizen to open carry.

The judge went on further to say that intent should considered as relating to what business the individual had with the federal facility.

There really is very little case law around 18 USC 930 that isn’t related to the 930 charge being added on to another, primary charge.

My position is the spirit of the law is yet to be settled law.

Bithabus · Jul 18, 2019

toddnjoyce said:
And what I alluded to in post #25. The only case I could find (and not really similar) re: 18 USC 930 (a) the subsection (a) charge was dismissed by the NM Federal District, citing the subsection d (3) exception in that it was specifically lawful in NM for a citizen to open carry.

United States v. Cruz-Bancroft was appealed by the government and the Fed district judge ordered the dismissal reversed.

", Defendant's interpretation of § 930(d)(3) would largely swallow the prohibition set forth in § 930(a) generally prohibiting firearms and other dangerous weapons in federal facilities. If mere lawful possession of the firearm outside the Federal facility were enough to permit someone to bring it inside, virtually anyone could bring such a weapon inside a Federal facility for any reason"

https://scholar.google.com/scholar_...d+States+v.+Cruz-Bancroft&hl=en&as_sdt=400003

gshayd · Jul 18, 2019

I assume that if he was there on official business the guard would have been told to expect him.

benenglish · Jul 18, 2019

gshayd said:
I assume that if he was there on official business the guard would have been told to expect him.

That's a good assumption at a tiny satellite office like that where if anybody had called the police the security guard would have been told. It's not a universally good assumption.

In this case, though, that point isn't in contention. The deputy has admitted he was not there on official business. He was there on personal business.

Also, the statements made by the deputy, if they have been reported accurately by the press (not a given, I know), indicate that there was no confusion on this point by anyone at the time of the incident.

Dad_Roman · Jul 18, 2019

I see a hangup here thats bugging me. Let me preface by saying I have no LEO experience and always defer to the more knowledgeable.

Whats the definition of "Official Business"?

If the argument is "he is there on personal business" and a melee breaks out in the lobby or even the parking lot then he cannot intervene because he is not on "official business"???

Isnt his particular situation of being in uniform the basic definition of "Official"?

Yes, I understand that he wasnt "Investigating" any thing associated with the IRS location but I thought a cop in uniform and on duty was "In an Official Capacity" whether he was stuffin a donut in his trough or facin a perp.

Am I wrong about this?

Perhaps its as simple as Federal precedes Local.

.

toddnjoyce · Jul 18, 2019

Bithabus said:
United States v. Cruz-Bancroft was appealed by the government and the Fed district judge ordered the dismissal reversed.

", Defendant's interpretation of § 930(d)(3) would largely swallow the prohibition set forth in § 930(a) generally prohibiting firearms and other dangerous weapons in federal facilities. If mere lawful possession of the firearm outside the Federal facility were enough to permit someone to bring it inside, virtually anyone could bring such a weapon inside a Federal facility for any reason"

https://scholar.google.com/scholar_...d+States+v.+Cruz-Bancroft&hl=en&as_sdt=400003

That appeal is why I indicated there has to be intent. Note the appellate court opined
“..from the record it appears that there has been no fact finding as to what the defendant's actual purpose was in bringing the firearm to the Federal facility, whether that purpose was lawful, or whether it related to the Federal facility as required by § 930(d)(3).”

It also doesn’t address anything regarding the d (1) exception, which addresses LEOs, using different language than that in subsection (a).

benenglish · Jul 18, 2019

Dad_Roman said:
Isnt his particular situation of being in uniform the basic definition of "Official"?

No. Absolutely not.

In practice, everyone treats LEOs as if that were the case.

That's the easy, reasonable, practical way to handle things. Even in federal buildings, that's usually the way things are handled in the lobby.
That's the way many LEOs want to be treated. How many times have you heard an LEO say "I'm always on duty." No, they're not. They're human beings. They have every right to take a vacation, go to Cancun, and knock back a little too much alcohol. At that moment, they are definitely not on duty. And that's not the only time.
That's also the prudent way to handle LEOs. They are, after all, armed and often don't take kindly to being told, even politely, to FOAD because some aspect of their authority doesn't exist in a particular location. Provoking them isn't smart. (And boy, was that guard not smart!)

But everyone realizes, I hope, that LEOs have no right to be armed even when they're on official business in certain situations. Here and in other threads within the past week or so, people have mentioned the whole issue of guns in court and guns in prisons. LEOs generally disarm before entering those places, even while on official business. Like everything, there are exceptions, but if armed police officers are running into prisons or courts from off the street, something has gone horribly, horribly wrong.

In the instant case, the deputy has specifically admitted, if the press is to be believed, that he was in the IRS office on personal business. By his own words, he has foreclosed the potential to carve out any exigent circumstances exception to 18 USC 930 and has characterized his business as personal, not official. If you want to get into the weeds on this, he didn't meet any of the DOJ or FPS regulatory/internal guidelines for being granted an exemption from 18 USC 930.

As I've previously said, there are other folks involved who have not been heard from. Also, it's pretty clear that a good chunk of time was edited out of the published surveillance video. Those things will become significant if this situation is handled in accordance with the letter of 18 USC 930. I do not, however, think that will happen. In fact, I do not have high hopes for a resolution to this situation that is technically correct, logical, or reasonable. I think when all is said and done, it will be a mess that leaves no one satisfied except, perhaps, the deputy who will probably get a few bucks out of it.

majormadmax · Jul 18, 2019

Dad_Roman said:
I see a hangup here thats bugging me. Let me preface by saying I have no LEO experience and always defer to the more knowledgeable.

Whats the definition of "Official Business"?

If the argument is "he is there on personal business" and a melee breaks out in the lobby or even the parking lot then he cannot intervene because he is not on "official business"???

Isnt his particular situation of being in uniform the basic definition of "Official"?

Yes, I understand that he wasnt "Investigating" any thing associated with the IRS location but I thought a cop in uniform and on duty was "In an Official Capacity" whether he was stuffin a donut in his trough or facin a perp.

Am I wrong about this?

Perhaps its as simple as Federal precedes Local.

.

Ben's reply did an excellent job in answering your question, but I'll make it simple...

Why was he there?

If his department sent him, then that's "official business" and it would have been OK for him to be armed.

But he was on a personal errand, therefore it's not "official business" and despite what he thought, he was in violation of the US Code.

To sum up, and as Ben said, being "on duty" does NOT make it "official business!"

However, I don't think the deputy is going to profit on his mistake. If anything, he will be lucky to avoid being prosecuted himself on Federal charges!

benenglish · Jul 18, 2019

majormadmax said:
...he will be lucky to avoid being prosecuted himself on Federal charges!

That assumes that the FPS and DOJ will have some motivation to enforce the law and grow enough backbone to do it. I think those are bad assumptions. Which of us is right, time will tell.

I think the FPS will probably be pissed off enough at the Deputy to refer to the DOJ for prosecution. After all, the contract security guard is standing in for them and when the Deputy disrespected that guard he was, by proxy, thumbing his nose at the FPS, too. However, I suspect the local US Attorney will kill the whole case. USAs, AUSAs and SAUSAs often need local LEO cooperation; they can't use Marshals for everything. They won't want to piss off the local LEOs over something that seems so minor. Most of them are political animals who would be perfectly willing to sacrifice a security guard to make their careers run more smoothly.

Then again, I probably shouldn't speculate like that. Take it for what it is - unreliable fortune-telling.

Ohio IRS Security Guard Draw Gun in Uniformed Sheriff’s Deputy

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