Stewards of the Visual Exposition
Under Color of Law: Sheriff's deputies repeal Second Amendment in Beaufort County
By: Beaufort Observer Editorial Team ( More Entries )
Publisher's Note: My thanks to the Beaufort Observer for reporting on this outlying incident. It is not an important issue on the surface; however, it does show that there are elements within the agency that possesses the ultimate police power in the county - the Beaufort County Sheriff's Department - who do not understand the United States Constitution.
Before one poo-poos this incident as a rouge citizen with a .22 caliber rifle, one needs to factor in the immutable fact that there may be no better citizen in Beaufort County than Charles Hickman. When misguided officers of the law pick a fight with this type of solid citizen, we may, and we must all, have a problem with this form of unsettling authoritative behavior.
These things seem to come in spurts. We've encountered a number of stories recently of abuse of police power. Of course the most serious is the trial that has been taking place this week in New Orleans where several police officers are being charged with killing and wounding unarmed civilians after Hurricane Katrina. Then, of course there is Operation Gunwalker. And recently we have been sent numerous videos by readers of more examples of police abuse of power, some of which have been posted.
But what concerns us most is what we have learned locally. We have been investigating and reporting on our series entitled To Protect and Serve: The siege on 12th street and in so doing we have been literally inundated with tips and information of other examples of complaints against local law enforcement officers. They range from Wildlife Officers being accused of harassing boaters, as one said "if they have bikinis on" along the waterfront, to warrantless searches and seizures and stops without probable cause. We've not reported on all of these complaints because of two reasons. First, most victims refuse to allow themselves to be identified. Secondly, we simply don't have the time and resources to properly investigate all of them, mainly because, for the most part, the law enforcement agencies make it exceedingly difficult to obtain solid information in a timely manner. We don't like to post a report without allowing the agency to offer their "side of the story" but sometimes that takes days to achieve and hours and hours of time to get.
A part of Charles Hickman's pier can be seen through the rails of his fence, while one can see all of the pier of his neighbor to his south. photo by Stan Deatherage
We just became aware, indirectly, of yet another example of what we call "abuse of police power under color of law." We'll share that one with you now, even though the sheriff's department has failed to respond to our questions and request for comment. We will offer their response, if and when they get back to us.
Charles Hickman III lives on Blounts Bay off Mouth of the Creek Road. (Point of information: A rural area of Beaufort County outside any municipality). He was recently visited by a Deputy York of the Beaufort County Sheriff's Office who advised Mr. Hickman that one of his neighbors had complained about his discharging a firearm in front of his own house. Now in this case "his" means Mr. Hickman's house. Mr. Hickman says Deputy York advised him of the complaint and was very professional and courteous in carrying out his duty. But the deputy did not identify the complainant.
Charles Hickman's panoramic view from his front yard. photo by Stan Deatherage
Mr. Hickman admits he has discharged a firearm; a .22 caliber pistol which he shot several times over his pier to chase off sea gulls. He indicates he does not actually shoot at the sea gulls but rather into the air or near them to scare them. If you own a pier on the river, you know what Mr. Hickman is talking about.
So far so good.
But eleven days later another deputy (Salinas) showed up at Mr. Hickman's house. According to Mr. Hickman, Deputy Salinas was not as courteous and professional as was Deputy York had been. Salinas told Mr. Hickman if he continued to shoot, that "I'm going to arrest you and take all of your guns." Mr. Hickman tried to explain that he was careful in his shooting, being sure to not shoot near any people or animals except over the sea gulls. That did not satisfy Deputy Salinas. He announced that Mr. Hickman's shooting was a safety threat, even though Deputy Salinas did not indicate that he has ever actually observed Mr. Hickman shooting his firearm. There's more, but you get the point.
Then, a couple of hours later two deputies (Sheppard and Landeck) arrived at Mr. Hickman's house to reaffirm that they were going to take his guns if he continued to shoot, even on his own property. Here, too, there is much more to the story, particularly about the attitude and demeanor of the officers, but that is for another day. Mr. Hickman prefers not to disclose too many of the specific details in the event there is further legal action on this matter.
We contacted county officials to ask what the policy is in Beaufort County on discharging firearms in a rural area. We also asked several specific questions about this specific instance. We have yet to receive any response from the sheriff's office.
We did check with several legal authorities on the issue. One is a faculty member at the UNC School of Government, another a veteran law enforcement officer and the third an instructor in a community college law enforcement department. All told us the same thing. Here's what we learned.
There is no law against discharging a firearm outside a municipality. It matters not whether you are hunting or target practicing...or shooting to chase away an animal. Or, we were told, you can shoot for any reason you choose.
As you would expect, there are some restrictions. The firearm itself cannot be illegal (ex: a fully automatic weapon) and you can't shoot a protected species (ex: an eagle). We even learned it is not legal to just shoot a neighbor's dog that wanders onto your property, but that you can shoot to chase it away if you don't injure the animal. Of course, if you go onto someone else's property "after having been forewarned not to do so" (whether you discharge a firearm or not) then you are liable for trespassing. And under some conditions you might be charged with "disturbing the peace" and there is a statute against "going armed to the terror of the public."
But here's the thing. Most of these offenses require a warrant. The veteran law enforcement officer told us that here's the way Mr. Hickman's situation should have been handled: The first deputy should have visited the neighbor who complained and advised him that if he wanted some kind of action taken, he should go to the magistrate's office to see if he could get a warrant. If a warrant were issued, the deputy would then serve the warrant on Mr. Hickman. The complainant would have to testify against Mr. Hickman in court. There would be a hearing/trial and a judge would determine if a crime had been committed, and potentially a jury would be called upon to determine if Mr. Hickman was guilty of that crime.
We were told that there is no legal basis for "taking" Mr. Hickman's firearms unless an officer witnesses his committing (or about to commit) a crime with it, and then there is no authority, without a court order, for seizing other weapons Mr. Hickman may legally possess. An officer may disarm a person if they are being arrested (as opposed to being served a summons) as a result of the officer's witnessing the crime. But there must be a specific violaton of a statute.
Significantly, Mr. Hickman tells us that while Cpl. Sheppard and Sgt. Landeck were still present he asked them what statute he was being accused of violating. They directed him to "look it up on the Internet." After the officers' visit he called the sheriff's office to ask if a report had been filed and if so, what statute he had been accused of violating. Mr. Hickman told us he was told there was no statute to cite.
We've learned more about another seizure of weapons in the 12th Street incident but will delay reporting more on that pending additional investigation, but suffice it to say here that we were told by three legal authorities that no officer can, without a warrant, seize a weapon unless he has personal, direct knowledge of a crime having been committed and the seizure of the weapon is a part of an arrest and necessary to remove an imminent threat to the officer's safety or the safety of others. "No police officer has the authority to go into a man's house and take anything simply because a neighbor has complained about him discharging a firearm on his own property outside a municipality" we were told. "Likewise, no officer has the authority to order a citizen to 'cease and desist' from discharging a legal firearm unless the officer actually witnesses that action being an imminent threat to someone's safety. And 'imminent' is the operative word here. It is not a 'mere speculation that something bad could happen' but rather a situation in which a 'reasonable person would conclude that the seizure was the minimum amount of action without which an injury would occur.'"
As it was explained to us, how could hunters discharge high-powered rifles on the public right-of-way of roads in a rural area and a homeowner be denied the right to do the same thing on his own property?
If we get an answer to that question from the sheriff's department we'll let you know what it is.
Finally, a word about "abuse of police power under color of law." We were told that this is a common law issue which the courts have held that where a law enforcement officer exceeds his legal authority and does so by purporting to use the authority of the law (uniform, badge, gun, etc.) and he/she is substantially and materially wrong, then the officer and his/her employer becomes liable for both civil and in some cases criminal prosecution. A law enforcement officer acts "under color of law" when he/she issues an order in which they convey they are acting with legal authority but know or should know that they have no such authority. In other words, the warning Mr. Hickman was given seems to us to be an illegal abuse of authority under color of law.
Again, in an attempt to be fair to the sheriff's department we solicited an explanation from them. At this time we have received no response.
Go Back
Before one poo-poos this incident as a rouge citizen with a .22 caliber rifle, one needs to factor in the immutable fact that there may be no better citizen in Beaufort County than Charles Hickman. When misguided officers of the law pick a fight with this type of solid citizen, we may, and we must all, have a problem with this form of unsettling authoritative behavior.
These things seem to come in spurts. We've encountered a number of stories recently of abuse of police power. Of course the most serious is the trial that has been taking place this week in New Orleans where several police officers are being charged with killing and wounding unarmed civilians after Hurricane Katrina. Then, of course there is Operation Gunwalker. And recently we have been sent numerous videos by readers of more examples of police abuse of power, some of which have been posted.
But what concerns us most is what we have learned locally. We have been investigating and reporting on our series entitled To Protect and Serve: The siege on 12th street and in so doing we have been literally inundated with tips and information of other examples of complaints against local law enforcement officers. They range from Wildlife Officers being accused of harassing boaters, as one said "if they have bikinis on" along the waterfront, to warrantless searches and seizures and stops without probable cause. We've not reported on all of these complaints because of two reasons. First, most victims refuse to allow themselves to be identified. Secondly, we simply don't have the time and resources to properly investigate all of them, mainly because, for the most part, the law enforcement agencies make it exceedingly difficult to obtain solid information in a timely manner. We don't like to post a report without allowing the agency to offer their "side of the story" but sometimes that takes days to achieve and hours and hours of time to get.
We just became aware, indirectly, of yet another example of what we call "abuse of police power under color of law." We'll share that one with you now, even though the sheriff's department has failed to respond to our questions and request for comment. We will offer their response, if and when they get back to us.
Charles Hickman III lives on Blounts Bay off Mouth of the Creek Road. (Point of information: A rural area of Beaufort County outside any municipality). He was recently visited by a Deputy York of the Beaufort County Sheriff's Office who advised Mr. Hickman that one of his neighbors had complained about his discharging a firearm in front of his own house. Now in this case "his" means Mr. Hickman's house. Mr. Hickman says Deputy York advised him of the complaint and was very professional and courteous in carrying out his duty. But the deputy did not identify the complainant.
Mr. Hickman admits he has discharged a firearm; a .22 caliber pistol which he shot several times over his pier to chase off sea gulls. He indicates he does not actually shoot at the sea gulls but rather into the air or near them to scare them. If you own a pier on the river, you know what Mr. Hickman is talking about.
So far so good.
But eleven days later another deputy (Salinas) showed up at Mr. Hickman's house. According to Mr. Hickman, Deputy Salinas was not as courteous and professional as was Deputy York had been. Salinas told Mr. Hickman if he continued to shoot, that "I'm going to arrest you and take all of your guns." Mr. Hickman tried to explain that he was careful in his shooting, being sure to not shoot near any people or animals except over the sea gulls. That did not satisfy Deputy Salinas. He announced that Mr. Hickman's shooting was a safety threat, even though Deputy Salinas did not indicate that he has ever actually observed Mr. Hickman shooting his firearm. There's more, but you get the point.
Then, a couple of hours later two deputies (Sheppard and Landeck) arrived at Mr. Hickman's house to reaffirm that they were going to take his guns if he continued to shoot, even on his own property. Here, too, there is much more to the story, particularly about the attitude and demeanor of the officers, but that is for another day. Mr. Hickman prefers not to disclose too many of the specific details in the event there is further legal action on this matter.
We contacted county officials to ask what the policy is in Beaufort County on discharging firearms in a rural area. We also asked several specific questions about this specific instance. We have yet to receive any response from the sheriff's office.
We did check with several legal authorities on the issue. One is a faculty member at the UNC School of Government, another a veteran law enforcement officer and the third an instructor in a community college law enforcement department. All told us the same thing. Here's what we learned.
There is no law against discharging a firearm outside a municipality. It matters not whether you are hunting or target practicing...or shooting to chase away an animal. Or, we were told, you can shoot for any reason you choose.
As you would expect, there are some restrictions. The firearm itself cannot be illegal (ex: a fully automatic weapon) and you can't shoot a protected species (ex: an eagle). We even learned it is not legal to just shoot a neighbor's dog that wanders onto your property, but that you can shoot to chase it away if you don't injure the animal. Of course, if you go onto someone else's property "after having been forewarned not to do so" (whether you discharge a firearm or not) then you are liable for trespassing. And under some conditions you might be charged with "disturbing the peace" and there is a statute against "going armed to the terror of the public."
But here's the thing. Most of these offenses require a warrant. The veteran law enforcement officer told us that here's the way Mr. Hickman's situation should have been handled: The first deputy should have visited the neighbor who complained and advised him that if he wanted some kind of action taken, he should go to the magistrate's office to see if he could get a warrant. If a warrant were issued, the deputy would then serve the warrant on Mr. Hickman. The complainant would have to testify against Mr. Hickman in court. There would be a hearing/trial and a judge would determine if a crime had been committed, and potentially a jury would be called upon to determine if Mr. Hickman was guilty of that crime.
We were told that there is no legal basis for "taking" Mr. Hickman's firearms unless an officer witnesses his committing (or about to commit) a crime with it, and then there is no authority, without a court order, for seizing other weapons Mr. Hickman may legally possess. An officer may disarm a person if they are being arrested (as opposed to being served a summons) as a result of the officer's witnessing the crime. But there must be a specific violaton of a statute.
Significantly, Mr. Hickman tells us that while Cpl. Sheppard and Sgt. Landeck were still present he asked them what statute he was being accused of violating. They directed him to "look it up on the Internet." After the officers' visit he called the sheriff's office to ask if a report had been filed and if so, what statute he had been accused of violating. Mr. Hickman told us he was told there was no statute to cite.
We've learned more about another seizure of weapons in the 12th Street incident but will delay reporting more on that pending additional investigation, but suffice it to say here that we were told by three legal authorities that no officer can, without a warrant, seize a weapon unless he has personal, direct knowledge of a crime having been committed and the seizure of the weapon is a part of an arrest and necessary to remove an imminent threat to the officer's safety or the safety of others. "No police officer has the authority to go into a man's house and take anything simply because a neighbor has complained about him discharging a firearm on his own property outside a municipality" we were told. "Likewise, no officer has the authority to order a citizen to 'cease and desist' from discharging a legal firearm unless the officer actually witnesses that action being an imminent threat to someone's safety. And 'imminent' is the operative word here. It is not a 'mere speculation that something bad could happen' but rather a situation in which a 'reasonable person would conclude that the seizure was the minimum amount of action without which an injury would occur.'"
As it was explained to us, how could hunters discharge high-powered rifles on the public right-of-way of roads in a rural area and a homeowner be denied the right to do the same thing on his own property?
If we get an answer to that question from the sheriff's department we'll let you know what it is.
Finally, a word about "abuse of police power under color of law." We were told that this is a common law issue which the courts have held that where a law enforcement officer exceeds his legal authority and does so by purporting to use the authority of the law (uniform, badge, gun, etc.) and he/she is substantially and materially wrong, then the officer and his/her employer becomes liable for both civil and in some cases criminal prosecution. A law enforcement officer acts "under color of law" when he/she issues an order in which they convey they are acting with legal authority but know or should know that they have no such authority. In other words, the warning Mr. Hickman was given seems to us to be an illegal abuse of authority under color of law.
Again, in an attempt to be fair to the sheriff's department we solicited an explanation from them. At this time we have received no response.
Comment
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Moreover, I believe in the United States Constitution, and I trust that Beaufort County's Sheriff does as well. Pursuant to the structure, and real hope for our flagging society, within that document, I do expect the Sheriff to investigate this incident, and if necessary, I expect a full and public apology to Mr. Hickman. What he does to discipline, or more rightly train, his deputies is his business.
As I mentioned, I do know Mr. Hickman quite well, and I do expect that public apology to be forthcoming.