PHILADELPHIA – The American Civil Liberties Union of Pennsylvania and the law firm of McCausland Keen & Buckman filed a federal lawsuit today against the city of Philadelphia on behalf of Mark Fiorino, a gun rights advocate who legally carries an unconcealed weapon in public. The suit alleges that the Philadelphia Police Department filed retaliatory charges against Fiorino after it learned that there was a YouTube recording of Philadelphia police officers threatening to shoot and screaming profanities at an unresisting Fiorino in February 2011. Fiorino was cleared of all charges in October 2011.
“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,” said Reggie Shuford, executive director of the ACLU of Pennsylvania. “Citizens have the right to hold police accountable without fear that they will be harassed or prosecuted for doing so.”
Fiorino, a resident of Lansdale, Pa. (Montgomery County), is an avid gun rights supporter and carries his weapon openly holstered on his hip for protection. Despite having the proper license under Pennsylvania law to carry an unconcealed weapon in the city of Philadelphia, Fiorino has been repeatedly harassed by Philadelphia police officers who erroneously believed it is illegal to openly carry a weapon within the city limits. In one instance, despite the fact that Fiorino had broken no law, police confiscated Fiorino’s gun for five months before returning it. Because of these problems, Fiorino routinely audiotapes his interactions with law enforcement.
In September 2010, after an internal affairs investigation of two of Fiorino’s encounters with the police, the Philadelphia Police Department issued a revised policy, Directive 137, which states that holders of a License to Carry Firearms (LCTF) can legally carry an unconcealed weapon. However, according to the lawsuit, the Police Department failed to train its police officers about the revised policy.
On the afternoon of February 13, 2011, nearly five months after the new policy was in place, Fiorino was walking to an auto parts store on Frankford Avenue with his gun in a retention holster on his hip when he heard a voice behind him yell, “Yo, junior, what are you doing?” Fiorino turned around to find Sgt. Michael Dougherty pointing his service weapon at his chest. Fiorino’s offer to provide the officer with his LTCF was ignored. Instead, Sgt. Dougherty ordered Fiorino to get on his knees or else “I am gonna shoot ya.” Sgt. Dougherty was joined by several other officers, who continued to verbally abuse and humiliate Fiorino. Several times, Fiorino advised police officers that he was legally allowed to carry a weapon and referred them to Directive 137. After a forty-five minute ordeal, some of it spent handcuffed and face-down on the sidewalk, Fiorino was released with no charges. Fiorino audiotaped most of the incident.
A month and a half later, the Police Department received a tip that Fiorino’s audio recordings of his encounters with police were posted on YouTube and, according to Department spokesman Lt. Ray Evers, Commissioner Charles Ramsey then ordered a new investigation into Fiorino’s conduct. Fiorino had also posted on the Internet that he was considering filing a civil rights lawsuit against the police and was seeking donations to fund his suit. The investigation resulted in charges against Fiorino for disorderly conduct and recklessly endangering another person. Fiorino learned there was a warrant for his arrest after five Media officers came to his place of work in Delaware County while he was away. He turned himself in and spent sixteen hours in jail before being released on bail. He was arrested again a week later because the Police Department failed to clear the warrant for his arrest. On October 27, 2011, Fiorino was cleared of all charges.
"A person who hasn’t committed a crime shouldn’t be repeatedly harassed and retaliated against by the police,” said Fiorino. “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."
The lawsuit charges that several Philadelphia police officers violated Fiorino’s rights by repeatedly detaining him far longer than necessary to make sure that he had a valid license to carry, confiscating his legally carried weapon and refusing to return it for five months, using excessive force, initiating false and retaliatory charges against him and subjecting him to a second arrest. The city of Philadelphia and Commissioner Ramsey are alleged to be responsible for the actions of the individual officers through their failure to train police officers in the law and Commissioner Ramsey’s instigation of the retaliatory charges. The suit seeks damages for Fiorino’s monetary losses, the violation of his rights, and additional harm.
“This case is about public officials who retaliate against citizens who are merely exercising their First Amendment rights,” said Benjamin Picker of the law firm of McCausland Keen & Buckman, one of the attorneys representing Fiorino. “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.”
Fiorino is represented by Picker and Glenn Gitomer of McCausland Keen & Buckman and Mary Catherine Roper and Chris Markos of the ACLU of Pennsylvania. The case is Fiorino v. City of Philadelphia, et al.