Immunity Denied After Open-Carry Fracas

HOUSTON (CN) – A Texan whom police detained for carrying a shotgun on his own property may have a civil rights case, a federal judge ruled.
     Gary Frakes, a 66-year-old retired veterinarian, lives in rural Magnolia where errant drivers often crash into the fence lining his property.
     “Because of the many times drivers have lost control, exited the road and wrecked the fence[,] Dr. Frakes put his telephone number on three signs along the fence line,” a lawsuit Frakes filed in June states. “In order to be compensated for his fence damage Dr. Frakes must make a claim with the errant driver’s auto insurance company.”
     Hit-and-run drivers have allegedly crashed into the fence several times, however, forcing Frakes to pay for the damage himself.
     He claims he grabbed his shotgun and camera when he got a phone call that someone had crashed into his fence on June 11, 2013, and went to see if anyone was hurt at the scene, about 1,000 feet from his house.
     By the time he got there, Frakes says, law enforcement and fire personnel were already on scene, gathered around a vehicle that had crashed into his fence.
     Dustin Ott, a local police captain, told Frakes he had the driver’s insurance info and asked Frakes why he had a shotgun, according to the complaint.
     “Frakes said he had a right to carry a shotgun on his own property,” the complaint states. “Captain Dustin Ott then called for backup because there was a man with a gun at the scene.
     “Dr. Frakes set the shotgun down by a tree to take photos of the property damage and vehicle which caused the accident for the auto insurance company claim.”
     Sgt. Billy Masden with the Montgomery County Constable’s Office arrived, and Frakes says he told Masden he was the property owner taking photos of his damaged fence, and that he was allowed to carry a gun on his property.
     Masden nevertheless grabbed Frakes and searched him, according to the complaint. While putting handcuffs on Frakes and hauling him in the back of his squad car, Madsen allegedly said you can’t bring a gun to an accident scene.
     “The squad car windows were rolled up and it was around 90 degrees outside that day,” Frakes claims. “It soon rose to over 110 degrees in the car as the air conditioning was off and the windows were rolled up.”
     A Texas state trooper arrived 15 minutes later, released Frakes and returned his gun to him, according to the complaint.
     Frakes seeks punitive damages from Masden and Ott for violations of his Fourth and 14th Amendment rights.
     Masden pulled the qualified-immunity card in a dismissal motion. Under the qualified-immunity doctrine, law-enforcement officers are not liable if their actions are reasonable in light of the circumstances.
     U.S. District Judge Nancy Atlas refused Tuesday to dismiss Frakes’ claims against Masden.
     “Plaintiff alleges that he was behaving in a calm, non-threatening manner, that he was obedient to all orders given by law enforcement, and that he had not committed any crime,” the nine-page ruling states.
     “Accepting plaintiff’s allegations as true for purposes of the motion to dismiss, the court cannot at this stage of the proceedings conclude that Sgt. Masden is entitled to qualified immunity,” Atlas added.

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