ATF and police get report of a blue van driving around Pensacola on April 19 with anti-ATF slogans ("Boo ATF," "Remember the children of Waco) painted on the sides. Police eventually find the van, pull it over, and an ATF agent questions/detains the woman driver for over an hour -- during which the local press showed up. At one point, the ATF agent searched both the van and the woman apparently based on the fact that the woman had a concealed weapon permit. The woman was eventually let go without charges, but the ATF agent may or may not have told her or suggested to her to wipe the slogans off of the van. The agent/police say she was never "under arrest," the woman says she did not know that.
Woman has now sued the ATF and the police/City of Pensacola as well as the individual ATF agent and police officers in Federal court, with the help of the ACLU, alleging her First (free speech) and Fourth (free from unreasonable search and siezure) Amendment rights were violated. The government filed for a summary judgment throwing out the suit, stating among other things that the ATF agent has qualifed immunity and that the woman consented to the search, which she denies.
The judge largely ruled against the government, including rejecting (for now) the qualifed immunity argument, thus allowing the suit to proceed. His ruling indicated that he could not see any legal justification for the search. Keep in mind that in deciding whether to allow the suit to proceed, he must interpret facts in the light most favorable to the plaintiff, the woman driver. However, even given the government's arguments, he concluded this went well beyond a "Terry stop" and was not a legal police action.
Of note related to the concealed weapons permit being justification for a search, the judge wrote:
I am not a big fan of the ACLU, but even a blind pig finds an acorn once in a while. This might be an interesting case to watch.More importantly, Defendant [ATF Agent] contends only that it was necessary to search Plaintiff [woman driver] and her vehicle, essentially because she had a weapons permit. While Plaintiff was indeed found to have a weapon, and evidently the permit to go with it, this alone could hardly have constituted the suspicion of criminal activity upon which the Terry stop was based.
Here is the ACLU-Florida press release on it:
http://www.aclufl.org/news_events/index ... ertID=3672" onclick="window.open(this.href);return false;
Here is a recording of various related 911/dispatch calls about the van:
http://www.aclufl.org/pdfs/atfscallstop ... police.wma" onclick="window.open(this.href);return false;
[I find an interesting contrast between the ATF agent's statement to the woman driver (that her slogans made the ATF people "nervous" and upset because they had friends that died at Waco) and his tone and wording when talking with the police dispatcher about trying to find some blue van...("it's no big deal"). Also, listen for his comment about how it was the FBI that first noticed the van...]
Here is a .pdf of the judge's ruling:
http://www.aclufl.org/pdfs/Kilpatrick-SJ.pdf" onclick="window.open(this.href);return false;
