A 72-year-old man claims Loveland police violated his constitutional rights in 2008 when they confiscated his holstered gun while he was enjoying a day at Lake Loveland.

Bill Miller alleges that police violated his First, Second and Fourth Amendment rights during a 30-minute “shakedown,” said his attorney, Nelson Boyle.

The lawsuit, filed this week in U.S. District Court, names the city of Loveland, Police Chief Luke Hecker and several police officers.

Miller wants the city and cops to admit they violated his rights against illegal search and seizure and to openly carry a firearm in Colorado. He also is asking for $100,000 in punitive damages.

Loveland City Attorney John Duval said he could not comment on ongoing litigation.

The lawsuit says Miller was sitting at Lake Loveland, eating an apple and enjoying his view. A passer-by noticed his holstered handgun and called police.

Cops didn’t charge Miller

A police officer approached, seized the gun, and detained Miller, the suit said. The lawsuit says Miller carries a holstered weapon to advertise his custom-holster business — and to spark dialogue about Second Amendment rights.

Police removed the ammunition and ran the weapon through a police database. After clearing the serial number, police returned the gun. No charges were filed.

However, the suit said, an officer also told Miller “You have the right to carry that (gun), but whenever you do, you can expect the same treatment.”

The suit seeks to answer, once and for all, whether law-abiding citizens can openly carry a legal weapon in Colorado, Boyle said.

“The right to carry a gun on your hip hasn’t really been played out in Colorado,” Boyle said.

Most cases dealing with the open-carry issue have arisen because the defendant was arrested during the commission of a crime, he said.

“Here, no actual crime was committed, so we don’t get into something that muddies the water,” he said.

Miller’s encounter with police sparked protests from gun advocates and the American Civil Liberties Union, which sent a letter to the Loveland Police Department in 2009 criticizing its handling of the incident.

Balancing rights, protection

“Based upon Mr. Miller’s account and LPD’s own reports, no reasonable officer could have believed Mr. Miller was doing more on Oct. 7, 2008, than ‘lawfully exercising his right under . . . law to possess a gun in public,’ ” the ACLU said.

Elliott Phelps, chief investigator for the Larimer County District Attorney, said in a letter to Miller that the incident was an internal police matter.

“While citizens have many constitutional rights, the right to possess and carry a firearm is a right which, in the hands of the wrong person, in the wrong circumstances, may cause harm to an officer,” Phelps said in his letter. “There is a fine balance between the protection of an individual’s rights and the protection of a law enforcement officer.”

Duval said he didn’t know if an internal investigation was ever conducted.

Monte Whaley: 720-929-0907 or mwhaley@denverpost.com.