Negative OC Experiences

[Mainsail]

Originally Posted by HounDawg07

I'm not disagreeing with you; I never should have volunteered to let them search my car. However, when they approached me while I was still in the restaurant and demanded I step outside with them, what would be the correct course of action?

That's my biggest question here, and one yet to be truly answered. Do I step outside with them and then calmly explain that since I didn't break any laws and they weren't detaining me for the commission of a crime, I'd like to resume my meal? Or do I do that in the restaurant when they are in defensive mode, probably expecting me to start a shootout in a restaurant at 2am because that's obviously why I'm carrying in the first place?

This point begs another question as well, one I brought up earlier. Are the police obligated to respond to every "man with gun" call, even if they have no reason to believe that any crime is being committed? If so, are they required (or even allowed) to drag me from my meal and interrogate/lecture me? Or are my rights already being violated the moment they act upon the assumption that "gun = bad guy"?

The way this anti-gun cop explained things to me, he's just gonna harass me every time I OC and he gets called because even though it's legal, well, "you still shouldn't do it." I told him I'd stop carrying when he can personally guarantee my safety 24/7.

First, get a voice recorder. They’re cheap insurance and will go a long way to stopping any harassment. The encounter I mentioned in my post, where I made the same mistakes you did, the officer lied about many things. When I contacted his supervisor he lied to his supervisor about the things he said to me and the threats he made. One threat he made to me, that he would respond to any call about me carrying a gun even if he wasn’t the one dispatched, take it from me, and leave it to me to get it back from a judge. He lied to his supervisor and claimed to have made no such statement. I encountered him again after someone called the police to report my open carry. I asked if he was detaining me and he said no, but that I should show him my CPL and then I would be free to leave. I pointed out that since he wasn’t detaining me that I was already free to leave. I never showed him anything and left.

As I said in my previous post. If an officer approaches and wants to discuss your carry method, ask this question: “Am I being detained?” Detainment means seizure, and there are certain legal implications and procedures if an officer is going to seize you. Do a search for ‘Terry stop’ for more information.

“Am I being detained?”

If he doesn’t answer, ask again. Do not say anything or show him any identification until he answers that question.

If he says you are being detained, ask him for suspicion of what crime is he detaining you. If his answer is ‘because you are carrying a gun’ remind him that it is legal and ask if you are free to leave. If he persists, demand a supervisor respond to the scene.

If he says no, that he is not detaining you, tell him you are not interested in discussing it and go about your business. You are under no obligation to talk to the police.

There are three types of police-citizen interactions. In simple terms:
1. A casual conversation. You are not obligated to participate so don’t.
2. Seizure (detaining). You may have to provide ID if your state requires it. The officer MUST HAVE a reasonable articulable suspicion that you are, have been, or were about to be involved in criminal activity. Legal activity, even firearms carry, is not a reasonable suspicion by itself.
3. Arrest. The officer must have probable cause to believe you have violated a law.

REMEMBER: If the police are talking to you, in almost every case it is to build probable cause to arrest you. It very rarely happens that an officer simply wants to discuss the weather and how you like your pistol, no matter how friendly they act. They are talking to you to get you to say or do something so they can establish probable cause for an arrest, nothing more. My thoughts on voluntary searches is to never allow them, no matter how uncomfortable it is to say no. If I allow an officer to search my car, and unknowing to me the spring from a balllpoint pen or some other innocuous common item is used in meth manufacturing is under my front seat, I can be arrested for it. Yes, I most likely will get off on the charges, but only after I’ve spent a lot of money. The officer is never going to search your car for your benefit! He’s not going to search your car and tell you your lost sunglasses are under the seat. He’s looking for anything that can be used to affect your arrest. He gets points on his performance report for arresting people, not for finding your sunglasses. His motivation, when he asks to search your car, is not to help you, but to look for criminal activity. I don’t know enough about drugs, drug manufacturing, or drug culture to know what common items they use. Do you? Don’t volunteer to allow a search, even if you’re late and want to get going.

[HounDawg07]

Originally Posted by Mainsail

There are three types of police-citizen interactions. In simple terms:
1. A casual conversation. You are not obligated to participate so don’t.
2. Seizure (detaining). You may have to provide ID if your state requires it. The officer MUST HAVE a reasonable articulable suspicion that you are, have been, or were about to be involved in criminal activity. Legal activity, even firearms carry, is not a reasonable suspicion by itself.
3. Arrest. The officer must have probable cause to believe you have violated a law.

So essentially, if he has no reasonable suspicion that I was in our about to be involved in a crime, he cannot detain me, and therefore there is nothing he can do? I guess this interaction of mine would fall under #1 then, even though they were called out and it was anything but casual. Does that matter? And if so, why do they even bother dispatching officers if they can't at least get some indication that a crime was, is, or will soon be in progress? As you said, legal firearms carry is not reasonable suspicion of a crime, so what basis do they have of even dispatching officers?

[Mainsail]

Originally Posted by HounDawg07

So essentially, if he has no reasonable suspicion that I was in our about to be involved in a crime, he cannot detain me, and therefore there is nothing he can do? I guess this interaction of mine would fall under #1 then, even though they were called out and it was anything but casual. Does that matter? And if so, why do they even bother dispatching officers if they can't at least get some indication that a crime was, is, or will soon be in progress? As you said, legal firearms carry is not reasonable suspicion of a crime, so what basis do they have of even dispatching officers?

I can’t speculate why they dispatched officers, only they know that. Additionally, we don’t know what the person who reported you to the police might have said. That is exactly why you need to establish right from the get-go whether or not they’re detaining you. If the caller reported that you were practicing your quick-draw and the police are detaining you for that reason, then you need to cooperate fully with them. If the caller merely reported that you were carrying a gun in a holster on your belt, then they shouldn’t detain you. I say ‘shouldn’t’ because some officers forget or ignore that court decision called Terry vs. Ohio.

At the beginning, always ask, “Are you detaining me?” Detainment or ‘seizure’ is a specific legal term that carries with it certain restrictions and limitations. If you ask that question, and the follow-up question (if they confirm they are detaining you), “For suspicion of what crime are you detaining me?” you will eliminate all ambiguity about why they’re there. As I said, if it was reported that you committed a crime, then you will want to cooperate and clear yourself. The questions also trigger the officer to think a bit about what he’s about to do. If it ever gets ugly, either they cite you, arrest you, or even if you just want to file a complaint with the officer’s department, any ambiguity will fall to the officer’s favor. Again, any time there is doubt, the benefit of the doubt belongs to the officer.

In other words, if you complain about what they did to you to their department, the officers involved will likely say they were not detaining you but merely having a casual conversation and you didn’t object. Since you didn’t object, you volunteered to engage the officer in the open carry debate. His supervisors will not fault him at all. If, however, you ask and he replies that he is detaining you, he cannot later claim that you were a willing participant to the encounter. If the police detain you for lawful behavior you can sue in federal court for damages. You cannot sue if they aren’t detaining you and you volunteered to debate them.

Let me reiterate again, do not debate the officers about open carry. You do not owe them any explanation about why you choose to carry openly. Lawful behavior is not police business. You will not win a debate or change their minds; the best you can do is come to a stalemate. Since that is the best possible outcome, there is no reason whatsoever to waste your time trying.

Ok, so let’s say you asked (Am I being detained?) and the officer refuses to answer. This is certainly possible and is one way he might try to regain the high ground in the encounter. The officer is trained to control an encounter and will attempt to short-circuit you asking questions of him. Don’t allow yourself to be sidetracked – do not engage him in a debate. If you feel like you cannot leave, and a reasonable person in your situation would not feel free to leave, then he is detaining you. At this point you need to either shut up, or ask if you are free to leave and inform him that you object to the encounter.

Officer: I want to know why you are carrying a gun.

You: Are you detaining me?

Officer: Can I pat you down for my safety?

You: Are you detaining me? Am I free to leave?

Officer: No, but if you give me your ID (or CPL) then I can get you on your way. [Notice that you asked two questions and he gave you only one answer. Did he mean no, you are not free to leave, or no he is not detaining you? Any doubt goes to the cop.]

You: I object to this seizure, can you please ask a sergeant to come out? [At this point you are telling him that you feel like you are not free to leave. That should end the encounter if he knows he’s just blowing smoke up your ass.]

By not kowtowing to his verbal judo, you force him to make a major decision. Either he has to let you go immediately to derail your claim of being detained, or he has to ratchet up the bluff. The former emasculates him a little, the latter can get him disciplined or fired. This is where your voice recorder is a tremendous help. I don’t know where you live or what the law says about recording public police encounters, but here in WA I can conceal a recorder in my shirt pocket and I do not need to inform the officer that I am recording the encounter. I have a recording of a police encounter between myself and the Tacoma PD at Wright Park. The officer stopped me while I was riding my mountain bike to ‘request’ my CPL, I refused to give it to him and asked if I was free to leave. He confirms that I am and I leave. Short, sweet, and did not violate my privacy rights.

Knowing your firearms rights is great, knowing your privacy rights is priceless.

[rayven]

Originally Posted by Mainsail

As I said, if it was reported that you committed a crime, then you will want to cooperate and clear yourself.

Everything in the previous post by Mainsail was pretty much dead on accurate, with the exception of the quote above.

If it was reported to them that you committed a crime, you do NOT want to cooperate and clear yourself. You want to immediately invoke your rights to remain silent and have an attorney present during questioning. No matter what you say to the cop, his job is to arrest and help convict -- your words will be twisted and come back to bite you in the ass.

So basically, ask if you are being detained by asking "Am I free to leave?" If the answer is no, shut up and say nothing else unless you are required to ID yourself to the cop. Then you can either show an ID or tell him your name and address (this satisfies the law in every state with a 'stop and ID' statue). After that, say nothing other than possibly "I have nothing more to say to you officer."

You have to know the law, and you have to assert your rights. Absent that, you open yourself up to a slew of legal repercussions that may not ever have been warranted in the first place.