If I lawfully open carry can the police...?
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Thread: If I lawfully open carry can the police...?

  1. #1
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    If I lawfully open carry can the police...?

    While I support lawful open carry it seems that the police in some jurisdictions do not. I personally prefer CCW, but if you choose to Open Carry here is some information and case law you should know.


    Does lawfully carrying a gun constitute 'reasonable suspicion'?

    No, lawfully carrying a firearm alone does not constitute 'reasonable suspicion'.

    "Where simply carrying a handgun is not in itself illegal and does not constitute probable cause to arrest, it follows that carrying a handgun, in and of itself, does not furnish reasonable suspicion justifying a Terry stop."
    -- John M. Collins, Esq, General Counsel Massachusetts Chiefs of Police Association (The Police Chief Magazine, Feb 2011 ref Florida v J. L.)


    Can a police officer stop someone and demand ID?
    No, a police officer must have 'probable cause' to demand ID.

    "a person who is stopped on less than probable cause cannot be punished for failing to identify himself."
    -- Lawson v. Kolender, Court of Appeals, Ninth Circuit
    (later affirmed by the U. S. Supreme Court)


    Can the police sieze your firearm to check its serial number?

    "Warrants only issue upon a showing of probable cause; thus, probable cause to believe an item in plain view is contraband or evidence of criminal activity must be required,"
    --Arizona v Hicks, U. S. Supreme Court

    If you are lawfully exercising your 2nd Amendment right to keep and bare arms doing so does not grant the police the right to stop, detain, arrest, demand ID, or seize your property without probable cause or your consent. To do so is unlawful and a violation of your civil rights.

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  3. #2
    Just remember if you are stopped, behave with absolute decorum. Be polite not snarky, and ask the salient question "am I free to go or am I being detained.?" If the answer is you are free to go --- go. Say goodbye politely and leave. If the answer is no you are being detained think carefully about saying anything else.

    But above all be polite, not humble but polite.
    John - KJ4NSE
    Member NRA | GCO | GOA | SAF | ARRL
    Why would God invent something like whiskey? To keep the Irish from ruling the world of course.

  4. #3
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    Remember laws vary from state to state.

    In many states the carry of a handgun is illegal, even if openly, unless you have a carry permit. I would say in those states that there is 'reasonable suspicion' you are violating the law until it is checked whether you have a permit to carry or not.

    Several states have varying degrees of "Stop and Identify" laws Stop and Identify statutes - Wikipedia, the free encyclopedia which apparently are constitutional Hiibel v. Sixth Judicial District Court of Nevada - Wikipedia, the free encyclopedia

    As far as seizing your firearm again I think that might vary from state to state as well.
    “Because when seconds count, the police are only minutes away”

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  5. #4
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    I never give any leo anything more than is required. Remember the 4th and 5th amendments are for our protection. I am not saying we should have a chip on our shoulder but if I am not required to do anything I will not. By the way that advice comes not only from my lawyer but from personal friends who are leo.

  6. #5
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    Quote Originally Posted by johnsteele View Post
    Just remember if you are stopped, behave with absolute decorum. Be polite not snarky, and ask the salient question "am I free to go or am I being detained.?" If the answer is you are free to go --- go. Say goodbye politely and leave. If the answer is no you are being detained think carefully about saying anything else.

    But above all be polite, not humble but polite.
    I couldn't agree more. Be polite. DO NOT argue with the officer. That just turns the encounter confrontational. DO NOT talk anymore than necessary. If you are suspected of a crime those statements can be used against you. After the encounter if you believe the officers acted improperly make a complaint with the department and/or consider legal action.

  7. #6
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    Quote Originally Posted by Fallguy View Post
    Remember laws vary from state to state.

    In many states the carry of a handgun is illegal, even if openly, unless you have a carry permit. I would say in those states that there is 'reasonable suspicion' you are violating the law until it is checked whether you have a permit to carry or not.

    Several states have varying degrees of "Stop and Identify" laws Stop and Identify statutes - Wikipedia, the free encyclopedia which apparently are constitutional Hiibel v. Sixth Judicial District Court of Nevada - Wikipedia, the free encyclopedia

    As far as seizing your firearm again I think that might vary from state to state as well.
    My original post was only in reference to LAWFUL Open Carry. If you carry in a jurisdiction where carrying is unlawful you do open yourself to detention or arrest since in those cases carry will provide the officer with 'reasonable suspicion'.

    For example in my home state of Missouri the premption law does not cover open carry. Cities are free to restrict open carry as they choose.

    [U**STOP AND IDENTIFY[/U]

    Thanks for the case. I wasn't aware of this one.

    From my reading the US Supreme Court essentially reaffirmed their previous ruling in Terry v Ohio. As well as finding the Nevada law was constitutional due to its narrow scope.

    TERRY STOPS

    The result of Terry v Ohio the US Supreme Court found officers could do the following with 'reasonable suspicion' that a crime was being committed or was about to be committed: stop, pat-down, identify, disarm, and question a suspect.

    PAT-DOWN

    A pat-down is a cursory search for weapons alone. It is not a full search. An officer may 'pat' or 'move' his hands along the outer clothing to identify weapons. He may not 'grope' or remove items which he can not articulate to a court that he believed to be weapons but were not.

    SEARCH

    A search can only be performed when:

    'Probable cause' exists and it can demonstrate to the court that it was not pratical to obtain a warrant.

    With a warrant issued by a judge after demonstrating 'probable cause'.

    A search can be conducted of an individual and his immediate surroundings 'incident to arrest'. In the case of a vehicle this only includes the passenger compartment unless the vehicle is being impounded in which case an 'inventory search' may be conducted.

    An officer may conduct a search with conscent of the individual to be searched, or in the case of property with the conscent of the individual in obvious control of said property, i.e. owner or tenant.


    One of the things I was taught in the law enforcement academy was NEVER conscent to a search. I often hear people say that 'I'd conscent, because I have nothing to hide." That maybe true, but are you absolutely SURE?! Did you put that hunting knife away last time you had it in the car? Is it legal in the jurisdiction you're in now? Did your teenager or one of their friends have something in the car you didn't know about? I myself found a 'joint' hidden in a used car I bought while doing repairs and after having it for years.

    It's this simple... If the officer intends to conduct a search he will do so regardless of whether you conscent, but your conscent automatically makes the search LAWFUL in the eyes of the court.

  8. #7
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    Understood about "lawful" Open Carry in the OP.

    Pretty much agree with all that has been said...
    “Because when seconds count, the police are only minutes away”

    Posting in …….
    OpenCarry.org
    USA Carry
    Glock Talk
    Tennessee Gun Owners
    also check
    Handgunlaw.us
    Tennessee Laws at: Michie’s Legal Resources

  9. #8
    Unfortunately, there are many lawful gun carriers who believe, or at least act like their firearm is cause for reasonable suspicion or probable cause to justify police officer's actions, especially if the officer says he/she is responding to a 911 call. Remember, a 911 call does NOT establish reasonable suspicion or probable cause, the subject's actions as observed by the LEO do.

    A proper response to a 911 MWAG call IF an officer is even dispatched is for the officer to arrive at the scene, observe the subject and if he/she sees nothing indicative of criminal activity, sign it off as nothing suspicious observed and leave. There is NO legal basis to require the officer to investigate the status or identity of the person carrying the gun to determine if they are prohibited or not simply because someone called 911 and said they saw the subject lawfully carrying a gun.

    IF the police officer sees nothing indicative of criminal activity, they may choose to approach the MWAG. If they do so, keep in mind that the officer has no legal right to disarm the subject at this point, because there is no legal basis established for a Terry Stop...the encounter, to be lawful, must be consented to by the subject. If the officer chooses to disarm the subject and detain them for identification based only upon a 911 call that reported legal activity, they are violating the 4th amendment.

    I like to look at it this way... treat your lawfully carried gun as your child. Let's say you took your child to McDonald's and the lady at the next table called 911 because you had a child with you and you might be a kidnapper. There is no difference.

  10. #9

    open carry

    what states are open carry?

  11. #10
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    Quote Originally Posted by polack View Post
    what states are open carry?
    OpenCarry.org - A Right Unexercised is a Right Lost!

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