Handling police encounters in KY

Can someone cite the court case that says open carry is not Disorderly Conduct, or inciting alarm, and is a legitimate purpose?

Fallschirmjäger said:

"I'm sorry.... You're the Sheriff of Boyd County?
Did you mean you're a Sheriff like Andy Taylor,"

"...or did you mean a Deputy like Barney Fife?"

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Sorry for the mis info, sheriffs deputy........Needless to say, really wasnt sure what to make him out to be, my theory, just smile alot..that leaves them confused.

Statesman said:

Can someone cite the court case that says open carry is not Disorderly Conduct, or inciting alarm, and is a legitimate purpose?

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Here is what I was looking for. Does this apply?

Simmons v. United States, 390 U.S. 377 (1968)

Summary: "The claim and exercise of a Constitution right cannot
be converted into a crime."

Statesman said:

Can someone cite the court case that says open carry is not Disorderly Conduct, or inciting alarm, and is a legitimate purpose?

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Holland v. Commonwealth states, "No one may question our right to openly carry a firearm as long a it's worn outside the shirt for all to see." This helps, but most importantly the constitution is what makes open carry legal. These acts are not considered disorderly conduct because of these two reasons, but mainly because openly carrying a firearm is not even mentioned in disorderly conduct statutes. There is nothing in the first or second degree that could even be construed to apply to carrying a firearm. Inciting alarm or panic do not exist in Ky state statutes.

Kentucky Officer/LEO Open Carry encounter flowchart

I've come up with a draft version of a flowchart on how to handle police encounters in Kentucky, based on the comments and understanding I've received on these forums. Comments and suggestions appreciated.

This flowchart is not legal advice, and I am not responsible for its use. Consult your own attorney before using this flowchart.

It seems like you advise us to talk to the police. I only see "remain silent" in there 4 times.

I am just joking with you, but seriously I do think you need to uncross your lines if any way possible. For me, it made it hard to start the process because I couldn't figure out where to start. I thought it branched off into three different directions from the start. Maybe change it so you only have one remain silent part. I know that this is good advice, I will not argue against that, but it is unnecessarily repeated.

09jisaac said:

It seems like you advise us to talk to the police. I only see "remain silent" in there 4 times.

I am just joking with you, but seriously I do think you need to uncross your lines if any way possible. For me, it made it hard to start the process because I couldn't figure out where to start. I thought it branched off into three different directions from the start. Maybe change it so you only have one remain silent part. I know that this is good advice, I will not argue against that, but it is unnecessarily repeated.

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There's a good reason why I repeat it. I watched a lawyers video on "remaining silent" last night, and there is a human behavior trait that cognitively almost forces us to answer seemingly harmless questions. The repetition is necessary because of this. I'll see if I can find the youtube video tonight and i'll post here for clarification.

NavyLCDR said:

Respectfully you cannot use the 5th amendment as a basis for refusing to identify yourself to a police officer unless disclosing your identity would give the police a link in the chain of evidence needed to convict you of a separate offense:

http://www.law.cornell.edu/supct/html/03-5554.ZS.html

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Thanks. I'll make the necessary corrections.

Statesman said:

There's a good reason why I repeat it. I watched a lawyers video on "remaining silent" last night, and there is a human behavior trait that cognitively almost forces us to answer seemingly harmless questions. The repetition is necessary because of this. I'll see if I can find the youtube video tonight and i'll post here for clarification.

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I understand why you did it and am not arguing that it isn't good advice. It is very good advice.

Statesman said:

Thanks. I'll make the necessary corrections.

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Corrections made. See attached. Original posted updated as well.

Statesman: Would you mind if I add this to our thread about KY gun laws. I will, of course, give you full credit for your work.

09jisaac said:

Statesman: Would you mind if I add this to our thread about KY gun laws. I will, of course, give you full credit for your work.

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Please do. Make sure it's revision 4, and if any updates or corrections are made to it, i'll let you know to update it on your thread.

Statesman said:

Corrections made. See attached. Original posted updated as well.

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I feel better now having that printed so that I can remember whats what. Thanks for the attachment statesman.

gutshot said:

I like your flow chart. It puts everything in a logical order and makes it easy to follow. My question is, why did you switch from not giving ID to giving ID? I would never give a physical ID in Ky. If he wants it, he can dig for it, if there is one to dig for. That's just one more violation he's piling up. I wont resist a search, but I'll never consent to one or assist him in searching me.

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Thanks.

Read NavyLCDR's post above about refusing to identify yourself. Like the disclaimer says, it's not legal advice, but if you're being detained, NavyLCDR seems to indicate there is some legal responsibility to identify, by at least stating your name and address if you don't have ID on you. I'm still puzzled on this one. Either way, I'm being detained illegally, and it's lawsuit time, ID or no ID.

NavyLCDR said:

Respectfully you cannot use the 5th amendment as a basis for refusing to identify yourself to a police officer unless disclosing your identity would give the police a link in the chain of evidence needed to convict you of a separate offense:

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True, 5th. Amendment does not come into play. But the 1st. Amendment does invoke the right not to speak.

Something everyone should keep in mind is that you NEVER have to talk to law enforcement. You have an absolute right to remain silent. No one can force you to give a statement.

Until the officer is able to articulate a reasonable suspicion that some crime is afoot.

In Ohio

Under Terry v. Ohio, 392 U.S. 1 (1968), a law enforcement officer has wide leeway during an investigatory stop. But, that wide leeway is not unlimited. A stop under Terry is limited by the Fourth Amendment of the U.S. Constitution and also limited by Article 1 Section 14 of the Ohio Constitution. ORC §2921.29 is unconstitutional as written. ORC §2921.29(A) states in part “No person who is in a public place shall refuse to disclose the person’s name, address, or date of birth, when requested by a law enforcement officer who reasonably suspects either of the following:...” ORC §2921.29 goes well beyond the holding of Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, et al, 542 U.S. 177 (2004).

The U.S. Supreme Court in Hiibel stated that:

Beginning with Terry v. Ohio, 392 U. S. 1, the Court has recognized that an officer's reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. Although it is well established that an officer may ask a suspect to identify himself during a Terry stop, see, e.g., United States v. Hensley, 469 U. S. 221, 229, it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer, see Brown, supra, at 53, n. 3. The Court is now of the view that Terry principles permit a State to require a suspect to disclose his name in the course of a Terry stop. Terry, supra, at 34.

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The Hiibel court made it abundantly clear that, until Hiibel, an open question existed as to whether a suspect can be arrested and prosecuted for the refusal to answer questions, ie a suspect exercising their Fifth Amendment right. Through Hiibel the U.S. Supreme Court has ruled that the Terry principles permit a State to require a suspect to disclose his name in the course of a Terry stop. The Court did not extend that principle beyond the giving of the suspect's name.

Hiibel:

The Court is now of the view that Terry principles permit a State to require a suspect to disclose his name in the course of a Terry stop. Terry, supra, at 34.

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Terry, supra at 34:

Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.

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Based on the Hiibel decision the state does not need a law, all that is needed is a special circumstance or proper circumstance (what those are I don't know) to oblige/require a person to give their name, and only their name.

I would bet the Kentucky courts will enforce Hiibel.

gutshot said:

You are correct. That decision permits a state to require a suspect to disclose his name in the course of a Terry stop. The way a state "requires" a person to ID themselves is by passing a law saying they must do so. If they don't pass such a law, then they haven't "required a person to ID himself" and if the LEO has no RAS, it is not a legitimate Terry stop. To become a "suspect" you must be "suspected" of a specific crime, RAS is required. The decision does not say that a LEO may require a person to ID himself absent a law requiring such.

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But, the court can deem it so under hiibel. That is what case law is. Legislating from the bench. The court can declare that providing your name in the course of a Terry stop is reasonable.

Here is my flow chart.

Am I being charged with a crime?

Am I free to go?

If they ask for I.D. I present it or at least tell them my name. Depends on my mood. I am old. I am allowed to be moody.

Then I just keep repeating:

Am I being charged with a crime?

Am I free to go?

It is as simple as that for me.

If you did not commit a crime, you can clam-up and force the LEO to arrest you. At this point he will search you, if you have a physical ID he will know who you are. Your stuff will be seized and you will regain your stuff at their convenience, not yours.

Going sterile is fine where no state law requires a physical ID to be provided upon 'request'. I believe Missouri state law requires at a minimum your name, address, and business (where am I going/what am I doing/going to do), no physical ID document is required.

Did the LEO have RAS is usually going to be determined after the fact. Was the arrest legal will be determined after the fact. In Missouri you may not resist a arrest, even a unlawful arrest.

You handle a police encounter in KY just as you should in any other jurisdiction, with a lawyer, after the fact.