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Thread: Where does concealed carry end and open carry begin?

  1. #1
    Regular Member Makarov's Avatar
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    Cool Where does concealed carry end and open carry begin?

    Here’s the story so you can decide. I request an officer at a parking lot location so a police report can be completed involving a protection order issue. As I parked in the lot, a police cruiser approached and stopped about 30 feet behind my vehicle.

    As the cruiser came to a complete stop, my girlfriend and I got out of the car and stop about half way the length of the vehicle. All hands were visible, we were both open carrying our weapons. As the officer approached I tried to place him at ease by informing him that I was CCW, just then he requested my license. I questioned why, Im open carrying and CCW law doesnt apply. Then the lecture came.

    In the end to satisfy his requirement I handed him the license. Then we went into an argument about notification for CCW carrying. Obviously, he not a fan of open carry or of the notification bill pending in Ohio. The end result is everything went fine but it is a learning experience. Things to keep in mind…

    So here is the question! Since I was driving and the officer saw me and my girlfriend get out of my truck open carrying, does the concealed carry law apply?

    Please provide input.
    Last edited by Makarov; 05-03-2012 at 09:06 AM.

  2. #2
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    Quote Originally Posted by Makarov View Post
    Since I was driving and the officer saw me and my girlfriend get out of the car open carrying, does the concealed carry law apply?
    Is a permit required to have a loaded handgun in your vehicle in Ohio?

    I think you answered your own question...
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    Accomplished Advocate BB62's Avatar
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    What department? Seems like a call may be in order.

  4. #4
    Regular Member Makarov's Avatar
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    Kettering Ohio. I have a parcel recording of the incident.

  5. #5
    Regular Member Makarov's Avatar
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    This guy is a work of art. Claims he actually testified for us in favor of CCW but then claims our movement for open carry will backfire and we will lose that right His name is officer Jeff Pedro and he is on the second amendment radio show. Shooting from the hip

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    If the officer saw you behind the wheel of your truck it could be argued (by Ohio's way of looking at certain laws) that you were operating the vehicle while carrying a loaded firearm. As you know that requires an Ohio-recognized CHL. Yeah, I think this encounter--it was after all for a law enforcement purpose--required you to notify.

  7. #7
    Regular Member MyWifeSaidYes's Avatar
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    Yep. If the officer saw you exit your vehicle with the OC, that's RAS of "Improper handling of a firearm in a motor vehicle." Without showing your CHL, he could have cited and arrested you.

    You did not need to notify the officer if you were already out of your vehicle before he exited his car and started 'approaching', but he would need to see your CHL if he saw you exit.

    That part is legit. Sorry. That's why we are trying to get rid of notification completely. Be patient.


    If he had already started approaching you and you exited your vehicle with a gun, you could have been shot and the officer would probably have been cleared. Once he starts approaching, stay in the car, hands on your steering wheel, and notify. THIS IS A CONCERN EVEN IF/WHEN WE GET RID OF NOTIFICATION.

    If you had been out of your vehicle before he pulled up and he didn't see you exit, he would not have had RAS and you would not be required to ID yourself at all (OC and not driving).


    Can you post the recording? What the cop lectures you about can determine whether some 're-education' is in order.
    Last edited by MyWifeSaidYes; 04-30-2012 at 07:07 PM.
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  8. #8
    Regular Member Makarov's Avatar
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    Yes, I was out of the vehicle before him he opened his door of his vehicle. He was notified (to put him at ease) but then requested my license. I question why, because at that point it's open carry. I mentioned if I was in the vehicle, Yes I would have too, but I'm open carrying outside my vehicle. Open carry applies at that point. He explains, " its a police operation, the rules change". At that point I just didnt want the rant...gosh. So I handed him the license.

    The education part was a lecture how open carry is bad. He quoted the movement on open carry will fail because the police have control over all situtations and they always win in court. Also, he mentioned that the notification bill will never pass. And it went on...etc. This was definately a battle of who is right so I just obsorbed and said "Right and Sure" as the officer spoke.

    I do have a particle recording of the entire incident but for some reason the video wont load. Still working on that issue!
    Last edited by Makarov; 05-01-2012 at 10:50 AM.

  9. #9
    Regular Member MyWifeSaidYes's Avatar
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    Quote Originally Posted by Makarov View Post
    Yes, I was out of the vehicle before him he opened his door of his vehicle. He was notified (to put him at ease) but then requested my license. I question why, because at that point it's open carry. I mentioned if I was in the vehicle, Yes I would have too, but I'm open carrying outside my vehicle. Open carry applies at that point. He explains, " its a police operation, the rules change". At that point I just didnt want the rant...gosh. So I handed him the license.

    The education part was a lecture how open carry is bad. He quoted the movement on open carry will fail because the police have control over all situtations and they always win in court. Also, he mentioned that the notification bill will never pass. And it went on...etc. This was definately a battle of who is right so I just obsorbed and said "Right and Sure" as the officer spoke.

    I do have a particle recording of the entire incident but for some reason the video wont load. Still working on that issue!

    Although he saw you get out and WOULD have Reasonable Suspicion, he still has to Articulate that. Otherwise, no RAS.

    Police have control? Always win in court? Now that, as BB62 already said, deserves a call.

    Feel fee to post the video until you can get the audio. We can tell a lot from body language and facial expressions.
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    He has every right to request your license .. you requested the officer to have a report completed, so you are the reporting party, victim, etc. now if you were just standing beside your car aqnd he pulled up , and said "hey did you call for the report?".. and you said no.. then no he has no right to see your I.D.

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    Regular Member MyWifeSaidYes's Avatar
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    Quote Originally Posted by Yiteurp View Post
    He has every right to request your license .. you requested the officer to have a report completed, so you are the reporting party, victim, etc. now if you were just standing beside your car aqnd he pulled up , and said "hey did you call for the report?".. and you said no.. then no he has no right to see your I.D.
    He can request it? Yes. I have to provide it? No.

    Can you cite the law that requires me to provide identification to make a report?

    If the LEO thinks I witnessed a felony, I have to provide my name, address and date of birth.
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  12. #12
    Regular Member Makarov's Avatar
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    What is interesting about this whole incident it makes you look at the law further. With all the ORCs pertaining to concealed carry. The part pertaining to encounters with law enforcement always specifies in its description, "and is carrying a concealed weapon". Thus at the time of the approach, I was carrying openly. Thats my take!

    2923.12 Carrying concealed weapons.

    (A) No person shall knowingly carry or have, concealed on the person’s person or concealed ready at hand, any of the following:

    (1) A deadly weapon other than a handgun;

    (2) A handgun other than a dangerous ordnance;

    (3) A dangerous ordnance.

    (B) No person who has been issued a license or temporary emergency license to carry a concealed handgun under section 2923.125 or 2923.1213 of the Revised Code or a license to carry a concealed handgun that was issued by another state with which the attorney general has entered into a reciprocity agreement under section 109.69 of the Revised Code shall do any of the following:

    (1) If the person is stopped for a law enforcement purpose and is carrying a concealed handgun, fail to promptly inform any law enforcement officer who approaches the person after the person has been stopped that the person has been issued a license or temporary emergency license to carry a concealed handgun and that the person then is carrying a concealed handgun;

    (2) If the person is stopped for a law enforcement purpose and if the person is carrying a concealed handgun, knowingly fail to keep the person’s hands in plain sight at any time after any law enforcement officer begins approaching the person while stopped and before the law enforcement officer leaves, unless the failure is pursuant to and in accordance with directions given by a law enforcement officer;

    (3) If the person is stopped for a law enforcement purpose, if the person is carrying a concealed handgun, and if the person is approached by any law enforcement officer while stopped, knowingly remove or attempt to remove the loaded handgun from the holster, pocket, or other place in which the person is carrying it, knowingly grasp or hold the loaded handgun, or knowingly have contact with the loaded handgun by touching it with the person’s hands or fingers at any time after the law enforcement officer begins approaching and before the law enforcement officer leaves, unless the person removes, attempts to remove, grasps, holds, or has contact with the loaded handgun pursuant to and in accordance with directions given by the law enforcement officer;

    (4) If the person is stopped for a law enforcement purpose and if the person is carrying a concealed handgun, knowingly disregard or fail to comply with any lawful order of any law enforcement officer given while the person is stopped, including, but not limited to, a specific order to the person to keep the person’s hands in plain sight.
    Last edited by Makarov; 05-02-2012 at 03:54 PM.

  13. #13
    Accomplished Advocate color of law's Avatar
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    Quote Originally Posted by MyWifeSaidYes View Post
    He can request it? Yes. I have to provide it? No.

    Can you cite the law that requires me to provide identification to make a report?

    If the LEO thinks I witnessed a felony, I have to provide my name, address and date of birth.
    First off, there is NO LAW that requires you to supply your social security number to file a complaint. If a cops refuses to take the report demand his supervisor.


    Second, when any of us are carrying concealed we understand that we must inform an officer of our conceal carry status and also have identification on our persons and supply that identification if requested.

    When open carrying we are not required to have any type of identification on our persons. Knowing that the Ohio legislature passed ORC 2921.29.

    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.

    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.

    ORC §2921.29 states “no person...shall refuse to disclose the person’s name, address, or date of birth.” The term “or” in Websters dictionary is a conjunction introducing an alternative. Thus, in plain English ORC §2921.29 allows a person to give one of the three alternatives. But, what if an arresting officer charges an Accused with not supplying all three because the officer treated the term “or” as if it meant “and.” According to ORC §1.02(F) (“And” may be read “or,” and “or” may be read “and” if the sense requires it.) the officer is permitted to make such interpretation. The officer's interpretation, however, would be in direct violation of ORC §1.42 which states in part “Words and phrases shall be read in context and construed according to the rules of grammar and common usage.” Accordingly, the application of term “and” in ORC §2921.29(A) would then be in direct violation of Hiibel. Clearly, ORC §2921.29(A), when applied with the term “and” instead of “or”, would be beyond what the U.S. Supreme Court has allowed under the Fourth Amendment and therefore, ORC §2921.29 would be unconstitutional.

    If an Accused gave their name, but was arrested and jailed for not giving his address and date of birth, the arrest and jailing would be under the color of law and in violation of the Accused's constitutional right under the U.S. and Ohio Constitution.

  14. #14
    Regular Member MyWifeSaidYes's Avatar
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    COL-

    Another great post!
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    What does a caring, sensitive person feel when they are forced to use a handgun to stop a threat?

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  15. #15
    Regular Member Makarov's Avatar
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    Nice Post COL.

    I called my lawyer yesterday and explained the entire situation. According to her I'm correct. The official encounter starts at the time when the officer is face to face with me. Because the status of the encounter was open carry, notification was optional as well as providing the license. Spoke also to two CCW instructors, one was law enforcement. One was baffle by the encounter and really didn’t have an answer the other felt basically there is no case law established for this situation. So are we up in the air?

    Officer Pedro from the Kettering police department is the officer involved in this encounter. He is also a host on the radio show called (Shooting from the Hip) on WHIO radio, AM 1290 & 95.7 FM, Dayton. The show broadcasts from 2-3 PM every Saturday. I'm going to call the show and present this issue for talk. Hopefully some of you may ether listen or call in for support. The link for the show is below.

    http://www.sim-trainer.com/radio.shtml or call 937-293-3914
    Last edited by Makarov; 05-03-2012 at 12:18 PM.

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    Regular Member Makarov's Avatar
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    If you heard the radio show, “Shootin from the Hip”, you heard both arguments of this entire encounter. My observation of the show indicates, it seems the hosts of the program are not big fans of open carry. So they tend to focus more on concealed carry. My argument however I believe is still valid.

    If you noticed in ORC 2923.12 (3) (B) (1)-(3), in the beginning of every paragraph of this ORC it says; if the person is stopped for a law enforcement purposes and is carrying a concealed handgun. This in my option is a two part test to prove my case.

    Test: “If the person is stopped for a law enforcement purpose” This means law enforcement starts the encounter, not the citizen.

    I requested law enforcement to meet at a designated area for assistance for a police report. An official stop occurs when the officer stops a person because they suspect wrong doing, thus they start the encounter not the citizen.

    Test: “is carrying a concealed handgun” the host of the program insisted I should have stayed in my truck because they consider it a stop.

    Yes, if lights were flashing behind me indicating an official stop. All I did was to request an officer for assistance with a police report. When I park and removed myself from the vehicle, the cruiser with the officer did not come to a complete stopped. He saw I was open carrying. Thus the concealed carry law would only apply if I was in the vehicle.

    Is my logic incorrect?

  17. #17
    Regular Member MyWifeSaidYes's Avatar
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    Are lights required to indicate a stop?
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    What does a caring, sensitive person feel when they are forced to use a handgun to stop a threat?

    Recoil.

  18. #18
    Accomplished Advocate color of law's Avatar
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    Here is the problem Terry requires some articulable suspicion that a crime is afoot. In that to carry a loaded firearm in a vehicle a license is a requirement - then under Terry "close proximity" becomes a factor. Seeing you exiting your car could raise his suspicion. There are federal court decisions that say being 10 feet or further from your vehicle is not in "close proximity" to implicate a nexus between the person and the vehicle.

    What does that mean. Your car is in the parking spot, you are sitting on a park bench 15 feet way. You spit on the sidewalk (clearly a heinous crime) cops has no evidence of any connection between you and the vehicle. Cops tickets you for spitting. From your identification/driver license he determines that your vehicle is sitting close by and now he wants to search your vehicle. Under case law he would not have any authority to do so.

    So, next time don't be in close proximity to your car. Just heads up......
    Last edited by color of law; 05-07-2012 at 01:52 PM.

  19. #19
    Accomplished Advocate color of law's Avatar
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    Quote Originally Posted by MyWifeSaidYes View Post
    Are lights required to indicate a stop?
    It all depends.....

  20. #20
    Regular Member MyWifeSaidYes's Avatar
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    Doesn't it always?!

  21. #21
    Regular Member Makarov's Avatar
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    Cool

    The lights were not flashing on this cruiser. Also the distance was about 30 Feet. COL, great advise!
    Last edited by Makarov; 05-07-2012 at 03:21 PM.

  22. #22
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    Quote Originally Posted by MyWifeSaidYes View Post
    That's why we are trying to get rid of notification completely. Be patient.
    Amen to that MWSY! Getting rid of the notification requirement would remove TONS of gray area from the law.

  23. #23
    Regular Member Makarov's Avatar
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    I agree, they should remove all the hurdles with police encounters as noted in ORC 2923.12 (3) (B) (1)-(3). They can also make life easier by allowing open carry in automobiles without a license. Then I would like them to assign criminal charges to police that vilolate our liberties instead of civil charges.

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