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Thread: The Legality Of: "Let Me Take This For My Safety"......

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    Post The Legality Of: "Let Me Take This For My Safety"......

    Lets break this down into two scenarios and address it that way...(I'm sure they've been hashed out before...I'm sorry)

    Part A: You're walking while OC'ing in the midday in a public area and some goofball calls in the MWAG. The officer comes up to you and insists on removing your firearm for his safety. Can he legally do this in the Commonwealth of Va? How would you handle this?

    Part B: You roll into a check-point with your pistol in clear view on the passenger seat beside you. The officer working the driver side sees your firearm and insists on having the firearm handed to him for safety (but obviously he wants to check and run it). You've done nothing wrong at this point....How would you handle this?

    Thanks in advance folks...

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    Regular Member ocholsteroc's Avatar
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    Quote Originally Posted by BlueRidgeTrapper View Post
    Lets break this down into two scenarios and address it that way...(I'm sure they've been hashed out before...I'm sorry)

    Part A: You're walking while OC'ing in the midday in a public area and some goofball calls in the MWAG. The officer comes up to you and insists on removing your firearm for his safety. Can he legally do this in the Commonwealth of Va? How would you handle this?Part B: You roll into a check-point with your pistol in clear view on the passenger seat beside you. The officer working the driver side sees your firearm and insists on having the firearm handed to him for safety (but obviously he wants to check and run it). You've done nothing wrong at this point....How would you handle this?

    Thanks in advance folks...
    #1 No, I had my gun taken because I wasn't educated. Tell them no. They don't need your ID either.

    I don't know where check points are, I never been through one. Why would you leave your gun on the seat? where it can fly out the window if you crashed. Keep it in the console or on your hip.
    Last edited by ocholsteroc; 06-12-2012 at 05:23 PM.
    How come a DUI you can get your driver licence back, which it is a privilege. But if commiting a felon, even something non violent like stealing, you are denied your constitutional rights for the rest of your life?
    If you don't support the Second Amendment to the Constitution, what other parts of the Constitution do you reject?
    More restrictions on guns? how about restrictions on chainsaws and knives?

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    I keep mine on my hip and I should've worded the scenario differently. Lets say there is another officer on the passenger side and sees your firearm from that angle....

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    Regular Member MagiK_SacK's Avatar
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    Unlawful stop, no action required

    Quote Originally Posted by BlueRidgeTrapper View Post
    I keep mine on my hip and I should've worded the scenario differently. Lets say there is another officer on the passenger side and sees your firearm from that angle....
    I am not positive about VA Code or Local ordinances, but as far as I understand checkpoints (i.e. DUI check points) they are unlawful stops because of the lack of RAS. So, that being in mind you have no legal obligation to respond to anything at a check point of that nature. Therefor I would say no they have no right to take the firearm.

    As well the 'officer safety' thing has been discussed as it pertains to a traffic stop. What I took out of that is that there is nothing stating that they legally have the right to do so with out your consent.

    **Disclaimer-This is just as I understand it, but I do not have a cite. So, don't take that for fact, and if anybody knows different please feel free to correct me. I would be curious to see something validating or contradicting what I THINK I know, lol. Preferably validating

    EDIT

    I did find this: http://en.wikipedia.org/wiki/DUI_che...ty_checkpoints Yes I know it's Wikipedia, but the site does raise the 'legal' catch 22 of the whole thing.

    The Fourth Amendment to the United States Constitution states that: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This fundamental right has a tense relationship with sobriety checkpoints. At a sobriety checkpoint, drivers are necessarily stopped without reasonable suspicion, and may be tested summarily and without probable cause. Thus the Constitution would prohibit people from being stopped without a search warrant or at least without probable cause that they have committed a crime; however, the warrant requirement only attaches should the search be unreasonable and the Supreme Court, as shown below, decided that such stops are not unreasonable under certain circumstances.
    I personally would rather side on the constitution, but it just seems like there is a lot of grey area when it comes to that though.
    Last edited by MagiK_SacK; 06-12-2012 at 07:47 PM. Reason: additional information
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    A cop pulled me over and said, "Papers..." So I said "Scissors, I win!" and drove away.

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    Quote Originally Posted by MagiK_SacK View Post
    I am not positive about VA Code or Local ordinances, but as far as I understand checkpoints (i.e. DUI check points) they are unlawful stops because of the lack of RAS. So, that being in mind you have no legal obligation to respond to anything at a check point of that nature.

    **Disclaimer-This is just as I understand it, but I do not have a cite. So, don't take that for fact, and if anybody knows different please feel free to correct me. I would be curious to see something validating or contradicting what I THINK I know, lol. Preferably validating
    Yea...DUI checks was what I meant. I should've said that lol....

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    Quote Originally Posted by ocholsteroc View Post
    #1 No, I had my gun taken because I wasn't educated. Tell them no. They don't need your ID either...
    No, don't say that. Say, "No, thank you."

    If you are being lawfully detained in an investigative stop AND the cop thinks there's some articulable reason why you pose a specific threat to others, then they can do a frisk and take the gun. That's a "level two arrest"; merely stopping a person for the purpose of asking questions is a "level one arrest", from which the person is free to walk away. In that situation, say, "No, thank you." WHILE walking away. (A "level three arrest", my terminology, by the way, not terms of art, is full custodial arrest, handcuffed in the back of the cruiser, etc. - that's the final and most severe form.)

    At a checkpoint, I'd say, "Why, am I under arrest?", in response to that question. If I'm not under arrest, then I want to leave. If he insists on that "for my safety" line, I think I'd be tempted to say something like, "Why, doesn't yours work properly?" or "Why, are we under attack?" or, "No, I need it for my safety." But I don't recommend the use of phrases designed to stimulate an unpleasant reaction. Best to say something like, "No thank you, you're not in any danger."
    Last edited by user; 06-13-2012 at 06:23 AM.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Quote Originally Posted by BlueRidgeTrapper View Post
    The officer working the driver side sees your firearm and insists on having the firearm handed to him for safety (but obviously he wants to check and run it). You've done nothing wrong at this point....How would you handle this?
    Probably best to not handle your firearm in the presence of a LEO. Regardless of *law*, the officer is going to do what he or she is going to do, which may be to detain you or sieze your firearm. If their backup sees you handling a firearm and doesn't know what you are doing or why, things could turn sour fast.

    In such a case, one might say "I do not consent but will not resist [you taking my firearm]". Asserting your rights won't necessarily prevent them from being violated either.
    Most folks here carry some form of a recording device (digital voice recorded, mobile phone, etc).

    Welcome to OCDO!

    Maybe a little OT but some real life examples (not VA though, but good learning tools) addressing your questions:
    http://forum.opencarry.org/forums/sh...le-intoxicated
    http://forum.opencarry.org/forums/sh...nt-in-Portland

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    As User has mentioned, the officer can take your handgun "for my safety" if he is conducting a Terry Stop. Member Citizen is possibly the subject-matter expert on Terry Stops and he might join the discussion to fill you in on the finer points of being Terry Stopped.

    But in both of the scenarios you present one of the vital elements for conducting a Terry Stop is missing - even a MWAG call needs more detail to demonstrate RAS of a crime having been committed, being commited, or is about to be committed.

    Without going into detail, checkpoints are usually set up as reasons to look for everything except what the checkpoint was set up to discover. You may not beat the stop on the side of the road, and may even get to ride in the back of a shiney police car while trying out the latest look in stainless steel jewelry. That's why there are attorneys and courts.

    stay safe.
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    Quote Originally Posted by BlueRidgeTrapper View Post
    Lets break this down into two scenarios and address it that way...(I'm sure they've been hashed out before...I'm sorry)

    Part A: You're walking while OC'ing in the midday in a public area and some goofball calls in the MWAG. The officer comes up to you and insists on removing your firearm for his safety. Can he legally do this in the Commonwealth of Va? How would you handle this?

    Part B: You roll into a check-point with your pistol in clear view on the passenger seat beside you. The officer working the driver side sees your firearm and insists on having the firearm handed to him for safety (but obviously he wants to check and run it). You've done nothing wrong at this point....How would you handle this?

    Thanks in advance folks...
    Part a-hell no
    Part b- this has already happened to me. I posted about it and user(Dan Hawes) said it is legal if you are being detained. However I do not think a traffic stop is the same as being detained. I was pulled over for speeding and the cop took my gun for his safety. Personally I didn't think it was worth me fighting because the gun was legal and I'm no felon. Still I am don't think anyone can *cite to authority* so I too wonder how this is legal.

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    Quote Originally Posted by love4guns View Post
    However I do not think a traffic stop is the same as being detained. I was pulled over for speeding and the cop took my gun for his safety.
    "Arrested", "detained", "custody", etc., are all terms of obfuscation. The wording in the U.S. Constitution, the word that you should always use, is "seized". SCOTUS held in United States v. Mendenhall that a person has been "seized" for purposes of the 4th Amendment whenever he reasonably believes he is not free to leave.

    During a traffic stop, you have most definitely been seized, and if an officer takes your property, then it too has been seized until the point where it is returned.

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    Quote Originally Posted by MagiK_SacK View Post
    I am not positive about VA Code or Local ordinances, but as far as I understand checkpoints (i.e. DUI check points) they are unlawful stops because of the lack of RAS.
    SCOTUS has ruled that properly run DUI and driver's license checkpoints are Constitutional. Drug checkpoints are not.

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    Quote Originally Posted by skidmark View Post
    ...even a MWAG call needs more detail to demonstrate RAS of a crime having been committed, being commited, or is about to be committed.
    Anonymous tips do not create probable cause, or even RAS. Don't recall the cite, but I know it has been settled.

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    Quote Originally Posted by KBCraig View Post
    "Arrested", "detained", "custody", etc., are all terms of obfuscation. The wording in the U.S. Constitution, the word that you should always use, is "seized". SCOTUS held in United States v. Mendenhall that a person has been "seized" for purposes of the 4th Amendment whenever he reasonably believes he is not free to leave.

    During a traffic stop, you have most definitely been seized, and if an officer takes your property, then it too has been seized until the point where it is returned.
    This is an excellent reminder. Always use the word "seized". Why am being scr--, I mean seized?

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    Regular Member Tanner's Avatar
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    Quote Originally Posted by thaJack View Post
    Anonymous tips do not create probable cause, or even RAS. Don't recall the cite, but I know it has been settled.
    like you i can not remember the cite but i remember reading about how a person who gives their info in reguards to calling the police, that then is RAS

    Oh yea and "let me take this for my safety" my responce. "can I take yours for my safety?" <----joke

    Amd yes I am stealing that from someone but cant remember who.
    Last edited by Tanner; 06-14-2012 at 04:06 PM.

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