luckyykid said:
I've seen a couple posts here regarding the belief that LEOs cannot legally demand an OCer to show their permit.
It depends on the state law.
In the Wethersfield PD memo regarding OC, it says at the bottom that officers can require one show their permit if OCing. I spent a few hours searching the net for case law that supports or denies such a requirement, but i couldn't come up with anything.
Good for you! Have you tried asking the city attorney for the citations? Surely s/he was the one giving the legal conclusions upon which that memo is based.
the law says that someone may carry as long as they have a permit, so how is a LEO supposed to be able to determine if they are in compliance with that law without asking for a permit?
Do you have evidence that they
don't have a permit?
From what I gather from the forum the understanding is that LEO cannot demand a permit, and if such demand is not complied with, LEOs have no grounds to arrest for interfering.
"Interfering"? Would that be like obstructing?
Here in WI we have a Supreme Court ruling (1995) that says:
"No law allows officers to arrest for obstruction on a person’s refusal to give his or her name. Mere silence is insufficient to constitute obstruction.
Henes v. Morrissey"
I think you'd have to prove that your initial demand for ID was lawful, was part of an investigation of a crime, in order for someone remaining silent (not showing ID) to somehow be obstruction.
The problem is, if LEOs are not allowed to require proof of permit, LEOs are forced to assumethat someone open carrying is permitted.
Even the FBI says that criminals don't carry openly & rarely use holsters.
[Here's
PDFs of the study... IIRC the "criminals don't OC" conclusion is in ch 4.]
So it's probably safe to assume that the person you see carrying openly is not a criminal.
Now, if there are other indications that you have come to know are generally associated with criminal activity, those give you RAS to check the person out, esp. since they might have a probation condition saying they're not allowed to possess firearms.
hypothetically speaking, lets say that the gang members in the city catch wind of the open carry law, and that LEOs can't ask to see a permit. So they start open carrying their illegal stolen guns, and we as LEOs are just supposed to ignore it and assume they have a permit? That's the part I can't wrap my brain around.
It gets a bit harder, but you can still articulate your reasonable suspicion that a person has/is/will commit a crime. Do they show colors? Do they sag their pants? Are they in a known high-crime neighborhood? If they're not using a holster, that could be a marker. (It's certainly a safety concern!)
you are forcing LEOs to size up a person OCing by looking at the way they are dressed, how they walk/carry themselves, how their hair is cut, and what they are driving, and make a snap judgement of either A) law abiding citizen, or B) potentially dangerous person.
Which is what you do with everyone you meet.
Or should be.
Also, is anyone aware of any documentation/case law that specifically addresses whether or not a LEO can demand a permit?
Is anyone aware of documentation specifying that a LEO cannot require/demand proof of permit?
“The Claim and exercise of a Constitutional Right cannot be converted into a crime.”
Miller v. U.S.
“Stopping a car for no other reason than to check the license and registration was unreasonable under the 4th amendment.”
Delaware v. Prouse (1979)
[So stopping someone for doing another activity which requires a license, if it does in your jurisdiction, would similarly be illegal.]
“The mere presence of firearms does not create exigent circumstances.”
WI v. Kiekhefer (1997)
“Mr. St. John’s lawful possession of a loaded firearm in a crowded place could not, by itself, create a reasonable suspicion sufficient to justify an investigatory detention.”
St. John v. McColley
The Third Circuit found that an individual’s lawful possession of a firearm in a crowded place did not justify a search or seizure.
United States v. Ubiles (2000)
The Tenth Circuit found that an investigatory detention initiated by an officer after he discovered that the defendant lawfully possessed a loaded firearm lacked sufficient basis because the firearm alone did not create a reasonable suspicion of criminal activity.
United States v. King (1993)
I support the 2nd Amd and open carry for permittees.
It's a start. It'd be nice if you left off that last part, about rights only being for people with gov't permission... because then they're not rights.
luckyykid said:
I do think that if they knew they could OC freely and not get challenged by LEOs, they would OC, partly because it would alleviate the "suspicious behavior" one unconsciously exhibits when one is concealing an illegal gun and is afraid of being caught. I think it would be a sense of freedom for them.
I think they'd have to change a bleep of a lot more in order not to be suspicious.
Dress, mannerisms, where they hang out...
davidmcbeth said:
I don't sit there and talk with a policeman ... nothing to be gained only to lose.
If I know the person & we're just having coffee, that's one thing. But if it's someone trying to use his job-given powers to make my life difficult, no.
