Fairfax County Detains OCer at Beacon Hill Mall

user said:

Nope, I wrote precisely what I meant. There are three levels of "arrest", a Norman French word we get from the period between William and Richard III, when French was the official legal language in England. It is a synonym for "stop". This was "level one": an investigatory stop. The cops have the power to stop someone just to ask questions, just as every other citizen does ("Hey, mister, wait up - have you got any spare change?"). The person is technically "detained" but has the right to walk away. "Detained" is like "made to pause", as opposed to the other levels in which reasonable suspicion and probable cause are required and in which one is not "free to leave."

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I am then really confused. But, lets leave that aside for just a moment.

I am thinking the encounter was non-consensual. I am thinking the hand on the gun made it a non-consensual encounter. The OCer's reaction to the hand argues in the direction of non-consensual, also. I do understand that US v Mendenhall mentions display of weapon, that no case law with which I am familiar has expressly and specifically judged that a cop's hand on a holstered weapon is sufficient or insufficient to make a non-consensual encounter, and that the question is thereby still legally open.

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My confusion arises from my understanding of the meanings of the terms. Based on perhaps erroneous understanding of Terry v Ohio and subsequent related cases. Here is that understanding; please let know where I'm off base:

A Terry Stop is a detention is a stop is non-consensual.

In order to compel a person to remain for investigation a cop needs RAS at a minimum.

Also, there is a VA case, lost to me now since I bought a new computer, where the VA Court of Appeals wrote in so many words (perhaps quoting another case) that VA 4th Amendment jurisprudence recognizes three types of police-citizen encounters. 1. Consensual encounters. 2. Brief minimally intrusive investigatory detentions based on articulable facts [aka RAS] . 3. Highly intrusive custodial arrests.

There's really no such thing as a "Terry Stop"; that refers to the first level of stop/detention/arrest in which the person stopped is free to leave, but is willing to stick around because the cop told him he needed to ask questions. But, where Terry comes into play is where the cop has a legitimate, articulable reason to think the guy he's talking to represents a real danger and threat, he's got the right to do a pat-down search for weapons for his own protection, during the time the guy's willing to stand there talking to him. The "reasonable articulable suspicion" doesn't have to do with the reason for the stop, but the reason for the pat-down search. That's an evidentiary case, not an arrest case.

In order to force the person to stick around and answer questions, short of a full custodial arrest, the cop needs reasonable suspicion, based on articulable objective body of fact, to believe that the person is a material witness to or involved in criminal misconduct. That's why I always tell people to ask whether they're free to leave. If the answer is, "no", then there's been an arrest, and there had better be a good reason for it. If the answer is anything other than, "no" (e.g., "I need for you to stand here and answer my questions."), then remember the five fingers on your dominant hand and that they stand for the five letters, "K Y B M S" (Keep Your Big Mouth Shut), and walk away. It's ok to be polite if you want to, and say something like, "Thank you, but I'd rather not."; if they make you stay, the only thing you should say is, "I want my lawyer."

My personal opinion is that the cop is brandishing a firearm when he approaches the car with his hand on the gun (presumably with the retention mechanism already activated). I also think it would support a civil suit for assault, if the citizen so accosted had a reasonable basis for believing he was about to be subjected to a battery (such as having been shot).

Hello User ~

I believe the female officer was quite respectful, did not have her hand on her firearm.

But heres my question,

Since the male officer had his hand on his firearm during the approach, would this count as a forced stop under duress? Like I have stated in previous postings about this, my biggest issue with the whole case was the officer's hand on his weapon during the encounter. Also, wouldn't it be pretty hard to take it to civil court over the matter? would department immunity take over "for fear of officer safety"? Also i do not seek monetary enrichment, what I seek is officer education. So would civil suit actually teach the department anything at all?

moriar said:

Hello User ~

I believe the female officer was quite respectful, did not have her hand on her firearm.

But heres my question,

Since the male officer had his hand on his firearm during the approach, would this count as a forced stop under duress? Like I have stated in previous postings about this, my biggest issue with the whole case was the officer's hand on his weapon during the encounter. Also, wouldn't it be pretty hard to take it to civil court over the matter? would department immunity take over "for fear of officer safety"? Also i do not seek monetary enrichment, what I seek is officer education. So would civil suit actually teach the department anything at all?

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Hard to say whether it's a "forced stop under duress"; very iffy, and what difference would it make? If you felt that you were likely to get shot, i.e., you had "an apprehension of an immediate battery", then you could file suit for assault. Not too hard to sue, but probably outrageously expensive for what damages you suffered; even if you win, you'll have spent at least twice as much in legal fees as the case is worth. If you want "officer education", you can, and should, make a complaint to the PD as an employment (not legal) matter. And in my experience, police departments do learn to change their written polices and procedures and pretty much ignore officer behavior until it comes time to throw a cop under the bus.

user said:

There's really no such thing as a "Terry Stop"; that refers to the first level of stop/detention/arrest in which the person stopped is free to leave, but is willing to stick around because the cop told him he needed to ask questions. But, where Terry comes into play is where the cop has a legitimate, articulable reason to think the guy he's talking to represents a real danger and threat, he's got the right to do a pat-down search for weapons for his own protection, during the time the guy's willing to stand there talking to him. The "reasonable articulable suspicion" doesn't have to do with the reason for the stop, but the reason for the pat-down search. That's an evidentiary case, not an arrest case.

In order to force the person to stick around and answer questions, short of a full custodial arrest, the cop needs reasonable suspicion, based on articulable objective body of fact, to believe that the person is a material witness to or involved in criminal misconduct. That's why I always tell people to ask whether they're free to leave. If the answer is, "no", then there's been an arrest, and there had better be a good reason for it. If the answer is anything other than, "no" (e.g., "I need for you to stand here and answer my questions."), then remember the five fingers on your dominant hand and that they stand for the five letters, "K Y B M S" (Keep Your Big Mouth Shut), and walk away. It's ok to be polite if you want to, and say something like, "Thank you, but I'd rather not."; if they make you stay, the only thing you should say is, "I want my lawyer."

My personal opinion is that the cop is brandishing a firearm when he approaches the car with his hand on the gun (presumably with the retention mechanism already activated). I also think it would support a civil suit for assault, if the citizen so accosted had a reasonable basis for believing he was about to be subjected to a battery (such as having been shot).

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Sounds good on paper.....err, a web page, but how would (did/does) that work out in practice? I would suspect that it is a 50-50 situation that the cop(s) either shrug their shoulders or get very peeved.

The $64 question: If anything other than "no" is the response are you advising (I know, you stated that specifically) that the citizen simply walk away?

I always suggest asking the cop, "Am I free to leave?"

The last line in Ed's card contains a demand that the cop specifically state that.

http://forum.opencarry.org/forums/showthread.php?108549-Ed-s-quot-Notice-to-all-law-enforcement-quot-cards

Part of the reason is to put them on the hook for responding. If they say, "no", then you're under arrest, it's not a consensual, investigatory stop anymore, and they've got to have at least reasonable suspicion that you're up to no good or a material witness. You probably won't have any damages worth suing over if that happens, but if they take things further, you've got some ammo for pretrial motions if you get charged with anything. Of course, if they really do have reasonable suspicion (they saw you leaving the bank at two a.m. just as the burglar alarm was ringing and you had a big crowbar in your hand and a black ski-mask on at the time), then none of this makes a whole lot of difference.

I get the asking if "I am free to go" part, but that is not what you stated. You simply stated "KYBMS, and walk away." After reading Ed's card, the last line, I think a "Officer, since I am not being detained, I am leaving" or some such thing. This forces the officer, in my view, to either choose to shrug his shoulders or formally detain me. My version, shorter, seems to accomplish the same as Ed's card, last line.

moriar said:

Hello User ~

I believe the female officer was quite respectful, did not have her hand on her firearm.

But heres my question,

Since the male officer had his hand on his firearm during the approach, would this count as a forced stop under duress? Like I have stated in previous postings about this, my biggest issue with the whole case was the officer's hand on his weapon during the encounter. Also, wouldn't it be pretty hard to take it to civil court over the matter? would department immunity take over "for fear of officer safety"? Also i do not seek monetary enrichment, what I seek is officer education. So would civil suit actually teach the department anything at all?

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Why would it even matter if the stop of "forced" or consensual? The guy was not arrested and he did not confess to the murder and burial of Jimmy Hoffa.

While I would not subscribe to the standard practice of cops walking up to me with hands on their guns, I doubt a jury is going to have much of an issue with it when approaching an armed person. Keeping in mind that most people do not walk around armed with a firearm.

It is so easy to second guess people when we know all the details and dangers.

It could also be that the cop did not even realize he did it!!! And now we want to “teach them a lesson” on not touching their gun first. haahaaahahah

This cop probably needs a good lawsuit against him anyway because cops are jerks. If he is in court he is not out on the street stopping me for speeding!

Mixed Emotions...

I'm trying to decide whether to OC or CC. I know that OC is an open deterrent to most criminals, and the better choice overall for that reason. CC is a fine art of blending the right clothing with the right holster to make a concealed weapon easier to carry and harder to detect on your person, but also harder to get to if you need it. That brings me back around to the deterrent factor. If they don't know I have it, how much of a deterrent is it? Obviously the better choice is to OC, but then so called "good citizens" call the police trying to get true good citizens harassed for doing so. I think a large organization needs to run some ads on prime time about how those of us who choose to open carry are only making their lives safer. They don't have to like guns or even approve of them, but just find a seed of common sense and realize that if a person is open carrying, they aren't looking to rob a bank. Their only concern is to prevent people from victimizing them and the people they care about, and the fallout is that criminals feel threatened in their presence. Maybe this is a pretty big jump, but I think the people calling the police about a person walking around with a gun are probably either 1. criminally minded, or 2. Have no understanding of guns. Either way, they need to be educated. I'm sure there will always be a small percentage of the population that fails to get it, just like a child abuser who thinks a two by four as a paddle makes sense.

skidmark said:

Wait a minnit!

Didn't you just say above that it was a Terry stop?

Yup, thought you did:


So, if it was not a Terry stop, because the cop had no RAS that a crime had been committed, was being committed, or was about to be committed, what - other than the application of the BISS* Doctrine - was the basis for the seizure? And we know it was not a consensual encounter, thank you very much, because of the case law you have cited.

stay safe.

BISS Doctrine - Because I Say So

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Your post concerns me a great deal.

OC is a deterrent to those that will be swayed from attacking you, but that doesn't include everyone by a long stretch and by itself, is a damn poor reason to carry a gun.

About 50 years ago I started taking martial arts along with a few friends. One used to wear his attire home and all points in between to impress the peasants. He stopped after he got his ass whipped because they weren't all that impressed after all.

A gun is a tool and there are a lot of solid reasons to OC. Looking tough isn't one of them.

Mayhem said:

SNIP Why would it even matter if the stop of "forced" or consensual?

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The Fourth Amendment provides 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. . . ." This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs. For as this Court has always recognized,

Inestimable right. None more sacred. None more carefully guarded. Free from all restraint. Free even from all interference. Unless by clear and unquestionable authority of law.

The roots of this right pre-date Magna Carta. It literally makes the king and government subject to law. Without it we have rule of men, not rule of law.