stop and identify

Interceptor_Knight · Mar 4, 2013

Citizen said:
Cite, please.

For example, in VA I am pretty sure there is a court case where a moped rider was seized because the cop saw a bulge under his shirt and took it to be a gun--the court said it wasn't enough to justify the seizure if I recall. I estimate that sort of thing has come up in other states. In any event, you've made a declaration about the law on RAS/probable cause/licensed activity in your state, so a citation is appropriate.

It is illegal to conceal a dangerous weapon in WI. If he reasonably believes you are concealing a handgun.....

Citizen · Mar 4, 2013

Interceptor_Knight said:
It is illegal to conceal a dangerous weapon in WI. If he reasonably believes you are concealing a handgun.....

Nice try. Cite the case law that says a mere bulge meets 4th Amendment standards for RAS. Essentially you are saying anyone with a bulge-y cell phone, safety glasses case, etc., is subject to a Terry Stop for carrying a concealed weapon. Lets see your cite.

Fallschirjmäger · Mar 5, 2013

Interceptor_Knight said:
It is illegal to conceal a dangerous weapon in WI. If he reasonably believes you are concealing a handgun.....

Illegal? As in against the law?
(5) CITE TO AUTHORITY: If you state a rule of law, it is incumbent upon you to try to cite, as best you can, to authority. Citing to authority, using links when available,is what makes OCDO so successful. An authority is a published source of law that can back your claim up - statute, ordinance, court case, newspaper article covering a legal issue, etc.

Interceptor_Knight · Mar 5, 2013

Citizen said:
Nice try. Cite the case law that says a mere bulge meets 4th Amendment standards for RAS....

A simple bulge does not a print make....

Interceptor_Knight · Mar 5, 2013

Fallschirmjäger said:
Illegal? As in against the law? .

Prohibited by WI Statute. http://forum.opencarry.org/forums/s...rrying-(OC)-In-WI-Here-s-what-you-should-know

Fallschirjmäger · Mar 5, 2013

From the wording, 941.23 does not make it illegal to carry/conceal a firearm and then provide exceptions. It prohibits anyone other than one of the listed exceptions from carrying concealed. That would mean that an officer must first reasonably suspect that someone carrying is a person not listed in subsection (2) of 941.23.
Of course that doesn't mean how a law is written is how the law is applied.

If I may paraphrase and exchange a few terms, the law reads:
941.23 Operating an automobile on public roads.
(1) In this section:
an automobile is defined as ...
a road is defined as ...
a driver is defined as...

(2) Any person, other than one of the following, who operates an automobile on public roads is guilty of a Class A misdemeanor:
(a) A peace officer,......
(b) A qualified out-of-state law enforcement officer......
(c) A former officer.......
(d) A licensee,...........
(e) .........

Written the same way as 941.23, the mere sight of someone operating an automobile upon public roads would be insufficient to make a stop "just to make sure the driver is licensed."

939.22 (10) defines 'deadly weapon, but I must be missing the 'illegal to conceal' portion. Perhaps a cite would be in order?

LOERetired · Mar 5, 2013

Stop & Frisk or "Terry Stop" Case law

http://www.caselaw4cops.net/searchandseizure/stopfrisk.htm#

Citizen said:
A fast easy way to get more weight on your side is to just politely declare, "No offense, officer, I know you are just doing your job; but I do not consent to an ecounter with you." If this is the first thing an OCer says, it immediately establishes the nature of the encounter as non-consensual.

I got that idea from a VA court case. That appellate court wrote to the effect that 4th Amendment (search and seizure) case law recognized three types of police-citizen encounters: 1) consensual encounters, 2) brief minimally intrusive investigatory detentions based on articulable facts (Terry Stops), and 3) highly intrusive custodial arrests. I just applied logic that already existed. It is already understood that a person can refuse consent to a search or seizure during an encounter. It is no leap at all to apply consent to the encounter itself. If you refuse consent to the encounter at the very beginning, it cannot possibly be a consensual encounter from that moment forward.

If you think about it a little bit, it is obvious why the courts have to resort to figuring out whether a Terry Stop seizure of the person occurred by looking at how many cops, whether there was a show of authority, physical touching, tone of the cop's voice, words the cop actually said or didn't say, whether a reasonable person would feel free to leave, etc., etc., etc. The courts are using all these indirect indicators simply because the citizen did not make directly clear his consent or refusal himself.

So, the simplest thing one can do is to make these words the first thing he says, [politely], "No offense...but, I do not consent to an encounter with you, officer."

If you refuse consent to the encounter itself at the very beginning, it cannot possibly be a consensual encounter from that moment forward. This immediately throws the onus on the cop to have genuine RAS for a Terry Stop if he wants to continue the encounter. If the cop continues the encounter for even one more question or comment, just reinforce the refused consent to the encounter. For example, "I wish to be released and be on my way right this instant, officer."* And, just keep sprinkling that refusal among your other rights-exercising comments like "I wouldn't answer any questions without my attorney", or "I don't consent to any searches." Asking, "Am I free to go?" at various points along the way also helps establish that you want to leave; but its not as strong and clear.

Refusing consent to the encounter itself also undercuts and negates all the cute conversational tricks cops play on this point. For example, some OCers have asked if they were being detained and were told no. When they immediately then asked if they were free to leave they were also told no, revealing that the earlier no was designed to confuse or deceive the detainee into either talking or attempting to leave so the cop could physically grab him. If you refuse consent to the encounter, you take all that initiative out of the cop's hands.

Of course, if one wants to first find out why the cop is approaching him, the OCer can always wait a moment to hear what the cop has to say before refusing consent to the encounter. Maybe the cop is going to ask whether the OCer saw a certain child who is missing. We've never had such a reported encounter, but lets say. As soon as the OCer recognizes he is being investigated, he can refuse consent, "Oh, I see, officer. Well, sorry. I know you're just doing your job but I no longer consent to an encounter with you." In Miranda vs Arizona, the arrestee can stop answering custodial interrogation questions at any time. There is no reason an OCer's initial consent to an encounter cannot be revoked at any time.

Its important for new readers to understand that we're talking about a verbal refusal. Not a physical refusal. We're talking about consent (willingness), not enforcing that unwillingness by physical action.

Separately, I would repeatedly ask, "Am I free to leave?" But not to establish refused consent. I would ask it because I'm not giving the cops any excuses to physically grab me, throw me on the ground, and cuff me. I ain't budging until I have express permission to leave. I have read too many reports of cops playing word games during encounters and lying in pretrial hearings to risk giving them an excuse to manhandle me or arrest me for (obstruction?) if I try to leave. I'm going to assume I am seized if the cop continues the encounter for even one comment or question beyond my refused consent to the encounter.

*You never know, the cop might just hand you a Title 42 violation of rights. We recently had a report of a cop saying, "You'll be on your way as soon as you answer some questions." Yeehaw!!! Coercion to waive the Fifth Amendment right against self-incrimation/right to remain silent!! That will look real good in a formal written complaint or lawsuit, especially if you recorded the encounter.

10-32 Solutions · Mar 5, 2013

Nightmare said:
§ 345.22 Authority to arrest without a warrant.
A person may be arrested without a warrant for the violation of a traffic regulation if the traffic officer has reasonable grounds to believe that the person is violating or has violated a traffic regulation.
History: 1971 c. 278. A city police officer is a traffic officer within s. 345.22. 61 Atty. Gen. 419.

§ 345.23 Officer’s action after arrest without a warrant.
If a person is arrested without a warrant for the violation of a traffic regulation, the arresting officer shall issue a citation under s.345.11, and in addition:
(1) May release the person; or
(2) Shall release the person when he or she:
(a) Makes a deposit under s. 345.26; or
(c) Deposits the person’s valid Wisconsin operator’s license with the officer. If the license is deposited with the officer, the officer shall issue to the licensee a receipt which shall be valid as a driver’s license through the date specified on the receipt, which shall be the same as the court appearance date, and the officer shall, at the earliest possible time prior to the court appearance date, deposit the license with the court.
(d) Presents a guaranteed arrest bond certificate under s.345.61.
(3) Shall, if the alleged violator is not released under sub. (1) or (2), bring him or her without unreasonable delay before a judge or, for ordinance violations, before a municipal judge in the county in which the violation was alleged to have been committed.
(4) Shall, if the alleged violator is released under sub. (1) or (2), specify on the citation a return date which may not be more than 90 days after the issue date.
History: 1971 c. 278; 1973 c. 218; 1977 c

An officer's desire to go safely home after his shitf is extra-legal. https://docs.legis.wisconsin.gov/statutes/prefaces/toc

Chapters 340-351 deal with traffic law. The above statute gives authority for officers detain a person for traffic violations in order to issue a citation. It's not pertinent to the discussion relating to a Terry Stop.

Citizen · Mar 6, 2013

Interceptor_Knight said:
A simple bulge does not a print make....

OK. I can see that. In your mind, what constitutes printing? Or, rather, what distinguishes a mere bulge to the point that it gives rise to genuine RAS? Cites would help, for example a court opinion that analyzed the bulge in the context of totality of circumstances.

Fallschirjmäger · Mar 6, 2013

He's been back, and he's been in the Wisconsin sub-forum, but it's much too early to suppose that he's lost interest in defending his position.
I'm sure he's just gathering the information needed to support his point. I, for one, eagerly look forward to his next posting.

Interceptor_Knight · Mar 6, 2013

Citizen said:
OK. I can see that. In your mind, what constitutes printing? Or, rather, what distinguishes a mere bulge to the point that it gives rise to genuine RAS? Cites would help, for example a court opinion that analyzed the bulge in the context of totality of circumstances.

Y'all are not from WI so it is easy for you both to overlook that fact that CCW is new to the State. We have municipalities which are not gun friendly. I anticipate citations being issued and challenges in court at some point. A firearm is "concealed" if it is "hidden from ordinary view". Typically someone is doing something else to attract attention to themselves and then the firearm is noticed. The relatively recent case (over a year) of a board member surfing the web at night in a parking lot is just one example. It is less likely that someone would call in a "man with gun" these days because someone was carrying in a manner that was not completely out of perception. I also anticipate at some point that someone will be cited for refusing to provide their License and ID while carrying because they "felt" that the officer did not have RAS. Time will tell.

Fallschirmjäger said:
He's been back, and he's been in the Wisconsin sub-forum, but it's much too early to suppose that he's lost interest in defending his position.

I am flattered that you take notice of my actions...

Citizen · Mar 6, 2013

Fallschirmjäger said:
He's been back, and he's been in the Wisconsin sub-forum, but it's much too early to suppose that he's lost interest in defending his position.
I'm sure he's just gathering the information needed to support his point. I, for one, eagerly look forward to his next posting.

(chuckle) We'll see. I imagine that if he defines printing narrowly enough, yes it could give rise to even probable cause. For example, a thin white shirt with a black Glock and the person bends or twists enough that the outline of the gun butt and back of the slide is pretty clearly defined. You see, he can win the argument merely by defining/redefining printing to the point almost nobody could argue against. It was a tactical error on my part not to demand the definition in the first place.

In the meantime, he's been evading the cites. And, there just can't be no case law in his jurisdiction. This sort of thing has come up so often in Terry Stops for drugs in other states, there just cannot be no case law on it in his state.

Interceptor_Knight · Mar 6, 2013

Citizen said:
For example, a thin white shirt with a black Glock and the person bends or twists enough that the outline of the gun butt and back of the slide is pretty clearly defined. You see, he can win the argument merely by defining/redefining printing to the point almost nobody could argue against.

The type of printing I am referring to does not even have to be that extreme. I never argued for a simple "bulge". I do not come to post here in order to "win arguments". I do not think of posting in terms of tactics. I come to share information and learn while helping others learn. There is a difference between debating positions and arguing in order to "win".:dude:

Citizen · Mar 6, 2013

Interceptor_Knight said:
The type of printing I am referring to does not even have to be that extreme. I never argued for a simple "bulge". I do not come to post here in order to "win arguments". I do not think of posting in terms of tactics. I come to share information and learn while helping others learn. There is a difference between debating positions and arguing in order to "win".:dude:

Well, that's all great. But, the term printing is pretty vague.

And, you've neither defined it, nor cited any case law.

Whereas, I've already cited case law that fits one usage of the word printing--bulge.

So, are you going to continue going in circles and dodging the key questions or just answer up and provide a cite to case law as originally requested?

Interceptor_Knight · Mar 6, 2013

Citizen said:
So, are you going to continue going in circles and dodging the key questions or just answer up and provide a cite to case law as originally requested?

My answer... You Haz it...

Citizen · Mar 6, 2013

Interceptor_Knight said:
My answer... You Haz it...

Hahahahahahhahahaaaa!! Typical cop non-answer.

What really stands out is that he's had lots of opportunity to sincerely answer and educate, but chose to dodge and evade.

Hahahhhahahahahahahaha!!

'Nuff said. Moving on.

Interceptor_Knight · Mar 6, 2013

(c) Unless the licensee or out-of-state licensee is carrying a concealed weapon in a manner described under s. 941.23 (2) (e), a licensee who is carrying a concealed weapon shall display his or her license document and photographic identification card and an out-of-state licensee who is carrying a concealed weapon shall display his or her out-of-state license and photographic identification card to a law enforcement officer upon the request of the law enforcement officer while the law enforcement officer is acting in an official capacity and with lawful authority.

Your premise is that without RAS the LEO lacks "lawful authority" to request said such CCL. I am not expecting a court challenge where someone is printing in the manner I suggest to go in accordance with your premise.

Fallschirjmäger · Mar 6, 2013

The fact that you find it necessary to place lawful authority in quotes makes me wonder. An officer has lawful authority to Demand anything authorized by law. He also has the same authority that Joe Schmuckatelli has to request someone's name, date of birth, or a spare napkin.

I wonder if evading direct questions and refusing to provide citations is one of those "occupational" things. In my Gary Pirckle Park encounter, I noticed the officers being quite adamant about not answering questions that didn't exactly go their way. The best example I can give would be my interaction with Sergeant G. Chapel of the Gwinnett County Police Department...

Chapel, "You know, your permit is a privilege as well as a right. It can be taken away from you as well.
Fallschirmjäger,"By the Probate Court Judge, would you like the number?"
Chapel, "We have the number.

Chapel, "And when you’re given a permit you’re expected to cooperate a little bit with law enforcement."
Fallschirmjäger, "Actually, I’m required to cooperate; as required by law."

Chapel, "Why aren’t you?"
Fallschirmjäger, "What am I not doing that’s required?"
Chapel, (silence)

Fallschirmjäger, "What am I not doing that’s required, Sergeant Chapel?"
Chapel, (awkward silence)
Chapel, "Did you drive here, sir, or did you walk here?"

Fallschirmjäger, "What. Am. I. Not. Doing. That’s. Required. Sergeant. Chapel?"
Chapel, "Did you drive here, or did you walk here?"

Fallschirmjäger, "What...Am...I...Not...Doing...That’s...Required...Sergeant...Chapel?"
Chapel, "There you go, right there."

At this point, Sergeant Chapel either decided that he had more important places to be or got distracted by a butterfly, either way he decided to terminate his investigation.

LOERetired · Mar 7, 2013

Terry stop

This marquette law review describes in detail a terry stop even though it was written in 1984, the review is sound even today.

http://scholarship.law.marquette.ed...g#search="wisconsin terry stop man has bulge"

weston502 said:
so the only thing stopping me from open carrying is im a little nervous about any contact with law enforcement. if they ask who i am do i have to identify myself? i read the law but am not sure.

Citizen · Mar 7, 2013

cowboyridn said:
This marquette law review describes in detail a terry stop even though it was written in 1884, the review is sound even today.

http://scholarship.law.marquette.ed...g#search="wisconsin terry stop man has bulge"

Well, thanks a lot! /sarcasm

First, its customary to let people know if its a pdf that will automatically start downloading by clicking on the link.

Second, your date is one hundred years off. Thanks a lot for the scare, pal. I saw that date and thought, "Oh, jeezus! Don't tell me these stops have been legal for 84 years longer than Terry v Ohio! That's gonna upset a whole bunch of rationale and argument against Terry Stops."

Watch what you're typing there, will ya.

stop and identify

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