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Thread: Is "It looks fully auto" RAS?

  1. #1
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    Is "It looks fully auto" RAS?

    I spotted this video clicking a link in another thread. It was braggadociously titled "Klamath Falls Police school kid on open carry." I didn't see any schooling on OC. I saw a discussion (in which no one was schooled) on whether a firearm "looking" fully automatic constituted RAS.

    I wouldn't think it does for the simple reason that fully automatic firearms are so hard to come by, are very expensive, and almost all of those available on the civilian market are so old that the do not look much like today's "modern sporting rifles." Even discounting the near impossibility that the firearm was fully auto, stopping the person because his firearm looked like it might be fully auto is as weak a saying that the person looked like he might commit a crime.

    Furthermore, since it apparently would have been lawful in that jurisdiction (what State?) for him to carry a fully auto as long as he has the appropriate license, even if you assume that the firearm is clearly fully auto, would, in this case, wondering whether the person has the license for his current activity be similar to stopping a driver just to check his driver's license?

    This stop doesn't pass the smell test. What do you guys (especially you lawyers out there) think? Did this officer have RAS for the stop? I say no.

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    Regular Member sudden valley gunner's Avatar
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    I say it doesn't either. Cops will say it does because RAS is up for a judge to decide "on a case by case basis".

    Oregon, the weapon the cop suspected it would be is legal with permission, and I agree with your Driver License point.

    Regaldo v State...the Florida supreme court ruled that when cops couldn't glean by mere observation whether or not a guy had a concealed license, it was not RAS enough to ask for his his license even though state law said he must present it upon demand.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Quote Originally Posted by sudden valley gunner
    ... RAS is up for a judge to decide "on a case by case basis".
    ... Regaldo v State...the Florida supreme court ...
    Anything at the federal level?

    tyc

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    Regular Member OC for ME's Avatar
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    Quote Originally Posted by sudden valley gunner View Post
    I say it doesn't either. Cops will say it does because RAS is up for a judge to decide "on a case by case basis". <snip>
    Bingo

    Kid: "Hey, there ain't no law against having this gun!"
    Cop: "Yeah yeah, tell it to a judge."
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Regular Member OC for ME's Avatar
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    Which one is full auto?
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Regular Member Fallschirmjäger's Avatar
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    Quote Originally Posted by OC for ME View Post
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    Which one is full auto?
    The G18, of course. And, yup, that's the same pics I would have used to illustrate the point.

  7. #7
    Regular Member Fallschirmjäger's Avatar
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    Quote Originally Posted by OC for ME View Post
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    Which one is full auto?
    The G18, of course. And, yup, that's the same pics I would have used to illustrate the point.

    I love the cop's ..."my training and experience" vocalization; said twice. Hey, Officer Friendly, I don't have your "extensive training and experience"* but even in a tiny youtube video I can make out what is a .22 Long Rifle magazine. Now, since H&K never made a .22 caliber MP-5 I can state with certainty that it's Not an MP-5.

    "I'm not seizing anything" as he removes without permission the personal effects of the person he has just stated he has seized.

    *But I do, and more than you, I'm sure.

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    Quote Originally Posted by OC for ME View Post
    Bingo

    Kid: "Hey, there ain't no law against having this gun!"
    Cop: "Yeah yeah, tell it to a judge."
    I'd say it is an oversimplification to say that RAS is up to the judge to decide.

    Any question of law can be said to be up to the judge. However, for most of those questions of law, including questions on RAS, there is a ton of case law. The cops should be familiar with it as a matter of course in their job--and should be able to apply that knowledge.

    At the time of the stop, the LEO needs, not perfectly, but without unreasonable error, to judge whether or not RAS exists. If a person feels that he was unlawfully detained and that RAS did not exist, then yes a judge might ultimately have to make the call.

    Let's all bear in mind also, that St. John v. McColley pierced the officers immunity because they knew or should have known that OC was lawful and that OC in and of itself did not constitute RAS. It wasn't the city or the PD who had to pony up the cash for the judgment!

    So, back to the original question, can "It looks fully automatic" be RAS? I think it can't because almost everything that looks fully auto is not and because carrying a fully auto firearm is not a crime if one is appropriately licensed. So even knowing that one is carrying it is not RAS, let alone only wondering.

  9. #9
    Regular Member Fallschirmjäger's Avatar
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    Taken to its illogical conclusion, "it looks like it might be full-auto" gives reasonable suspicion that any firearm that's not a muzzle loader, not a revolver, or a twin barrel or pump shotgun or a bolt action rifle Might be fully automatic.

    Real AK's and modern sporting AK's look exactly alike aside from a tiny rivet and small notch on the receiver.
    An M14 is differentiated from a Springfield M1A only by a small switch on the receiver, same with an M2 carbine.
    My L1A1 (Imperial inch version of an FAL) looks exactly like a full auto version, complete with notches for 'safe', 'semi' and 'automatic' fire. The difference is the receiver is not machined for an auto sear.
    The Glock 18's similarity to a Glock 17 has already been pointed out.



    I could tell the firearm in the video was an Umarex .22 cal copy, even with a crappy youtube video. Kinda puts the lie to the "I'm a professional" tune the officer was singing.

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    Regular Member Fallschirmjäger's Avatar
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    Quote Originally Posted by eye95 View Post
    (Handsomely snipped)I'd say it is an oversimplification to say that RAS is up to the judge to decide.
    Thinking about this for a moment.
    Were I an officer I would definitely NOT want to depend on the vagaries of a judge's decision After The Fact to determine whether I had RAS and therefore had qualified immunity or didn't have RAS and lost qualified immunity after I had used my official position in an encounter with someone.

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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by eye95 View Post

    So, back to the original question, can "It looks fully automatic" be RAS? I think it can't because almost everything that looks fully auto is not and because carrying a fully auto firearm is not a crime if one is appropriately licensed. So even knowing that one is carrying it is not RAS, let alone only wondering.
    +1
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

  12. #12
    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by Fallschirmjäger View Post
    Thinking about this for a moment.
    Were I an officer I would definitely NOT want to depend on the vagaries of a judge's decision After The Fact to determine whether I had RAS and therefore had qualified immunity or didn't have RAS and lost qualified immunity after I had used my official position in an encounter with someone.

    When cops say its up to a judge to decide it's a cop out for them to break law. There should be penalties and prosecution for cops who stop without RAS, unfortunately they have built up a system where our only recourse is "civil".
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Regular Member minarchist's Avatar
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    COMMENTS REMOVED BY ADMINISTRATOR: Totally inappropriate and not welcome here
    Last edited by John Pierce; 04-11-2013 at 03:18 PM.

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by minarchist View Post
    Any LEO who abuses power in any way should be executed subject to appropriate action.
    Changed it for you. As the original was over the top, even if tongue-in-cheek sarcasim.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Regular Member Freedom1Man's Avatar
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    Quote Originally Posted by OC for ME View Post
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    Which one is full auto?
    The one on the right.
    Provision for free medical attendance and nursing, for clothing, for food, for housing, for the education of children, and a hundred other matters, might with equal propriety be proposed as tending to relieve the employee of mental strain and worry. --- These matters obviously lie outside the orbit of congressional power. (Railroad Retirement Board v Alton Railroad)

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    Regular Member Freedom1Man's Avatar
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    Quote Originally Posted by sudden valley gunner View Post
    When cops say its up to a judge to decide it's a cop out for them to break law. There should be penalties and prosecution for cops who stop without RAS, unfortunately they have built up a system where our only recourse is "civil".
    In Washington it's a Gross Misdemeanor, as an abuse of powers office.

    I can cite later when I have more time to pull up that RCW.

    here is the cite before I get flamed for it.

    http://apps.leg.wa.gov/rcw/default.aspx?cite=9A.80.010
    RCW 9A.80.010
    Official misconduct.


    (1) A public servant is guilty of official misconduct if, with intent to obtain a benefit or to deprive another person of a lawful right or privilege:

    (a) He or she intentionally commits an unauthorized act under color of law; or

    (b) He or she intentionally refrains from performing a duty imposed upon him or her by law.

    (2) Official misconduct is a gross misdemeanor.

    [2011 c 336 § 408; 1975-'76 2nd ex.s. c 38 § 17; 1975 1st ex.s. c 260 §9A.80.010 .]
    Last edited by Freedom1Man; 04-11-2013 at 07:45 AM.
    Provision for free medical attendance and nursing, for clothing, for food, for housing, for the education of children, and a hundred other matters, might with equal propriety be proposed as tending to relieve the employee of mental strain and worry. --- These matters obviously lie outside the orbit of congressional power. (Railroad Retirement Board v Alton Railroad)

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    Regular Member OC for ME's Avatar
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    Quote Originally Posted by eye95 View Post
    I'd say it is an oversimplification to say that RAS is up to the judge to decide.

    Any question of law can be said to be up to the judge. However, for most of those questions of law, including questions on RAS, there is a ton of case law. The cops should be familiar with it as a matter of course in their job--and should be able to apply that knowledge.

    At the time of the stop, the LEO needs, not perfectly, but without unreasonable error, to judge whether or not RAS exists. If a person feels that he was unlawfully detained and that RAS did not exist, then yes a judge might ultimately have to make the call.

    Let's all bear in mind also, that St. John v. McColley pierced the officers immunity because they knew or should have known that OC was lawful and that OC in and of itself did not constitute RAS. It wasn't the city or the PD who had to pony up the cash for the judgment!

    So, back to the original question, can "It looks fully automatic" be RAS? I think it can't because almost everything that looks fully auto is not and because carrying a fully auto firearm is not a crime if one is appropriately licensed. So even knowing that one is carrying it is not RAS, let alone only wondering.
    All very true.

    I submit that a cop that holds this type of mindset would likely be "sanctioned" by their local prosecuting attorney and their boss, a business decision if you will. The cost of litigation is considered even by the LE and justice system.

    I also submit that QI remains extremely hard to defeat and it will take a judge to hold that cop and his LEA accountable in any substantive manner. The goal should be to hold accountable, personally, the individual cop while at the same time running that cop out of the cop business. The added benefit is that the cop's former employer and his former co-works are placed on notice and thus would hopefully follow the law a little more closely.

    It does not matter what you or I think, it only matter what the cop thinks at that moment, and then whether or not his actions are supported by his organization and the PA. A judge is the only recourse we the citizenry have to weed out of LE those few cops that hold the "Yeah yeah, tell it to a judge" mindset. RAS is whatever a cops wants it to be, and how willing he is to take a chance that the justice process will go his way and not the wronged citizens way.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

  18. #18
    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by Freedom1Man View Post
    In Washington it's a Gross Misdemeanor, as an abuse of powers office.

    I can cite later when I have more time to pull up that RCW.

    here is the cite before I get flamed for it.

    http://apps.leg.wa.gov/rcw/default.aspx?cite=9A.80.010
    RCW 9A.80.010
    Official misconduct.


    (1) A public servant is guilty of official misconduct if, with intent to obtain a benefit or to deprive another person of a lawful right or privilege:

    (a) He or she intentionally commits an unauthorized act under color of law; or

    (b) He or she intentionally refrains from performing a duty imposed upon him or her by law.

    (2) Official misconduct is a gross misdemeanor.

    [2011 c 336 § 408; 1975-'76 2nd ex.s. c 38 § 17; 1975 1st ex.s. c 260 §9A.80.010 .]
    The problem is getting our state or prosecutors to prosecute cops, they just won't do it. They make their living like symbiotic parasites off of us.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

  19. #19
    Regular Member mobiushky's Avatar
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    Unfortunately and to be blunt, it doesn't matter anymore. Authorities more and more (and I don't think it's fair to say "cops" because the problem isn't limited to LEO) are less and less concerned about obeying the laws when it comes to their own actions. Whether it's valid RAS at this point has become moot. The officer will do as he pleases and nothing will be done to rectify the actions because no one will punish the abuse of authority.

    The problem is not limited to LEO. It's pervades every level of authority from the top (Obama) all the way down to the bottom (local dog catcher). These politicians are confident in their ability to ignore rule of law and rule by fiat. How many constitutional violations have we seen go unpunished in the last 20 years? And it's not even Obama is better than Bush or vice versa. Obama has taken the cue from the previous crop of tyrants and stepped on the throttle, kicked on the afterburner, and pressed the NOX switch. We're living in a time where our politicians are emperors who party and live to excess while the proletariat are losing jobs and fighting to make ends meet. So who cares about a little color of law RAS infringement? The DA has a party to attend where Justin Timberlake will be singing while the slaves feed the fat cat politicians.

    Sorry for the rant.

    No, the officer did not have RAS. Because there was no indication that a crime was being, was about to be, or had been committed.

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    Quote Originally Posted by mobiushky View Post
    Unfortunately and to be blunt, it doesn't matter anymore. Authorities more and more (and I don't think it's fair to say "cops" because the problem isn't limited to LEO) are less and less concerned about obeying the laws when it comes to their own actions. Whether it's valid RAS at this point has become moot. The officer will do as he pleases and nothing will be done to rectify the actions because no one will punish the abuse of authority.

    The problem is not limited to LEO. It's pervades every level of authority from the top (Obama) all the way down to the bottom (local dog catcher). These politicians are confident in their ability to ignore rule of law and rule by fiat. How many constitutional violations have we seen go unpunished in the last 20 years? And it's not even Obama is better than Bush or vice versa. Obama has taken the cue from the previous crop of tyrants and stepped on the throttle, kicked on the afterburner, and pressed the NOX switch. We're living in a time where our politicians are emperors who party and live to excess while the proletariat are losing jobs and fighting to make ends meet. So who cares about a little color of law RAS infringement? The DA has a party to attend where Justin Timberlake will be singing while the slaves feed the fat cat politicians.

    Sorry for the rant.

    No, the officer did not have RAS. Because there was no indication that a crime was being, was about to be, or had been committed.

    But!!! the officer thought he was committing a crime...having possession of a potentially fully automatic weapon cause he is a professional..

    the whole "i am a professional mantra" is rather disgusting, you can get a ticket because a cop timed you in his head of how fast you were going... and has been held up in court cause the cop's a professional.. :|

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    Quote Originally Posted by sudden valley gunner View Post
    unfortunately they have built up a system where our only recourse is "civil".
    That's not entirely correct ... you may have citizens arrest authority in your state ... of course, you take on the risk. You have no immunity under the law for an incorrect/improper arrest.

    I have threatened a couple of cops with citizens arrest. They look at ya like you are a loon but then mull it over and decide if they are willing to resist such an arrest and if they actually have RAS or not. In every case, it those cases where it was clear that they did not have any reason to detain me, they said "don't come back" or some other useless retort.

    Just because they are cops do not make them immune from a citizen arrest ~ and a bad arrest? That's a civil matter.

    Only 3 times have I threatened a citizen arrest against a LEO .. twice when they wanted/were taking an action against me and once when I saw a cop beating a guy who appeared to be unconscious (he got a little bit carried away).

  22. #22
    Regular Member Fallschirmjäger's Avatar
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    Is "I've detained you because in my professional opinion your firearm looks like it's fully automatic"...
    any more defensible in court than ...
    "I've detained you because in my professional opinion the shoes you are wearing look exactly like the 'shoe bomber's' shoes and I suspect they are laden with explosives."


    v.



    The firearm didn't "look fully automatic" it was just that he lacked the education, and experience to determine that a sub-$500, .22 caliber, 16-inch barreled carbine wasn't a $15,000, 9mm, 9-inch barreled, fully automatic submachine gun.
    Last edited by Fallschirmjäger; 04-11-2013 at 08:31 PM.

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    Maybe the "cop" is a person impersonating a cop .. hmmmm

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    Quote Originally Posted by davidmcbeth View Post
    Maybe the "cop" is a person impersonating a cop .. hmmmm
    Maybe the cop is a cop impersonating a thinking human being.
    Fixed it for you.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  25. #25
    Moderator / Administrator Grapeshot's Avatar
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    Originally Posted by davidmcbeth

    Maybe the "cop" is a person impersonating a cop .. hmmmm
    Maybe the cop is a cop impersonating a thinking human being.


    Quote Originally Posted by Citizen View Post
    Fixed it for you.
    Really? Seems more likely it was just maybe another way to pile on the negativism.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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