"Detained" when asked for ID?

Recently, in a case in North Carolina, a man named Nathaniel Black won an appeal because he was detained after another person in the group he was with was open carrying. However, the authorities argued that he was never detained until he tried to leave and refused to stop walking away. After his leaving gave them probable cause, he was searched and found to be in possession of a firearm as a felon.

The court said "Phooey", and ruled that he was considered detained upon several occurrences: 1) When a significant number of officers (7, I believe) surrounded the group, and when officers 2) took his ID.

They ruled that a person could reasonable assume they were not free to leave when surrounded, or their ID was taken.

This leads me to my question:

Here in Missouri, we do not have full pre-emption. CCW is fully pre-empted by the state, and local ordinances cannot govern it. However, openly crrying is not pre-empted (until HB 486 is signed by the governor, or his veto is overridden sometime this year) and municipalities are able to regulate it in any manner. 90% of Missouri is perfectly fine to OC without a permit, and several cities have outright banned it.

However, we also have places that, strangely enough, require a licence to Carry a Concealed Weapon (CCW) in order to lawfully openly carry.

How does this mesh with the 4th Circuit Court of Appeals ruling that siezure of ID is considered detainment? It is unlawful to detain me simply because I'm openly carrying a firearm. However, in an area where I'm required to have a CCW in order to lawfully do so, wouldn't an officer requesting my CCW upon observing me OC be exactly that? I've been asked for ID several times when OC'ing and have always complied because I figured since a CCW was required, they could lawfully request it.

However, I'm beginning to think that drivers licences are required to operate cars on highways, and it's illegal for them to detain motorists simply to confirm possession of a valid driver's licence, therefore, I might just attempt refusing to be detained when asked for a CCW if I should encounter that request in the future.

Make sense, or am I off base?

The thread title is just that little too vague. When discussing law, particularly this area of law, more precision is needed.

According to US v Mendenhall, the totality of the circumstances are what counts in the court's mind. In a nutshell, if, given the totality of circumstances, a reasonable person would not feel free to ignore the officer's inquiries and walk away, then he is detained. The case gives a list of circumstances one can use.

So, if a cop requests verbal identity or an identity document in a friendly, consensual manner that seems open to refusal, then, no, you wouldn't be detained.

However, if the cop demands verbal identity or an ID document, you're seized.

Whether a cop can just up an demand a CCW permit to ensure the OCer is legal will be a matter of the fine points of state law. For example, in (Georgia?) a few years ago, a cop demanded the permit for mere carry (can't recall if a CCd gun was spotted or if it was OCd.) The guy either didn't have the permit or refused. The court ruled that CC was illegal, and that the permit was an exception to the illegality, and was thus an affirmative defense--meaning you had to prove you had an exception. So, the answer to whether the cop needs more than just mere OC to temporarily detain someone to check the permit will depend on your state's law.

Superlite27 said:

......How does this mesh with the 4th Circuit Court of Appeals ruling that seizure of ID is considered detainment? It is unlawful to detain me simply because I'm openly carrying a firearm. However, in an area where I'm required to have a CCW in order to lawfully do so, wouldn't an officer requesting my CCW upon observing me OC be exactly that? I've been asked for ID several times when OC'ing and have always complied because I figured since a CCW was required, they could lawfully request it.

However, I'm beginning to think that drivers licenses are required to operate cars on highways, and it's illegal for them to detain motorists simply to confirm possession of a valid driver's license, therefore, I might just attempt refusing to be detained when asked for a CCW if I should encounter that request in the future.

Click to expand...

I think you're pretty much spot on.
There are indeed several ways a citizen can be considered detained and many have been detailed in various cases. To me, it looks like one of those electronics "OR" gates;
if the officer thinks you're detained, then you're detained
if you think you're detained, then you're detained
if you both think you're detained, then you're detained

Addressing the 'asked for a license' specifically...
It depends on your state's firearms laws. Some states require one to carry and display upon request/demand a firearms license. In other states the issue is not addressed. In states where it is not mandatory to display/surrender one's license there is nothing authorizing an officer to demand it. You can freely disregard his entreaty if you are willing to take the temporary risk.

There a case in Georgia at this moment where an individual was subsequently arrested on a non-related charge substantially because he refused to acquiesce and submit to an officer's authority to demand something he had no authority to demand. It resulted in an arrest which was subsequently fought successfully in court and is now a Section 1983 civil suit which will be heard in Federal court.

Citizen said:

Whether a cop can just up an demand a CCW permit to ensure the OCer is legal will be a matter of the fine points of state law. For example, in (Georgia?) a few years ago, a cop demanded the permit for mere carry (can't recall if a CCd gun was spotted or if it was OCd.) The guy either didn't have the permit or refused. The court ruled that CC was illegal, and that the permit was an exception to the illegality, and was thus an affirmative defense--meaning you had to prove you had an exception. So, the answer to whether the cop needs more than just mere OC to temporarily detain someone to check the permit will depend on your state's law.

Click to expand...

Citizen is quite correct, there was such a case in Georgia, Raissi v MARTA. (Better explanation at the Examiner.com article that I can manage.)

Since that time SB308 was passed and now the firearms codes in Georgia read much like the automobile driving codes in almost every state.
Essentially, a law can be written one of two ways, in this regards.
1) "It shall be illegal to drive/carry a firearm/eat a ham sandwich" and then carving out the exceptions such as having a license or not being kosher, etc.
2) "Every licensee shall have his driver's license in his immediate possession at all times when operating a motor vehicle." - Georgia Code.

With laws written in the form of 2) above, an officer must possess an articulable reasonable suspicion that the operator does not possess a license to drive (such as having observed speeding or an illegal left turn, etc.) Unless there is some, however slight, suspicion of illegality then a stop to "just checkin' if ya's licensed to drive, boy." would be unconstitutional.

We conclude that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be
- the threatening presence of several officers,
- the display of a weapon by an officer,
- some physical touching of the person of the citizen, or
- the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

Going further into Mendenhall and paraphrasing a bit...
- being summoned to an officer's presence
- a demand to see ID, to identify, or a demand for personal papers
- the use of flashing lights or sirens to effect a stop


In Brown v Texas, two police officers approached Brown in an alley, and asked him to identify himself and to explain his reason for being there. Brown "refused to identify himself and angrily asserted that the officers had no right to stop him." Up to this point, there was no seizure. But after continuing to protest the officers' power to interrogate him, Brown was first frisked, and then arrested for violation of a state statute making it a criminal offense for a person to refuse to give his name and address to an officer "who has lawfully stopped him and requested the information." The Court simply held in that case that, because the officers had no reason to suspect Brown of wrongdoing, there was no basis for detaining him, and therefore no permissible foundation for applying the state statute in the circumstances there presented.

In my experence, police can always come up with something to stop or arrest one for, or make up something (lie) They need not concern themselves with if or not one can win in court, only taking satisfaction that for a time, they managed to put one in lockup, and jail where gaurds could abuse a person in any number of ways. also taking satisfaction in their ability to create fasle records of said person being a lowlife criminal even after no court conviction. Such records that makes problems for their victim for the rest of their life.

In short, police have the power to destroy the lives of good people,

--cop bashing deleted by moderator--

Well, you have to take into account who derailed the thread.
One is a troll, the other (from Grove City, OH) paranoid & just a touch off plumb, judging by the totality of "her" posts.

The entire idea is, if a permit for something is required in a certain location, an officer simply checking for a permit after observing an armed individual sounds reasonable, correct?

After all, has anyone reading this ever been fishing and have a game warden approach them?

Fishing is not probable cause that a crime has been committed, right? However, did any of you ask if you were being detained, ask for RAS, or otherwise refuse to fork over your fishing license if asked?

Ever ask a conservation agent if there was any reason for him/her to suspect you didn't have a fishing license?

After all, it is a permit just like a driver's license, or CCW.

Now, this doesn't detract from my point. I'm still vaguely uncertain about providing a CCW on demand without probable cause or RAS. I'm currently looking into my local CCW ordinances concerning "shall be produced upon demand of a peace officer" and other such wording.

However, the ruling by the 4th Circuit Court has caused questions:

If the siezure of ID is a valid indicator of detainment, how does this affect "shall produce" verbiage concerning CCW's? Does "shall produce upon demand" really mean "You are hereby required to forfeit your 4th Amendment protections because they don't apply to firearm carriers"?

If 4th Amendment protections do apply, which the 4th CC seems to have upheld, how does laguage requiring producing a CCW license upon demand of an officer mean anything other than "You shall be detained without cause upon the whim of any police officer choosing to check your permit"?

Superlite27 said:

SNIP I might just attempt refusing to be detained when asked for a CCW if I should encounter that request in the future.

Make sense, or am I off base?

Click to expand...

My apologies. Somehow I forgot to swing back and address this point.

Refusing to be detained can be dangerous. You definitely want to read the write-up at the link below before deciding to refuse to be detained. I'm not saying you can't stand up for yourself. Just that you should know the risks before you do. At the link below, I've compiled into one post a bunch of risks that have come up over the years in various discussions. The post is aimed at a different kind of poster, but the risks are the same.

Problems with refusing to be detained: http://forum.opencarry.org/forums/s...u-Correctly-Determine-Whether-the-Cop-has-RAS

Link to US vs Mendenhall. http://forum.opencarry.org/forums/showthread.php?55914-Get-Your-4th-and-5th-Amendment-Resources-Here!!

I apologize, Citizen. I should have clarified:

By "refuse to be detained" I mean "refuse to provide ID"....since the 4th CC has determined an officer's siezure of an ID is considered a reasonable indicator of detainment.

Superlite27 said:

I apologize, Citizen. I should have clarified:

By "refuse to be detained" I mean "refuse to provide ID"....since the 4th CC has determined an officer's siezure of an ID is considered a reasonable indicator of detainment.

Click to expand...

OK.

The same ideas apply.

I'm thinking that unless the case law or statute makes it clear you don't have to show a permit for mere OC, you're open to trouble for refusing to show the permit. That is to say, unless you are clearly protected, then the door is open for a cop and a judge to make the law whatever they want it to be, just like that case in Georgia.

Cops have a knack for getting annoyed at people who exercise their rights. They might charge you with violating the must-show provision of the permit statute. Also, cops enjoy their catch-all statutes: obstruction, disorderly conduct, etc. If an annoyed cop can find a way to wedge your situation into the obstruction statute, he just might do it, and let a judge sort it out. And, the judge just might agree with him.

If you want to be a test case, I won't tell you no. I just want you to know what you might be getting yourself into so you can weigh the risks. And, there may be more risks unmentioned--I'm not an attorney, you know.

We have the issue here in Michigan with our CC prohibited zones and Open Carry, because although our laws have a list of areas that one may not possess a pistol, there is an exception made for those with a Concealed Pistol License. Our state also has areas that one may not carry a concealed pistol (eg. a school) That means that a person with a CPL may not carry a concealed pistol at a school but may openly carry one. The CPL exempts the person from the OC prohibition. Since it is not concealed, the prohibition in the concealed carry statute is also not applicable.
If a CPL holder openly carries at a school and is detained, my suggestion is that it is a legal stop and it is prudent to show the card if asked...because the CPL provides the exception.

See http://www.michigan.gov/documents/msp/MSP_Legal_Update_No._86_2_336854_7.pdf

Superlite27 said:

The entire idea is, if a permit for something is required in a certain location, an officer simply checking for a permit after observing an armed individual sounds reasonable, correct?
Incorrect, I believe, sir. A license is required to be married yet there is no provision under the law for an officer to demand the license of any couple he espies walking hand-in-hand.
A license is required to drive, yet an officer cannot willy-nilly stop any driver he sees 'just to check if the driver has a license.' There are enumerated situations and circumstances where the presentation of a license is required. Absent specific authorization in the law, a demand for a license is not a legal demand.

After all, has anyone reading this ever been fishing and have a game warden approach them?
Fishing is not probable cause that a crime has been committed, right? However, did any of you ask if you were being detained, ask for RAS, or otherwise refuse to fork over your fishing license if asked?
Ever ask a conservation agent if there was any reason for him/her to suspect you didn't have a fishing license?
After all, it is a permit just like a driver's license, or CCW.
There are laws requiring one to possess and display a hunting or fishing license.


Now, this doesn't detract from my point. I'm still vaguely uncertain about providing a CCW on demand without probable cause or RAS. I'm currently looking into my local CCW ordinances concerning "shall be produced upon demand of a peace officer" and other such wording.

However, the ruling by the 4th Circuit Court has caused questions:

If the seizure of ID is a valid indicator of detainment, how does this affect "shall produce" verbiage concerning CCW's? Does "shall produce upon demand" really mean "You are hereby required to forfeit your 4th Amendment protections because they don't apply to firearm carriers"?

If 4th Amendment protections do apply, which the 4th CC seems to have upheld, how does laguage requiring producing a CCW license upon demand of an officer mean anything other than "You shall be detained without cause upon the whim of any police officer choosing to check your permit"?

Click to expand...

As to the last, it all depends on the specific verbiage of the law in that particular state.
Using two laws from Texas and Georgia as examples - -
Texas - (I can't find the exact code section) It is illegal to carry a pistol, and then the law carves out the exceptions for home, travel, concealed carry, etc.
Georgia - OCGA 40-5-29 ...
(a) Every licensee shall have his driver's license in his immediate possession at all times when operating a motor vehicle.
(b) Every licensee shall display his license upon the demand of a law enforcement officer. A refusal to comply with such demand not only shall constitute a violation of this subsection but shall also give rise to a presumption of a violation of subsection (a) of this Code section and of Code Section 40-5-20.

As the laws are written the mere sight of a pistol in Texas may bes RAS that the firearm may be illegal. In Georgia an officer needs RAS that a driver is unlicensed before he can perform a stop. (Usually the suspicion is generated by a driver exceeding the speed limit or making an improper left-hand turn, etc.)

I'm admitting to throwing a monkey wrench into the works ...

... but why is this being discussed in General Discussion now when it was hashed out in News and Political Alerts http://forum.opencarry.org/forums/showthread.php?112888-4th-Circuit-rules-OC-not-RAS-to-stop when the ruling was handed down?

You may now return to your bickering among yourselves.

stay safe.

Wrench Being Thrown Back

skidmark said:

... but why is this being discussed in General Discussion now when it was hashed out in News and Political Alerts http://forum.opencarry.org/forums/showthread.php?112888-4th-Circuit-rules-OC-not-RAS-to-stop when the ruling was handed down?

You may now return to your bickering among yourselves.

stay safe.

Click to expand...

1. Because a new guy asked and we didn't remember the old thread. And,

2. We're not cranky old guys.

Citizen said:

1. Because a new guy asked and we didn't remember the old thread. And, 1,078 posts since July 2007 and he's a new guy?

2. We're not cranky old guys. I am not cranky. I am curmdgeonly.

Click to expand...

right back atcha!

Oh, by the way - do you think anybody will bother to go to that thread and read what was hashed out there?:uhoh:

stay safe.

Read something from another thread? Probably not.
How often do we see people bring up the same topics over & over? What if they all got merged into one thread dealing with one topic?

Superlite27 said:

if a permit for something is required in a certain location, an officer simply checking for a permit after observing an armed individual sounds reasonable, correct?
...
If 4th Amendment protections do apply, which the 4th CC seems to have upheld, how does laguage requiring producing a CCW license upon demand of an officer mean anything other than "You shall be detained without cause upon the whim of any police officer choosing to check your permit"?

Click to expand...

That's a valid quesiton to raise with legislators when they're debating such laws, and if they're stupid enough not to understand the 4A violation after they actually pass it.

In your first example, if I'm OC in the grocery store (not a prohibited activity nor 'protected' place) no license is required & the officer will get none.
If I'm OC walking down the street past a school or in the Statehouse, I'm in a 'protected' area & a defense to being ticketed is showing a license.

Another twist is that our WI law requires us to 'display' our carry & driver's licenses. Not hand over for them to run the numbers and hold hostage for as long as they want to harass us. Pretty sure it wouldn't go over well, but that's what the law says.

How often is someone detained and forced to show DL while traveling in a motor vehicle. Detained for no legal reason other then the LEO may not like your looks or you have a bumper sticker that reads I support The 2A. It happens all the time.

Your detained, your time is wasted and the LEOS are getting compensated for busting your chops.

My .02

Best regards.

CCJ

I think the issue Superlite may run into here in MO is that you agree to produce your CCW, upon request of a LEO, when it is issued. That is one of the problems I have with HB 486. It allows OC in those areas that prohibit it only if the person has a valid CCW permit. LEOs won't need RAS in these prohibited areas because they can request a CCW holder display their endorsement at anytime.

http://www.moga.mo.gov/statutes/C500-599/5710000121.HTM


So kiss the LEO's need for RAS to request ID goodbye, in these areas. They will simply be asking you to comply with the terms you agreed to when you aquired your permit