Your opinion on OC/police scenario

Shawn Mitola said:

In my opinion. all this talk about RAS and suspicion is pointless. Lucky as far as I'm concerned you were justified in disarming him as soon as he blurted out that he he has a permit but he doesn't have it on him. By CT law he has admitted to committing a crime since it is required that a CT permit holder carry his permit on his person. This admission by the driver gives the officer the justification to investigate further. As you said lucky you could have cited him for not having the permit on him... I'm glad you didn't though... All the posts here that are condemning the way you handled the stop need to remember the fact that the driver Admitted to committing a crime by not having his permit.

Now if the driver had kept his mouth shut and never said anything about the gun, that would have changed everything. Since you had pulled him over for a traffic violation, the mere presence of the gun in my opinion would not be RAS of a crime so no justification for anything involving the gun.

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There *is* a justification for something involving the gun. He has the guy detained on a lawful infraction stop (I am assuming CT has decrim'd traffic offenses), he has seen the person has a firearm on him, and given that he is lawfully detaining the person for the course of the stop, the officer does have justification to determine if the carrying of the gun is being done legally or not. This is entirely distinguishable from seeing a person concealed carrying in public (like if he was in line with the person at a grocery store and the guy bent over and he saw the gun). In the case where the officer has not stopped the person for an offense, THEN he no justification for anything involving the gun. But GIVEN that he is detaining the person, he has the authority to investigate the lawfulness of the gun carry. I am also completely certain that courts would uphold this, oh... wait.. I already know they do because I've had similar cases.

I don't know if CT works like WA, but in WA, concealed weapons permits are in WACIC. Iow, if you run a name, you can check to see if they have a permit. Carrying on your person in a motor vehicle is considered concealed carry and thus a permit is required. If I see a person with a gun on them in a car DURING AN INVESTIGATIVE DETENTION FOR ANOTHER OFFENSE, WHETHER TRAFFIC OR CRIMINAL OR WHATEVER, I will of course ask if he has a permit. I don't need RAS to ask if he has a permit. And seeing that he is armed does not give me RAS, but again that doesn't matter as far as my ability to ask him that question.

The driver can do three things in response to that question

1) Tell me he has a permit. If that is the case, then of course I will say something like "without reaching for it, do you have the permit on your person or in the vehicle somewhere? if he says YES, then I will ask him where it is, while still reminding him not to reach for it at that point. Once he tells me where the permit is, I will ask him if he can retrieve it for me, so I can check it. He does so- and we're cool. I won;'t even mention the gun again, I certainly won't disarm him or any of that crap. I ;ve determined he is lawfully carrying, and I respect that - in fact I encourage it. If I see a person printing a gun in public, I of course will not approach him and ask if he has a permit. But this situation is different. Since I ALREADY have him on a stop, AND I have seen he is carrying, I am going to ask that question and I am entitled to do so.

2) Tell me he is unlicensed to carry - iow he does not have a permit on his person nor has one been issued to him. At that point, I will have PC for a crime. It's a gross misdemeanor. Otoh, I respect his honesty and it's only a gross misdemeanor so I will make the decision to arrest based upon considering a # of factors, that I will assess during the stop. These questions are employed in all cases where I have a discretionary arrest (the only mandatory arrest are a few DV crimes)

Factors to determine whether to arrest, cite w/o arrest, or maybe even give a verbal warning for a crime - used in ALL situations where I have sufficient PC to arrest for a crime. Note: a substantial %age of the time I have PC for a crime, there will be warning given. Sometimes a criminal cite will be given. sometimes a custodial arrest will be made. The former are more common than most would expect- we don't arrest or even cite a LOT of cases where we could.

1) Is the crime arrestable - all felonies are arrestable on PC or in my presence. All misdemeanors are arrestable if in my presence. SOME misdemeanors are arrestable on PC
2) Has the person been arrested for a similar offense before (iow did he learn from his mistake). I can check his criminal history and/or query him on this
3) Has the person been truthful and cooperative with me? Note, I am not talking about bowing and scraping and I am not talking about having to waive his rights for search or whatever. I am totally fine with people asserting their rights. I am just referring to - is he being a buttmunch or not. Did he give me a false name? Did he lie about anything else material? Did he scream and rant and breach the peace? etc.
4) Does he have a past history of failure to appear for court appearances?
5) Am I certain of his identity? Did he present picture ID, did he just tell me his name, can I verify with a picture from one of my laptop databases, etc etc
6) Is he on parole (community custody) or probation? Note in the former case, he is most likely a convicted felon and thus guilty of VUFA, a felony, and THAT crime is an automatci arrest for me
7) If I don't arrest, is the crime I have caught him for likely to continue? (iow is he likely imo to continue committing the offense and/or continue victimize the victim in the case (for cases with victims vs. carrying w/o a permit which has no victim apart from the state)
8) is my victim wishy washy, or completely certain he desires prosecution, recognizing that a lot of victims will answer yes immediately, but when you explain the process further and explain the positives and negatives, many victims will decide not to press charges. Technically I can still arrest in many cases with a non-desirous witnes, but it's rarely if ever done, except in DV's - where arrest is mandatory even if the victim is nondesirous
9) if it's a PC arrest, how solid is my PC? I can arrest based on mere PC, but generally speaking, I will only arrest with STRONG PC, stronger than required by law. The more solid the PC is, the less likely he is innocent and/or will be found not guilty
10) How understaffed are we on patrol? Very important. If I arrest and book that takes me off the street and leaves my beat partners with less backup (officer safety), and with the extra burden of covering my district while I 'm gone
11) How busy is the jail? Is it a friday night at 11 where there will likely be a decent wait at the salleport of the jail before I can book, which relates to #10 as well
12) Is the person on our "top offender" list? These are career criminals that get cut no breaks.
13) Are his fingerprints on file? (previous arrest or certain professions)
14) Does he have children with him, and if so how convenient will it be to arrange somebody to come pick up the kids
15) What specific and general deterrance advantages will be gained by an arrest
16) How serious is the crime?
17) is he a suspect or person of interest in another crime, such that by arresting him I will make him available for questioning on other cases to the detectives or investigator from patrol
18) is he a suspect in any crime where DNA was collected (all felony arrests will give a DNA sample in my county) and needs to be compared with the suspect sample
19) is he a suspect in a crime where fingerprints were taken?
20) in relation to (2), has he been a suspect in a similar crime before or has he been found to have committed (solid PC) the same crime before but was cut a break and not charged
21) to what extent, if any, did the victim;s actions incite this crime? iow, was the victim a PURE innocent, or did the victim do some bad acts that ultimately inspired the crime. This is not 'blaming the victim', but for example if the victim was a victim of assault is there evidence the victim was belittling the guy in a public place and verbally harassing him? stuff like that
22) is the crime the type of crime that should get "rush filed" - iow filed while the suspect is still in jail
23) has he expressed remorse?
24) is his crime breaching the peace?

back to the responses

3) refuse to answer whether he has a permit. I've never had this happen, in 20+ yrs of police work and it would be a red flag. I would explain that I am going to find out one way or the other, and he has nothing too gain and a lot to lose by refusing to answer that question. He knows I am going to find out if he has a permit or not, so what possible reason would he have not to answer the question? Would a person who has a permit, refuse to answer whether he has a permit, if the question is asked during a traffic stop where the officer saw his gun? Exceptionally unlikely. I am going to demand he keep his hands on the steering wheel while I run his name via my portable radio to check on his permit status. If he refuses to do so, or puts his hands on the steering wheel, then takes them off , I am considering this a high risk stop. I don't know if he's a "bad guy" but he is acting like one, and acting in a way that a person concerned with his own well being (which rational people are concerned with) would not. It's going to set off my spidey sense and at a minimum, I am going to draw my gun (not point it at him), so if he does reach for his, I have the drop on him.

PALO said:

NICE! You quoted PA v. Mimms. I've read a lot of stuff on that case. I did some roll call trainin on it the other day. WA is much more restrictive towards LEO search and seizure issues than the federal standard, and most states. I could give a million examples, but for example- during a traffic stop (as opposed to terry stop of a vehicle), we cannot control the passenger's movement. Iow, unless they committed a violation, like no seatbelt, they are free to exit the car and we can't tell them not to. We don't have DUI checkpoints. We can't search garbage at the curb. We don't employ (for the most part) the Inevitable Discovery Doctrine. We cannot hot pursuit into a private residence for "minor misdemeanors". We can't search MV interior on a search incident to arrest. Pretext stops are forbidden. We generally don't accept 'plain feel' doctrine during pat frisks. We need much more PC and PC with a specific nexus to the residence itself in order to get a search warrant for a home. We need 3 buys (this is mostly based on filing standards as well in my county - counties handle felony cases) from a CI before we can get a search warrant for a home. We have pretty strict rules on criteria needed to ask for consent to search on a traffic infraction stop (forbidden to "expand the scope" of a mere civil infraction stop in most cases by asking to consent search), on an infraction stop we generally cannot even ask the passenger his name to check for warrants, etc. etc. etc. etc.

However, we DO accept the results of PA v. Mimms and many cops do not realize we have that authority. That's why I conducted roll call training on it. It's a good decision, based on sound reasoning and imo entirely consistent with the 4th amendment. If I pull over a car with more than 2 people in it, I am especially likely to order the driver out of the car, because watching more than 2 sets of hands as well as having the backseat passengers at my side/behind makes it difficult to maintain safety, whereas if i talk to the driver behind the car, I can more easily protect myself. There are also a lot of side benefit investigation benefits to seperate them - like if i ask a question of the driver, then return to the car and ask the passenger(s) the same question I can now test veracity in a way I can;t do when they are seated together.

cheers

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Wow, sounds like some of the guys here should move to WA. CT allows pretty much everything you mentioned that you can't do, except for pursuit into a residence on a misdemeanor, and we don't have unprovoked flight as RAS.

There *is* a justification for something involving the gun. He has the guy detained on a lawful infraction stop (I am assuming CT has decrim'd traffic offenses), he has seen the person has a firearm on him, and given that he is lawfully detaining the person for the course of the stop, the officer does have justification to determine if the carrying of the gun is being done legally or not. This is entirely distinguishable from seeing a person concealed carrying in public (like if he was in line with the person at a grocery store and the guy bent over and he saw the gun). In the case where the officer has not stopped the person for an offense, THEN he no justification for anything involving the gun. But GIVEN that he is detaining the person, he has the authority to investigate the lawfulness of the gun carry. I am also completely certain that courts would uphold this, oh... wait.. I already know they do because I've had similar cases.

I don't know if CT works like WA, but in WA, concealed weapons permits are in WACIC. Iow, if you run a name, you can check to see if they have a permit. Carrying on your person in a motor vehicle is considered concealed carry and thus a permit is required. If I see a person with a gun on them in a car DURING AN INVESTIGATIVE DETENTION FOR ANOTHER OFFENSE, WHETHER TRAFFIC OR CRIMINAL OR WHATEVER, I will of course ask if he has a permit. I don't need RAS to ask if he has a permit. And seeing that he is armed does not give me RAS, but again that doesn't matter as far as my ability to ask him that question.

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I appreciate your support, but what i'm talking about and what you're talking about are two different things. I'm saying that based on the case law I mentioned, on a traffic stop, if I see a gun, i'm legally allowed to seize the weapon for officer safety. I'm not doing it with the purpose of determining if he's legally carrying it. It's only to hold for my safety for the duration of the stop. Of course I would ask if he had a permit after I seize it, but that's not the intent of the seizure. The only intent is officer safety.

Not to mention that if he's legally carrying the gun, according to case law, the weapon is still dangerous to me regardless of it's legality. Of course that's situational. I never really made mention in any of my posts here that I would seize every gun on every traffic stop....it's situational based on a lot of things. But based on where I work, most I would. The reason is that I work in a dense urban environment, the crime rate is extremely high, and the streets are riddled with shootings on a regular basis. If was a cop in the suburbs, or the country, I would definitely not consider every gun I come across as a possible threat. It's just that where I am, it is.

In your other example of seeing a gun on a person at a grocery store, I'm not having a forced interaction with him where my safety would be at risk. Not to mention obviously it's not RAS of anything, so there would be no need to "force" an encounter with him.

luckyykid said:

Wow, sounds like some of the guys here should move to WA. CT allows pretty much everything you mentioned that you can't do, except for pursuit into a residence on a misdemeanor, and we don't have unprovoked flight as RAS.

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We don't have unprovoked flight in and of itself as RAS, but it doesn't take THAT much more (like maybe high crime area and maybe some other factor) to have RAS.

Imo, unprovoked flight should be RAS based on my training and experience. I can say truthfully that in 20 yrs of police work, AT LEAST 90% of the time somebody runs from me or one of my partners upon our arrival, that they have either had a warrant (the most common), or they had just committed or were in the process of committing a crime at the time of my arrival.

I wouldn't be surprised if you've had similar experience. With stunningly rare exceptions, somebody who is just standing and talking or something else entirely innocent, doesn't ... upon your arrival.. turn and look at you, get all bug eyed and then take off at full speed, while dressed in street clothes (iow not dressed for a marathon). It simply almost never happened..

So, if I can articulate that well enough to a judge , I think a behavior that is correlated with either having a warrant or having just committed or being in the process of committing a crime at least 9 times out of 10 is a behavior that is clearly RAS. A lot of the time, the guy turns, sees us, and then runs, it's somebody I know. Inevitably when I run their name - boom - it returns as a warrant. There aren't any sure things in law enforcement, but it's damn close.

Here's another difference in WA law vs. for example CA law.

In California law, officer sees a guy he wants to stop -yells out "sir, come here please". Guy takes off on foot. Cop follows him yelling "stop , police". Guy drops a baggie of cocaine as he's running. Cop NOW has PC. Continues chasing, and catches the guy. Turns out he didn't even have RAS when he told the guy to come over and talk to him, or when he yelled out "stop". Does the case for possession of cocaine fly? Yup. In CA, the case law says a seizure (thus requiring RAS) does not occur when an officer tells a person to stop, to come to him, or when chasing the person. It only becomes a stop requiring RAS ***when*** the person submits to the order, iow when he stops on his own OR when the officer actually catches him. Since the person didn't submit to the order when the cop DID not have cause to stop, but the cop DID have RAS (actually PC since a guy fleeing from the police who jettisons a bag of white powder aint discarding laundry detergent) at the point he seized the guy, it's a valid arrest.

Wow.

In WA, the seizure, and thus the requirement for at least RAS of a crime or an infraction (in WA, case law says we can detain for RAS of an infraction or a crime. Some states, the infraction has to be either witnessed or you gotta have PC for it. So, that is one of the few examples where WA law is pro-state power vs. pro defendant right compared to some other stat3e) occurs WHEN the officer makes the show of force, iow demands the person to stop.

So, in Cali, you can go fishing by approaching a crowd of gangbangers, yelling out STOP, PUT YOUR HANDS UP with no RAS whatsoever, and then when the guys take off on foot, chase them until one of them drops a gun or drugs!

lol. California is whack.

About the only way that WA state is close to the federal standards for law enforcement is Miranda requirements. Ime, most cops in WA state "over mirandize", but I've studied enough of our miranda case law, where a lot of time other officers would, I don't, and it flies in superior court. I had an arson case with an hour long non-custodial interrogation done without miranda until I finally got a confession. It was upheld as miranda not required because I dotted my i's and made sure he was told he was free to leave, I didn't block his egress and he was seated in the chair closest to the door, etc.

In HI, which is even more liberal than WA, it was a "Focus" state . So, miranda wasn't triggered by having both custody and interrogation present. It was triggered when somebody became the "focus" of the investigation, as well. thus, we had to mirandize if we were questioning a suspect ON THE PHONE. Talk about a bastardization of the principles of the miranda decision. That was based on the coerciveness of an interrogation. Which clearly does not exist ON THE PHONE TO SOME GUY YOU CAN"T EVEN SEE LET ALONE INTIMIDATE

PALO said:

We don't have unprovoked flight in and of itself as RAS, but it doesn't take THAT much more (like maybe high crime area and maybe some other factor) to have RAS.

Imo, unprovoked flight should be RAS based on my training and experience. I can say truthfully that in 20 yrs of police work, AT LEAST 90% of the time somebody runs from me or one of my partners upon our arrival, that they have either had a warrant (the most common), or they had just committed or were in the process of committing a crime at the time of my arrival.

I wouldn't be surprised if you've had similar experience. With stunningly rare exceptions, somebody who is just standing and talking or something else entirely innocent, doesn't ... upon your arrival.. turn and look at you, get all bug eyed and then take off at full speed, while dressed in street clothes (iow not dressed for a marathon). It simply almost never happened..

So, if I can articulate that well enough to a judge , I think a behavior that is correlated with either having a warrant or having just committed or being in the process of committing a crime at least 9 times out of 10 is a behavior that is clearly RAS. A lot of the time, the guy turns, sees us, and then runs, it's somebody I know. Inevitably when I run their name - boom - it returns as a warrant. There aren't any sure things in law enforcement, but it's damn close.

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Oh definitely....no one just runs for nothing as soon as you show up. Unfortunately, in CT, you need something more than the flight. Even the flight in a high crime area doesn't fly. But when he starts hopping fences in yards, well now it's RAS of trespass....

luckyykid said:

I appreciate your support, but what i'm talking about and what you're talking about are two different things. I'm saying that based on the case law I mentioned, on a traffic stop, if I see a gun, i'm legally allowed to seize the weapon for officer safety. I'm not doing it with the purpose of determining if he's legally carrying it. It's only to hold for my safety for the duration of the stop. Of course I would ask if he had a permit after I seize it, but that's not the intent of the seizure. The only intent is officer safety.

Not to mention that if he's legally carrying the gun, according to case law, the weapon is still dangerous to me regardless of it's legality. Of course that's situational. I never really made mention in any of my posts here that I would seize every gun on every traffic stop....it's situational based on a lot of things. But based on where I work, most I would. The reason is that I work in a dense urban environment, the crime rate is extremely high, and the streets are riddled with shootings on a regular basis. If was a cop in the suburbs, or the country, I would definitely not consider every gun I come across as a possible threat. It's just that where I am, it is.

In your other example of seeing a gun on a person at a grocery store, I'm not having a forced interaction with him where my safety would be at risk. Not to mention obviously it's not RAS of anything, so there would be no need to "force" an encounter with him.

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Fair enuf. I honestly don't know in WA if during the course of a traffic stop, with a guy who is lawfully carrying a firearm, if I could demand he turn it over (iow I seize it) SOLELY based on the fact he has a gun on him, lawfully carried.

I've never done it, and I would never do it, so I never really bothered to check the case law on whether I can do it. Hazarding a semi-educated guess, I would suspect that here in WA more would be required than merely being the subject of a stop for expired license plates, in order for me to have justifiable authoritah to demand a seizure of his lawfully carried firearm. Again, that's a guess.

I recognize that you say in CT, a lawfully carried weapon is still "dangerous" to you regardless of the fact that it's legally carried.

I would say that while your case law may have made that determination, the real world facts are that no gun is dangerous to you. No gun. It's the person CARRYING the gun who is dangerous to you. Iow, a dangerous person with a gun is more dangerous than if he didn't have a gun. But the mere presence of a gun is not in any way, shape or form, a danger to you unless the person carrying it is a danger. And if the person has a CCW you only have reason to believe that he is LESS dangerous to you than the average person - thats a statitistical fact. Obviously, IF he turns out to be the rare CCWer who is a bad guy, then he has effective means to be VERY dangerous to you, since he has a gun. Without one, HE would be less dangerous.

And imo, ESPECIALLY if the CCWer volunteers "hey, I'm carrying a gun just to let you know" at the beginning of a stop, I am especially unconcerned because ime people who have nefarious intent would not volunteer to let you know they are carrying a weapon.

I am talking traffic stops. Obviously on a TERRY STOP where the person is suspected of more than a mere traffic infraction or pedestrian infraction, THEN I would be much more likely to seize the gun, even if lawfully carried. But again, I cannot remember the last time I HAD a terry stop on a person who happened to be legally CCWing. Granted, I don't pat frisk all terry stop persons, so it's possible some of them were carrying legally w/o my knowledge. That's a given. I can just say I've never frisked a guy during a terry stop and found a lwafully carried gun (via CCW), but yet I deal with CCWers VERY VERY often - as victims or witnesses.

The only crimes I can recall a CCWer committing were

1) I had a DUI who was carrying via CCW. And y es, I seized his gun upon his exiting the car for the FST's. Among other things, I wanted to seize it for, I considered he could make the argument the gun threw off his balance on the 1 leg stand and the walk and turn. Dumber arguments have been made in DUI;s.

2) Reckless Endangerment. Guy was firing his gun UP into a tree. I can't remember his rationale for doing so. I just remember it was weird (like he got something stuck in the tree and he was trying to shoot the branch). He tried to convince me that bullets fired vertically, do not come down fast enough to cause any sort of serious injury. That's patently false, fwiw, but I told him he was free to make that argument in a signed statement post miranda or during h is trial. I didn't arrest him. I cited him, but I did seize the gun. Also, COPS was filming with me, but he wouldn't signa waiver, so it didn't air on tv



Again, as to CCW'ers

Statistically speaking, people who have a CCW are one of the most law abiding demographics per capita that exist. They are right up there with mormon grandmothers

Seriously, though. An average CCW'er has a MUCH lower likelihood than a person chosen at random to be a person who would assault you, resist arrest, or shoot you. MUCH lower. That;s true whether you are in a high crime or a low crime area. Even when a bad guy hasn't had a felony conviction or something else that would prohibit him from getting a CCW, ime they just don't get them. Very few bad guys have them, and of course mOST bad guys are convicted felons and can't. Granted, there IS an occasional outlier. Monfort iirc who shot the seattle cop who was merely sitting in his car doing paperwork with his recruit had a CCW. And a perfectly clean criminal record.

So, if I find out a person has a CCW and is carrying a firearm (on a stop), I become MORE at ease than I would if he was not a CCW'er. And I know that is backed up by robust statistics. We have a LOT of people in my jurisdiction, with CCW's and very rarely do I get a criminal case to investigate, where the perp is a person who has a CCW. So, my personal experience matches the nationwide statistics.

I get where you are coming from, and I respect your POV, but mine differs vis a vis the dangerousness of CCWers. If it's within your lawful authority to do so - and if you say it's case law in CT that you can seize any CCWers gun during a traffic , that's good enough for me, as to the truth of that statement, and if YOU feel it's prudent to seize the gun, then keep on keeping on.

I currently work a pretty low crime district, but I have worked in the highest crime area we have in our jurisdiction as well. my policy vis a vis seizing guns has remained the same in both locales. I certainly won't say you are wrong, we just have different opinions about what is more optimal.

Another thing with CCW'ers (and no permit is required to carry concealed or openly at one's own residence or workplace), is I have had a LOT of cases with them where they use their gun to detain criminals they catch on their property - auto thieves, burglars, etc. and that is AWESOME. Ive had a lot of calls where we respond to a homeowner holding a perp at gunpoint. Good for them! Makes our job easier.

cheers

luckyykid said:

Yeah the court disagrees with you on this one too.

"The State's proffered justification for such order - the officer's safety - is both legitimate and weighty, and the intrusion into respondent's personal liberty occasioned by the order, being at most a mere inconvenience, cannot prevail when balanced against legitimate concerns for the officer's safety.........What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety. Pennsylvania v. Mimms (1977)

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(*shrug*) Might makes right, eh?

luckyykid said:

Terry made absolutely no indication that there was a "two-prong" test required to justify the pat-down. No where in there does it state that the officer must first have reasonable suspicion that the person is armed, AND THEN have reasonable suspicion that the person is dangerous. They use the terms to go hand in hand. I'll admit that isn't terribly clear in Terry, they did make it very clear in subsequent cases Long, Mimms and, King.

In Mimms, the court said "The bulge in the jacket permitted the officer to conclude that Mimms was armed and thus posed a serious and present danger to the safety of the officer." Maybe you're not clear on what thus means, but I'll interpret. The phrase could have been written "armed and therefore posed a serious and present danger" or "armed and consequently posed a serious and present danger." You could also insert so, henceforth, thereupon, accordingly, and/or ergo. Mimms holding was that armed is dangerous. Why on earth would they have upheld the search as valid otherwise? It was a traffic stop for an expired tag. They asked him to step out and saw a bulge. The patted him and found a gun. The court upheld the pat down. The court did not raise into question that Mimms gave absolutely no other indication that he was dangerous right? +1

In Michigan v. Long, the court said "Our past cases indicate, then, that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect." No mention of armed plus dangerous. Also in this case, this stumbling mumbling drunk gave no other indication that he was dangerous. Other than the presence of a weapon, there was no other reasonable suspicion that he was dangerous. And the court upheld the search right? +1

In King, the court said " Thus, her concern for her safety was based on specific articulable facts, making the justification for ordering King out of the car even more critical than that presented by the officers in Mimms. Officer LeMasters' observation of an apparently loaded pistol within Defendants' immediate reach would justify her separation of Defendants from the pistol in order to ensure her own safety during the encounter. So maybe I'm missing something here, but as far as I can tell the court says that observation of a gun justified the separation of the subject from the gun. No where does it say that the separation would not be justified because the officer had no separate RAS that the subject was dangerous. They also noted that her justification would have been even more critical than in Mimms. The court said the separation would have been justified. +1

In all three cases, don't you think the court would recognize it's own ruling that there were two parts to the justification for a pat down - armed AND dangerous? They don't because it doesn't exist.

On a side note, is this whole +1 thing really necessary. I threw them in there because it kind of seems to be the thing to do for whatever reason, but it's really lame. Are playing Mario Brothers here or something?

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Sorry...guess while it has not been re-tested recently (re McDonald / Heller) at the SCOTUS level, it has been at the 4th district, so I have to disagree based upon simple logic and history...the simple exercise of a RIGHT (minus anything else to the contrary) cannot be taken as RAS of a crime. IMO, you need to rethink your stance on the Constitution.

So..not sure about CT law with a CCW'er w/o their permission slip and won't dive deep into that. But, in NC, if you can see the weapon, it is not concealed, and is legal. Period.

luckyykid said:

I appreciate your support, but what i'm talking about and what you're talking about are two different things. I'm saying that based on the case law I mentioned, on a traffic stop, if I see a gun, i'm legally allowed to seize the weapon for officer safety. I'm not doing it with the purpose of determining if he's legally carrying it. It's only to hold for my safety for the duration of the stop. Of course I would ask if he had a permit after I seize it, but that's not the intent of the seizure. The only intent is officer safety.
<snip>

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I do not dispute that a cop has the authority to seize a firearm during a detention, whether that detention is lawful or not. The courts will not revoke this authority. If a cop seizes my firearm I am detained, and in Missouri arrested. Of course some would argue that I could walk away from a casual encounter if the cop states that I am not being detained and leave my firearm with the cop.

I firmly believe that a cop who seizes my firearm places me in greater danger than if the firearm were to remain in my holster on my hip. I am not going to argue this point then and there, or later, it is a losing proposition for me. The demeanor of that cop is now of little concern to me. I am at risk and will comply with his demands only as the law allows. Any "friendly" interaction with that cop ended when my firearm was seized.

Cops have the authority to seize my firearm when they detain me.

luckyykid said:

The Terry case defined a seizure as follows: (a) Whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person within the meaning of the Fourth Amendment. P. 16.

If you're not free to leave, it's a seizure. On a traffic stop you're not free to leave....not saying you would, but anyone who doesn't believe that, next time you get pulled over, try driving away.

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No question about it. Traffic stops are a seizure..but they aren't usually Terry. In Terry, the officer observed Terry "acting suspiciously"...casing a joint. He approached and stopped Terry and patted him down....finding a gun. The officer believed he was observing criminality about to happen and so approached, seized and did a protective pat down. Terry challenged because there was no PC to seize/arrest/search him prior to the encounter...and he was right. The court fashioned RAS armed/dangerous as a band-aid so that the officer wouldnt' have to wait until Terry knocked over the shop he was casing before he could intervene...and they compromised by allowing only a protective patdown for weapons (officer safety).

YOU on the other hand stopped a guy for breaking the law (PC)...and he then went on to admit a second violation. There was nothing "Terry" about your encounter. You had violations in the bag when you seized the guy.

Are you routinely pulling people over in their cars based on mere RAS that they are armed/dangerous? What do you tell them the reason for the stop is? "hey sir, the reason why i pulled you over is because i believe you have a gun in the car"...hardly.

CT Barfly said:

No question about it. Traffic stops are a seizure..but they aren't usually Terry. In Terry, the officer observed Terry "acting suspiciously"...casing a joint. He approached and stopped Terry and patted him down....finding a gun. The officer believed he was observing criminality about to happen and so approached, seized and did a protective pat down. Terry challenged because there was no PC to seize/arrest/search him prior to the encounter...and he was right. The court fashioned RAS armed/dangerous as a band-aid so that the officer wouldnt' have to wait until Terry knocked over the shop he was casing before he could intervene...and they compromised by allowing only a protective patdown for weapons (officer safety).

YOU on the other hand stopped a guy for breaking the law (PC)...and he then went on to admit a second violation. There was nothing "Terry" about your encounter. You had violations in the bag when you seized the guy.

Are you routinely pulling people over in their cars based on mere RAS that they are armed/dangerous? What do you tell them the reason for the stop is? "hey sir, the reason why i pulled you over is because i believe you have a gun in the car"...hardly.

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For clarity, in CT he admitted to an infraction. Not having the CPL card is not a violation.

http://forum.opencarry.org/forums/s...ice-scenario&p=1980341&viewfull=1#post1980341

luckyykid said:

<snip>

In your other example of seeing a gun on a person at a grocery store, I'm not having a forced interaction with him where my safety would be at risk. Not to mention obviously it's not RAS of anything, so there would be no need to "force" an encounter with him.

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You not "forcing the interaction" + no contact = no danger. You "forcing interaction" + contact = danger. OCer to you (Excuse me officer) "forcing interaction" + contact = ?

wrightme said:

For clarity, in CT he admitted to an infraction. Not having the CPL card is not a violation.

http://forum.opencarry.org/forums/s...ice-scenario&p=1980341&viewfull=1#post1980341

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Thanks for the clarification.

I think the OP tried to slant the story a little bit by adding in words like "Terrified look on his face". Who has driven without a license? we all have at one time or another and i can bet if we were stopped we were thinking CRAP, i have a license but i swear i forgot it at home! A firearm is a huge responsibility but we all make mistakes.

verify the carry permit and move along IMO.

carolina guy said:

(*shrug*) Might makes right, eh?

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Yeah except when case law benefits YOUR position. Then it's concrete law....

carolina guy said:

Sorry...guess while it has not been re-tested recently (re McDonald / Heller) at the SCOTUS level, it has been at the 4th district, so I have to disagree based upon simple logic and history...the simple exercise of a RIGHT (minus anything else to the contrary) cannot be taken as RAS of a crime. IMO, you need to rethink your stance on the Constitution.

So..not sure about CT law with a CCW'er w/o their permission slip and won't dive deep into that. But, in NC, if you can see the weapon, it is not concealed, and is legal. Period.

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Never said I was seizing the gun as RAS of a crime. Seriously do you even read these things? The visible weapon on a m/v stop is NOT RAS of a crime, only a specific articulable fact justifying a legitimate concern for my safety. (Thus, her concern for her safety was based on specific articulable facts, making the justification for ordering King out of the car even more critical....King)

CT Barfly said:

No question about it. Traffic stops are a seizure..but they aren't usually Terry. In Terry, the officer observed Terry "acting suspiciously"...casing a joint. He approached and stopped Terry and patted him down....finding a gun. The officer believed he was observing criminality about to happen and so approached, seized and did a protective pat down. Terry challenged because there was no PC to seize/arrest/search him prior to the encounter...and he was right. The court fashioned RAS armed/dangerous as a band-aid so that the officer wouldnt' have to wait until Terry knocked over the shop he was casing before he could intervene...and they compromised by allowing only a protective patdown for weapons (officer safety).

YOU on the other hand stopped a guy for breaking the law (PC)...and he then went on to admit a second violation. There was nothing "Terry" about your encounter. You had violations in the bag when you seized the guy.

Are you routinely pulling people over in their cars based on mere RAS that they are armed/dangerous? What do you tell them the reason for the stop is? "hey sir, the reason why i pulled you over is because i believe you have a gun in the car"...hardly.

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If you want to be that specific that's fine. Either way it's a legal seizure of that person within the meaning of the fourth Amd.

OC for ME said:

You not "forcing the interaction" + no contact = no danger. You "forcing interaction" + contact = danger. OCer to you (Excuse me officer) "forcing interaction" + contact = ?

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No disrespect but I'm not following what you're trying to say here...

Are you saying if the OC'er initiated the contact with me then what's the danger? If that's the case then I'll say none.

I guess I'll take this opportunity to say that while most posters here probably won't believe me, I'm an advocate of the second amendment. I love seeing responsible citizens carrying guns. My wife carries a gun. My kids (8 year old twin girls and 4 year old boy) have all already shot guns. I've been to the protests at the capital against new gun legislation. I believe more guns equals less crime. I believe the second amd was meant for people not a state militia. I'm a field training officer, and I train all my rookies that OC is not RAS, and I talk to as many veteran officers about it as I can. I spoke with our legal update instructor and convinced him to save time to address OC and RAS during our department wide annual training. I believe in pretty much all the principles that OCers do.

However, due to my job i'm placed in a different position than OCers where I face bad guys with a gun an a semi-regular basis. Where I work it's like a war zone. So when I come across a gun on a traffic stop, I'm not sure if this is joe citizen responsible OCer, or a convicted felon carrying a stolen gun with the serial number filed off. The problem is that ya'll don't wear signs on you saying either "Good guy" or "Bad guy."

Granted there are times when you can reasonable conclude that an armed person is not a threat, but it's situational. The SCOTUS has allowed officers the right to use their own discretion to make that call if they have any inclination that they could be in a dangerous situation. Some officers ere on the side of caution and remove the danger in every situation, which the SCOTUS has upheld. I've never said I would disarm every person in every circumstance. I've only argued that the court has allowed me to make that call.

Thing is, people have been attacking me (and cops in general) for being concerned with our safety. So I ask, why the hell do you (OCers) carry a gun in the first place? Isn't that for YOUR own safety? Why is your safety more sacred than mine? The chances of you facing a dangerous situation in your life time is much much lower than the chances for an officer, but yet you carry FOR YOUR SAFETY. So seeing as how officers face potentially dangerous situations more regularly than the common citizen, why shouldn't we be granted a little extra leeway in protecting ourselves? That's why the courts have given us that authority.

I have nothing against OCers. I fully support that right, and I'm actually happy to see people carrying. I know ya'll won't buy that, but it's true.

luckyykid said:

Thing is, people have been attacking me (and cops in general) for being concerned with our safety. So I ask, why the hell do you (OCers) carry a gun in the first place? Isn't that for YOUR own safety? Why is your safety more sacred than mine? The chances of you facing a dangerous situation in your life time is much much lower than the chances for an officer, but yet you carry FOR YOUR SAFETY. So seeing as how officers face potentially dangerous situations more regularly than the common citizen, why shouldn't we be granted a little extra leeway in protecting ourselves? That's why the courts have given us that authority.

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Luckyykid, i don't think people are attacking you for the reason you may think. Yes, you are a LEO but many feel that we have the same right to be "concerned for our safety" as well when when interacting with LEO's. We've all seen the YouTube videos of LEO's sweeping the muzzles of loaded guns towards people, accidental discharges by LEO's, etc. Putting it another way, why don't you put yourself in a permit holders shoes. Now, while shopping at your local Home Depot a LEO stops you because they received a MWAG call from a "concerned" citizen. The officer and arriving backup detain you and inform you that they are going to seize your firearm for "their safety". Now you've got a situation where your loaded, locked and cocked firearm is being removed from the safety of your holster in a crowded retail setting. And lets be honest here. While you are in possession of said firearm you are going to run the serial number and may even check the magazine for a possible "round limit" violation. While that's a whole separate issue, many feel it's just another violation of one's rights for simply legally carrying a firearm in the open to begin with. Perhaps you can now understand a little more about OUR concerns. Also, I want to commend you for posting here as many LEO's just don't seem interested in posting here for whatever reason.

KennyB said:

Luckyykid, i don't think people are attacking you for the reason you may think. Yes, you are a LEO but many feel that we have the same right to be "concerned for our safety" as well when when interacting with LEO's. We've all seen the YouTube videos of LEO's sweeping the muzzles of loaded guns towards people, accidental discharges by LEO's, etc. Putting it another way, why don't you put yourself in a permit holders shoes. Now, while shopping at your local Home Depot a LEO stops you because they received a MWAG call from a "concerned" citizen. The officer and arriving backup detain you and inform you that they are going to seize your firearm for "their safety". Now you've got a situation where your loaded, locked and cocked firearm is being removed from the safety of your holster in a crowded retail setting. And lets be honest here. While you are in possession of said firearm you are going to run the serial number and may even check the magazine for a possible "round limit" violation. While that's a whole separate issue, many feel it's just another violation of one's rights for simply legally carrying a firearm in the open to begin with. Perhaps you can now understand a little more about OUR concerns. Also, I want to commend you for posting here as many LEO's just don't seem interested in posting here for whatever reason.

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Brother I hear what you're saying, but that's a separate issue from what this post is about. I've been through the "OCer's school for LEOs" on this site, and I get it. I totally understand your plight as a legal OCer getting hassled by the police who don't actually know the law. I get it, and I don't blame you for your hesitation or aggravation with LEOs. I'll admit that OCers have been abused and illegal detained by LEOs. But this post is about guns on m/v stops, where it's not an mere OC situation. Where the officer has a legal, legitimate reason to stop someone, and they're armed, where the officer didn't know the subject was armed until the stop was made.

I'm asking OCers, from a cop who came to your world to understand you and your position, which I did, to come to my world and understand my position and where I'm coming from.