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Thread: Open Carrier Arrested in Iowa for not showing Permit

  1. #1
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    Open Carrier Arrested in Iowa for not showing Permit

    Officers arrested a Des Moines man who refused to show them a permit for a gun he’d brought into a Wal-Mart store.

    A Des Moines police officer, working off-duty but in full uniform, saw Dennis Scott Estell, 23, walk into the Wal-Mart at 5101 S.E. 14th St. with a handgun in a holster on his belt about 6:30 p.m. Wednesday, according to a police report.

    The officer asked Estell if he had a permit for the weapon, and Estell said he did, officials said.

    When the officer asked to see the permit, Estell reportedly refused, saying, “No, it’s my right to carry this and I don’t have to show you my permit.”

    Iowa law requires anyone carrying a revolver or pistol to carry a permit and produce it at the request of a police officer. Failing to produce the permit is a simple misdemeanor.

    Estell refused the officer’s second request to see the permit, and the officer placed him under arrest and confiscated the gun. Estell was charged with carrying weapons and interference with official acts. He remains in the Polk County Jail on a $2,300 bond.

    http://www.desmoinesregister.com/art...30829001/1001/

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    Re: Open Carrier Arrested in Iowa for not showing Permit

    I still don't get the concept of it being legal to require a permit to carry a gun. How is that not infringing?


    We should push for a law in some state requiring a permit to NOT have your person or home unreasonably searched. It makes exactly as much sense after all. The courts can then try and get away with ruling that since there is an avenue available to ensure you can't be unreasonably searched the law is entirely legal. That should go over well right?

    Maybe we can do it in a public initiative state like Washington. Then maybe people would start to catch on that you have to treat all of the amendments equally, not pick and choose to serve BS personal political goals.


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    Under what criminally misgovernment does a victim get charged with carrying weapons and interference with official acts for refusing to show a permit?

    If the victim had a permit, but refused to show it, how can he be charged with illegal carry?

    If the victim didn't have a permit, how can he be charged with interference with official acts?


    In my non-lawyerly opinion, the correct (and somewhat dangerous) handling would be to refuse to answer the cop's question about whether you have a permit. For example, in VA the statute, 18.2-308, requires displaying the permit upon request by cops, but doesn't require you to answer any questions about whether you have a permit or not. And, government could not prosecute a criminal for refusing to answer that question since answering it could be incriminating.

    Until the cop asks to see the permit, no statute is violated.
    Last edited by Citizen; 08-29-2013 at 03:17 PM.
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    Quote Originally Posted by Citizen View Post
    Under what criminally misgovernment does a victim get charged with carrying weapons and interference with official acts for refusing to show a permit?

    If the victim had a permit, but refused to show it, how can he be charged with illegal carry?

    If the victim didn't have a permit, how can he be charged with interference with official acts?
    I looked up the Iowa laws and as supported below with citation to same, the officer acted consistent with law and had a valid arrest situation ASSUMING the oper carrier was within the city limits of an incorporated city...

    This quote from the article is wrong; Iowa law requires anyone carrying a revolver or pistol to carry a permit and produce it at the request of a police officer. Failing to produce the permit is a simple misdemeanor

    False. According to the below referenced law, he is only required to show a permit when OCing if he is within the incorporated limits of a city. So, as usual, the lay media gets the law wrong. I NEVER rely on them, but go instead to the source.


    The article OF COURSE doesn't mention the specific chapter/section he was charged with nor offer a link to same. They give a name to the charge, but not a criminal code reference or a link to same. LAY MEDIA SUCKS . This is a major flaw with the dinosaur media I see again and again. They want to interpret stuff FOR the reader, but won't (this is almost always true) provide the ACTUAL underlying facts, which in this case IS the law charged.
    I quote the law

    724.4

    1) Except as otherwise provided in this section, a person who goes armed with a dangerous
    weapon concealed on or about the person, or who, within the limits of any city, goes armed with
    a pistol or revolver, or any loaded firearm of any kind, whether concealed or not, or who
    knowingly carries or transports in a vehicle a pistol or revolver, commits an aggravated
    misdemeanor.

    - so this law applies to conceal carry OUTSIDE the limits of the city, but applies to conceal AND OPEN CARRY within city limits (incorporated areas)

    so who is exempt from subsection (1)? Various exceptions (LEO's , Military, etc.) and also

    i. A person who has in the person's possession and who displays to a peace officer on demand a
    valid permit to carry weapons which has been issued to the person, and whose conduct is within
    the limits of that permit. A person shall not be convicted of a violation of this section if the
    person produces at the person's trial a permit to carry weapons which was valid at the time of the
    alleged offense and which would have brought the person's conduct within this exception if the
    permit had been produced at the time of the alleged offense.

    So, the person carrying openly IN an incorporated city is committing a crime UNLES he has in his possession, a permit AND he displays it to a peace officer upon demand

    So, while the law appears stupid, it also appears the officer acted within the bounds of the law and this is not a case of misconduct on the officer's part

    hth
    Last edited by PALO; 08-29-2013 at 03:36 PM.

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    The seems to say that he "shall not be convicted" if he produces a permit at trial

    A person shall not be convicted of a violation of this section if the
    person produces at the person's trial a permit to carry weapons which was valid at the time of the
    alleged offense and which would have brought the person's conduct within this exception if the
    permit had been produced at the time of the alleged offense.

    So, the person carrying openly IN an incorporated city is committing a crime UNLES he has in his possession, a permit AND he displays it to a peace officer upon demand

    So, while the law appears stupid, it also appears the officer acted within the bounds of the law and this is not a case of misconduct on the officer's part

    hth
    It appears that if the person had a valid permit, and he shows it at the trial, he "shall not be convicted of a violation of this section" so I fail to see the point of this whole exercise, if he had a valid permit on him.

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    Regular Member autosurgeon's Avatar
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    Re: Open Carrier Arrested in Iowa for not showing Permit

    Perhaps he is demonstrating the stupidity of this law?

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    Quote Originally Posted by ccwinstructor View Post
    It appears that if the person had a valid permit, and he shows it at the trial, he "shall not be convicted of a violation of this section" so I fail to see the point of this whole exercise, if he had a valid permit on him.
    Yes, I read that very section myself. According to the article (again, looking to an article for details is often problematic, as I have referenced in, for example, their misstatement OF the law), the man HAD a permit on him but refused to show it

    So, he was arrested - a legal arrest per Iowa law.

    Apparently, if he shows the permit at trial, he won't be convicted. Groovy. But he has to SHOW the permit. So, the "point of the whole exercise" iow the arrest is TO GET HIM TO SHOW HIS PERMIT. If he doesn't want to comply with the law (and note: I don't agree with the law as a matter of policy), he gets arrested. then, if he wants to not get convicted, he shows the permit at trial. The point/goal is reached - getting the man to show his permit. If he wants to spend some time in jail, and deal with all the hassle etc. then he can refuse to show his permit.

    Generally speaking, most of the time I have PC for arrest, no arrest is made . Either a criminal cite is issued or a warning given. Just because I *can* arrest, doesn't mean I will. I look at a host of metrics to make that decision.

    In this case, the officer sees a guy carrying, and if in a incorporated city, the officer is vested with authority ot demand production of the person's permit

    So he does so. The POINT of the arrest is to

    1) get the guy to show his permit. And note, upon arrest, the officer would be justified in searching the man incident to arrest. So, he may be able to find the permit then, since the guy said he DID have the permit on him, this would likely be the case. He will still be arrested, because the arrest isn't for carrying without a valid permit having been issued, but for the crime of refusing to show the permit which he still has PC for. In fact, his PC is BETTER upon finding the permit since he now knows the guy was refusing to show it (vs not having it on his person

    2) disincentivize the guy from breaking the law. The guy now recognizes - if I break this law I get arrested. Most people would prefer not to get arrested, so at least NEXT time he is so approached , he will comply with the law

    If the officer didn't arrest the guy, he would be sending the message that it's ok to disobey this law and the officers lawful order to produce the permit, since there is no negative consequence of doing so. Not only would this person be so incentivized, but others he told about the non-arrest would be so incentivized.

    So, in (not so brief), the point of the arrest is to get the guy to show his permit and demonstrate to him that there are consequences for refusing to do so.

    I am glad we have no such law in my state. I see open carriers, I don't bother them. If and when I lawfully stop an OCer (has never happened) or a CCWer for some other offense, I will of course check to see if they are a valid carrier. In the former case, when I run his name, I can check to see if he's a convicted felon, a subject of a DV protection order, and in some cases I can also see if he has a mental health adjudication forbidding carry. In the latter case, I can check on the above listed things + check to see if he has a valid permit, which is required to CCW (apart from in one's abode or business)

    Groovy

    I;m not sure what the person's reason(s) in this case were for not showing the permit, but it's his responsibility to comply with the (imo stupid) law. He made a conscious choice to disobey the law, and thus he has nobody to complain about his arrest, but himself - and maybe the legislators who passed this dumb law.

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    Quote Originally Posted by autosurgeon View Post
    Perhaps he is demonstrating the stupidity of this law?

    Sent from my LG-E970 using Tapatalk 2
    How does getting arrested and then subsequently forced to show his permit ANYWAY in court "demonstrate the stupidity" of this law?

    I agree the law is stupid, but I don't think getting arrested and getting forced to comply with the law LATER (in court) or suffer a guilty conviction (most likely if he does not), demonstrates that the law is stupid

    Mebbe if he could get a jury to hang or acquit, THAT would demonstrate the law's stupidity.

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    Re: Open Carrier Arrested in Iowa for not showing Permit

    If he does not mind the inconvenience it wastes resources... and who knows that may be his intention.

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    Quote Originally Posted by PALO View Post
    SNIP So, while the law appears stupid, it also appears the officer acted within the bounds of the law and this is not a case of misconduct on the officer's part

    hth
    You know, PALO. Sometimes you can come up with astute observations. And other times you're so far off base, I wonder how you keep your badge.

    Pay attention: I didn't say the law was stupid. I didn't comment on the statute at all. I asked specific questions. Please re-read them. If you're going to reply to me, please address what I wrote.

    I read your whole wall of text and at no point did you actually address or answer what I wrote. Would you please do that now.
    Last edited by Citizen; 08-29-2013 at 05:02 PM.
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    Open Carrier Arrested in Iowa for not showing Permit

    Which hat was he wearing? Security guard or cop? Walmart now becomes a party to any claim because one of its employees challenged a customer without cause or complaint.

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    I fail to see how these "Must Show Permit" laws do not run contrary to Terry v Ohio. Absent RAS does demanding ID (carry permit) just because someone is carrying a firearm NOT violate the 4th amendment as proscribed under SCOTUS??

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    Quote Originally Posted by F350 View Post
    I fail to see how these "Must Show Permit" laws do not run contrary to Terry v Ohio. Absent RAS does demanding ID (carry permit) just because someone is carrying a firearm NOT violate the 4th amendment as proscribed under SCOTUS??
    Bingo! My thoughts exactly...this young fellow was participating in a perfectly legal activity. Where is RAS? No where in this account is it claimed he was acting in a manner to warrant an approach...if he were, believe me this newspaper (Gannett owned) would have crowed from the rooftops 'the evil gun mentality which must be abolished at all cost.'

    Remember, not long after Sandy Hook, this newspaper "Iowa Depends On", published a statewide map depicting ALL public schools without any form of in-house security, thus placing in danger practically every child in this state. This news organ of the Left is more than worthless, so read their reporting with a jaded eye.

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    Quote Originally Posted by arentol
    We should push for a law in some state requiring a permit to NOT have your person or home unreasonably searched.
    How about the fight that's already going on in so many states, to treat voting like buying a gun.
    Require ID, background check, etc.
    Actually, if you heard what Carter said at the latest March on Washington, voting is harder than buying an assault weapon... so voting takes more than a $200 tax, an extensive invasive background check, and a written permission slip from the CLEO in your area.

    Quote Originally Posted by RugarRev
    this young fellow was participating in a perfectly legal activity. Where is RAS?
    Reading the law that's been posted here, carrying a firearm within a city is a crime.
    If the guy was within a city, and the security guard saw his pistol (which obviously happened), the security guard had RAS that he was committing a crime.

    The law needs to be changed to say "carrying a firearm without a permit is a crime". Then, since officers would have no RAS that someone doesn't have a permit (just like driving), stopping OCers to demand their permit would be illegal.

    It occurs to me that this law is illegal because it is not evenly applied. Only open carriers get stopped. Yes, the few ccers who might be stopped for other reasons probably have to show their permit too, but it primarily affects OCers.
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    Regular Member RugarRev's Avatar
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    MKEgal...

    in order to carry (open or concealed) within city limits (Iowa) one need only have a state issued permission slip. Carry is authorized. I personally open carry in that very same WalMart on a weekly basis without issue. This is not the issue...being unjustly cuffed & stuffed is.

    The young man was perfectly within his rights to be doing what he was doing, free from having his rights trampled upon.

    Just my 2£

    RR
    Last edited by RugarRev; 08-29-2013 at 08:42 PM.

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    Quote Originally Posted by MKEgal View Post
    Reading the law that's been posted here, carrying a firearm within a city is a crime.
    If the guy was within a city, and the security guard saw his pistol (which obviously happened), the security guard had RAS that he was committing a crime.
    First, in my experience, if an officer is off duty, and working as a "security guard", I was under the impression that his authority amounted to exactly that...a security guard. Second, this goes hand in hand with being stopped just to check a DL. No person could know, without a 4th amendment violation, that the person carrying the gun does not have a permit. Therefore, without that prior knowledge, IMHO, there is no RAS, and the entire stop was unlawful.

    The law needs to be changed to say "pass a background check and you can carry anywhere you like". Then, since officers would have no RAS that someone doesn't have a permit (just like driving), stopping OCers to demand their permit would be illegal.
    Quote edited for clarity...

    It occurs to me that this law is illegal because it is not evenly applied. Only open carriers get stopped. Yes, the few ccers who might be stopped for other reasons probably have to show their permit too, but it primarily affects OCers.
    This law is illegal as it abridges our right to keep and bear arms. Period. However, seeing as how we have yet to get a "2nd Amendment" added to our state constitution, this is what we are stuck with. One thing my attorney has always told me: "The laws that are on the books tell us two things. They tell us what we cant do, and they tell the cops what they can do." Meaning that the section that says "must show permit upon demand of an officer" says we have to show if they ask. What it doesnt say is they can request, without suspicion of the lack of permit, to view said document.

    It will be interesting to see where this leads.
    Last edited by Tucker6900; 08-30-2013 at 10:25 AM.
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    Quote Originally Posted by lockman View Post
    Which hat was he wearing? Security guard or cop? Walmart now becomes a party to any claim because one of its employees challenged a customer without cause or complaint.
    Quote Originally Posted by Tucker6900 View Post
    First, in my experience, if an officer is off duty, and working as a "security guard", I was under the impression that his authority amounted to exactly that...a security guard. Second, this goes hand in hand with being stopped just to check a DL. No person could know, without a 4th amendment violation, that the person carrying the gun does not have a permit. Therefore, without that prior knowledge, IMHO, there is no RAS, and the entire stop was unlawful.

    .
    these two quotes got me thinking there is some merit to them. I never understand why LEOs are allowed to use their City/state issued cars, uniforms, badges and weapons for second jobs. Anyway, as mentioned above, his job was security/crime prevention at walmart not write speeding tickets or check handgun permits. The gentleman who was arrested may have a legal case against walmart since he acted outside his job duties.

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    Quote Originally Posted by Kopis View Post
    these two quotes got me thinking there is some merit to them. I never understand why LEOs are allowed to use their City/state issued cars, uniforms, badges and weapons for second jobs. Anyway, as mentioned above, his job was security/crime prevention at walmart not write speeding tickets or check handgun permits. The gentleman who was arrested may have a legal case against walmart since he acted outside his job duties.
    It's done through the department, it's all above-board. It's done almost everywhere. The PD could explain the procedures if you give them a call and ask. An officer is acting as an officer, contracted out to the business.

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    Quote Originally Posted by amaixner View Post
    It's done through the department, it's all above-board. It's done almost everywhere. The PD could explain the procedures if you give them a call and ask. An officer is acting as an officer, contracted out to the business.
    After a call to my local SD, it appears you are correct. The contact at the SD was unable to provide a cite of law, and as department policy is not law, Id be interested to see where this authority comes from. I understand officers are officers, but there should be a law allowing them this authority.
    Last edited by Tucker6900; 09-09-2013 at 09:00 AM.
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    Quote Originally Posted by Tucker6900 View Post
    After a call to my local SD, it appears you are correct. The contact at the SD was unable to provide a cite of law, and as department policy is not law, Id be interested to see where this authority comes from. I understand officers are officers, but there should be a law allowing them this authority.
    There is a law allowing them quite a bit of authority:

    80.9A Authority and duties of peace officers of the department.
    1. A peace officer of the department when authorized by the commissioner shall have and exercise all the powers of any other peace officer of the state.
    2. When a peace officer of the department is acting in cooperation with any other local peace officer, or county attorney in general criminal investigation work, or when acting on a special assignment by the commissioner, the jurisdiction of the peace officer is statewide.
    3. A peace officer may administer oaths, acknowledge signatures, and take voluntary testimony pursuant to the peace officer s duties as provided by law.
    4. An authorized peace officer of the department designated to conduct examinations, investigations, or inspections and enforce the laws relating to controlled or counterfeit substances shall have all the authority of other peace officers and may arrest a person without warrant for offenses under this chapter committed in the peace officer s presence or, in the case of a felony, if the peace officer has probable cause to believe that the person arrested has committed or is committing such offense. A peace officer of the department shall have the same authority as other peace officers to seize controlled or counterfeit substances or articles used in the manufacture or sale of controlled or counterfeit substances which they have reasonable grounds to believe are in violation of law. Such controlled or counterfeit substances or articles shall be subject to forfeiture.
    5. In more particular, the duties of a peace officer shall be as follows:
    a. To enforce all state laws.
    b. To enforce all laws relating to traffic on the public highways of the state, including those relating to the safe and legal operation of passenger cars, motorcycles, motor trucks and buses; to see that proper safety rules are observed; and to give first aid to the injured.
    c. To investigate all fires; to apprehend persons suspected of arson; to enforce all safety measures in connection with the prevention of fires; and to disseminate fire-prevention education.
    6. A peace officer shall not exercise the general powers of a peace officer within the limits of any city, except as follows:
    a. When so ordered by the direction of the governor.
    b. When request is made by the mayor of any city, with the approval of the commissioner.
    c. When request is made by the sheriff or county attorney of any county with the approval of the commissioner.
    d. While in the pursuit of law violators or in investigating law violations.
    e. While making any inspection provided by this chapter, or any additional inspection ordered by the commissioner.
    f. When engaged in the investigating and enforcing of fire and arson laws.
    g. When engaged in the investigation and enforcement of laws relating to narcotic, counterfeit, stimulant, and depressant drugs.
    7. The limitations specified in subsection 6 shall in no way be construed as a limitation on the power of peace officers when a public offense is being committed in their presence.
    8. a. A peace officer of the department, when authorized by the commissioner, may act in concert with, under the direction of, or otherwise serve as a state actor for an officer or agent of the federal government.
    b. If serving as a state actor for an officer or agent of the federal government as provided in paragraph a , the peace officer shall be considered acting within the scope of the employee s office or employment as defined in section 669.2, subsection 1.
    In this case, the LEO witnessed what he believed to be a crime, used his authority to detain the suspected criminal to investigate the crime and then used his authority to make an arrest. All of those things were within his power. If you ever hear someone say that a LEO being on or off the clock matters, you should stop listening to them because they have no idea what they are talking about. Whether they are on or off the clock doesn't matter when it comes to their authority. It matters for the purposed of insurance/liability, but that is an issue for the LEO to deal with after the fact. It does not affect the authority granted to enforce the law. Saying that being on and off the clock matters would be like saying that the LEO, when sleeping in his own bed at home, having his sleep interrupted by some criminal trying to break into his home wouldn't have the authority to arrest him on the spot. That's ridiculous.

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    From what I understand of the law, you must produce your carry permit in Iowa when LEO asks for it. But before asking for it, doesn't he have to detain you? If you're not being detained you can ignore him and just keep walking. In order to detain he must have reasonable suspicion of a crime(Terry v Ohio). Carrying a gun, where legal, is not reasonable suspicion of a crime (Deberry v US).

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    Quote Originally Posted by Johnquixote View Post
    From what I understand of the law, you must produce your carry permit in Iowa when LEO asks for it. But before asking for it, doesn't he have to detain you? If you're not being detained you can ignore him and just keep walking. In order to detain he must have reasonable suspicion of a crime(Terry v Ohio). Carrying a gun, where legal, is not reasonable suspicion of a crime (Deberry v US).
    724.4 Carryingweapons.
    1. Except as otherwise provided in this section, a person who goes armed with a dangerous
    weapon concealed on or about the person, or who, within the limits of any city, goes armed with
    a pistol or revolver, or any loaded firearm of any kind, whether concealed or not, or who
    knowingly carries or transports in a vehicle a pistol or revolver, commits an aggravated
    misdemeanor.
    2. A person who goes armed with a knife concealed on or about the person, if the person uses
    the knife in the commission of a crime, commits an aggravated misdemeanor. 3. A person who goes armed with a knife concealed on or about the person, if the person does
    not use the knife in the commission of a crime:
    a. If the knife has a blade exceeding eight inches in length, commits an aggravated
    misdemeanor.
    b. If the knife has a blade exceeding five inches but not exceeding eight inches in length,
    commits a serious misdemeanor.
    4. Subsections 1 through 3 do not apply to any of the following:
    ...
    i. A person who has in the person's possession and who displays to a peace officer on demand a
    valid permit to carry weapons which has been issued to the person, and whose conduct is within
    the limits of that permit. A person shall not be convicted of a violation of this section if the
    person produces at the person's trial a permit to carry weapons which was valid at the time of the
    alleged offense and which would have brought the person's conduct within this exception if the
    permit had been produced at the time of the alleged offense.

    724.5 Duty to carrypermitto carryweapons.
    A person armed with a revolver, pistol, or pocket billy concealed upon the person shall have in
    the person's immediate possession the permit provided for in section 724.4, subsection 4,
    paragraph "i", and shall produce the permit for inspection at the request of a peace officer.
    Failure to so produce a permit is a simple misdemeanor.
    How many times am I going to use this copy pasta before people start accusing me of just doing it to get my post count up?

    The law makes carrying a weapon a crime unless you have a permit AND show it to a peace officer on demand. Whether you end up getting charged with an aggravated misdemeanor or a simple misdemeanor is what changes. That is unless the court rules that the law only applies to concealed weapons and to situations where the officer can demand(a request made with authority) to see the permit. In order for the LEO to have the authority to make the demand the person would need to be detained. If a person isn't detained they are free to move about freely and speak as they choose(this includes not speaking). It is all going to depend on how the law is interpreted. Commas and the 2nd amendment have never been friends. It seems isn't the exception here either. If the duty to carry the permit only applies to concealed weapons(as 724.5 reads) and the person carrying the firearm openly(not concealed) produces the permit at trial they would be free to go and fight the arrest as a violation of their 4th and 5th amendment rights. This could prove to be really interesting, but I don't see the courts being willing to do the right thing on this. They're going to interpret the law in such a way as to be an enemy of liberty and convict this guy of the simple misdemeanor. If I'm wrong, yay! If I'm right, I won't be surprised.

  23. #23
    Regular Member 2OLD2W8's Avatar
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    The law also makes driving a vehicle a crime unless you have a permit AND show it to a peace officer on demand.

    /S Remember, GUNS are much more dangerous than vehicles! /S !!!!!!!!
    “We can ignore reality, but we cannot ignore the consequences of ignoring reality.” Ayn Rand

    "free people ought...to be armed." In so doing we grasp the larger lesson that the ability to defend ourselves is part and parcel to our freedom. George Washington , January 7, 1790

  24. #24
    Regular Member Tucker6900's Avatar
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    Quote Originally Posted by 2OLD2W8 View Post
    The law also makes driving a vehicle a crime unless you have a permit AND show it to a peace officer on demand.

    /S Remember, GUNS are much more dangerous than vehicles! /S !!!!!!!!
    Exactly. The law for a DL and the law for a PTC are practically the same. Where does it say they can stop you and check?
    The only terrorists I see nowadays are at the Capital.


    The statements made in this post do not necessarily reflect the views of OCDO or its members.

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    Quote Originally Posted by Darkshadow62988 View Post


    "In this case, the LEO witnessed what he believed to be a crime,..."
    What crime did he believe he witnessed? Deberry v US states that carrying a gun, where legal, is not reasonable suspicion of a crime and therefore, not sufficient reason to detain. If he believed the individual didn't have his permit, what led him to believe that? He must be able to articulate the reasonable suspicion. Without reasonable suspicion of a crime there was no authority to detain. If there was no authority to detain, there was no duty to answer any questions or produce any ID.

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