oc is reason to be suspected of a crime

Citizen said:

Excellent!

So, the judge was blowing repressive smoke when he asserted that walking "agitatedly" with a completely legal gun "near a playground" justified the stop--without bothering to mention what crime was suspected. (Note the "protect the children" card heaved in by the judge without further elaboration.)

Notice also the guard's report of a "suspicious person". Pretty vague. Wide-open to subjective interpretation.

Now that I think about it, where was the articulable criteria? The circumstances read like a hunch prohibited by Terry.

Click to expand...

Are you allowed to carry in school zones there? If he was on or near the playground sounds like he might have been within a school zone?

Fallschirmjäger said:

We should not forget that Officer Bell's first official act was to make a Terry Stop of an individual that all he knew of was talking on a cellphone.

Click to expand...

Since it seems like this ruling is so flagrantly bad, are you planning to appeal?

Primus said:

Detention cases. http://www.bakers-legal-pages.com/cca/notes/04/1450-20000.htm

Like I tries explaining... officer must make overt action to make you believe you can't leave.... take ID, turn on blue lights, say STOP, stand in your way, etc. etc.

For example.... A cruiser pulls up behind you while you are parked. He turns WHITE lights on, NO DETENTION.... he turns Blues on... DETAINED.

Click to expand...

I'm going off on a tangent for a moment.

Readers,

If you read enough court opinions on cases where a/the question before the court was whether a detention occurred, you come to realize the reason the question comes before a court in the first place.

Current government fallacious doctrine holds that the 4A only protects you from unreasonable searches and seizures. A part of this picture is that if you consent to a search or seizure, it automatically becomes reasonable.

In large numbers of these cases, the court has to sort out whether the person consented to the encounter. The whole reason the existence of the standard about whether a reasonable person would feel free to go is because the courts are trying to figure out whether the encounter was consensual. The reason the court is trying to figure it out is because the citizen did not make his consent or refusal clear at the time.

Thus, the solution is too easy--the citizen just needs to openly declares his consent/refusal.

"No offense officer, I know you're just doing your job; but, I do not consent to an encounter with you."

Case law not withstanding, the concept that a cop can ask for your ID in the first place is a false premise. Does a reasonable person believe that a cop would display his ID upon request. I can check him out on the Interwebs via a pay service for conducting criminal background checks. Employers do it, why not we citizens. Especially if I witness a cop violating a traffic law and thus "RAS" is present.

OC for ME said:

Case law not withstanding, the concept that a cop can ask for your ID in the first place is a false premise. Does a reasonable person believe that a cop would display his ID upon request. I can check him out on the Interwebs via a pay service for conducting criminal background checks. Employers do it, why not we citizens. Especially if I witness a cop violating a traffic law and thus "RAS" is present.

Click to expand...

Technically... it's not that false. An officer has every right to ask your name, your address, whether or not his uniform makes his ass look fat, or even if you want to come back to his place for a little Naked Twister®.
Whether he has the statutory authority to demand is quite another matter.

Certainly an officer might display his ID upon request, but dollars to doughnuts it's going to be a department issued ID and one that any half decent teenager could whip up a better looking copy during his lunch break. Ask for a Government issued identification and he's going to flat out deny you; he knows that a state issued ID will have his home address whereas his department issued ID won't.

But, you are in the main correct (I'm just picking on ya), as far as I know there is NO state that mandates you produce ID for just 'walking around' and not being at least suspected of criminal intent.

Fallschirmjäger said:

Georgia does indeed require a permit to either carry openly or concealed.
HOWEVER...
As the law is written, it is similar to the requirement to possess a driving license while driving and does not presume that the act itself is illegal. It is no more legal to stop someone with a firearm 'just to make sure they are licensed' than it is to stop someone 'just to check their license' because they are seen driving in a legal manner on a public street.

Prior to about 2010(?) it was an affirmative defense, but SB208 (passed about 2010) completely rewrote that section of the law.


On topic... While the GA traffic code requires one to have a license while driving and to present said license when requested by an officer (OCGA 40-5-29 License to be carried and exhibited on demand) the applicable Code regarding firearms provides no penalty for not having the license on one's person, nor does it authorize an officer to demand such license as 40-5-29 does.

Click to expand...

I saw on http://en.wikipedia.org/wiki/Stop_and_identify_statutes

That obstruction charges have been the leaning ....

Goofy laws ... my state has no stop and ID ...

BrianB said:

I think much of the opinion is poorly reasoned crap. This is what I was thinking of when I wrote the above.



He asked if he was being detained more or less immediately, so the detention occurred way before the cops ever asked for ID.



Since he was already detained by the time he evaded questions and requests for identification, what the heck does it have to do with anything?

All that said, if the guy was told to leave by the security guard, offensive though it may be, he should have left and filed a complaint. Staying after being told to leave is handing them a too-easy trespassing arrest.

I still don't think it should be legal to trespass someone from public property unless they are committing a crime, but I have no idea what the case law on that (if any) may be.

Click to expand...

But he wasnt asked to leave by the security, and if state laws there allow you to carry in a public park, then a demand to leave from private security would be an unlawful order. If you were subsequently arrested for refusing an unlawful order=payday

record everything

I wont give any ground on MY rights, especially if state law supports my conviction.

Well, ya all know the saying, "Play stupid games, win stupid prizes?"

Someone won and laughed all the way to the bank, then used the proceeds to purchase a brand new 80% AR Lower and done made hisself a fine lookin' AR* with a small portion of the settlement check. (*in my finest Sheriff Andy Taylor voice)

Sad part, do you guys know how much it costs to laser engrave
"With grateful thanks to Ofc. Adam Garth Bell
Gwinnett County Police Department
SN:AGB1167" to ATF specs?
Not the cheapest thing in the world.

Fallschirmjäger said:

Technically... it's not that false. An officer has every right to ask your name, your address, whether or not his uniform makes his ass look fat, or even if you want to come back to his place for a little Naked Twister®.
Whether he has the statutory authority to demand is quite another matter.

Certainly an officer might display his ID upon request, but dollars to doughnuts it's going to be a department issued ID and one that any half decent teenager could whip up a better looking copy during his lunch break. Ask for a Government issued identification and he's going to flat out deny you; he knows that a state issued ID will have his home address whereas his department issued ID won't.

But, you are in the main correct (I'm just picking on ya), as far as I know there is NO state that mandates you produce ID for just 'walking around' and not being at least suspected of criminal intent.

Click to expand...

I understand that a citizen can ask anything they choose to ask any other citizen.

A cop asking makes it official state business, until that cop proves otherwise at that moment.

If I ignore that cop and keep on walking, go around him if he impedes my travel, then he certainly can ask anything he wants and be ignored. As soon as he does anything other than remain ignored you are detained because he did not remain ignored.

Obviously a little common sense is required. If a cop asks me "Excuse me Sir." I stop and listen, being polite is a good way to keep a cop relaxed and me from being subject to violent physical force. The cop's next question or comment dictates the tone and tenor of my response, or a no response and me continuing on my way.

OC for ME said:

I understand that a citizen can ask anything they choose to ask any other citizen.

A cop asking makes it official state business, until that cop proves otherwise at that moment.

If I ignore that cop and keep on walking, go around him if he impedes my travel, then he certainly can ask anything he wants and be ignored. As soon as he does anything other than remain ignored you are detained because he did not remain ignored.

Obviously a little common sense is required. If a cop asks me "Excuse me Sir." I stop and listen, being polite is a good way to keep a cop relaxed and me from being subject to violent physical force. The cop's next question or comment dictates the tone and tenor of my response, or a no response and me continuing on my way.

Click to expand...

Okay, let's go with that, his asking makes it official business....
Officer Friendly see you with a firearm and asks, "That's a nice looking shirt, I've always wanted one like that. Mind telling me where you got it?"

Is that now "official state business" and are you required to answer?
If you go around him and he turns to ask again, "What, you're not going to tell me? Do you think I'm ugly?"

Are you now detained? Are you now required to provide an answer?

I believe your definition of 'detainment' is not the one used judicially. The judicial definition is the only one that's going to matter if it comes before the courts. You obviously know it's wrong too, or you would not have attempted to ameliorate it in the very same post.

Fallschirmjäger said:

Okay, let's go with that, his asking makes it official business....
Officer Friendly see you with a firearm and asks, "That's a nice looking shirt, I've always wanted one like that. Mind telling me where you got it?"

Is that now "official state business" and are you required to answer?
If you go around him and he turns to ask again, "What, you're not going to tell me? Do you think I'm ugly?"

Are you now detained? Are you now required to provide an answer?

I believe your definition of 'detainment' is not the one used judicially. The judicial definition is the only one that's going to matter if it comes before the courts. You obviously know it's wrong too, or you would not have attempted to ameliorate it in the very same post.

Click to expand...

Your characterization of my position is disingenuous and dishonest.

As soon as he does anything other than remain ignored you are detained because he did not remain ignored.

Click to expand...

I have every right to ignore my fellow citizens.....even a cop.

What I stated about what I will do when approached by a cop.

Obviously a little common sense is required. If a cop asks me "Excuse me Sir." I stop and listen, being polite is a good way to keep a cop relaxed and me from being subject to violent physical force. The cop's next question or comment dictates the tone and tenor of my response, or a no response and me continuing on my way.

Click to expand...

My view of when I consider myself detained does comport with Missouri law in my view. In fact, my submission to the custody of the officer, under authority of a warrant or otherwise, means to me that I am arrested in Missouri. Will a court agree? I don't know, the defining of "otherwise" would need to be fleshed out by the court. I think that they might side with me considering we here in MO can not resist a unlawful arrest, and the specific facts of the contact. So, a "detention" in MO is a murky subject in my view given the statute language for arrest. It is possible that a citizen will be considered under arrest when he submits to being "physically restrained" by complying with a order to sit down. But, physical restraint (cuffs) can not be the only definition of arrest in MO based on the statute.

http://www.moga.mo.gov/statutes/C500-599/5440000180.HTM

N v g

Nunn v Georgia 1 GA. (1 Kel) 243 (1846), Bliss v Commonwealth 12 Ky, (2 litt) 90, 13AM (1882) and State v Reid 1 Ala 612, 35 Am, Dec (1840) This begs for an appeal.

BrianB said:

it may not be worth appealing (for him) but I wish he would since this was in the 11th Circuit (which covers where I live) and I think there's a bunch of errors that shouldn't be allowed to stand.

Click to expand...

Unfortunately for you, there is already an Eleventh Circuit case originating in Florida that holds that even peacefully admitting that you are carrying a concealed weapon when asked during a Tier 1 encounter (which the Eleventh Circuit admits means that you can ignore the question and leave) means that not only can the officers detain, but that can point a gun at you, search, you, disarm you, and do the same to your friends.

This Eleventh Circuit case is cited in the opinion issued by the Georgia federal court that the original article discusses. The judge relied upon the Florida Eleventh Circuit case to justify his holding.

The Eleventh Circuit case is cited on page 20, US v. Lewis, 674 F.3d 1298 (11th Cir. 2012)

Sorry to be the bearer of bad news.

Here is a really good discussion of that case originating in Florida: http://www.georgiapacking.org/forum/showthread.php?t=236911&highlight=Lewis (11th Cir: Do NOT Admit That You Have a Gun!