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Thread: Case law update from your friendly prosecutor

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    Regular Member Lammo's Avatar
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    Case law update from your friendly prosecutor

    Received this update info from one of my e-mail subscriptions:

    Terry Stops. An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer's stop and frisk of that person. Here, there is no evidence that the 911 caller felt intimidated or alarmed when shown the gun, or that the person who was holding the gun discharged it or pointed the gun at anyone. State v. Cardenas-Muratalla, COA No. 68057-9-1 (Feb. 3, 2014). http://www.courts.wa.gov/opinions/pdf/680579.pdf

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    Guns and Terry is a combination that is appearing more frequently in case law. The next edition of the WAPA search manual, written before today's case was released, summarizes the law as follows:

    Lawful Display of a Firearm. Washington law permits its residents to openly carry firearms. See generally RCW 9.41.050 and 9.41.060. “[W]here a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.” United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013) (finding no reasonable suspicion to stop or frisk the defendant, who was in an area known for robberies and other violent crimes, was in the company of an individual who had oft been arrested for felony drug offenses and another man who was openly carrying a holstered handgun, as authorized by North Carolina). See also St. John v. McColley, 653 F. Supp. 2d 1155, 1161 (D.N.M. 2009) (finding no reasonable suspicion where the plaintiff arrived at a movie theater openly carrying a holstered handgun, an act which is legal in the State of New Mexico). The fact that other statutes prevent convicted felons from possessing guns does not allow an officer to detain an armed stranger in their midst until the officer performs a record check. “Being a felon in possession of a firearm is not the default status.” Id.

    Washington law does restrict the carrying of a concealed firearm to individuals who have a concealed pistol license. See generally RCW 9.41.050. There is, however, no presumption that a person carrying a concealed firearm lacks the required permit. People v. Murrell, 56 V.I. 796 (2012) (no presumption that person carrying firearm lacks permit); United States v. Ubiles, 224 F.3d 213, 217-18 (3rd Cir. 2000) (improper to stop a suspect based solely upon a report that the suspect had a firearm, which could be lawfully possessed under the law, when the authorities had no reason to know that the gun was unregistered or that the serial number had been altered); Regalado v. State, 25 So. 3d 600, 601 (Fla. 4th DCA 2009) (“Because it is legal to carry a concealed weapon in Florida, if one has a permit to do so, and no information of suspicious criminal activity was provided to the officer other than appellant's possession of a gun, the mere possession of a weapon, without more, cannot justify a Terry stop.”).

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    The full WAPA Search and Seizure Manual can be found here under the Manuals tab: http://www.waprosecutors.org/
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    Thanks for the citation URL's. Good reading I am sure.

    Santo fumo! The manual is 350 pages and 1.8 MB, lots of reading!
    Last edited by Nightmare; 02-04-2014 at 01:14 PM.
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    Campaign Veteran Right Wing Wacko's Avatar
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    If I am reading this correctly (I just did a brief scan until later) this means we now have a PUBLISHED Appeals Court ruling that Open Carry is Legal!

    Hoora!!

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    Quote Originally Posted by Right Wing Wacko View Post
    If I am reading this correctly (I just did a brief scan until later) this means we now have a PUBLISHED Appeals Court ruling that Open Carry is Legal!

    Hoora!!
    This case appears to say pretty much nothing more than Florida v. J.L. already did. It is nice, but doesn't seem to help much with OC.


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    Regular Member sudden valley gunner's Avatar
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    Thanks Lammo!

    I have been pointing to the Regaldo case for a few years to those here and in other places who say needing a license is enough RS to exercise a stop/detention to verify you are licensed. (For those instances you would need a CPL whether you are concealing or not).
    Last edited by sudden valley gunner; 06-22-2014 at 10:35 PM.
    I am not anti Cop I am just pro Citizen.

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

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    Regular Member EMNofSeattle's Avatar
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    Quote Originally Posted by Right Wing Wacko View Post
    If I am reading this correctly (I just did a brief scan until later) this means we now have a PUBLISHED Appeals Court ruling that Open Carry is Legal!

    Hoora!!
    I don't read it like that.....

    it says

    1) mere display is not illegal (good)

    BUT

    the said the report of display was not RAS because the caller did not mention feeling threatened.

    this does not hurt or help OC, well it does help OC slightly. because they say display without report of a threat is not RAS....
    they love our milk and honey, but they preach about some other way of living, when they're running down my country man they're walkin' on the fightin side of me

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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by EMNofSeattle View Post
    I don't read it like that.....

    it says

    1) mere display is not illegal (good)

    BUT

    the said the report of display was not RAS because the caller did not mention feeling threatened.

    this does not hurt or help OC, well it does help OC slightly. because they say display without report of a threat is not RAS....
    Just claiming threat isn't good enough. If I said I saw a young male with brown hair and eyes named EriK and I was feeling threatened by his presence is that a justification?
    I am not anti Cop I am just pro Citizen.

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

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    Regular Member EMNofSeattle's Avatar
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    Quote Originally Posted by sudden valley gunner View Post
    Just claiming threat isn't good enough. If I said I saw a young male with brown hair and eyes named EriK and I was feeling threatened by his presence is that a justification?
    Read the court ruling... They leave themselves an escape valve to rule differently in the future
    they love our milk and honey, but they preach about some other way of living, when they're running down my country man they're walkin' on the fightin side of me

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    Regular Member solus's Avatar
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    Lammo, thanks for the link i do wish the tarheel state's prosecutors were as forthright in their manuals...but the good olde boy network is strong here.

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    Regular Member Vitaeus's Avatar
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    Thanks for the links, the waprosecutor.org is very nice since it looks to be the source for the LEO digest essays...

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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by EMNofSeattle View Post
    Read the court ruling... They leave themselves an escape valve to rule differently in the future
    They usually do, sadly.
    I am not anti Cop I am just pro Citizen.

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

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    Regular Member Difdi's Avatar
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    Quote Originally Posted by sudden valley gunner View Post
    Just claiming threat isn't good enough. If I said I saw a young male with brown hair and eyes named EriK and I was feeling threatened by his presence is that a justification?
    This. There's a reason why reasonability is an important legal test. It's related to why people who are certified mentally ill can't have weapons -- their judgment isn't reasonable.

    People have lots of minor mental issues including phobias. Simply feeling irrationally threatened doesn't mean there actually was a threat.

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    Regular Member Geerolla's Avatar
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    Quote Originally Posted by Lammo View Post
    Washington law does restrict the carrying of a concealed firearm to individuals who have a concealed pistol license. See generally RCW 9.41.050. There is, however, no presumption that a person carrying a concealed firearm lacks the required permit. People v. Murrell, 56 V.I. 796 (2012) (no presumption that person carrying firearm lacks permit); United States v. Ubiles, 224 F.3d 213, 217-18 (3rd Cir. 2000) (improper to stop a suspect based solely upon a report that the suspect had a firearm, which could be lawfully possessed under the law, when the authorities had no reason to know that the gun was unregistered or that the serial number had been altered); Regalado v. State, 25 So. 3d 600, 601 (Fla. 4th DCA 2009) (“Because it is legal to carry a concealed weapon in Florida, if one has a permit to do so, and no information of suspicious criminal activity was provided to the officer other than appellant's possession of a gun, the mere possession of a weapon, without more, cannot justify a Terry stop.”).
    So let me make sure I'm reading this correctly in regards to concealed carry. If I'm walking down the street, bend over to pick up my dog's **** and accidentally print or show the bottom of my holster while a cop is driving by they cannot assume I'm unlicensed and initiate a stop to check my CPL? Is that correct or is this only in reference to MWAG calls?


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    Regular Member Grim_Night's Avatar
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    Quote Originally Posted by Geerolla View Post
    So let me make sure I'm reading this correctly in regards to concealed carry. If I'm walking down the street, bend over to pick up my dog's **** and accidentally print or show the bottom of my holster while a cop is driving by they cannot assume I'm unlicensed and initiate a stop to check my CPL? Is that correct or is this only in reference to MWAG calls?


    Sent from my iPad using Tapatalk
    Basically what it means is that if an activity is lawful to do with or without a license then it must be assumed that the person preforming such activity (baring any other evidence) is preforming said activity lawfully. Just like you cannot be stopped while driving your car just to make sure you are driving with a valid license. There has to be evidence that something else is going on besides the lawful activity.
    Armed and annoyingly well informed!

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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by Geerolla View Post
    So let me make sure I'm reading this correctly in regards to concealed carry. If I'm walking down the street, bend over to pick up my dog's **** and accidentally print or show the bottom of my holster while a cop is driving by they cannot assume I'm unlicensed and initiate a stop to check my CPL? Is that correct or is this only in reference to MWAG calls?


    Sent from my iPad using Tapatalk
    Yes, they can't assume you don't have a license for an activity that is legal to do so with a license.
    I am not anti Cop I am just pro Citizen.

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

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    Campaign Veteran Right Wing Wacko's Avatar
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    Quote Originally Posted by sudden valley gunner View Post
    Yes, they can't assume you don't have a license for an activity that is legal to do so with a license.
    However there is this poorly worded piece of law:


    RCW 9.41.050

    Carrying firearms.


    (1)(a) Except in the person's place of abode or fixed place of business, a person shall not carry a pistol concealed on his or her person without a license to carry a concealed pistol.

    (b) Every licensee shall have his or her concealed pistol license in his or her immediate possession at all times that he or she is required by this section to have a concealed pistol license and shall display the same upon demand to any police officer or to any other person when and if required by law to do so. Any violation of this subsection (1)(b) shall be a class 1 civil infraction under chapter 7.80 RCW and shall be punished accordingly pursuant to chapter 7.80 RCW and the infraction rules for courts of limited jurisdiction.

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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by Right Wing Wacko View Post
    However there is this poorly worded piece of law:


    RCW 9.41.050

    Carrying firearms.


    (1)(a) Except in the person's place of abode or fixed place of business, a person shall not carry a pistol concealed on his or her person without a license to carry a concealed pistol.

    (b) Every licensee shall have his or her concealed pistol license in his or her immediate possession at all times that he or she is required by this section to have a concealed pistol license and shall display the same upon demand to any police officer or to any other person when and if required by law to do so. Any violation of this subsection (1)(b) shall be a class 1 civil infraction under chapter 7.80 RCW and shall be punished accordingly pursuant to chapter 7.80 RCW and the infraction rules for courts of limited jurisdiction.
    Yes it is, like many laws some ambiguity and wiggle room for the persecutors and their agents.

    I and others have argued that the "when and if required by law to do so" can only apply when it is legal for the officer to ask, and that without RS or PC which "assumptions" don't add up to, it is unlawful to demand to see it.
    I am not anti Cop I am just pro Citizen.

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

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    Quote Originally Posted by Right Wing Wacko View Post
    However there is this poorly worded piece of law:


    RCW 9.41.050

    Carrying firearms.


    (1)(a) Except in the person's place of abode or fixed place of business, a person shall not carry a pistol concealed on his or her person without a license to carry a concealed pistol.

    (b) Every licensee shall have his or her concealed pistol license in his or her immediate possession at all times that he or she is required by this section to have a concealed pistol license and shall display the same upon demand to any police officer or to any other person when and if required by law to do so. Any violation of this subsection (1)(b) shall be a class 1 civil infraction under chapter 7.80 RCW and shall be punished accordingly pursuant to chapter 7.80 RCW and the infraction rules for courts of limited jurisdiction.
    How is this ambiguous?

    1. you must have your license on you
    2. must display it to LEO/other persons on demand WHEN AND IF REQUIRED BY LAW TO DO SO

    Assuming there's no stop/identify statute in WA:

    If you're moseying along lawfully/peacefully minding your own business, you're not subject to arrest and you're not required to display your anything to anyone. If you're illegally detained/searched, I would guess there's no legal requirement. If you're unarmed, no requirement to display. The moment a "requirement" arises...then you have to display. I'm no expert on the RCW or WA case law. I bet if you're OC'ing in a prohibited place like a post office or a GFSZ, you might have to display on demand...but by then the horse is out of the barn and you're subject to arrest anyway.

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    Quote Originally Posted by sudden valley gunner View Post
    Yes it is, like many laws some ambiguity and wiggle room for the persecutors and their agents.

    I and others have argued that the "when and if required by law to do so" can only apply when it is legal for the officer to ask, and that without RS or PC which "assumptions" don't add up to, it is unlawful to demand to see it.
    well said. they can always ask, but they can't always DEMAND.

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    Campaign Veteran Right Wing Wacko's Avatar
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    Quote Originally Posted by CT Barfly View Post
    How is this ambiguous?

    1. you must have your license on you
    2. must display it to LEO/other persons on demand WHEN AND IF REQUIRED BY LAW TO DO SO
    I've also seen it explained as:

    1. You must have your license on you.
    2. You must display it to any LEO on demand.
    3. You must display it to other persons when and if required by law to do so.

    I can see both versions in there depending on how you parse the sentence.
    Last edited by Right Wing Wacko; 02-14-2014 at 01:33 PM.

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    Regular Member Ajetpilot's Avatar
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    Not having your CPL with you when required is only a class 1 civil infraction, not even a misdemeanor. The nice LEO will only write you a ticket. The fine (if you are caught) is only $250. So, if for instance you are open carrying a loaded pistol while driving, and you suddenly remember that you have left your wallet at home, don't sweat it.

    RCW 9.41.050

    Carrying firearms.

    1(b) Every licensee shall have his or her concealed pistol license in his or her immediate possession at all times that he or she is required by this section to have a concealed pistol license and shall display the same upon demand to any police officer or to any other person when and if required by law to do so. Any violation of this subsection (1)(b) shall be a class 1 civil infraction under chapter 7.80 RCW and shall be punished accordingly pursuant to chapter 7.80 RCW and the infraction rules for courts of limited jurisdiction.
    RCW 7.80.120

    Monetary penalties — Restitution.

    (1) A person found to have committed a civil infraction shall be assessed a monetary penalty.

    (a) The maximum penalty and the default amount for a class 1 civil infraction shall be two hundred fifty dollars

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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by Ajetpilot View Post
    Not having your CPL with you when required is only a class 1 civil infraction, not even a misdemeanor. The nice LEO will only write you a ticket. The fine (if you are caught) is only $250. So, if for instance you are open carrying a loaded pistol while driving, and you suddenly remember that you have left your wallet at home, don't sweat it.
    Thanks for the reminder. And without RAS or PC one could more than likely get the infraction thrown out.
    I am not anti Cop I am just pro Citizen.

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

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    Infractions

    Quote Originally Posted by sudden valley gunner View Post
    Thanks for the reminder. And without RAS or PC one could more than likely get the infraction thrown out.
    But you will have to positively identify your self to get that civil infraction.

  24. #24
    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by 40grit View Post
    But you will have to positively identify your self to get that civil infraction.
    They can take you to the station to ID you if you refuse.

    There is no requirement to carry ID, but ID'ing yourself isn't the same thing.
    I am not anti Cop I am just pro Citizen.

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

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    Quote Originally Posted by CT Barfly View Post
    How is this ambiguous?

    1. you must have your license on you
    2. must display it to LEO/other persons on demand WHEN AND IF REQUIRED BY LAW TO DO SO
    The problem is that you have to go way out of your way to make the second half of the highlighted sentence mean anything at all. There are two possible interpretations:

    Simple reading interpretation:
    When read as simply as possible (which is how laws are supposed to be written and read) there is no requirement to ever display your license to anyone. It says that you shall DISPLAY the license "...when and if required by law to do so". Okay, so which law requires you to DISPLAY the license? There are plenty of laws that require you to HAVE the license, but there is absolutely NO other law that I know of that requires you to display your license. This is the only one that mentions displaying it, but this one doesn't actually require you to do so. So the entire thing is an endless self-referential circle that doesn't ever go anywhere, and so you don't have to display your license ever.

    Complex reading interpretation:
    The only way to interpret this law to say that you ever have to display your license is if you assume that "...when and if required by law to do so." is in reference to the first half of the sentence "...have his or her concealed pistol license in his or her immediate possession..." and not in reference to what immediately proceeds it "...shall display the same upon demand to any police officer or to any other person...". However, that is not how English normally works, so we are basically pulling that interpretation out of our backsides in order to avoid the second half of the sentence having no purpose at all.

    As Right Wing Wacko said, it is a "...poorly worded piece of law...". We know what was intended, but that is NOT what was written at all, and we have to do language contortions to interpret it to say what it was meant to say.

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