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Thread: Surrendering open carry firearms for police inspection

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    Regular Member MagiCyle's Avatar
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    Surrendering open carry firearms for police inspection

    Ladies & Gents,

    If a citizen is legally open carrying and a police officer asks to see the gun, does the law require the citizen to surrender the firearm for inspection?
    Last edited by MagiCyle; 08-08-2014 at 12:59 AM.

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    Regular Member WalkingWolf's Avatar
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    Quote Originally Posted by MagiCyle View Post
    Gents,

    If a citizen is legally open carrying and a police officer asks to see the gun, does the law require the citizen to surrender the firearm for inspection?
    Big difference between ask and demand~if asked I will always say no~if it is a stop or detention my primary goal is to stay alive and healthy. So while he/she may take my gun without my permission, I will never touch it, whether demanded or asked.
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    Regular Member wrearick's Avatar
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    IANAL but IMHO it is a request for a search of person or property and you are not required to consent to it and I would simply state that I do not consent to a search of myself or my property. They can ask and if you say yes or hand over your firearm you have given consent. Believe me, if the officer has cause and is requiring you to turn over your weapon it will be stated at as a demand and probably with one or more firearms pointed at you.

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    Campaign Veteran skidmark's Avatar
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    IANA ATTORNEY and yada, yada, but -

    No.

    "I do not consent to any search of my person or my property, but I will not physically resist you."

    And you are wearing a digital voice recorder, aren't you?

    And you are keeping a running commentary, beginning with getting the officer to state his/her name (or refuse to provide same), your refusal to consent to a search, and a moment-by-moment description of the officer's actions.*

    And of course, the standard "Am I free to go?" (NEVER-EVER ask if you are under arrest unless you want to be.)

    If you are told that you are free to go, by all that you hold holy and dear put your legs in motion and go. Do not look behind you. Do not converse with the cop as you walk away. Just go!

    You are probably going to be detained, your gun taken away from you and removed to the squadcar where an attempt will be made to run it against some database of stolen firearms and maybe other databases. Let it happen. The time to argue is not on the side of the road.

    stay safe.

    * - "One is none and two is one." Some of us use two (or more) recorders. One visible or easily discovered, and another not so visible. Personally I like the USB stick recorders - around $10 from China and work well at the bottom of my shirt pocket or on a chain around my neck. I have a few folders on them with text files of medical info in case I end up in a hospital and cannot remember all the important stuff. One of the folders may or may not be for audio recordings as opposed to text files.
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    Regular Member MagiCyle's Avatar
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    Quote Originally Posted by wrearick View Post
    IANAL but IMHO it is a request for a search of person or property and you are not required to consent to it and I would simply state that I do not consent to a search of myself or my property. They can ask and if you say yes or hand over your firearm you have given consent. Believe me, if the officer has cause and is requiring you to turn over your weapon it will be stated at as a demand and probably with one or more firearms pointed at you.
    Thanks for the response. The reasons I'm asking is because I'm new to OC. I have not done it yet. I want to ensure I understand my rights and the laws before I OC.

    I guess what I'm wondering is, IYHO, what reasons would LEO's need to demand the surrender of a weapon from a law abiding citizen?
    For example, is there a law that grants them authority to seize anyone's weapon at their discretion for the purpose of running the serial number?
    Under what circumstances might they demand the turn over of the weapon from a citizen who is abiding by the law?

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    Regular Member MagiCyle's Avatar
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    Quote Originally Posted by WalkingWolf View Post
    Big difference between ask and demand~if asked I will always say no~if it is a stop or detention my primary goal is to stay alive and healthy. So while he/she may take my gun without my permission, I will never touch it, whether demanded or asked.
    Indeed. Thanks for the response.

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    Regular Member MagiCyle's Avatar
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    Quote Originally Posted by skidmark View Post
    IANA ATTORNEY and yada, yada, but -

    No.

    "I do not consent to any search of my person or my property, but I will not physically resist you."

    And you are wearing a digital voice recorder, aren't you?

    And you are keeping a running commentary, beginning with getting the officer to state his/her name (or refuse to provide same), your refusal to consent to a search, and a moment-by-moment description of the officer's actions.*

    And of course, the standard "Am I free to go?" (NEVER-EVER ask if you are under arrest unless you want to be.)

    If you are told that you are free to go, by all that you hold holy and dear put your legs in motion and go. Do not look behind you. Do not converse with the cop as you walk away. Just go!

    You are probably going to be detained, your gun taken away from you and removed to the squadcar where an attempt will be made to run it against some database of stolen firearms and maybe other databases. Let it happen. The time to argue is not on the side of the road.

    stay safe.

    * - "One is none and two is one." Some of us use two (or more) recorders. One visible or easily discovered, and another not so visible. Personally I like the USB stick recorders - around $10 from China and work well at the bottom of my shirt pocket or on a chain around my neck. I have a few folders on them with text files of medical info in case I end up in a hospital and cannot remember all the important stuff. One of the folders may or may not be for audio recordings as opposed to text files.
    Awesome. I appreciate the insights. A recorder with medical folders is a good idea... but that raises another question. Forgive my ignorance on the topic and this may be a stupid question, but I think I've heard of people getting charged for "illegal wire tapping(?)" when video recording police. Will that recording be admissible in court if it is done without the LEO's consent or knowledge?

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by MagiCyle View Post
    Awesome. I appreciate the insights. A recorder with medical folders is a good idea... but that raises another question. Forgive my ignorance on the topic and this may be a stupid question, but I think I've heard of people getting charged for "illegal wire tapping(?)" when video recording police. Will that recording be admissible in court if it is done without the LEO's consent or knowledge?
    Virginia is a one party consent state......and you are "one party". We are not talking about incepting electronic/telehone communications.
    http://www.dmlp.org/legal-guide/virginia-recording-law
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    Regular Member MagiCyle's Avatar
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    Quote Originally Posted by Grapeshot View Post
    Virginia is a one party consent state......and you are "one party". We are not talking about incepting electronic/telehone communications.
    http://www.dmlp.org/legal-guide/virginia-recording-law
    Awesome. Thanks.

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    Quote Originally Posted by Grapeshot View Post
    Virginia is a one party consent state......and you are "one party". We are not talking about incepting electronic/telehone communications.
    http://www.dmlp.org/legal-guide/virginia-recording-law
    Almost all states are "one-party" consent for face to face conversations .. people confuse face to face and telephone recording all the time...so folks should insure that they are looking at the right set of circumstances.

    In CT, face to face is one, telephone is two.

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    Regular Member TFred's Avatar
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    This would be a good thread for you to read through. Virginia is in the Fourth Circuit, so the ruling does apply to Virginia:

    4th Circuit rules OC not RAS to stop

    Also here, this one has links to the opinion: 4th Circuit Federal Court decision on RAS and Open carry

    TFred
    Last edited by TFred; 08-08-2014 at 01:06 AM.

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    Regular Member MagiCyle's Avatar
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    Quote Originally Posted by TFred View Post
    This would be a good thread for you to read through. Virginia is in the Fourth Circuit, so the ruling does apply to Virginia:

    4th Circuit rules OC not RAS to stop

    Also here, this one has links to the opinion: 4th Circuit Federal Court decision on RAS and Open carry

    TFred
    Very helpful. Thanks. Precisely the type of info I was looking for.

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by MagiCyle View Post
    Very helpful. Thanks. Precisely the type of info I was looking for.
    Open invitation - we'd love to meet you and yours:
    http://forum.opencarry.org/forums/sh...77#post2080877
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    Regular Member wrearick's Avatar
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    Quote Originally Posted by MagiCyle View Post
    Thanks for the response. The reasons I'm asking is because I'm new to OC. I have not done it yet. I want to ensure I understand my rights and the laws before I OC.

    I guess what I'm wondering is, IYHO, what reasons would LEO's need to demand the surrender of a weapon from a law abiding citizen?
    For example, is there a law that grants them authority to seize anyone's weapon at their discretion for the purpose of running the serial number?
    Under what circumstances might they demand the turn over of the weapon from a citizen who is abiding by the law?
    While it is denied, many are of the opinion that an unofficial record of gun owners and their weapons serial numbers is being created/maintained. I have heard it called "officer journal notes" ect. An officer "taking" your firearm will normally go to his car and "run" the serial number to "check" if the item has been reported stolen. Again, the court cases you have been given show he must have RAS to do this UNLESS you willing hand over the item.

    Reasons for asking, more times than not "officer safety" - they are uncomfortable with you having a firearm so they would like you to surrender it to their safe keeping for the remainder of the encounter. The LAW doesn't require you to do so but what the heck, they can ask, and if you say yes, well, might as well run the number through the criminal data base.....

    Answer to the "I would like to go ahead and hold the weapon during the remainder of this encounter, it is really for both of our safety....." is "Officer ________ (hopefully you can get him to provide his name), I understand your concern, but I believe the item will be much safer for all parties the less it is handled. I believe the safest place is for it to remain in it's holster." As others have stated, if the officer insists, refuse to touch the firearm but inform them they can physically remove it from you. Also a good time to ask if you are free to go. Make sure you get the officer to state his name for your recording device. It is a judgment call, with every situation being different, as to whether you "choose" to let the office know you are recording the conversation. Some that are bullying and pushing the legal limits will back off once they know a record is being kept of the conversation, others may respond by acting worse. As another response indicated, the side of the road is not where disagreements on the law is to be won, get through the encounter without "surrendering" any of your rights and follow up afterwards in the courts if you believe your rights were infringed.

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    Regular Member Maverick9's Avatar
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    Any chance you can carry with another person, if they also OC that's even better. Always run your recorder, turn it on before you leave the house.

    Good luck!

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    Regular Member WalkingWolf's Avatar
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    Run a recorder even if you are unarmed, especially if you carry a cane. At least one person has been shot for carrying a cane.
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    Regular Member MagiCyle's Avatar
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    Quote Originally Posted by wrearick View Post
    While it is denied, many are of the opinion that an unofficial record of gun owners and their weapons serial numbers is being created/maintained. I have heard it called "officer journal notes" ect. An officer "taking" your firearm will normally go to his car and "run" the serial number to "check" if the item has been reported stolen. Again, the court cases you have been given show he must have RAS to do this UNLESS you willing hand over the item.

    Reasons for asking, more times than not "officer safety" - they are uncomfortable with you having a firearm so they would like you to surrender it to their safe keeping for the remainder of the encounter. The LAW doesn't require you to do so but what the heck, they can ask, and if you say yes, well, might as well run the number through the criminal data base.....

    Answer to the "I would like to go ahead and hold the weapon during the remainder of this encounter, it is really for both of our safety....." is "Officer ________ (hopefully you can get him to provide his name), I understand your concern, but I believe the item will be much safer for all parties the less it is handled. I believe the safest place is for it to remain in it's holster." As others have stated, if the officer insists, refuse to touch the firearm but inform them they can physically remove it from you. Also a good time to ask if you are free to go. Make sure you get the officer to state his name for your recording device. It is a judgment call, with every situation being different, as to whether you "choose" to let the office know you are recording the conversation. Some that are bullying and pushing the legal limits will back off once they know a record is being kept of the conversation, others may respond by acting worse. As another response indicated, the side of the road is not where disagreements on the law is to be won, get through the encounter without "surrendering" any of your rights and follow up afterwards in the courts if you believe your rights were infringed.
    Very helpful. Much appreciated. Thank you very much.

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    Regular Member The Truth's Avatar
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    Quote Originally Posted by MagiCyle View Post
    Ladies & Gents,

    If a citizen is legally open carrying and a police officer asks to see the gun, does the law require the citizen to surrender the firearm for inspection?
    Under no circumstances would I EVER turn my gun over to police if I have not committed a crime. If no crime has been committed, you are under no obligation to even acknowledge LEO's query.

    "Fourth Circuit Finds That Carrying a Firearm in an Open-Carry State Does Not Create Reasonable Suspicion and Provides Thorough Analysis of the "Free to Leave" Standard of Seizure"

    http://www.fedagent.com/columns/case...ard-of-seizure

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    Activist Member JamesCanby's Avatar
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    Quote Originally Posted by The Truth View Post
    Under no circumstances would I EVER turn my gun over to police if I have not committed a crime. If no crime has been committed, you are under no obligation to even acknowledge LEO's query.

    "Fourth Circuit Finds That Carrying a Firearm in an Open-Carry State Does Not Create Reasonable Suspicion and Provides Thorough Analysis of the "Free to Leave" Standard of Seizure"

    http://www.fedagent.com/columns/case...ard-of-seizure
    Under NO circumstances? Are you saying that you would physically resist any attempt by a Law Enforcement Officer to remove your firearm?

    Or are you saying that you would never, under any circumstance, hand your firearm to a requesting/demanding LEO, instead requiring the LEO to disarm you?

    Just looking to gain clarification of your statement.
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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by JamesCanby View Post
    Under NO circumstances? Are you saying that you would physically resist any attempt by a Law Enforcement Officer to remove your firearm?

    Or are you saying that you would never, under any circumstance, hand your firearm to a requesting/demanding LEO, instead requiring the LEO to disarm you?

    Just looking to gain clarification of your statement.
    Wondering the same thing James. While I agree with the thought. I'd like to have plenty of popcorn watching the SWAT Team come out over a resisting OC'er.....that's assuming he hadn't already been shot by the officer.

    I'm assuming he means he'd never consent to it.
    Last edited by peter nap; 08-08-2014 at 01:17 PM.

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    Regular Member The Truth's Avatar
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    Quote Originally Posted by JamesCanby View Post
    Under NO circumstances? Are you saying that you would physically resist any attempt by a Law Enforcement Officer to remove your firearm?

    Or are you saying that you would never, under any circumstance, hand your firearm to a requesting/demanding LEO, instead requiring the LEO to disarm you?

    Just looking to gain clarification of your statement.
    I cannot think of a reason, if I am not in violation of any law, that LE would ever disarm me. I would like to cite Plummer v. State, 135 Ind. 308, 34 N.E. 968 (1893)* in regards to defending oneself using force against an illegal arrest (although your right to do so varies from state to state). I would also like to cite the court case Terry vs. Ohio** in regards to the police needing "specific and articulable facts" to backup a "resonable suspicion" that a crime is going to be committed. If I am open carrying and have not broken any laws it is my opinion therefore that I may not be detained or disarmed. As far as resisting, unfortunately in VA as I understand it, I have no right no resist with force unless I fear for my life or if excessive force is used. As far as willingly handing over my pistol, or willing allowing LEO to disarm me for no reason whatsoever, there's absolutely no way I am going to allow an illegal seizure, and I am willing to "take the ride" if that's what I have to do to stand up for my rights, and a law suit against the department that arrested me would surely follow. If I were in a state that allowed physical or forceful resistance to unlawful arrest or seizure, I would defend myself to the extent to which I am permitted.

    This is my favorite link to post in regards to unlawful arrest or seizure... http://www.constitution.org/uslaw/defunlaw.htm

    *http://en.wikipedia.org/wiki/Plummer_v._State
    **http://en.wikipedia.org/wiki/Terry_v._Ohio

    Please correct me if I am wrong about any of these items.

  22. #22
    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by The Truth View Post
    Under no circumstances would I EVER turn my gun over to police if I have not committed a crime. If no crime has been committed, you are under no obligation to even acknowledge LEO's query.

    ....
    Let me tell you a story.

    Many years ago I came home rather late in the evening (11:30PM-ish) to find a group of neighborhood yutes clustered around my apartment's front door because 1) it had a canopy and it was drizzling and 2) my door was the closest to the street. Several of them were also drinking. I politely (yes, as hard as that may be to believe) asked them to move aside to let me pass, and to hang out somewhere else because I was tired and did not want to be disturbed by the sounds of their conversations.

    One of the crowd said a few things to the effect of declining to move and suggested a few things I could do about being tired. He also hinted at some things he was willing to do to help me not hear anything. I declined his kind offers and again asked them to step aside so I could enter my aparrtment. His companions encouraged him to go with te rest of them to find somewhere else to be. The yute in question was eventually persuaded, but not before voicing some threats that I took rather seriously about his intent to come back later and demonstrate some of his physically persuasive powers.

    Went into my apartment and did some stuff for a few minutes and realized I had left some non-perishable groceries in my car which was parked in front of my door. Went out to bring them in when the yute appeared from around the corner, yelling that he was going to kill me. He met Mr. Pepper Spray - possibly for the first time. I went inside and called the cops to report what I had done (first to call is the victim, right?). Cops came out and apparently found the yute down the block a ways, laying in the middle of the street and complaining loudly.

    Cops came to my apartment and took a statement from me, then asked me to do a field identification of the guy they had in the back seat. On the way the cop accompanying me noticed (for the first time) that I was OCing. He asked me to put the gun away before I went to look at the guy in the back seat. When I said I was not comfortable doing that he explained that he was not willing to take the chance that I (an otherwise unknown who had just pepper sprayed some dude) might attack the guy.

    As we were discussing attempted murder charges against the guy I thought that making the field ID was more important than staying armed. As we were by this time down the block he offered to store my handgun in the trunk of one of the several squadcars parked about.He was convinced (the powers of persuasion) to let me take it out of the holster and put it in the trunk. Field ID made. (end of story - about 2 months later the yute was conviced of attempted murder and a bunch of misdemeanors and went away for 2 years)

    Why the story? Because sometimes it is either more helpful or less a cause of interpersonal disagreement with the cop(s) to allow yourself to be disarmed even though you are not being detained. Pick your battles wisely. In other words, under no circumstances EVER say never.

    stay safe.
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  23. #23
    Accomplished Advocate peter nap's Avatar
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    Actually you do have a perfect right to resist an unlawful arrest in Va. User has discussed it several times. The problem is you can't really resist an arrest or seizure without getting physical. Unfortunately, assaulting an officer is a felony here and you would be charged and ninety five out of a hundred times, be convicted.

    Better to simply say you don't consent and if the cop is determined to get it, let him take it himself.

    Citing cases in the field is fine...just don't be surprised when he doesn't pay any attention.

  24. #24
    Regular Member The Truth's Avatar
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    Quote Originally Posted by skidmark View Post
    Let me tell you a story.

    Many years ago I came home rather late in the evening (11:30PM-ish) to find a group of neighborhood yutes clustered around my apartment's front door because 1) it had a canopy and it was drizzling and 2) my door was the closest to the street. Several of them were also drinking. I politely (yes, as hard as that may be to believe) asked them to move aside to let me pass, and to hang out somewhere else because I was tired and did not want to be disturbed by the sounds of their conversations.

    One of the crowd said a few things to the effect of declining to move and suggested a few things I could do about being tired. He also hinted at some things he was willing to do to help me not hear anything. I declined his kind offers and again asked them to step aside so I could enter my aparrtment. His companions encouraged him to go with te rest of them to find somewhere else to be. The yute in question was eventually persuaded, but not before voicing some threats that I took rather seriously about his intent to come back later and demonstrate some of his physically persuasive powers.

    Went into my apartment and did some stuff for a few minutes and realized I had left some non-perishable groceries in my car which was parked in front of my door. Went out to bring them in when the yute appeared from around the corner, yelling that he was going to kill me. He met Mr. Pepper Spray - possibly for the first time. I went inside and called the cops to report what I had done (first to call is the victim, right?). Cops came out and apparently found the yute down the block a ways, laying in the middle of the street and complaining loudly.

    Cops came to my apartment and took a statement from me, then asked me to do a field identification of the guy they had in the back seat. On the way the cop accompanying me noticed (for the first time) that I was OCing. He asked me to put the gun away before I went to look at the guy in the back seat. When I said I was not comfortable doing that he explained that he was not willing to take the chance that I (an otherwise unknown who had just pepper sprayed some dude) might attack the guy.

    As we were discussing attempted murder charges against the guy I thought that making the field ID was more important than staying armed. As we were by this time down the block he offered to store my handgun in the trunk of one of the several squadcars parked about.He was convinced (the powers of persuasion) to let me take it out of the holster and put it in the trunk. Field ID made. (end of story - about 2 months later the yute was conviced of attempted murder and a bunch of misdemeanors and went away for 2 years)

    Why the story? Because sometimes it is either more helpful or less a cause of interpersonal disagreement with the cop(s) to allow yourself to be disarmed even though you are not being detained. Pick your battles wisely. In other words, under no circumstances EVER say never.

    stay safe.
    I appreciate you taking the time to tell me of your experiences. I have noted your experience and will apply judgement when being asked to disarm. In your case, I probably would not have a problem disarming since your qualm was with a civilian, not the LEO.

  25. #25
    Campaign Veteran skidmark's Avatar
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    No, my problem was the cop asking (telling) me to disarm. But it was not a battle that I wanted to fight as opposed to starting the wheels moving to put that yute away so he could reflect on his behavior.

    I have the same problem with cops asking/telling me me to disarm "for officer safety" if I have chosen to engage in a consensual contact. It's the point where I tell them I'm terminating the consensual contact and some of them get all huffy and use that as an excuse to escalate to an investigatory detention.

    I'm in no condition to physically resist a Girl Scout trying to help me across the street, let alone a cop who wants to detain me. And I did not like it when I was arrested. Harshly worded letters and the like can often resolve the situation satisfactorily, even if after the fact.

    stay safe.
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