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Thread: "Alarm" and Terry Stop Court Ruling

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    Regular Member Mainsail's Avatar
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    Appeals Court Rules Against the State

    The issue of ‘alarm’ was raised and there is some interesting reading.

    The State appeals the trial court's order suppressing evidence against Gregory E. Casad. Casad walked down the street in Port Angeles on a Saturday afternoon carrying two rifles partially wrapped in a towel. A woman called 911. Police responded, detained Casad, frisked him, and asked why he carried the weapons. Casad admitted that he was a felon, an admission that lead to his arrest and charges for unlawfully possessing the weapons. The trial court held that the police had no authority to detain Casad for a Terry1 stop and suppressed the evidence as the fruit of an unlawful seizure. We affirm.


    Casad challenged the police authority to detain and search him. The trial court ruled that the police did not have authority to detain Casad and, therefore, suppressed the evidence that the police found as a result of the detention.

    The State could not obtain a conviction without the suppressed evidence and so it dismissed its case against Casad.


    The State argued that police could reasonably surmise that there was a substantial possibility that Casad was unlawfully displaying a weapon. The unlawful display statute reads in relevant part:
    It shall be unlawful for any person to carry, exhibit, display, or draw any firearm
    . . . in a manner, under circumstances, and at a time and place that . . . warrantsalarm for the safety of other persons.

    RCW 9.41.270(1). Alarm is "warranted" if the circumstances are such that a reasonable person would be alarmed.


    The trial court held:
    Here, the Defendant was carrying a rifle only partially concealed and clearly identifiable as a rifle to the citizen who made the call as well as law enforcement officers, with the barrel pointing towards the ground walking on a main thoroughfare in the City of Port Angeles in daylight hours. In fact there were two rifles, which would likely be less alarming than the carrying of one rifle. Nothing indicates that the manner in which the Defendant was carrying the weapons in any way would give reasonable cause for alarm unless the mere fact of carrying a weapon within the city limits in the open in daylight on a major thoroughfare in and of itself would cause such alarm. The statute does not and, under the Constitution, cannot prohibit the mere carrying of a firearm in public. Therefore the Court finds that the officers at the time of the initial contact had no reasonable articulable suspicion that any criminal activity was occurring.


    We note that, in connection with this case, several individuals have commented that they would find it strange, maybe shocking, to see a man carrying a gun down the street in broad daylight. Casad's appellate counsel conceded that she would personally react with shock, but she emphasized that an individual's lack of comfort with firearms does not equate to reasonable alarm. We agree. It is not unlawful for a person to responsibly walk down the street with a visible firearm, even if this action would shock some people.


    And the facts in evidence do not support a reasonable suspicion that Casad carried the weapons in a fashion that would warrant alarm. Casad wrapped a towel around the rifles and he cradled them in both arms, so he could not readily reach the trigger and he did not have the rifles "at the ready." RP at 73. In Spencer, this court upheld a conviction for unlawful display partially because the defendant warranted alarm by carrying a rifle while walking briskly with his head down, in "a hostile, assaultive type manner with the weapon ready." 75 Wn. App. at 121. But Casad's demeanor did not warrant alarm; he walked straight down the path with eyes focused forward. He did not wear combat type clothing nor act erratically. In short, other than the fact that he was carrying the guns down the street to a pawn shop, which is typically a lawful activity, Casad did nothing to warrant alarm.


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    Regular Member Mainsail's Avatar
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    Oh, if you decide to read the entire ruling, look for the creative editing by Officer Ryan on his police report.

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    RCW 9.41.270(1). Alarm is "warranted" if the circumstances are such that a reasonable person would be alarmed.
    Wow....just wow. I would say in this case, a "reasonable person" would be another gun owner.

    If ANOTHER gun owner found what he was doing to be alarming, it's a problem. But an "anti" would naturally find even a picture of a gun alarming. It's all relative and has to be placed in perspective.


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    BobCav wrote:
    I would say in this case, a "reasonable person" would be another gun owner....
    I disagree completely, Bob (TWICE in 24 hrs. :what

    Here is a "gun owner" who claims to CC as well.
    http://glocktalk.com/showthread.php?...postid=8413485

    Take a look at his other posts too.
    I have NO DOUBT this "other gun owner" would not only find my OC to be "alarming" but would call the police himself. He admitted he woud do just that.


    Same goes for this person:

    http://glocktalk.com/showthread.php?...postid=8413278

    There are more if you care to look...


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    Regular Member Mainsail's Avatar
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    I thought these paragraphs were relevant as well:

    The State argues that the police were engaged in community caretaking by furthering their broad, ongoing duty to serve and protect the public. But it is always the duty of law enforcement to serve and protect; this duty, standing alone, does not justify warrantless searches and seizures. It is clear that the police were neither conducting a routine health or safety check nor responding to an emergency in order to render aid or assistance. Instead, the police were investigating a possible crime of unlawful display of a weapon. The community caretaking exception to the warrant requirement does not apply here and the trial court did not err in so ruling.
    Terry Stop

    Next, the State contends that the police conducted a lawful Terry stop of Casad. Again, we disagree.

    Under Terry, law enforcement officers may stop and question a suspect if they have a reasonable, articulable suspicion that criminal activity has occurred or is about to occur. State v. Mendez, 137 Wn.2d 208, 223, 970 P.2d 722 (1999). Courts do not require probable cause for a Terry stop because these stops are significantly less intrusive than an arrest. Mendez, 137 Wn.2d at 223. Such a stop is justified under the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington State Constitution if the officer can specify particular facts and rational inferences that reasonably justify the intrusion. Mendez, 137 Wn.2d at 223. No warrant is required. Mendez, 137 Wn.2d at 223. Considering the totality of the circumstances known to the officer at the time, a reviewing court asks whether the officer could reasonably surmise that there was a substantial possibility criminal activity was afoot

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    Regular Member Mainsail's Avatar
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    Pa. Patriot wrote:
    BobCav wrote:
    I would say in this case, a "reasonable person" would be another gun owner....
    I disagree completely, Bob (TWICE in 24 hrs. :what

    Here is a "gun owner" who claims to CC as well.
    http://glocktalk.com/showthread.php?...postid=8413485

    Take a look at his other posts too.
    I have NO DOUBT this "other gun owner" would not only find my OC to be "alarming" but would call the police himself. He admitted he woud do just that.


    Same goes for this person:

    http://glocktalk.com/showthread.php?...postid=8413278

    There are more if you care to look...
    It doesn't matter if another 'gun owner' is alarmed; the police are gun owners too. The court ruled:

    It is not unlawful for a person to responsibly walk down the street with a visible firearm, even if this action would shock some people.


    ...other than the fact that he was carrying the guns down the street to a pawn shop, which is typically a lawful activity, Casad did nothing to warrant alarm.

    I don't know what those posts have to do with the topic, neither poster lists their location and we're really only concerned with WA (or I would have posted it in a more general forum).

    I think this ruling, even though it's an unpublished one, is huge for the OC issue. The police detained me on the grounds that I was causing alarm merely because my pistol was exposed. This ruling shows that the initial detention was improper. Arguing some minor tangent is silly.

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    State Researcher lockman's Avatar
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    Pa. Patriot wrote:
    I disagree completely, Bob (TWICE in 24 hrs. :what

    Here is a "gun owner" who claims to CC as well.
    http://glocktalk.com/showthread.php?...postid=8413485

    Based on that posting All cops are insecure and/or nuts. You can't use your job to justify behavior that is unacceptable or inappropriate.

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    I'm having trouble following the discussion - Court ruled that carrying a rifle wrapped in a towel is not a violation of WA law now conduct that would warrant a Terry stop, yes?

    Sounds like the court ruled correctly to me.



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    Pa. Patriot wrote:
    BobCav wrote:
    I would say in this case, a "reasonable person" would be another gun owner....
    I disagree completely, Bob (TWICE in 24 hrs. :what

    Here is a "gun owner" who claims to CC as well.
    http://glocktalk.com/showthread.php?...postid=8413485

    Take a look at his other posts too.
    I have NO DOUBT this "other gun owner" would not only find my OC to be "alarming" but would call the police himself. He admitted he woud do just that.


    Same goes for this person:

    http://glocktalk.com/showthread.php?...postid=8413278

    There are more if you care to look...
    Both these responses appear to be from wannabes. If a handgun in a holster or a longgun just being carriedin the open scares them, then they qualify as sheep, not sheepdogs. Around here during hunting season there are guns everywhere you look, I know of no one that freaks out or is fearful. A gun is a tool and that only and is not evil, bad or reason to be afraid, how it is used by the user makes these things happen. I get the feeling you are a wannabe too, as you don't really understand the issue.

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    Regular Member possumboy's Avatar
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    The statute does not and, under the Constitution, cannot prohibit the mere carrying of a firearm in public.

    That is the lines I like about the ruling.

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    Mainsail wrote:
    ...I don't know what those posts have to do with the topic, ....
    {snip}
    Arguing some minor tangent is silly.
    Silly?
    I was replying to a specific comment from BobCav.
    If you re-read my post (including Bob's quote) my reply should make PERFECT sense.
    It was ONLY directed towards Bob's point (quoted).


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    Regular Member Mainsail's Avatar
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    Mike wrote:
    I'm having trouble following the discussion - Court ruled that carrying a rifle wrapped in a towel is not a violation of WA law now conduct that would warrant a Terry stop, yes?

    Sounds like the court ruled correctly to me.

    I’ve read that sentence six times and I’m not sure what you’re asking.



    The court ruled that it was a violation of the subject’s rights against unreasonable search and seizure for the police to detain him for open carrying (two rifles wrapped in a towel). Thus, everything they discovered as a result of that detention (that he was a felon and that he had illegal narcotics in his possession) were inadmissible at his trail. Without that evidence, the State had to drop the charges against him.

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    Bear 45/70 wrote
    I get the feeling you are a wannabe too, as you don't really understand the issue.
    WHOAH! Friendly Fire!

    Bear, you have obviously mistaken me for the enemy.

    Did you read the quote in my post from BobCav before you resorted to misdirected INSULTS? I was making a point on that quote...


    I'll explain since my post was not obvious enough in and of itself for you.

    BobCav said that he believed that a "reasonable person" (per the court ruling) should be a "gun owner"

    I then simply pointed out that not all "gun owners" are "reasonable", especially when it comes to open carry. I also posted a particularly good example to this point. A "gun owner" who proclaims to CC but that would "call the police" if he saw someone OC'ing.

    Calling me an "wannabe" for bringing this point up is simply beyond assinine which is why I assume you mis-read my post.

    Is everyone clear now?

    ETA: Bear, next time it would be prudent to search an individuals posts before calling them names that do not apply. Searching my posts would have likely given you the hint that you mis-read something.



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    Regular Member Mainsail's Avatar
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    Oh sheesh this is getting out of hand. I posted the ruling to expose the meaning behind the ‘alarm’ issue. Open carry is legal here; most of the police departments recognize that. However, the one law they keep using to harass and threaten OCers is:

    It shall be unlawful for any person to carry, exhibit, display, or draw any firearm . . . in a manner, under circumstances, and at a time and place that . . . warrants alarm for the safety of other persons.


    Some officers try to use this as justification to force you to conceal. They will say that if someone sees your firearm and is alarmed by it, you are in violation of the law and subject to arrest. That one sentence has been a thorn in the side of OC for a long time. This ruling sheds a lot of light on it. You are not causing alarm merely by carrying a firearm (rifle or handgun) openly! You would have to be carrying openly and have something about your demeanor that would cause a reasonable person to become alarmed.



    The court used this example:

    Nothing about this locale warrants alarm as would, possibly, a park known as a haven for drug dealers or an elementary school during recess.


    The law is NOT cut and dry though:

    Casad carried the rifles at 2 p.m. on a Saturday. Because it was a Saturday afternoon, the area was filled with traffic and pedestrians. These facts contrast with those of Mitchell, in which we found that police had authority to make Terry stops of suspects for unlawfully displaying a weapon because they walked down an urban, residential street at night carrying a semi-automatic weapon. Mitchell, 80 Wn. App. 143. Under this factor, Casad's behavior did not warrant reasonable alarm because he was not smuggling the rifles in the darkness, at a time when the streets were empty and the rare traveler was more vulnerable to criminal behavior, nor was he at a large public event where crowds of people could be gunned down.




    Therefore, despite some ambiguity regarding what does constitute ‘alarm’ for the purposes of that RCW segment, the ruling clearly states that ‘mere open carry’ is not sufficient to allow a police officer to detain you. That’s what this thread is about. I wasn’t trying to argue about some other gun owners and whether or not they would be alarmed, because that doesn’t matter. The ruling seems to draw a distinction between ‘alarm’ and ‘shock’ when a citizen observes OC.

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    Mainsail, that was my point. The old definition of "alarm" was bogus and too open to interpretation. I wouldn't say that the police qualify as a "reasonable person" in that situation as they're not a disinterested third party, but that's just my opinion and may not be what the law states. Otherwise, they could go around saying that anything that they just don't like that day "alarms" them.

    As they did everytime they saw OC.

    That's the only point I was trying to make IAW the OP.









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    I understood you, Pa. Patriot! Thank you for your point.
    Support these forums, please donate if you are able to OpenCarry.Org!

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    Yep, I understood PA Pat's point also...he was giving me examples of how my statement might not be the case. There are always exceptions...

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    I'm not sure if you guys are getting the real important passage in this ruling. It can be found on Page 10, in the second paragraph, in which it states:



    "Casad's appellate counsel conceded that she would personally react with shock, but she emphasized that an individual's lack of comfort with firearms does not equate to reasonable alarm. We agree. It is not unlawful for a person to responsibly walk down the street with a visible firearm, even if this action would shock some people."



    That said.. as the author of 'WASHINGTON STATE GUN RIGHTS AND RESPONSIBILITES' I encourage everyone to behave themselves.

    And BTW: Just because the two guys over on the Glock forum disagree with open carry, that doesn't make them bad people. They're not traitors or sell-outs or any other kind of demon for not endorsing OC. Different strokes.



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    Regular Member Mainsail's Avatar
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    Thanks for the input Dave! There are a lot of valuable passages in this ruling, that being one of the more so.



    The court seems to acknowledge that there are a lot of gray areas in regards to ‘display’. There is no fine line; it’s all fat and fuzzy when it comes to what constitutes ‘alarm’ to another. Dressed in jungle fatigues and slinging an AR across your back would probably constitute reasonable alarm to the lay-person, whether we agree with it or not. The court cited another case where the suspect “walked briskly with his head down in a hostile, assaultive type manner”. This shows how subjective the law is, and rightly so. A young adult dressed in goth clothes and carrying an AR, walking in the direction of a school would certainly give me reason to feel alarmed.



    So it appears that the lawmakers wanted some ambiguity with what defines ‘alarm’.

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    Hey Dave,welcome to OCDO.Glad to have you aboard! Feel free to jump in anything that interests you. How did you hear about OCDO?

    From http://www.danddgunleather.com/washi...gun_rights.htm

    Dave Workman is a newspaper editor, nationally recognized gun writer and firearms authority, and an NRA-certified firearms instructor. A handgun and personal defense instructor for over 20 years, he has taught both NRA firearms safety courses, and created a firearms and personal defense protection course for the Highline Community College adult continuing education program. He also created the Personal Security Seminar, which he taught for several years.


    An award-winning journalist, Workman is Senior Editor at GUN WEEK, and a contributing editor for GUN NEWS DIGEST and WOMEN AND GUNS. His work has also appeared in the HANDGUNS annuals from Krause Publications. He spent 13 years as Washington editor of Fishing & Hunting News and seven more as the Guns & Shooting editor of that publication. He was managing editor of Hunter Education Instructor, and editor of Small Craft Advisory, a marine law enforcement journal.


    Described as "a weaponcraft expert from the Pacific Northwest" in the June 1996 issue of Combat Handguns magazine, Workman is a graduate of the Lethal Force Institute. An associate member of the American Society for Law Enforcement Trainers, he is one of the few journalists ever invited to attend the Calibre Press Street Survival course for police, which he twice attended. He has served as an officer and director of the Snoqualmie Valley Rifle Club, and on the National Rifle Association Board of Directors, serving as chair of the Law Enforcement Assistance Committee in 1994-1995.


    A veteran firearms and sportsman's rights activist, he authored the original draft language for Washington State's anti-Hunter Harassment statute. Hi is also an accomplished hunter and competitor.


  21. #21
    Regular Member Mainsail's Avatar
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    They cite State v. Spencer, 75 Wn. App. 118, 124, 876 P.2d 939 (1994) several times in their ruling, and it sounds significant to the issue of firearms carry. Does anyone know how to access this case via the internet?

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    Mainsail wrote:
    They cite State v. Spencer, 75 Wn. App. 118, 124, 876 P.2d 939 (1994) several times in their ruling, and it sounds significant to the issue of firearms carry. Does anyone know how to access this case via the internet?

    Edit...... link did not work right.
    "A fear of weapons is a sign of retarded sexual and emotional maturity."

    "though I walk through the valley in the shadow of death, I fear no evil, for I know that you are by my side" Glock 23:40

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    Mainsail wrote:
    The court cited another case where the suspect “walked briskly with his head down in a hostile, assaultive type manner”. This shows how subjective the law is, and rightly so. A young adult dressed in goth clothes and carrying an AR, walking in the direction of a school would certainly give me reason to feel alarmed.



    So it appears that the lawmakers wanted some ambiguity with what defines ‘alarm’.
    The case you mention is State v. Spencer, 1994. It's "the" test case on open carry, and he lost. But in the process,the appellate court affirmed RTC, and handed out some very prudent advice to anyone who practices open carry. My strong recommendation is for people to read that decision, or at least consult the passages in my book, pages 18-21.

    Always err on the side of caution...and good manners

    This new case with Casad expands RTC (and OC) parameters a bit.

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    BobCav wrote:
    Hey Dave,welcome to OCDO.Glad to have you aboard! Feel free to jump in anything that interests you. How did you hear about OCDO?

    Well, I was sitting at the loading bench one night, and this strange chorus of Voices spoke to me, and....








  25. #25
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    Dave Workman wrote:
    Well, I was sitting at the loading bench one night, and this strange chorus of Voices spoke to me, and....
    Bleh... the usual, I was kinda hoping for an interesting story.


    *snicker*

    j/k

    Welcome to the board! Deos this mean we all get free subscriptions?
    -Unrequited

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