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Thread: Open Carry not Reasonable Suspicion

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    I know that just open carrying is not Reasonable Suspicion to make a Terry stop but could someone point me to the court case that upheld this? Thanks.

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    Regular Member VAopencarry's Avatar
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    Here is an article from Police Chief magazine. court case references are at the bottom. I believe, including a Supreme Court ruling.

    Police Chief mag
    "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." - Thomas Jefferson

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    Regular Member Virginiaplanter's Avatar
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    1) "Moreover, the Supreme Court rejected any suggestion that a report of illegal conduct justifies a stop and frisk: "[t]he mere fact that a tip, if true, would describe illegal activity does not mean that the police may make a Terry stop without meeting the reliability requirement." 529 U.S. at 273 n. The Court made no distinction between concealed criminal conduct and open, obvious criminal activity.... Finally, with regard to the Court of Appeals' reliance on the imminent danger to the public, the Supreme Court declined to carve out a "firearm exception" to its established reliability requirements for anonymous tips. J. L. 529 U.S. at 272. The Court stated that "an automatic firearm exception . . . would rove too far" because it "would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun." Jerald Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004).

    2) "The right to carry openly has not been revoked by the General Assembly." Op Va. Att'y Gen. 05-078, (2006).

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    Campaign Veteran Dutch Uncle's Avatar
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    Virginiaplanter wrote:

    2) "The right to carry openly has not been revoked by the General Assembly." Op Va. Att'y Gen. 05-078, (2006).
    Am I the only person here who is livid after reading this outlandish statement?

    This sentence describes OC correctly as a right, then goes on to reassure us that the legislature has been kind enough not to revoke said right. SINCE WHEN DOES ANY LEGISLATIVE BODY HAVE THE AUTHORITY TO REVOKE A RIGHT? My inherent rights are none of the government's damn business, and they don't have the power to cross them out at will. Its true that governments have a regrettable and predictable history of taking away people's freedom to exercise their rights, but as I recall, that's why we had the Bill of Rights appended to our Constitution.

    I'm sure our Att'y General would say it was just a "slip of the pen", but I'd like to suggest this kind of "slip" still represents the natural tendency of power to corrupt.

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    Dutch Uncle wrote:
    Virginiaplanter wrote:

    2) "The right to carry openly has not been revoked by the General Assembly." Op Va. Att'y Gen. 05-078, (2006).
    Am I the only person here who is livid after reading this outlandish statement?

    This sentence describes OC correctly as a right, then goes on to reassure us that the legislature has been kind enough not to revoke said right. SINCE WHEN DOES ANY LEGISLATIVE BODY HAVE THE AUTHORITY TO REVOKE A RIGHT? My inherent rights are none of the government's damn business, and they don't have the power to cross them out at will. Its true that governments have a regrettable and predictable history of taking away people's freedom to exercise their rights, but as I recall, that's why we had the Bill of Rights appended to our Constitution.

    I'm sure our Att'y General would say it was just a "slip of the pen", but I'd like to suggest this kind of "slip" still represents the natural tendency of power to corrupt.
    Well, no. But only because you read it before I did.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Regular Member Virginiaplanter's Avatar
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    What's worse, is the right referenced in that infamous Bob McDonnell AG Opinion is a statutory right, not a Constitutional one. Bob McDonnell apparently doesn't understand Constitutional law.

    ""A Constitution is that by which the powers of government are limited...And can the legislature impugn that charter under which they claim, and to which by their acts they themselves have acknowledged an obligation? I apprehend not, nor can any argument against this position be drawn from an acquiescence in some acts which may be unconstitutional...I consider the people of this country as the only sovereign power. I consider the legislature as not sovereign but subordinate; they are subordinate to the great constitutional charter, which the people have established as a fundamental law, and which alone has given existence and authority to the legislature... [i]f the legislature should deprive a man of the trial by jury there the controversy is between the legislature on one hand, and the whole people of Virginia (though the medium of an individual) on the other, which people have declared that the trial by jury shall be held sacred..." Kamper v. Hawkins, 3 Va. (1 Va. Cases) 20, 24 (1793)

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    I would agree.....

    OC alone is not a valid reason to stop someone.



    You need to be doing something else that is deemed suspicious requiring that you be checked out and contact made.

    The bad part is that depending on what your doing, other than OC, thatrequire you be stopped.. the fact that you are OCing may get cause you to be disarmed. This is always done for the officer's safety.

    If you are suspected of committing a crime... It is highly likely that you will be disarmed at gun point and patted down.

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    LEO 229 wrote:
    I would agree.....

    OC alone is not a valid reason to stop someone.



    You need to be doing something else that is deemed suspicious requiring that you be checked out and contact made.

    [ snip ]
    Like standing in the courtyard of a building containing a bank?

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    vrwmiller wrote:
    LEO 229 wrote:
    I would agree.....

    OC alone is not a valid reason to stop someone.



    You need to be doing something else that is deemed suspicious requiring that you be checked out and contact made.

    [ snip]
    Like standing in the courtyard of a building containing a bank?
    If you work it right... it can be suspicious..

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    The cite that you might be interested is in Commonwealth v. Couture, 407 Mass. 178, 552 N.E.2d 538 (1990) which states:

    "[font="Times New Roman"]Therefore, a police officer's knowledge that a person is peacefully carrying a firearm, in and of itself, does not furnish probable cause to believe that the person is illegally carrying that firearm. The resultant stop is improper under Fourth Amendment principles.

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    Wynder wrote:
    The cite that you might be interested is in Commonwealth v. Couture, 407 Mass. 178, 552 N.E.2d 538 (1990) which states:

    "[font="Times New Roman"]Therefore, a police officer's knowledge that a person is peacefully carrying a firearm, in and of itself, does not furnish probable cause to believe that the person is illegally carrying that firearm. The resultant stop is improper under Fourth Amendment principles.
    Who were you talking to?

    I am already aware of that cite. You cannot stop someone for doing something legal. Point blank!!

    Same goes for driving down the road in your car. I cannot stop you for doing the speed limit.

    There must be some other reason that warrants the person to be stopped and investigated.

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    LEO, I was talking to the OP:

    I know that just open carrying is not Reasonable Suspicion to make a Terry stop but could someone point me to the court case that upheld this? Thanks.
    No one specifically cited that exact case, so I thought I'd throw it out there.

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    vrwmiller wrote:
    LEO 229 wrote:
    I would agree.....

    OC alone is not a valid reason to stop someone.

    You need to be doing something else that is deemed suspicious requiring that you be checked out and contact made.

    [ snip]
    Like standing in the courtyard of a building containing a bank?
    I thought he was referring to SWB*. Might have been the bank thing, though.

    (*you know, Standing While Black)

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    Wynder wrote:
    LEO, I was talking to the OP:

    I know that just open carrying is not Reasonable Suspicion to make a Terry stop but could someone point me to the court case that upheld this? Thanks.
    No one specifically cited that exact case, so I thought I'd throw it out there.
    Aight..... Kinda left the door open after my post.

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    :?
    If you think like a Statist, act like one, or back some, you've given up on freedom and have gone over to the dark side.
    The easiest ex. but probably the most difficult to grasp for gun owners is that fool permission slip so many of you have, especially if you show it off with pride. You should recognize it as an embarrassment, an infringement, a travesty and an affront to a free person.


    ~Alan Korwin

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    Agent19 wrote:
    Wynder wrote:
    No one specifically cited that exact case, so I thought I'd throw it out there.
    5 More recently though, the U.S. Supreme Court in 2000 ruled that an anonymous tip that a person is carrying a gun is not sufficient to justify a police officer's stop and frisk of that person, even where descriptive detail regarding the subject has been corroborated. The Court declined to adopt the "firearms exception" to Terry's requirement of reasonable suspicion.6 Similarly, in another 2000 Supreme Court case, an anonymous tip with a physical description and location that a person had a gun was not enough for reasonable suspicion, absent anything else to arouse the officer's suspicion.7 In that case the Court ruled that it was irrelevant that the defendant fled when the officer got out of his car and ordered the defendant to approach him.8 The tipster need not deliver an ironclad case to the police to justify an investigatory stop; it suffices if a prudent law enforcement officer would reasonably conclude that the likelihood existed that criminal activities were afoot and that a particular suspect was probably engaged in them.9

    5 Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412, 110 L.Ed.2. 301 (1990).
    6 Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L.Ed.2d 254 (2000).
    7 Pennsylvania v. D.M., U.S. 120 S. Ct. 203, 146 L.Ed.2d 953 (2000).
    8 Id.
    9 Alabama v. White, 496 U.S. 325, 1105 S. Ct. 2412, 110 L.Ed.2d 301 (1990); U.S. v. Diallo, 29 F.3d 23 (1st Cir. 1994); U.S. v. Taylor, 162 F.3d 12 (1st Cir. 1998
    A big part about the anonymous tip was because overzealous cops could and didcallin tips so they could go shake down a bad guy they believed was up to no good.

    So having sufficient information and a person to refer back too... much better for accountability and stops that type of activity.

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