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Thread: Template to put Chiefs of Police or Sheriffs in Washington on notice about the law of open carry

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    Referencing recent reports on OCDO, I have sent a version of the letter below to the Lewis County Sheriff and will do so again to the Sohomish County Sheriff once I call them Monday for a valid email address.

    If you use this form letter, make sure you morph it first to your facts, and consider copying the local press and local elected council.

    With proper substitution of a state name and a case in lieu of Casad, e.g. Commonwealth v. Hawkins for the state of Pennsylvania, etc., this template can be used anywhere to help educate rogue police departments.

    --


    Dear Sheriff _______:

    1. At _____________ there is a report on OpenCarry.org's discussion threads that your deputies are unlawfully harassing and persons lawfully open carrying handguns **secured in holsters** on foot in your jurisdiction. Please take action to ensure your deputies are brought up to speed with the authorities cited in this discussion regarding the law of open carry in Washington.

    2. Non-consensual police stops of open carriers for simply open carrying is per se [/i]unlawful.

    As you and your deputies should already know, it is not unlawful to openly carry handguns in Washington, and that like most states, no license is required to open carry on foot, and local ordinances to the contrary are unlawful as a matter of state preemption law. RCW 9.41.290. The United States Supreme Court has established that it is a violation of the Fourth Amendment for the police to seize a person absent reasonable articulable suspicion ("RAS") of crime afoot. Terry v. Ohio[/i], 392 U.S. 1 (1968). Accordingly, the Washington Court of Appeals has recently affirmed a trial court's holding that Washington law "does not and, under the Constitution, cannot prohibit the mere [open] carrying of a firearm in public." State v. Casad[/i], 139 Wash.App. 1032 (Wash. App.Div.2 2007) (suppressing evidence of unlawful possession of firearms because stop of Defendant was not grounded in reasonable articulable suspicion of any crime).

    Further, even during a valid Terry[/i] stop, the United States Supreme Court forbids police to even conduct a light pat down or seize weapons unless subsequent to RAS for the stop, the "an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is [both] armed and presently dangerous to the officer or to others." 392 U.S. at 24. Stated another way, only "[s]o long as the officer is [both] entitled to make a forcible stop, and has reason to believe that the suspect is armed **and dangerous** . . .may [he] conduct a weapons search limited in scope to this protective purpose." Adams v. Williams[/i], 407 U.S. 143, 146 (1972) (emphasis added). So even if there were there to come a time that a Washington law enforcement officer properly seizes a person pursuant to RAS for brief investigatory purposes, the officer is not entitled to seize an openly carry weapon absent "reason to believe that the suspect is . . . [also presently] dangerous." Id[/i]. Should an open carrier stopped validly under Terry[/i] consensually produce a Concealed Pistol License, this fact weighs heavily against any officer's claim that the suspect is "presently dangerous" such that the gun maybe lawfully seized and serial numbers obtained. Accordingly, suppression of any evidence obtained in seizing the gun is likely under these circumstances.

    3. Nonconsensual stops of open carriers to demand identification or check gun serial numbers are unlawful in Washington.

    A mere report of a man with a gun is not grounds for a Terry[/i] stop. Florida v. J. L.[/i][/i], 529 U.S. 266 (2000). Americans cannot be required to carry and produce identification credentials on demand to the police. Kolender v. Lawson[/i], 461 U.S. 352 (1983). Washington does not have a "stop and ID" statute. However, even where a state enacts a "stop and ID" statute, stop must be limited to situations where RAS exists of a crime, and further, stop subject's statement of his name satisfies the ID requirement as Kolender[/i], discussed supra[/i], has not been overruled. Hiibel v. Sixth Judicial District Court of Nevada[/i], 542 U.S. 177 (2004). Even where a state has established a duty to carry a license for some activity, absent RAS for the stop, the license cannot be demanded. State v. Peters[/i], 2008 WL 2185754 (Wis. App. I Dist. 2008) (driver of vehicle has no duty to produce driver's license absent RAS) (citing Hiibel[/i]). Law enforcement officers seizing persons for refusal to show identification are "not entitled to dismissal of . . . [42 USC 1983 claims] based on qualified immunity." Stufflebeam v. Harris[/i], 521 F.3d 884, 889 (8th Cir. 2008).

    4. Editorializing against open carry is not the province of law enforcement.

    If your deputies have any objection to open carry, they should contact their state legislator on their off duty time and not use the color of authority behind their badges and uniforms to stifle both the right to bear arms and the First Amendment right of expressive conduct to open carry firearms.

    5. Unlawful stops of open carriers will result in suppression of evidence even if unlawful conduct is uncovered, allowing criminals to get off the hook.

    In Casad[/i], discussed supra[/i], the Appeals court suppressed evidence of the unlawful possession of firearms because law enforcement seized a man for merely openly carrying firearms in public. This result is not unusual, see Goodman v. Commonwealth[/i], 2007 WL 2988343 (Va.App. 2007) (same result as Casad[/i]), because the result is as a matter of federal Constitutional law commanded by the United States Supreme Court. As discussed supra, see Florida v. J. L.[/i]; Hicks[/i].

    6. No qualified immunity available for law enforcement officials regarding open carrier harassment in Washington.

    As it is clearly established law that the open carry of handguns in holsters is lawful without a CPL, qualified immunity does not attach to your deputies for the unlawful harassment, ID checks, see Stufflebeam[/i] discussed supra[/i], and gun serial number checks, see also[/i] Hicks[/i] and J.L.[/i] discussed supra[/i]. Further, by way of this email I am putting you as the Sheriff, and the Office of the Sheriff, on actual notice in this matter, subjecting you to personal liability for damage claims under 42 USC 1983. See Will v. Michigan Dept. of State Police[/i], 491 U.S. 58 (1989); Ex parte Young[/i], 209 U.S. 123 (1908).

    7. In conclusion, please know that it is the constitutional right of open carriers to enjoy the same freedom of movement and right of assembly in society as those wishing to carry concealed, or not at all. The purpose of law enforcement is to help ensure open carriers enjoy these freedoms, not to stifle them. Please contact me by email at your earliest convenience to confirm that your deputies will cease harassment of open carriers immediately.

    Sincerely,

    YOUR NAME
    ADDRESS
    PHONE NUMBER




  2. #2
    Regular Member Mainsail's Avatar
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    Wow, thanks Mike, that's an awesome shell to use for writing letters. I did spot a couple of typos, so anyone wishing to use this should scrub it a bit. Before anyone get's their panties in a bunch, this is a letter, not a court, so we should feel free to cite Casad.

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    For recalcitrant agencies that need to be sued, here's information about the perfect evidence recording device to help bankrupt the opinion enforcement officers: http://opencarry.mywowbb.com/forum55/11428.html

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    Quit spamming, please?

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    antispam540 wrote:
    Quit spamming, please?
    Geez, considering he co-owns he site and all, he can spam it all he wants.

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    Lonnie Wilson wrote:
    antispam540 wrote:
    Quit spamming, please?
    Geez, considering he co-owns he site and all, he can spam it all he wants.
    Oops Forgive me, I'm a newbie here.

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    Excellent letter Mike! Thanks!!

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Mike, I will be sending an email and dealing with Snohomish County myself. As you well know, our state constitution protects our civil liberties even better than the US constitution.

    I will be contacting Snohomish County myself along with others here locally.

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    Lonnie Wilson wrote:
    Mike, I will be sending an email and dealing with Snohomish County myself. As you well know, our state constitution protects our civil liberties even better than the US constitution.

    I will be contacting Snohomish County myself along with others here locally.
    Me too. I've been discussing OC with Sheriff Lovick sporadically via email since before the election.

    --


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    Thanks Mike, I'll definitely be sending this to the Pierce County Sheriff's office in light my recent encounter.
    DISCLAIMER: This post may contain libertarian ideas and language that are consistent with the Declaration of Independence and the Constitution, including a belief in liberty, rule of law, and natural rights. It may also contain opinions critical of government and the tyrannies being committed by such. If you are an authoritarian, statist, or other freedom hater, side effects of reading this post may include high blood pressure, loose stool, severe genital itching, and diarrhea of the mouth.

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    kenshin wrote:
    Thanks Mike, I'll definitely be sending this to the Pierce County Sheriff's office in light my recent encounter.
    If you do, make sure you go through and proof read it and have others do so also... there's quite a lot of glaring typos.
    B.S. Chemistry UofWA '09
    KF7GEA

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    Thanks, Mike. I have relatives in Washington state who are afraid to open carry because of fear of harrassment by law enforcement, especially in Lewis County. I'm going to send your excellent letter to them, and hopefully it will help allay their fear of exercising their rights.

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    OC-Glock19 wrote:
    Thanks, Mike. I have relatives in Washington state who are afraid to open carry because of fear of harrassment by law enforcement, especially in Lewis County. I'm going to send your excellent letter to them, and hopefully it will help allay their fear of exercising their rights.
    A senior official from the Lewis County Sheriff's office called me yesterday to say that their deputies know that open carry is legal and to assure me that they will respect that right. He also indicated that the editorializing received by the recent poster while entering the building came from non-deputies who are now getting some attention.

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    Mike wrote:
    ...the editorializing received by the recent poster while entering the building came from non-deputies ...
    I don't understand what the official meant. What editorializing while entering what building; and what non-deputies? Did he explain what he meant specifically?

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    Ajetpilot,

    I'm pretty sure he's referencing the incident described here.

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    Mike wrote:
    He also indicated that the editorializing received by the recent poster while entering the building came from non-deputies who are now getting some attention.
    Perhaps from "Civilians" (Non-Sworn Officers) manning the security check point. Probably drawn from the same labor pool as Mall Security, Airport Security, and Pizza Delivery Drivers.
    "If I shoot all the ammo I am carrying I either won't need anymore or more won't help"

    "If you refuse to stand up for others now, who will stand up for you when your time comes?"

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    Mike,

    Your template is also the basis for a perfect ( if that is possible) training bulletin.

    With a small amount of editing of your letter, I have created a hand out to accompany the Washington Gun Rights pamphlet.

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    Regular Member Machoduck's Avatar
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    Well let's see it, Editor Trigger Dr.!

    MD

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    Trigger Dr wrote:
    Mike,

    Your template is also the basis for a perfect ( if that is possible) training bulletin.

    With a small amount of editing of your letter, I have created a hand out to accompany the Washington Gun Rights pamphlet.
    Well, I'm sure it's not perfect, but it should be a good start - note the emphasis I try to put on halting this weird idea some police departments have to seize guns just to checkserial numbers - we need to work over time to get this protocol stopped as soon as it is identified.

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    kparker wrote:
    Ajetpilot,

    I'm pretty sure he's referencing the incident described here.
    Thank you. I was thinking of the Everett incident while I was reading this thread. We are starting to get many incidents of this type now for some reason. Perhaps because we are moving into summer months, and lighter clothing makes OC more noticeable; or perhaps because our movement is growing! :celebrate

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    Ajetpilot wrote:
    kparker wrote:
    Ajetpilot,

    I'm pretty sure he's referencing the incident described here.
    Thank you. I was thinking of the Everett incident while I was reading this thread. We are starting to get many incidents of this type now for some reason. Perhaps because we are moving into summer months, and lighter clothing makes OC more noticeable; or perhaps because our movement is growing! :celebrate
    I emailed the Everett PD Chief and Sohomish County Sheriff last night, referencing respective threads - no word back from them yet.

    Hmm, maybe if WA state has a state FOIA law, you residents out there in Everett and Snohomish could FOIA these two leaders of your community for a copy of what I emailed them

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    Mike,

    The only thing I did was to remove the parts that address the letter to a specific person, and that made it an INFORMATION handout, addressing the points of law in Washington.



    Non-consensual police stops of open carriers for simply open carrying is per se unlawful.

    It is not unlawful to openly carry handguns in Washington, and that like most states, no license is required to open carry on foot, and local ordinances to the contrary are unlawful as a matter of state preemption law. RCW 9.41.290. The United States Supreme Court has established that it is a violation of the Fourth Amendment for the police to seize a person absent reasonable articulable suspicion ("RAS") of crime afoot. Terry v. Ohio, 392 U.S. 1 (1968). Accordingly, the Washington Court of Appeals has recently affirmed a trial court's holding that Washington law "does not and, under the Constitution, cannot prohibit the mere [open] carrying of a firearm in public." State v. Casad, 139 Wash.App. 1032 (Wash. App.Div.2 2007) (suppressing evidence of unlawful possession of firearms because stop of Defendant was not grounded in reasonable articulable suspicion of any crime).

    Further, even during a valid Terry stop, the United States Supreme Court forbids police to even conduct a light pat down or seize weapons unless subsequent to RAS for the stop, the "an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is [both] armed and presently dangerous to the officer or to others." 392 U.S. at 24. Stated another way, only "[s]o long as the officer is [both] entitled to make a forcible stop, and has reason to believe that the suspect is armed **and dangerous** . . .may [he] conduct a weapons search limited in scope to this protective purpose." Adams v. Williams, 407 U.S. 143, 146 (1972) (emphasis added). So even if there were there to come a time that a Washington law enforcement officer properly seizes a person pursuant to RAS for brief investigatory purposes, the officer is not entitled to seize an openly carry weapon absent "reason to believe that the suspect is . . . [also presently] dangerous." Id. Should an open carrier stopped validly under Terry consensually produce a Concealed Pistol License, this fact weighs heavily against any officer's claim that the suspect is "presently dangerous" such that the gun maybe lawfully seized and serial numbers obtained. Accordingly, suppression of any evidence obtained in seizing the gun is likely under these circumstances.

    Nonconsensual stops of open carriers to demand identification or check gun serial numbers are unlawful in Washington.

    A mere report of a man with a gun is not grounds for a Terry stop. Florida v. J. L., 529 U.S. 266 (2000). Americans cannot be required to carry and produce identification credentials on demand to the police. Kolender v. Lawson, 461 U.S. 352 (1983). Washington does not have a "stop and ID" statute. However, even where a state enacts a "stop and ID" statute, stop must be limited to situations where RAS exists of a crime, and further, stop subject's statement of his name satisfies the ID requirement as Kolender, discussed supra, has not been overruled. Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004). Even where a state has established a duty to carry a license for some activity, absent RAS for the stop, the license cannot be demanded. State v. Peters, 2008 WL 2185754 (Wis. App. I Dist. 2008) (driver of vehicle has no duty to produce driver's license absent RAS) (citing Hiibel). Law enforcement officers seizing persons for refusal to show identification are "not entitled to dismissal of . . . [42 USC 1983 claims] based on qualified immunity." Stufflebeam v. Harris, 521 F.3d 884, 889 (8th Cir. 2008).

    Editorializing against open carry is not the province of law enforcement.

    If officers have any objection to open carry, they should contact their state legislator on their off duty time and not use the color of authority behind their badges and uniforms to stifle both the right to bear arms and the First Amendment right of expressive conduct to open carry firearms.

    Unlawful stops of open carriers will result in suppression of evidence even if unlawful conduct is uncovered, allowing criminals to get off the hook.

    In Casad, discussed supra, the Appeals court suppressed evidence of the unlawful possession of firearms because law enforcement seized a man for merely openly carrying firearms in public. This result is not unusual, see Goodman v. Commonwealth, 2007 WL 2988343 (Va.App. 2007) (same result as Casad), because the result is as a matter of federal Constitutional law commanded by the United States Supreme Court. As discussed supra, see Florida v. J. L.; Hicks.

    No qualified immunity available for law enforcement officials regarding open carrier harassment in Washington.

    As it is clearly established law that the open carry of handguns in holsters is lawful without a CPL, qualified immunity does not attach to law enforcement officers for the unlawful harassment, ID checks, see Stufflebeam discussed supra, and gun serial number checks, see also Hicks and J.L. discussed supra. The Office of the Sheriff, orChief of Policeare therefore subject to personal liability for damage claims under 42 USC 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989); Ex parte Young, 209 U.S. 123 (1908).

    It is the constitutional right of open carriers to enjoy the same freedom of movement and right of assembly in society as those wishing to carry concealed, or not at all. The purpose of law enforcement is to help ensure open carriers enjoy these freedoms, not to stifle them.




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    Regular Member Machoduck's Avatar
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    Machoduck wrote:
    Well let's see it, Editor Trigger Dr.!

    MD
    Thanks, Trigger Dr. I caught it above in the "sticky". I thought I was thanking you in a different thread. Lost, I guess.

    MD

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    Excellent. Many thanks, Trigger Dr!

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    I should preface my comments with some background. I am first an avid shooter, owner of several guns including seven handguns and a holder of a Washington CCW license. Having said that, I have some serious reservations about this letter template.

    You make extensive reference to cases in other states and the federal courts, but I have found no citation of Washington law (RCW 9.41) supporting the assertion that it is legal to open carry in the state. On the contrary, RCW 9.41.270(1) specifically prohibits the carrying of weapons:

    (1) It shall be unlawful for any person to carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons.

    Not being a lawyer, I contacted one for a legal opinion. He confirmed what I had read, which was that were I to walk down a street in a city in Washington I would very likely be arrested under this sub-section. I for one am unwilling to sit in a jail cell and lose my trusty Glock for the sake of testing this idea.

    I support your idea in principle, as it has a basis in the Second Amendment of the US Constitution and 1.24 of the Washington constitution. However, law enforcement is the wrong target for your campaign. You need to address this letter to state legislators. Unless the RCW is changed, and specifically 9.41.270, it will remain illegal to open carry in this state.

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