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Thread: Refused to disarm

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    Regular Member ChinChin's Avatar
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    I waslistening to aguy at a local gun store who was relating a story to a group of customers on how he refused to be disarmed during a traffic stop. In his tale, he had been a passenger in a vehicle which was coming home from a wedding reception down south of Richmond. The driver had a bit of a led foot and after being stopped for speeding, apparently found out he had a bench warrant out of Prince William County for a failure to appear for some previous court appearance (traffic related offense I think) and the officer (Henrico) decided to use that to begin an investigation and wanted to search the car and the other 3 occupants.

    This gentlemen relating the story said he informed the officer he had a concealed firearm which he had a permit to carry and provided the officer with his ID and permit from his shirt pocket as he was instructed to do. The officer informed the storyteller that he wanted to remove his firearm for “officer safety” to which the gentlemen declined and invoked his 4th amendment right. He said the officer ran the gambit from attempting to intimidate, to trying to guilt him over previous officers deaths, to threatening to remove it by force and throw him in jail. The CC’er said he told the officer there was no law in the commonwealth which even mentioned the words “Officer Safety” and thus he could not demand, order or cajole a person to waive their 4th amendment right, only request. . .which he was declining to do.

    According to the person telling the story, this officer and his backup continued for about 10 minutes to threaten and harass, then to insult with what he called the “typical mud rakes of Junior Lawyer, wannabe cop and Wyatt Erp,” but in the end he never disarmed, never allowed himself to be disarmed, and the Police knowing they had no law to back their claim of “officer safety” couldn’t do anything about It.

    Now, this wouldn’t be the first time that I’ve overheard gunstore machismo, and while my crap-o-meter was beginning to ping while the story was being told; after getting back home I too couldn’t find anything in the Commonwealth LIC search to back up “officer safety” or a law allowing you to lawfully be disarmed if you are not wanted for a crime and/or the LEO has no PC against you for any suspected crime.

    I’m still on the fence as to the factual nature of this alleged encounter, but the implication has piqued my interest enough that I wanted to see if anybody else has heard similar tales?
    The problem with the internet is nobody can really tell when youre serious and when youre being sarcastic. Abraham Lincoln

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    Regular Member SouthernBoy's Avatar
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    Excellent topic. Hope we get a lot of knowledgeable people offering their take on this.


    In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

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    Well, I'd be interested to what law surrounds you having to identify yourself if you are a passenger of a car, turn over ID, and comply with their requests.

    So is being a passenger a "privledge not a right" as well?

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    Accomplished Advocate peter nap's Avatar
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    I'd say he was lucky considering it was Henrico. I'm surprised they did not arrest him for obstruction, just to be hateful.

    If true, my first reaction is "Good for him".

    My second is "pretty stupid thing to make an issue of".

    Take your pick.

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    SUPREME COURT OF THE UNITED STATES
    [line]

    443 U.S. 47

    Brown v. Texas
    APPEAL FROM THE COUNTY COURT AT LAW No. 2, EL PASO COUNTY, TEXAS


    No. 77-6673 Argued: February 21, 1979 --- Decided: June 25, 1979


    Two police officers, while cruising near noon in a patrol car, observed appellant and another man walking away from one another in an alley in an area with a high incidence of drug traffic. They stopped and asked appellant to identify himself and explain what he was doing. One officer testified that he stopped appellant because the situation "looked suspicious, and we had never seen that subject in that area before." The officers did not claim to suspect appellant of any specific misconduct, nor did they have any reason to believe that he was armed. When appellant refused to identify himself, he was arrested for violation of a Texas statute which makes it a criminal act for a person to refuse to give his name and address to an officer "who has lawfully stopped him and requested the information." Appellant's motion to set aside an information charging him with violation of the statute on the ground that the statute violated the First, Fourth, Fifth, and Fourteenth Amendments was denied, and he was convicted and fined.

    Held: The application of the Texas statute to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe that appellant was engaged or had engaged in criminal conduct. Detaining appellant to require him to identify himself constituted a seizure of his person subject to the requirement of the Fourth Amendment that the seizure be "reasonable." Cf. Terry v. Ohio, 392 U.S. 1; United States v. Brignoni-Ponce, 422 U.S. 873. The Fourth Amendment requires that such a seizure be based on specific, objective facts indicating that society's legitimate interests require such action, or that the seizure be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Delaware v. Prouse, 440 U.S. 648. Here, the State does not contend that appellant was stopped pursuant to a practice embodying neutral criteria, and the officers' actions were not justified on the ground that they had a reasonable suspicion, based on objective facts, that he was involved in criminal activity. Absent any basis for suspecting appellant of misconduct, the balance between the public interest in crime prevention and appellant's right to personal [p48] security and privacy tilts in favor of freedom from police interference.

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    Regular Member ChinChin's Avatar
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    hsmith wrote:
    Well, I'd be interested to what law surrounds you having to identify yourself if you are a passenger of a car, turn over ID, and comply with their requests.

    So is being a passenger a "privledge not a right" as well?
    As established in other threads. . .you are only required to hand over ID if you are operating a motor vehicle, or carrying a concealed firearm and the officer requests said ID.

    But failure to identify is not the main query I'm asking for opinions on. It's failure to comply with a (presumable) unlawful order to hand over personal property under the guise of a (presumable) false law commonly referred to as "officer safety."


    The problem with the internet is nobody can really tell when youre serious and when youre being sarcastic. Abraham Lincoln

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    http://www.oyez.org/cases/1990-1999/1996/1996_95_1268/

    Question

    Did Maryland's state trooper violate the Fourth Amendment's search and seizure guarantees by ordering Wilson, a mere passenger in the suspect vehicle, to exit the car during a traffic stop?

    Conclusion

    No. The Court held that after lawfully stopping a speeding vehicle, an officer may order its passengers to step out. While burdening their personal liberty somewhat, officers must be permitted such authority over passengers if the overriding government's interest in officer safety is to be protected.

    [line]

    http://law.emory.edu/caselaw/4ca/mar96/955287.p.html

    Balancing the officer's interest in self- protection against the resulting intrusion upon Baker's personal security, we hold that Officer Pope's direction was reasonable under the circumstances. Having formed a reasonable belief that Baker was carrying a weapon, Officer Pope had an immediate interest in determining whether Baker actually was armed and, if so, neutralizing any potential threat without assuming unnecessary risks.

    [line]

    http://www.4lawschool.com/criminal/wilson2.shtml
    The court determined under Mimms those passengers in automobiles have no 4th Amendment right not to be ordered from their vehicle once a proper stop is made.
    The interest of an officer’s safety makes asking a passenger to step out of a vehicle a mechanism for deterring a possible assault because a passenger can be equally as violent towards a cop as a driver. The passenger as a practical matter is already stopped by virtue of the vehicle being stopped. The intrusion is minimal, car with passengers can pose a greater risk to a cop then one without

    [line]

    http://law.jrank.org/pages/13082/Maryland-v-Wilson.html
    A Matter of Safety
    Attorney General Janet Reno presented what would be the strongest argument infavor of allowing officers to order passengers from lawfully stopped vehicles. Her primary concern revolved around police safety. In 1994, there were 5,762 officers assaulted in traffic stops. It was noted that there had been a 17-percent drop in fatalities of this nature since the Mimms decision. Reno essentially stated that an officer was at a reduced risk of danger if he could see the passenger.


    [line]

    http://caselaw.lp.findlaw.com/cgi-bi...;invol=95-1268

    Nevertheless, the Mimms rule applies to passengers as well as to drivers. The Court therein explained that the touchstone of Fourth Amendment analysis is the reasonableness of the particular governmental invasion of a citizen's personal security, 434 U.S., at 108 -109, and that reasonableness depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by officers, id., at 109.

    On the public interest side, the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver, as in Mimms, see id., at 109-110, or a passenger, as here. Indeed, the danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car.





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    hsmith wrote:
    Well, I'd be interested to what law surrounds you having to identify yourself if you are a passenger of a car, turn over ID, and comply with their requests.

    So is being a passenger a "privledge not a right" as well?
    http://circuit4.blogspot.com/search?q=soriano-jarquin

    On appeal, the Fourth Circuit rejected all of Soriano-Jarquin's arguments. First, the court rejected the argument that the trooper violated the Fourth Amendment by asking to see the identification of the van's passengers, noting that such a request is part of a legitimate traffic stop and is related to officer safety

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    Accomplished Advocate peter nap's Avatar
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    Thank You Leo 229....and
    Welcome back !

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    In as non-argumentive a way as possible, let me ask: Why?

    Is there any practical reason not to be willing to disarm for the duration of a traffic stop?

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    SaltH2OHokie wrote:
    In as non-argumentive a way as possible, let me ask: Why?

    Is there any practical reason not to be willing to disarm for the duration of a traffic stop?
    Here are a few off the top of my head...

    Just to be rebellious...

    You like creating a dangerous situation...

    You defy all authority lawful or otherwise...

    You fear that you will be defenseless againstan officer's attack on you...

    It is a violation of your constitutional rights to keep and bear arms...

    There is noreason to believe you are a danger to the officer...

    It is an unreasonable search and seizure of your person...

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    Well, I agree with your last two or three fully...though at the same time, I personally would have no problem disarming for the duration of a traffic stop unless I read something more compelling than reasons based purely on the principal of it; something practical.


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    Regular Member Marco's Avatar
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    Here is a related topic on another forum 14 pgs. and the most anyone can say is,
    http://forums.officer.com/showthread.php?t=87148
    "You are being detained the officer has a right to disarm you."


    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.


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    Accomplished Advocate peter nap's Avatar
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    SaltH2OHokie wrote:
    Well, I agree with your last two or three fully...though at the same time, I personally would have no problem disarming for the duration of a traffic stop unless I read something more compelling than reasons based purely on the principal of it; something practical.
    Well, I'd have a problem with it, mostly because of one and three. It would be one of those problems I keep to myself though.
    Just one of those things that wouldn't be worth arguing about to me.

    Come to think of it, I was in a similar situation a few months back and there is a very good reason to be cooperative. In that case I offered to let the trooper hold it and he grinned and said something like, I expect I'm faster than you are.

    That set the stage for a whole new argument....But since the driver hadn't gotten a ticket yet, I kept quiet. PO'ing the cop is a great way to get a ticket for someone else.

    As it was, he let him off with a warning


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    Each person will have a different reason. I cannot come up with a "real and practical" reason to refuse. But then.... I am the guy taking it from you.

    As for thelast two.... I have already posted in regards to "officer safety" as identified and agreed upon by the courts. There is a known dangerand the officer may fear being harmed and isallowed to do things to keep it all safe.

    Now... as a matter of being "practical..." an officer is NOT going to pat downoccupants and do protective searches on every stop. There is going to be a little something extra that says... "This does not look right" or "These guys look dangerous"

    This also goes hand in hand with "The officer has no reason to think I would harm him." But the officer does not know you or what you are about. You could be the nicest gang member out there and the decoy who holds the guns.

    Recently.... gangs have adopted a position to wear normal clothing to cover up to blend in. They have made it too easy to be spotted and to further their criminal enterprise... they need to get under the radar.

    So.... how DOES the officer know YOU do not mean to cause him any harm? He would need to be a close friend and know you did not escape from jail, just murder your wife, or just rob the Kwik-e-mart.

    The courts have ruled that the officer can control all the occupants and be certain there are no weapons present during the stop. He should be able to back it up with some logical reasoning and not do it "just because." But he does NOT have to articulate this to you during the stop. This is going to end up in alenghtly debate on the side of the road.

    Is there a need to disarm everyone during a stop? Not really... you have to use your best judgement and decide. But the police do have the court's backing and can disarm you during the stop as all occupants are legally being detained.

    You are sure to hear the argument "What is the officer wants to harm me during the stop? I need a way to fight back!" and this is just nonsense. Next you will see Godwin's law being applied in some manner.



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    Given that I've never been in this situation - in the context of a traffic stop what does being disarmed mean? The officer taking control of my weapon?

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    hlh wrote:
    Bottom Line; in VA, with or without a CCW, can I legally refuse to disarm?
    If something is being done to you that you know to be unlawful.... perhaps. Each state is going to be different.

    Example: You are being sexually assaulted or you are being identified and arrested as someone you clearly are not.

    Unlawful acts done to you would clearly help in your defense. But then you have to know what you are fighting for and that you are in the right. This is not so clear cut all the time unless you know all the laws in the location you happen to find yourself.

    There may not be a state charge but the county or town have have their own code you did not know about.

    To just resist to be defiant will be unlawful and and up getting you needlessly charged with a crime and possibly hurt.



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    ChinChin wrote:
    hsmith wrote:
    Well, I'd be interested to what law surrounds you having to identify yourself if you are a passenger of a car, turn over ID, and comply with their requests.

    So is being a passenger a "privledge not a right" as well?
    As established in other threads. . .you are only required to hand over ID if you are operating a motor vehicle, or carrying a concealed firearm and the officer requests said ID.

    But failure to identify is not the main query I'm asking for opinions on. It's failure to comply with a (presumable) unlawful order to hand over personal property under the guise of a (presumable) false law commonly referred to as "officer safety."
    I fail to see the practical difference between failure to identify and failure to disarm; if the officer has no reasonable suspicion of misconduct, neither is required of a person stopped by police, and continued detention for that purpose is unlawful violation of the Fourth Amendment.

    However, that's constitutional law; before you get there, you riskbeing arrested, charged and tried according to State law, and the trial judge will have very little power (or interest, frankly)to dismiss the charge on constitutional grounds; double jeopardy applies if he does so and he's the bottom of the judicial pecking order. Not saying it's particularly likely, but it's possible. More than likely you will just be harrassed.

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    JosephMingle wrote:
    Given that I've never been in this situation - in the context of a traffic stop what does being disarmed mean? The officer taking control of my weapon?
    The officer learnsyou are armed and heremoves the weaponfrom your possession temporarily.

    During the stop he does not feel comfortable with you being armed and takes the gun back to his car. It is returned to you just before you are allowed to leave.

    Sure... many people are armed and the cop does not even know it so what is the difference.. right? Nothing like getting shot after knowing you "could have" disarmed the guy earlier.

    Some cops just do not feel good about knowingly allowing aguy to have a gun when they are about to give him a reckless driving ticket. Some people get real heated the moment you pass that ticket in the window.

    I have had my share!

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    Regular Member Deanimator's Avatar
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    LEO 229 wrote:
    hlh wrote:
    Bottom Line; in VA, with or without a CCW, can I legally refuse to disarm?
    If something is being done to you that you know to be unlawful.... perhaps. Each state is going to be different.

    Example: You are being sexually assaulted or you are being identified and arrested as someone you clearly are not.

    Unlawful acts done to you would clearly help in your defense. But then you have to know what you are fighting for and that you are in the right. This is not so clear cut all the time unless you know all the laws in the location you happen to find yourself.

    There may not be a state charge but the county or town have have their own code you did not know about.

    To just resist to be defiant will be unlawful and and up getting you needlessly charged with a crime and possibly hurt.

    Refuse CONSENT to everything. Immediately ask if you're free to leave. Unless the officer presents you with an immediate and credible threat to life and limb, do not resist. Where lawful, a voice recorder is your friend.

    If you are in the right, you don't need to worry about the ride. It's the letter writing campaign and lawsuit he needs to worry about.
    --- Gun control: The theory that 110lb. women have the "right" to fistfight with 210lb. rapists.

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    Regular Member Marco's Avatar
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    Unlawful acts done to you would clearly help in your defense.
    http://www.constitution.org/uslaw/defunlaw.htm
    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.


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    Deanimator wrote:
    Refuse CONSENT to everything. Immediately ask if you're free to leave. Unless the officer presents you with an immediate and credible threat to life and limb, do not resist. Where lawful, a voice recorder is your friend.

    If you are in the right, you don't need to worry about the ride. It's the letter writing campaign and lawsuit he needs to worry about.
    And if you are wrong

    Please do not give advise that may cause someone to get killed or charged with the death ofpolice officer.

    I do not believe advice on "consent" is being asked here either....

    The question is about refusal to be disarmed.


    http://supreme.justia.com/us/177/529/case.html

    At common law, if a party resisted arrest by an officer without warrant and who had no right to arrest him, and if in the course of that resistance the officer was killed, the offense of the party resisting arrest would be reduced from what would have been murder if the officer had had the right to arrest, to manslaughter.

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    LEO 229 wrote:
    Each person will have a different reason. I cannot come up with a "real and practical" reason to refuse. But then.... I am the guy taking it from you.
    How come no one has brought up the practical reason of safety for both the officer and the citizen. While LEO 229 may be fully competent handling an unfamiliar weapon, there are many officers who are not. The likely-hood of an accidental (or negligent) discharge occurring goes up the more a weapon is handled. Every officer will probably handle the situation differently. Some officers may simply remove the weapon and take it with him to his vehicle. Some have been known to attempt to unload the weapon right there on the spot. The latter choice, in my opinion is just not safe, when the officer may not have handled that type of weapon before.

    For more on that point see post #13 from a Virginian in this thread on THR. http://www.thehighroad.org/showthread.php?t=385906

    I will admit, however, that there probably are certain times when officer safety would warrant temporarily removing a firearm from a situaiton. But I have a problem with running the serial numbers of a firearm so see if it is stolen once it has been seized under the guise of officer safety. Running the numbers has nothing to do with safety. It is a fishing expidition - pure and simple. In a normal traffic stop (speeding for example) there is no probable cause to believe that the firearm is stolen. Anything further than temporarily securing the weapon is an unreasonable search and seizure in my opinion.

    I have never had to deal with such a situation. But I have decided that I will not voluntarily surrender my weapon for "officer safety" as I see it as an unreasonable seizure. But if the officer forces the issue I will not resist. I will say if he feels that he has the authority (not the right) to take my weapon, then I will not stop him from doing so, but that I still don't consent to the seizure. Once it is all over I can take my voice recorder (which will have been running the whole time) and decide whether to file a formal complaint.

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    Accomplished Advocate peter nap's Avatar
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    LEO 229 wrote:
    JosephMingle wrote:
    Given that I've never been in this situation - in the context of a traffic stop what does being disarmed mean? The officer taking control of my weapon?
    The officer learnsyou are armed and heremoves the weaponfrom your possession temporarily.

    During the stop he does not feel comfortable with you being armed and takes the gun back to his car. It is returned to you just before you are allowed to leave.

    Sure... many people are armed and the cop does not even know it so what is the difference.. right? Nothing like getting shot after knowing you "could have" disarmed the guy earlier.

    Some cops just do not feel good about knowingly allowing aguy to have a gun when they are about to give him a reckless driving ticket. Some people get real heated the moment you pass that ticket in the window.

    I have had my share!
    I think the question is about the passenger 229. Not the guy getting the ticket.

    I think it all boils down to why they were stopped. If the driver is speeding, the passenger would be free to walk away without identifying himself or disarming. If he chose to stay, I think the officer could ask him to disarm while he wrote the ticket. That's a fine line though.

    If they were stopped because the car matched one used in a crime, all the occupants would be subject to detention and could be disarmed.

    Just my opinion.

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    peter nap wrote:
    I think the question is about the passenger 229. Not the guy getting the ticket.

    I think it all boils down to why they were stopped. If the driver is speeding, the passenger would be free to walk away without identifying himself or disarming. If he chose to stay, I think the officer could ask him to disarm while he wrote the ticket. That's a fine line though.

    If they were stopped because the car matched one used in a crime, all the occupants would be subject to detention and could be disarmed.

    Just my opinion.
    Ahhh....

    Actually... NOBODY is free to go!

    The courts have ruled that in a traffic stop... EVERYONE is considered to be seized and under the control of the officer.

    The officer can force them back in the car as much as he can force them out.


    Please read up on Maryland v Wilson and Pennsylvania v Mimms to see it is true.

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