Results 1 to 8 of 8

Thread: Getting legal advice from Law enforcment

  1. #1
    Regular Member
    Join Date
    Aug 2008
    Location
    , ,
    Posts
    180

    Post imported post

    Perfect example in the thread below concerning a weapon in the car being "legally concealed" in NC if on your hip. Not true, no one has ever been convicted for open carry in North Carolina, ever.

    Be advised: some law enforcement officers will tell you what they want you to do and phrase that as law. Since living in North Carolina (one year) I have been told the following by various members of the law enforcement community. Coming from an area that had a highly educated police force, the ignorance of some North Carolina cops has shocked me.

    1) Open carry is illegal in some area because of local ordinance. FALSE ! Open carry is legal everywhere by two State Supreme court rulings and State preemption. See State v. Kerner & State v. Fennell

    2) Open carry in Cary or Fuquay Varina will get you arrested Guaranteed ! Yep they will threaten you, so what. Just tell the officer, " fine arrest me and deal with the legal retaliation that will be forth coming Guaranteed ! I'm I being detained ? Onwhat Reasonable Articulable suspicion ? I have just walked away from more than a few cops pulling this crap. Don't let them push you around and violate your rights. Most don't know even basic law and came from the bottom half of the class, thus being a bit of bully seems to be a frequent trat. That's why you see a disproportionate numberof domestic abusers among law enforcement. They like to throw their weight around.

    3) My personal favorite: " I have been in law enforcement 33 years and know it's illegal". When specific law was provided to the officer (Supreme court rulings, State preemption etc. ) his response amazed me.

    "Well they law is just a guide, just because there is no specific law doesn't mean you can't be charged". Literally this idiot believes that the police can arrest whoever for whatever, without a violation of a specific law occurring. This of course shows a total ignorance of basic knowledge of the American legal system.

    There is no problem with open carry in North Carolina. I open carry everyday in Cary, Raleigh and throughout the State regularly. Learn the law and refuse to allow uneducated or dishonest cops from violating your rights.

    Open carry of a firearm in a holster within a vehicle is not concealed carry. There is absolutely no legal basis for that contention. The sheriff putting something stupid like that on a flyer is recklessly irresponsiableand doesn't constitute law.

  2. #2
    Regular Member
    Join Date
    Feb 2008
    Location
    , ,
    Posts
    462

    Post imported post

    within the past 2 weeks i have heard of someone that got charged with illegal concealment for a gun locked in a glovebox... and for a locked gun case in the bottom of a bag full of clothes in the back seat...

    but i have never heard of someone getting convicted for an OC holster just because that person was in a car...

    is it possible... im sure it could be...

    has it happened... maybe...

    do i have the money to test the legal system on it... nope...

    it matters not anyways, i have my CHP

  3. #3
    Regular Member
    Join Date
    Jul 2008
    Location
    Greensboro, ,
    Posts
    235

    Post imported post

    no carry,

    While I certainly agree that getting legal advice from LEOs is a BAD idea, some of your own legal commentary is less than perfect.

    no carry permit ? wrote:
    Perfect example in the thread below concerning a weapon in the car being "legally concealed" in NC if on your hip. Not true, no one has ever been convicted for open carry in North Carolina, ever.
    That would be because it is not illegal to open carry, so no one could be charged with it. The charge would either be "going armed to the terror of the public" (usually used inappropriately, along with disturbing the peace) or a violation of a local ordinance, not law (only the state can pass a law).

    Or, as recently happened in Cleveland, LEO could atempt to charge you with illegally concealed.

    Open carry of a firearm in a holster within a vehicle is not concealed carry. There is absolutely no legal basis for that contention.
    Actually, there is a legal basis for that position:

    It shall be unlawful for any person willfully and intentionally to carry concealed about his person any bowie knife, dirk, dagger, slung shot, loaded cane, metallic knuckles, razor, shurikin, stun gun, or other deadly weapon of like kind, except when the person is on the person's own premises.
    Please note, it does NOT say "on his person." That is why carrying in a purse, fanny pack, briefcase, etc. are still concealed carry. as pointed out in the Attorney general Firearms laws booklet,
    "Whether, in a given case, a weapon is concealed from the public, is a question of fact to be resolved by a jury. By using the phrase "concealed about his or her person," this law makes it illegal to have a weapon concealed not only on a person, but also within a person's convenient control and easy reach.
    In addition, we do not have any further definition ofwhat is considered concealed in a vehicle, other than the oppposite of concealed is "in plain sight." Given that, it is prudent to assume that "plain sight" will be that which can be seen by someone outside the vehicle. A court will say that this "someone" is the LEO who has stopped you and has come to the window of the vehicle, hence the general advice of putting it on the dashboard or car seat. (Both problematic in preventing a weapon from moving during driving, but tht is a seperate issue)

    Additionally, most of us use this board to make sure that when we open carry we are compeltely and totally in the right to be where we are, armed as we are. that being the case, ANYTHING that is going to be reserved for a jury to decide is something we want to avoid, since it would require an arrest and trial to get to a jury.
    1) Open carry is illegal in some area because of local ordinance. FALSE ! Open carry is legal everywhere by two State Supreme court rulings and State preemption. See State v. Kerner & State v. Fennell

    2) Open carry in Cary or Fuquay Varina will get you arrested Guaranteed ! Yep they will threaten you, so what. Just tell the officer, " fine arrest me and deal with the legal retaliation that will be forth coming Guaranteed ! I'm I being detained ? Onwhat Reasonable Articulable suspicion ?
    As for Fennel and Kerner, Fennell (1989) doesn't really address open carry issues at all, as the case was about a sawed-off shotgun. The Fennell court simply affirmed the Kerner decision (1921) in which the court struck down Forsyth County's requirement for a permit to open carry a pistol, calling it an "unreasonable restriction." The court went on to say,
    "[i]t is ... a reasonable regulation ... to require that a
    pistol shall not be under a certain length, which, if
    reasonable, will prevent the use of pistols of small size,
    which are not borne as arms, but which are easily and
    ordinarily carried concealed. To exclude all pistols, however,
    is not a regulation, but a prohibition, of arms, which come
    under the designation of "arms" which the people are entitled
    to bear. 181 N.C. 574, 578, 107 S.E. 222, 225 (1921).

    IIRC, Chapel Hill has such an ordinace, passed in after a brutal murder in the early 1990s.]

    Additionally, NC GS 160A.189 and NCGS 14-153A-129 gives authority


    § 160A‑189. Firearms.


    A city may by ordinance regulate, restrict, or prohibit the discharge of firearms at any time or place within the city except when used in defense of person or property or pursuant to lawful directions of law‑enforcement officers, and may regulate the display of firearms on the streets, sidewalks, alleys, or other public property. Nothing in this section shall be construed to limit a city's authority to take action under Article 36A of Chapter 14 of the General Statutes. (1971, c. 698, s. 1.)


    § 153A‑129. Firearms.

    A county may by ordinance regulate, restrict, or prohibit the discharge of firearms at any time or place except when used to take birds or animals pursuant to Chapter 113, Subchapter IV, when used in defense of person or property, or when used pursuant to lawful directions of law‑enforcement officers. A county may also regulate the display of firearms on the public roads, sidewalks, alleys, or other public property. This section does not limit a county's authority to take action under Chapter 14, Article 36A. (1973, c. 822, s. 1; 2006‑264, s. 16.)
    Don't know about Fuquay Varina, but Cary does have such an ordinance on the books





    Town of Cary, NC
    Sec. 22-51. Prohibition of the carrying and display of firearms and other weapons at certain public locations.

    (a) Firearms generally. No person shall possess firearms in town-owned buildings, on the grounds or parking areas of those buildings, or in town parks or recreation areas, including greenways, except nothing in this section shall prohibit a person from storing a firearm within a motor vehicle while the vehicle is on these grounds or areas.]

    [Sec. B & Cremoved for brevity]]

    (d) Applicability to other public locations. No person shall display any firearm or other deadly weapon as defined in G.S. 14-269(a) while on any public street, alley, sidewalk or other public property within the town unless specifically permitted or authorized by law.]
    Now you may have had great success in the past open carrying in Cary and other places, but that is not the same as saying there is no law against it.

    Just as you say LEO may make things up, so too can they ignore them. Proof of that is that is was illegal to carry firearms anywhere in the state (except on your own property)from Sept. 4 to Oct. 3. of this year, due to the State of Emergency declared by Gov. Easley for Hannah and Ike.




  4. #4
    Regular Member
    Join Date
    Feb 2008
    Location
    , ,
    Posts
    462

    Post imported post

    any lawyer with a degree that didnt come out of a cereal box would be able to argue and win against the fact that having a holstered weapon wasnt displaying... it was carrying...

    that drawing the weapon would be display (brandishing)

  5. #5
    Regular Member
    Join Date
    Jul 2008
    Location
    Greensboro, ,
    Posts
    235

    Post imported post

    If "display" was the same thing as barndishing, why specifically allow localities to "regulate display" since brandishing is already illegal?

    Therefore, display must mean something else - and since it is only regulated through ordinance (which caries less weight than a misdemeanor), "displaying" a firearm is likely to be less of an action than brandishing.

    So, no, I don't think a lawyer could simply argue that display = brandishing.

    Also, brandishing means to use the presence of a firearm to intimidate, to threaten use of by revealing it's presence.

    Display would simply be carrying a wepaon in a manner that is visible, or "on display" - two very different things, me thinks.





  6. #6
    Anti-Saldana Freedom Fighter Venator's Avatar
    Join Date
    Jan 2007
    Location
    Lansing area, Michigan, USA
    Posts
    6,446

    Post imported post

    no carry permit ? wrote:
    "Well they law is just a guide, just because there is no specific law doesn't mean you can't be charged". Literally this idiot believes that the police can arrest whoever for whatever, without a violation of a specific law occurring. This of course shows a total ignorance of basic knowledge of the American legal system.

    Well the truth is the police can arrest you for anything, this happens all the time. The charges may be dropped or you get off in court, but the fact remains police can and will arrest you if they want. It's naive to think otherwise.
    An Amazon best seller "MY PARENTS OPEN CARRY" http://www.myparentsopencarry.com/

    *The information contained above is not meant to be legal advice, but is solely intended as a starting point for further research. These are my opinions, if you have further questions it is advisable to seek out an attorney that is well versed in firearm law.

  7. #7
    Regular Member
    Join Date
    Feb 2008
    Location
    , ,
    Posts
    462

    Post imported post

    RayBurton72 wrote:
    If "display" was the same thing as barndishing, why specifically allow localities to "regulate display" since brandishing is already illegal?

    Therefore, display must mean something else - and since it is only regulated through ordinance (which caries less weight than a misdemeanor), "displaying" a firearm is likely to be less of an action than brandishing.

    So, no, I don't think a lawyer could simply argue that display = brandishing.

    Also, brandishing means to use the presence of a firearm to intimidate, to threaten use of by revealing it's presence.

    Display would simply be carrying a wepaon in a manner that is visible, or "on display" - two very different things, me thinks.


    wouldnt that also mean that gun shops couldnt have windows?

  8. #8
    Founder's Club Member
    Join Date
    Dec 2007
    Location
    Dallas, TX, ,
    Posts
    496

    Post imported post

    Venator wrote:
    no carry permit ? wrote:
    "Well they law is just a guide, just because there is no specific law doesn't mean you can't be charged". Literally this idiot believes that the police can arrest whoever for whatever, without a violation of a specific law occurring. This of course shows a total ignorance of basic knowledge of the American legal system.

    Well the truth is the police can arrest you for anything, this happens all the time. The charges may be dropped or you get off in court, but the fact remains police can and will arrest you if they want. It's naive to think otherwise.
    Depending on your definition of "can", you're right. It is "possible" for them to do anything a human is capable of, so they "can" shoot you on sight. Is it legal? Not in the slightest. An officer must have probable cause to arrest you and must have reasonable articulable suspicion to detain you. If they do not, it is unlawful. In some states, that is no defense to resisting arrest, but non-consenting compliance is not resisting arrest. They arrest you, then someone further along the linegets everyone lower on the totem pole and slaps them all upside the head,then calls you in andapologizes profusely with the intent to dissuade you from suing them. If it actually makes it to trial, you spend a little more money on a lawyer, but any lawyer who knows State state firearms law will take the criminal case on contingency of the civil suit.

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •