LEO encounter today

imported post

deepdiver wrote:

Bear 45/70 wrote:

deepdiver wrote:

While it may be possible to argue that it shouldn't have happened in the first place, had it been me, I would have handled it as youngwboi did. I think the LEO was acting in good faith and doing his job as well as he could, as politely as he could. Obviously this is a problem area if LEOs park there regularly. There are some times I think we just need to cut the LEOs some slack. We all have at some point committed some violation of a law and if caught would appreciate a little slack from the LEO such as in a minor speeding situation. I think we also can reasonably cut the LEOs some slack in an encounter such as this.

Click to expand...

How can the cop be acting on good faith and be breaking the law at the same time? The cop stepped over the line and had no PC to even approch the op.

Click to expand...

Per law.com, the legal definition:

[font="arial, helvetica, swiss"]good faith
n. honest intent to act without taking an unfair advantage over another person or to fulfill a promise to act, even when some legal technicality is not fulfilled. The term is applied to all kinds of transactions.[/font]

So yes, I maintain that my impression is that the LEO was acting in good faith.

Click to expand...

So in your eyes breaking the law is OK as long as you think the cop is acting in good faith? This is a cop, with a badge and is suppose to enforce the law, not break it. Which he did. According to the Casad case, the presences of a gun is not reason for a stop of any kind.

imported post

Bear 45/70 wrote:

deepdiver wrote:

Bear 45/70 wrote:

deepdiver wrote:

While it may be possible to argue that it shouldn't have happened in the first place, had it been me, I would have handled it as youngwboi did. I think the LEO was acting in good faith and doing his job as well as he could, as politely as he could. Obviously this is a problem area if LEOs park there regularly. There are some times I think we just need to cut the LEOs some slack. We all have at some point committed some violation of a law and if caught would appreciate a little slack from the LEO such as in a minor speeding situation. I think we also can reasonably cut the LEOs some slack in an encounter such as this.

Click to expand...

How can the cop be acting on good faith and be breaking the law at the same time? The cop stepped over the line and had no PC to even approch the op.

Click to expand...

Per law.com, the legal definition:

[font="arial, helvetica, swiss"]good faith
n. honest intent to act without taking an unfair advantage over another person or to fulfill a promise to act, even when some legal technicality is not fulfilled. The term is applied to all kinds of transactions.[/font]

So yes, I maintain that my impression is that the LEO was acting in good faith.

Click to expand...

So in your eyes breaking the law is OK as long as you think the cop is acting in good faith? This is a cop, with a badge and is suppose to enforce the law, not break it. Which he did. According to the Casad case, the presences of a gun is not reason for a stop of any kind.

Click to expand...

Bear, we're talking about this particular situation. And yes, I'm not bunged up about it and if it had been me I would not be bunged up about it. If the OP had stated that his shirt had been fully tucked in and there was no way that he could have concealed it I would feel differently. There are other scenarios that could be added in which I would feel different. But that isn't what happened, or at least not what was reported, so not the situation we are discussing.

We have discussed on the forum that bouncing back and forth between OC and CC, unintentional or not, is likely to get you noticed by someone you may not want to talk with and therefore a bad idea. This situation emphasizes that point to me more than any other matter.

imported post

bcp wrote:

He told me he was asking because my shirt had covered it when I was bent over.

Click to expand...

If he only sees it for a short time--hard to tell if it is CC sometimes exposed or OC sometimes concealed.

Bruce

Click to expand...

I agree.

Furthermore, the law is very specific inRCW 9.41.050. The OP was not in his place of abode or his fixed place of business. He was carrying a pistol openly and the officer observed that (for at least a brief period of time) the pistolwas concealed bythe OP'sshirt. Therefore, if the OP did not have a concealed pistol permit on his person, he was in violation of section (1) subsection (a) of RCW 9.41.050 and could be charged with a misdemeanor. Furthermore, if the firearm was loaded (and I assume it was) at the time and if the OP had the pistol in the vehicle while he was placing the baby seat and was not carrying his CCP on his person he would have been in violation of section (2) subsection (a) of the same RCW.

Thus, the officer has witnessed one potential misdemeanor when the shirt covered the firearm (loaded or not) and he may have witnessed a second potential misdemeanor if the firearm was loaded and entered the vehicle. The officer had probable cause (and in facta duty) to askthe OP to produce his CCP.If the OP did not have his CCP on his person or did not have a CCP at all, the officer could charge the OP withone (or possibly two) misdemeanors. Probable cause was established. If the OP produced his CCP (which he did) then the officer had no further reason to question the OP.

Although the officer continued to ask questions, at least he was relatively polite and friendly about it. Honestly, I'd have answered in the same manner as the OP did. There's no reason to treat the officer poorly, even if he is overstepping his overstepping his bounds a bit. I'dbe willing to give up a tiny bit of my personal freedom voluntarily to leave a good impression on the officer.


Some folks brought up intentional and accidental concealment and others brought up that such concealment was very brief. Keep in mind that the RCW makes no mention of "intentional" vs. "unintentional" concealment, and such an argument would be rather weak in a court of law. The RCW makes no mention of how brief or fleeting the moment of concealment or carrying in a vehicle is. This would be another weak argument in a court of law. In either case, a judge isn't required to have any mercy on someone charged with unlawful concealment and I doubt many judges would.

imported post

shad0wfax wrote:

...Thus, the officer has witnessed one potential misdemeanor when the shirt covered the firearm (loaded or not) and he may have witnessed a second potential misdemeanor if the firearm was loaded and entered the vehicle. The officer had probable cause (and in facta duty) to askthe OP to produce his CCP.If the OP did not have his CCP on his person or did not have a CCP at all, the officer could charge the OP withone (or possibly two) misdemeanors. Probable cause was established. If the OP produced his CCP (which he did) then the officer had no further reason to question the OP...

Click to expand...

This is similar to saying that someone entering a store OCing can be stopped because they may rob it or that someone OCing a gun can be stopped and ID'd because he or she might be a felon in possession of a firearm. Just because someone gets into a car with a firearm or conceals a firearm does not give police probable cause--or even reasonable suspicion--that he or she is breaking the law because there is no reason to believe the person does not have a CPL (assuming the officer has no specific knowledge such as knowing the person does not have a CPL or is a felon, etc.). Therefore, there is no legal justification to detain the person. Of course, a consensual contact is legal and the officer may ask whatever he or she likes and you are free to answer or not.

Remember, the law that requires presentation of the CPL says "...when and if required by law..." and although I would not want to be the test case, it seems to me that you would only be required by law to show your CPL if the demand to see it was lawful. (This argument is mostly theoretical, as there are way too many interpretations of that RCW for me to want to test it.)

imported post

sean-1286 wrote:

This is similar to saying that someone entering a store OCing can be stopped because they may rob it or that someone OCing a gun can be stopped and ID'd because he or she might be a felon in possession of a firearm. Just because someone gets into a car with a firearm or conceals a firearm does not give police probable cause--or even reasonable suspicion--that he or she is breaking the law because there is no reason to believe the person does not have a CPL (assuming the officer has no specific knowledge such as knowing the person does not have a CPL or is a felon, etc.). Therefore, there is no legal justification to detain the person. Of course, a consensual contact is legal and the officer may ask whatever he or she likes and you are free to answer or not.

Remember, the law that requires presentation of the CPL says "...when and if required by law..." and although I would not want to be the test case, it seems to me that you would only be required by law to show your CPL if the demand to see it was lawful. (This argument is mostly theoretical, as there are way too many interpretations of that RCW for me to want to test it.)

Click to expand...

You are correct that there are many interpretations of the RCW and you are wise not to put this specific one to the test.

By the Washington State Constitution and of course the 2nd Amendment, I believe that we have the right to carry loaded and open or concealed anywhere we darned-well want to. I believe that the state's "shall issue" CCP policy is simple redundancy. It's like giving me a permit to breathe.

However, that's not the case as far as the state is concerned.



I disagree with your interpretation of probable cause. I can say that from personal experience thatthe WSPdisagree with you as well.Ifan officer sees a firearm in a vehicle, they're going to ask you to see your CCP. If you don't have it, they're going to cite you. (I asked if I was being detained and the trooper informed me that I was, unless I produced a CCP.) Whether or not his interpretation is correct and whether or not it would hold up in court is not an argument I felt like making. I produced my CCP and he let me go. That was the end of it.

I'd like to see what Morris has to say about this.

imported post

adamsesq wrote:

Mainsail wrote:

adamsesq wrote:

Mainsail - as I asked in another thread a few minutes ago, and in accordance with the ideals of opencarry.org, can you please provide some cites to back this up/support it.

-adamsesq

Click to expand...

Cite of what? Google 'Terry Stop'

Click to expand...

In fact you just wrote "They cannot merely be suspicious because you are carrying a gun." That may actually be contradictory to what Terry says.

I want you to be right and am not disagreeing with you,but it is a lot of legal assertions that I haven't seen any cites to back up. I could be wrong but I thought cites were required with an legal assertions here?

-adamsesq

Click to expand...

Required?I guess you better call the cops then...

Are you saying there is a firearms exception to the rules of Terry?

The police cannot [legally] seize you for doing something lawful. Carrying a handgun is a lawful activity- the police cannot detain you for engaging in lawful activity- doing otherwise is a violation of Article 1 Section 7 of the WA State Constitution. Nothing the OP was doing gave the officer a reasonable specifically articulable suspicion that a crime was afoot. The officer would not be able to claim that the OP’s holstered pistol was being carried in a manner and under circumstances, and at a time and place that manifested an intent to intimidate or warranted alarm for the safety of others.

imported post

Mainsail wrote:

Required?I guess you better call the cops then...

Are you saying there is a firearms exception to the rules of Terry?

The police cannot [legally] seize you for doing something lawful. Carrying a handgun is a lawful activity- the police cannot detain you for engaging in lawful activity- doing otherwise is a violation of Article 1 Section 7 of the WA State Constitution. Nothing the OP was doing gave the officer a reasonable specifically articulable suspicion that a crime was afoot. The officer would not be able to claim that the OP’s holstered pistol was being carried in a manner and under circumstances, and at a time and place that manifested an intent to intimidate or warranted alarm for the safety of others.

Click to expand...

But the officer could still claim that the firearm was unlawfully concealed under RCW 9.41.050 and consider that probable cause to ask to see the CCP as per under RCW 9.41.050 again. Whether or not such behavior is technically legal, I believe it would hold up in court.

Since violating the CCP posession or display when required by law to do sois a civil infraction, one might be able to make the argument that the officer had no probable cause to demand the CCP be displayed, however the firearm potentially in the vehicle (which the OP didn't mention, but was a scenario mentioned in this thread) is a misdemeanor without a CCP if the firearm is loaded, so in that case, there may be probable cause. Oddly enough, the phrase "when required by law to do so" (referring to demand to display the CCP) is not defined, nor does RCW 9.41.050 refer to any other RCW which states the conditions where it is lawful to do so. No doubt some lawyer somewhere knows where to look that up, but I certainly don't.

imported post

Mainsail wrote:

Required?I guess you better call the cops then...

Are you saying there is a firearms exception to the rules of Terry?

Click to expand...

Click to expand...

I am saying that in Terry they allowed the search for the weapon even without PC to arrest and there is lots of dicta in Terry about the need for "officer safety." In fact, so much that many of the reviews and/or head notes (admittedly wrongly) say that any officer can always search for weapons to ensure his safety.

I'm not trying to be argumentative, I am just trying to find out if there is more that you are building the legal rules stated above upon then just Terry. I'm new here so I only know what I read, and maybe I misread this requirement in the rules of the forum:

7) if you state a rule of law, it is incumbant upon you to try to cite, as best you can, to authority. Citing to authority, using links when avaiable,is what makes OCDO so successful. An authority is a published source of law that can back your claim up - statute, ordinance, court case, newspaper article covering a legal issue, etc.

Click to expand...

I'm just trying to be the most informed that I can be in order to help myself and others. I'm sorry if that caused any issues with anyone.

-adamsesq

imported post

I think the Officer was going to unjustly question him regardless; perhaps he was looking for a violation. If he hadn’t his CPL the LOE may have just waited for him to enter vehicle, and presto, violation. The very reason I simple find it best to always have my CPL in my wallet.

Not to recite the RCW you all know, but this could happen to someone new at OC who didn’t realize a CPL is required when you enter vehicle with loaded firearm.

RCW 9.41.050

(2)(a) A person shall not carry or place a loaded pistol in any vehicle unless the person has a license to carry a concealed pistol and: (i) The pistol is on the licensee's person, (ii) the licensee is within the vehicle at all times that the pistol is there, or (iii) the licensee is away from the vehicle and the pistol is locked within the vehicle and concealed from view from outside the vehicle.

ETA word

imported post

shad0wfax wrote:

Mainsail wrote:

Required?I guess you better call the cops then...

Are you saying there is a firearms exception to the rules of Terry?

The police cannot [legally] seize you for doing something lawful. Carrying a handgun is a lawful activity- the police cannot detain you for engaging in lawful activity- doing otherwise is a violation of Article 1 Section 7 of the WA State Constitution. Nothing the OP was doing gave the officer a reasonable specifically articulable suspicion that a crime was afoot. The officer would not be able to claim that the OP’s holstered pistol was being carried in a manner and under circumstances, and at a time and place that manifested an intent to intimidate or warranted alarm for the safety of others.

Click to expand...

But the officer could still claim that the firearm was unlawfully concealed under RCW 9.41.050 and consider that probable cause to ask to see the CCP as per under RCW 9.41.050 again. Whether or not such behavior is technically legal, I believe it would hold up in court.

Since violating the CCP posession or display when required by law to do sois a civil infraction, one might be able to make the argument that the officer had no probable cause to demand the CCP be displayed, however the firearm potentially in the vehicle (which the OP didn't mention, but was a scenario mentioned in this thread) is a misdemeanor without a CCP if the firearm is loaded, so in that case, there may be probable cause. Oddly enough, the phrase "when required by law to do so" (referring to demand to display the CCP) is not defined, nor does RCW 9.41.050 refer to any other RCW which states the conditions where it is lawful to do so. No doubt some lawyer somewhere knows where to look that up, but I certainly don't.

Click to expand...

Are you suggesting that the police can detain you to verify that you have a license any time they want? Perhaps they should stop every car and verify the driver has a license? Not everyone is licensed to drive a vehicle, so verifying the driver has a license is just the same as verifying the concealed pisol carrier has a license. In most cases both the driver and pistol carrier will easily prove they are licensed, in rare cases the officer will find out the person is not licensed and thus is breaking the law. The reason for RAS is to ensure we don't get hassled all of the time for going about lawful activities--the law presumes you are innocent (licensed) unless the officer has RAS that you are not (or can find some other law you are breaking to initiate a stop--see Terry).

imported post

shakul wrote:

From what he wrote they don't ... The cop had no reason to ask... Just because his shirt "covered it while he was bent over" is no reason to ask someone if they have a CPL. for all intents and purposes this encounter should not have even happened.

Click to expand...

Sadly that's not the case. State law does not define "concealed", so an officer can hassle you if it's obscured in any way. As absurd as it is, when I asked a LEO friend about it he said they may consider it concealed if it's obscured by your arm. It all depends on the cop.

Perhaps we need to work on getting a clear definition of what is and is not "concealed" into statute (along with everything else we want...)

imported post

EDIT: Wrong quote

Click to expand...

Under that rational, the officer could claim any of us are carrying concealed if we pass him or her with our pistol side facing away. After all, it’s now concealed behind my body….right? It’s just my opinion here, but a shirt momentarily covering your openly carried pistol does not make it concealed.

Remember, the officer can ask you for anything and talk to you for as long as you allow him to. You are not detained (seized) unless he tells you, or you reasonably feel, that you cannot leave. I’m not going to say anything disparaging about the officer, he can talk to the OP just like any of us can. The OP never asked if he was being detained.

imported post

adamsesq wrote:

Mainsail wrote:

Required?I guess you better call the cops then...

Are you saying there is a firearms exception to the rules of Terry?

Click to expand...

Click to expand...

I am saying that in Terry they allowed the search for the weapon even without PC to arrest and there is lots of dicta in Terry about the need for "officer safety." In fact, so much that many of the reviews and/or head notes (admittedly wrongly) say that any officer can always search for weapons to ensure his safety.

I'm not trying to be argumentative, I am just trying to find out if there is more that you are building the legal rules stated above upon then just Terry. I'm new here so I only know what I read, and maybe I misread this requirement in the rules of the forum:

7) if you state a rule of law, it is incumbant upon you to try to cite, as best you can, to authority. Citing to authority, using links when avaiable,is what makes OCDO so successful. An authority is a published source of law that can back your claim up - statute, ordinance, court case, newspaper article covering a legal issue, etc.

Click to expand...

I'm just trying to be the most informed that I can be in order to help myself and others. I'm sorry if that caused any issues with anyone.

-adamsesq

Click to expand...

I think the disconnect here is that you believe the officer, during the initial stop, is behaving lawfully when he or she detains you for carrying a handgun openly. If the officer’s detainment is legal, he can frisk you for weapons. The big but here is that the detainment must be based on a reasonable specifically articulable suspicion that you are involved in a crime. If the officer cannot articulate (verbalize) a specific crime he thinks you are involved in, he cannot detain you. It doesn’t matter if you’re carrying a firearm openly, it doesn’t matter if your hair is florescent blue, it doesn’t matter if you’re singing “You are my Sunshine” while it’s raining. There has to be the element of some specific crime for the police to detain you. Read some of the court cases posted here.

imported post

Could this incident be lawful because the officer witnessed the OP go from OC to CC and he simply asked for a CPL because we are required to have one when CC'ing and required to provide it to LEO?

What is your thought on this outlook Mainsail?

imported post

joeroket wrote:

Could this incident be lawful because the officer witnessed the OP go from OC to CC and he simply asked for a CPL because we are required to have one when CC'ing and required to provide it to LEO?

What is your thought on this outlook Mainsail?

Click to expand...

But that was not what the officer said was the reason for the CPL request. Shirt partially covering gun was the cop's claim. If he had said "I say you get out of the car with the pistol", then I would agree with your assessment.

imported post

Bear 45/70 wrote:

joeroket wrote:

Could this incident be lawful because the officer witnessed the OP go from OC to CC and he simply asked for a CPL because we are required to have one when CC'ing and required to provide it to LEO?

What is your thought on this outlook Mainsail?

Click to expand...

But that was not what the officer said was the reason for the CPL request. Shirt partially covering gun was the cop's claim. If he had said "I say you get out of the car with the pistol", then I would agree with your assessment.

Click to expand...

The OP did not say the Officer claimed it was partially concealed. The officer said that his shirt had concealed it, implying that it could not be seen.

imported post

joeroket wrote:

Bear 45/70 wrote:

joeroket wrote:

Could this incident be lawful because the officer witnessed the OP go from OC to CC and he simply asked for a CPL because we are required to have one when CC'ing and required to provide it to LEO?

What is your thought on this outlook Mainsail?

Click to expand...

But that was not what the officer said was the reason for the CPL request. Shirt partially covering gun was the cop's claim. If he had said "I say you get out of the car with the pistol", then I would agree with your assessment.

Click to expand...

The OP did not say the Officer claimed it was partially concealed. The officer said that his shirt had concealed it, implying that it could not be seen.

Click to expand...

The only problem I have ever had with a shirt is the other way around, end over and the pistol is uncovered. So I am still suspicious of the reason. Like you said, the seeing the op exit his vehicle would be easier to believe.

imported post

Bear 45/70 wrote:

joeroket wrote:

Bear 45/70 wrote:

joeroket wrote:

Could this incident be lawful because the officer witnessed the OP go from OC to CC and he simply asked for a CPL because we are required to have one when CC'ing and required to provide it to LEO?

What is your thought on this outlook Mainsail?

Click to expand...

But that was not what the officer said was the reason for the CPL request. Shirt partially covering gun was the cop's claim. If he had said "I say you get out of the car with the pistol", then I would agree with your assessment.

Click to expand...

The OP did not say the Officer claimed it was partially concealed. The officer said that his shirt had concealed it, implying that it could not be seen.

Click to expand...

The only problem I have ever had with a shirt is the other way around, end over and the pistol is uncovered. So I am still suspicious of the reason. Like you said, the seeing the op exit his vehicle would be easier to believe.

Click to expand...

I agree but I am just going off of what the OP said.

imported post

Mainsail wrote:

Read some of the court cases posted here.

Click to expand...

Thank You! I had not seen that thread and it is extremely helpful.

-adamsesq

imported post

joeroket wrote:

Could this incident be lawful because the officer witnessed the OP go from OC to CC and he simply asked for a CPL because we are required to have one when CC'ing and required to provide it to LEO?

What is your thought on this outlook Mainsail?

Click to expand...

From what I’m reading the encounter was perfectly legal. Here’s the incident:

…he was asking if I had a firearm. I told him yes. He asked if I had a permit to carry it and I told him yes I did have a CPL, but I wasOCing and was confusedwhy he would need to know if I had aconcealed license. He told mehe was asking because my shirt hadcovered it when I was bent over. He asked me to see my CPL, I showed him and he asked why I was not CCing

Click to expand...

The officer asked a question, the OP answered or provided whatever he was asking for. Heck, the cop could have asked for a foot massage.

Here’s how it could have gone down:

…he was asking if I had a firearm. I told him yes. He asked if I had a permit to carry it and I asked if he was detaining me. He said no and I went back to what I was doing…

Click to expand...