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Thread: Arrested for OC

  1. #1
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    Time: 1130pm, Friday the 14th of November.
    Place: Waffle House on McPherson Church Road, Fayetteville NC
    Deputies involved: Deputy B. Johnson and Heard (don't know the first initial)
    Gun: S&W M&P .45 ACP with Hornady TAP, 10 in the mag, one in the pipe in a Serpa Blackhawk retention level 2 holster. I was wearing a Plain White Tees band shirt with cargo jeans.
    I am a soldier stationed at Fort Bragg, just FYI.

    Around 2300 I was about to head to my friends house and drop off my pistol before I headed home (Fort Bragg) so I decided to stop in at Waffle House to grab a bite. I had been to waffle house several times while open carrying and had only been questioned once about it. They didn't serve alcohol and I love to eat breakfast food so it was an easy choice.

    I walk in the store right behind the only other customer (he was not involved at all) and had a seat with the weapon facing the outside of the booth (my right side). As I am taking a seat the manager, who was sitting down smoking a ciggarrete said:
    Manager: "Are you a cop?"
    Me: "No, sir." (I didn't feel that being a soldier was relevant, so I occluded that)
    MAN: "DO you have a permit for it?"
    Me: "No sir, in North Carolina you don't have to have a permit to open carry. To carry concealed you do."

    He seemed to drop the subject so I ordered my food and started using my cell phone. I was about halfway into my meal when Deputies B. Johnson, and Heard entered the restaurant. They approached me. Please note that I did not have a recorder on me, but I wish I had just used my cell phone to record the conversation or something. grrr. So this is as well as I can remember it.

    Me: "Hows it going Deputy."
    Johnson: "Its going alright. Mind telling me why you have a gun?"
    Me: "Don't really have a reason for you deputy."
    J: "Do you have a concealed weapons permit?"
    Me: "No officer, you don't need one to open carry in North Carolina."
    J: "alright, how about you give me some ID."
    Me: "Deputy, what do I need to give you ID for? Have I commited a crime?"
    J: "How bout you just give me some ID."
    Me: "Deputy, am I being Detained?"
    J: "Detained? No you're not being detained, just show me your ID."
    Me: I think I'd rather not, deputy.
    J: "Alrite, I'll be back."

    He exits the store in a huff, and I hear him talking on his radio for backup...oh, this should be interesting.

    I see the manager and ask him if he wouldn't mind answering a question for me. He walks over and I explain to him that what I'm doing is legal, and how its legal in NC. I then ask him in a very clear way.
    Me: Sir, do you want me to leave?
    He mumbled about well, I mean, uhh. No clear answer.
    Me: Sir, if you want me to leave then I'll leave.
    He didn't give me a clear answer.

    The deputy re-enters the restaurant.
    Johnson: "Backups on its way. Are you going to show me some ID?'
    Me: Deputy, I'm not required to.
    J: Oh you think you know the law, huh? You think you're a lawyer? You cannot carry a weapon in an establishment like that. Not unless you're LE or have a permit.
    Me: I'm sorry, officer but thats wrong.

    I then ask the manager again, with the deputy present
    "sir, do you want me to leave?"
    The deputy butts in and basically tells me to shut up. saying "we're not going to keep going back and forth"
    Deputy to the manager: "Do you want him to go? Do you want him out of here?"
    Manager: "well, I mean he hasn't caused no problems, he hasn't been disturbing or anything" (keep in mind theres ONE other customer in the place).
    Dep: You sure?
    Man: well, I mean, I'd just like to ask him if he could go put it in his car or something, thats all. (this is the first hes said about it)
    The deputy goes on about something or other.

    I then interject and ask the manager:
    "Sir, these deputies obviously want to talk some more, so would you mind terribly if I paid for my meal and talked with these deputies outside?"
    Manager: "no thats, no problem"
    I pay for my meal and walk outside.

    Backup arrives and deputy johnson is still doing most of the talking.
    "How bout you show us some ID.
    I ask again "Am I being detained deputy?"
    J: "Yes, you're being detained, now show us some ID."
    Me, as I reach for my wallet, slowly, : for suspicion of commiting what crime, sir?
    J: *scoff* "suspicion? *i forget what else, he then takes my ID and asks for my drivers license, I had handed him my Military ID because I left my DL in my car. He then calls to see if he can get the MP's out there, they never showed.

    They start saying something more about I can't carry and all that. The other deputy, Heard, then says
    "Enough of this, put your hands on the hood of the car."
    I do as I'm told, thinking their going to take my gun and keep talking. The officer reaches over and takes my weapon out of the holster, and takes it around to the cruiser to unload it.
    I then am patted down (they missed my auto-opening knife clipped to my pants pocket, and didn't pull anything out of my pockets), then they tell me to put my hands on my head and they cuff me.

    I wasn't about to say anything else, because I was obviously under arrest. I shut my mouth.
    The Fayetteville PD arrives and as the other deputies are calling in this or that and just holding me there the FPD officer (j. Figeuroa) says:
    "you've been drinking?"
    I say nothing.
    "Oh, playing the silent game, huh? yeah, you've had a few beers."
    I remain silent except to ask for my wallet, which was on the hood of their car. they put it back in my pocket.
    I am placed in the car, THEN they catch my knife and remove it, they then ask "you have anything else in your pockets?"
    "i have a cell phone and keys, deputy"
    They didn't even bother to search me again.

    As Johnson gets back in the car I ask "deputy, what am I being charged with?"
    he was looking through his code book and finds something I had to laugh at :
    J: "Going armed to the terror of the public! thats what! think you can just walk in a restaurant with a gun on your hip. I laughed on the inside the whole way to the station.

    I was then booked in and my unit was called. At no time was i informed of my rights, in case that matters. They write up the paperwork and look up the code for GATTTOTP.

    They bring it before the magistrate (thank god, thought i was going to spend the night in lockup) and tell him the story...the magistrate basically throws it out.
    Mag:"It was in a holster?"
    Dep: yes sir
    mag: he wasnt touching it or waving it around?
    dep: no sir.
    mag: thats totally legal.
    dep: *stunned* uhhh, ok...ummm
    mag: is that it?
    dep: well he was being really irate and argumenative, and he didn't want to leave the waffle house.
    mag; then charge him with trespassing, not GATTTOTP.
    dep: yes sir.

    I'm still laughing on the inside. So now I have a second degree trespassing charge and have a court date for next month. yay me. at no time did I raise my voice to the deputies and they never breathylized me (im 19, btw).

    when my SGT (he was not happy) came to pick me up at 0230 they gave him the gun and released me on $200 unsecured bond (i dont pay anything if i show up, basically)

    I'm going to work on getting it thrown out before the court date though. This should be fun. I'm also going to write a letter to the sheriff in regards to his untrained and rude deputies.

    Oh, and then I had to pull 24 hour duty at 0900 on Saturday...this weekend was MESSED up.

    Any questions?

    EDIT: This was resolved. I ended up moving to Fort Lewis in December, the case was dropped as the deputy didn't show up and they had no case, along with no witness.

    I was going to pursue this, but I ended up leaving, and in Washington you cannot OC until you're 21, period, so I'll just wait until then.

    Grand total for this incident: A lot of embarrassment, a lot of talkings to by my command, a forced mental health eval for "my feeling of need to be armed at all times" and "my obsession with weapons", and $200 lawyer fee.

    Pick your battles. Thats all I have to say.

  2. #2
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    Even though IANAL and not in NC, my guess is that you have several Constitutional (and probably States) rights violations! Head to Legal & have a ball!

  3. #3
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    Wow, that's crappy for you . Sounds like people decided to be stupid that night.

    To be trespassing, you would have had to have refused to leave after being asked to by the owner or manager. At least, that's my understanding of situations like that. According to your side of the story, they've got nothing on you, and you should be looking at an unlawful arrest suit. It's a shame you didn't get it recorded, but don't beat yourself up for not having a recorder around. I didn't have mine when I needed it, either.

    So where did the cops come from? Did the manager call them? See if you can get the 911 calls from that night through a FOIA request.

  4. #4
    Campaign Veteran marshaul's Avatar
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    Just a note:

    oc⋅clude   [uh-klood] Show IPA Pronunciation
    verb, -clud⋅ed, -clud⋅ing.
    –verb (used with object)
    1. to close, shut, or stop up (a passage, opening, etc.).
    2. to shut in, out, or off.
    3. Physical Chemistry. (of certain metals and other solids) to incorporate (gases and other foreign substances), as by absorption or adsorption.
    –verb (used without object)
    4. Dentistry. to shut or close, with the cusps of the opposing teeth of the upper and lower jaws fitting together.
    5. Meteorology. to form an occluded front.


    o⋅mit   [oh-mit] Show IPA Pronunciation
    –verb (used with object), o⋅mit⋅ted, o⋅mit⋅ting.
    1. to leave out; fail to include or mention: to omit a name from a list.
    2. to forbear or fail to do, make, use, send, etc.: to omit a greeting.

  5. #5
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    Waffle House has surveillance cameras, don't they? You NEED the managers statements.

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    You were not read your Miranda rights when they arrested you? You had to ask to pay so you could go outside, and you are being charged with trespassing? If you can prove it, sounds like an unlawful arrest to me, but IANAL.

    Are you a member of the NRA? Sounds like a story they might be interested in. Good luck fighting it and be sure to keep us up to date. I'm sure that's a common area for open carrying with the Wal-Mart right there so people really need to be aware of this one.

  7. #7
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    Okay SO- I am on your side the entire way with this, except for one teeny tiny little thing..

    Taking into consideration that you have to be TWENTY ONE years old in order to LEGALLY own and possess a handgun, what in the world are you doing carrying around someone else's handgun and why are you not in jail as a result of it?

    Last time I checked, the law doesn't accept "Oh my friend said it was cool that I could borrow it" as an answer.

    Did they just happen to "not notice" that you're only 19?

  8. #8
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    BRobb:
    I broke no law in purchasing, possessing, or carrying a handgun. If you look at the federal requirements its 21 to BUY from a FFL, 18 to POSSESS.

    "North Carolina General Statute § 14-269.7 provides that it is a misdemeanor for any
    person under the age of 18 to possess or carry a handgun."

    The quoted part is directly from the NC Firearms handbook. you can find it here
    http://www.jus.state.nc.us/NCJA/ncfirearmslaws.pdf
    in PDF format.
    I own several handguns, rifles, and shotguns, and at no times have a I broken the law to do so.

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    maybe is hes not hes friendsgun bragg dont allow weapons on base unless they are register on housing area i dont think they allow them at the barraks. so leaving it at a trusty friend out side the base is not a bad idea on a lock safe..

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    Hmmm, so since (as you have aknowledged) you must be 21 to purchase a handgun from a Federal Firearms Licensee, may I ask where you are "legally" purchasing these handguns?

    Buying a gun from Jimmy the crackman behind the local convenience mart isn't legal..

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    BRobb19 wrote:
    Hmmm, so since (as you have aknowledged) you must be 21 to purchase a handgun from a Federal Firearms Licensee, may I ask where you are "legally" purchasing these handguns?

    Buying a gun from Jimmy the crackman behind the local convenience mart isn't legal..
    dad could of buy it for hunting or target practice it does not matter he didnt say he purchase the gun .and he didnt break any laws.

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    Get an opinion from the base legal office, although they probably won't touch this with a 30 foot pole. You will need to get a civilian lawyer, ask Waffle House for a copy of any security recordings available, and FOIA any/all police records (recordings, papers, etc). Be prepared to have your ass chewed by your First Sgt andcompany commander, even though you were in the right. Take a copy of the N.C. lawswith you when that occurs. Get a DVR immediately andrecord all such interviews (and those with the civilians)in case they try to improperly punish you. Beprepared to go to the I.G. but do not discuss this with anyone but your lawyer.

    Sorry to sound like an alarmist, just want you to be prepared for the worst,hope for the best.

    I was stationed at No-Hope-Pope from 91-93. How's the old town doing?Did Jim's gun shop manage to stay in buisness?

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    PavePusher wrote:
    Did Jim's gun shop manage to stay in buisness?
    jims is still open they gave the ok..

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    Robb. I'm curious as to why you're questioning how I came about the guns legally. Last I checked we live in a free country, and private transactions between private persons is legal. And if you want to bring up the Pistol Permit Purchase requirement for North Carolina, I can assure you that I acquired them before I made the purchase, and followed all applicable laws.

    And yes, I do live in the barracks. Whats saving my ass from my 1SG and battery commander (I already had a nice little chat with them) is the fact that I didn't break any firearms regs or laws. The weapon in question was registered on post, and was authorized to be kept off post. I'll know more tomorrow.

    It doesn't help that I am moving (Permanent Change of Station) 8 days after my first court date. So I need to get this cleared up by either pleading guilty and paying the fine, or getting it thrown out before I leave.

    I understand your concern, but please believe me that if I had been suspected of any other crime the Deputy would have done his best to charge me with it. As I said, I am only being charged with second degree trespassing, a class 3 misdemeanor in NC.

    This is the first time I've been arrested and I have a clean criminal record. I have great motivation to get this cleared up. I am going to try to get the managers sworn statement and a copy of the police report this week.

    BTW, the police and sheriffs routinely camp out at the waffle houses on Friday nights because its one of the only places open 24 hours and it was a payday. IE lots of drinking.

    -John

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    John, I apologize if I seemed rude. I didnt intend to be offensive in any way, I was just bewildered by this. Apparently I have learned something new tonight, because I was previously "certain" that handguns were essentially entirely off limits to anyone under 21 (as far as owning or even possessing on their own).

    I feel humbled, and I am glad that you are not in serious trouble.

    Take care.

    Brandon

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    Get a copy of the closed circuit security recording ASAP!

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    Robb, apology accepted. No harm, no foul.

    It was the ignorance of the cop that got me in this trouble in the first place. I got the impression that even the staff at the booking station didn't like him.

    I'm still laughing about the "Going Armed to the Terror of the Public" thing...seriously, way to know what you're charging someone with, bud.

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    Do you need any help with the defense or for a letter writting campaign?

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    I strongly suggest holding off on writing that letter to the sheriff, until after this criminal charge is resolved in the court. You don't want to be seen as attempting to influence witnesses.



  20. #20
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    BRobb19 wrote:
    Hmmm, so since (as you have aknowledged) you must be 21 to purchase a handgun from a Federal Firearms Licensee, may I ask where you are "legally" purchasing these handguns?

    Buying a gun from Jimmy the crackman behind the local convenience mart isn't legal..
    Why are you pretending as though you know the law without A: researching it and understanding it first and B: providing a citation?

  21. #21
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    BRobb19 wrote:
    I was previously "certain" that handguns were essentially entirely off limits to anyone under 21 (as far as owning or even possessing on their own).
    This is the only law that has to do with an age limit topossess and open carry a handgun. Possession/Open Carry and Purchasing a handgun are different matters entirely.





    § 14‑269.7. Prohibitions on handguns for minors.

    (a) Any minor who possesses or carries a handgun is guilty of a Class 2 misdemeanor.

    (b) This section does not apply:

    (1) To officers and enlisted personnel of the armed forces of the United States when in discharge of their official duties or acting under orders requiring them to carry handguns.

    (2) To a minor who possesses a handgun for educational or recreational purposes while the minor is supervised by an adult who is present.

    (3) To an emancipated minor who possesses such handgun inside his or her residence.

    (4) To a minor who possesses a handgun while hunting or trapping outside the limits of an incorporated municipality if he has on his person written permission from a parent, guardian, or other person standing in loco parentis.

    (c) The following definitions apply in this section:

    (1) Handgun. – A firearm that has a short stock and is designed to be fired by the use of a single hand, or any combination of parts from which such a firearm can be assembled.

    (2) Minor. – Any person under 18 years of age. (1993, c. 259, s. 1; 1994, Ex. Sess., c. 14, s. 5; 1993 (Reg. Sess., 1994), c. 597, s. 1.)

  22. #22
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    Just FYI, if I were interested in pressing a civil rights suit, what exactly would I reference for the rights that were violated? I will be contacting legal counsel tomorrow, but I am just wondering what I could use as ammo.

    Thanks.

  23. #23
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    The two court cases, State v. Kernerand State v. Fennellaffirm your right under the Constitution of North Carolina to openly bear arms.

    Otherwise, I would cite the preemption of local firearms laws and applicable firearm laws mentioned therein to prove that you were not breaking any laws:
    § 14‑409.40. Statewide uniformity of local regulation.

    (a) It is declared by the General Assembly that the regulation of firearms is properly an issue of general, statewide concern, and that the entire field of regulation of firearms is preempted from regulation by local governments except as provided by this section.

    (b) Unless otherwise permitted by statute, no county or municipality, by ordinance, resolution, or other enactment, shall regulate in any manner the possession, ownership, storage, transfer, sale, purchase, licensing, or registration of firearms, firearms ammunition, components of firearms, dealers in firearms, or dealers in handgun components or parts.

    (f) Nothing contained in this section prohibits municipalities or counties from application of their authority under G.S. 153A‑129, 160A‑189, 14‑269, 14‑269.2, 14‑269.3, 14‑269.4, 14‑277.2, 14‑415.11, 14‑415.23, including prohibiting the possession of firearms in public‑owned buildings, on the grounds or parking areas of those buildings, or in public parks or recreation areas, except nothing in this subsection shall prohibit a person from storing a firearm within a motor vehicle while the vehicle is on these grounds or areas. Nothing contained in this section prohibits municipalities or counties from exercising powers provided by law in declared states of emergency under Article 36A of this Chapter.
    [/quote]
    I would also prove that you were not GATTTOTP and the following statement did not apply to you:


    GOING ARMED TO THE TERROR OF THE PEOPLE

    By common law in North Carolina, it is unlawful for a person to arm himself with any unusual and dangerous weapon, for the purpose of terrifying others, and go about on public highways in a manner to cause terror to others. The N.C. Supreme Court has said that any gun is an unusual and dangerous weapon for purposes of this offense.

    As far as the 2nd Deg. Tresspassing you only have to prove that you were not asked to leave by the person in control of the premises and were being harrassed by the Deputy Sheriff.

    IANAL. Can anybody think of anything else?

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    Im wishing you the best of luck John, but from personal experience I would find it difficult to believe that any decent law firm would choose to file a case AGAINST the police department.

    Here's my short summary version of why:

    When I was 18 (6 years ago), I crashed a Suzuki Katana 600 motorcycle in Chapel Hill. I was an inexperienced rider at that time, and I was trying to avoid a speeding ticket (they never found out I was actually running from the cop because before he ever got close enough to me to put on his lights and signal me to pull over I was way ahead of him.) Anyway, I crashed over half a mile ahead of the cop while trying to take a sharp winding curve at about 110 mph. I lost a ton of skin, severely hurt my ankle, and blacked out unconscious for about 45 minutes. At first they thought I was dead because I was laying on the ground not moving. When I regained consciousness, there were paramedics treating my leg, and 6 cop cars, and they had shut down all of Columbia St. After I finally stood up (still woozy/traumatized from the crash, and bleeding everywhere) they searched me, and then put me in handcuffs and arrested me on charges of "wreckless driving to endanger persons and property", instead of taking me to the hospital. When I finally got out of the police station hours later, my best friend drove me straight to UNC hospital. My friend helped me into the emergency room, and several nurses IMMEDIATELY escorted me to a bed, where they gave me two gigantic blue painkillers and continued treating the road rash and asphalt that was grinded into my skin and muscle tissue up and down the left side of my body. My nurse asked me, "When did this happen??" I told her it was about 4 hours ago, and told her I was arrested, etc. She said "WHY IN THE WORLD DIDNT THEY TAKE YOU TO THE HOSPITAL AT ALL?" I couldnt figure it out either.

    I ended up leaving in a wheelchair (with a prescription for lots of painkillers of course) and didnt walk or even leave home for 3 weeks. I then tried for months with many different attorneys and law firms to open a case against the Chapel Hill Police Department for negligence to treat me properly, or whatever the legal term would be. Basically no one would take the case because they didnt want to "ruin their reputation" by making a lawsuit against the well respected CHPD.

    Anyway thats my story. Best of luck to you.
    Brandon

  25. #25
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    ********, Police departments are successfully sued all the time. Several years ago I successfully sued one of the largest polices departments in the country (false arrest) and received a settlement. There are plenty of attorneys willing to litigate with law enforcement, it's not a problem retaining competent counsel.

    A simple goggle search will find references to many successfully lawsuits against law enforcement officers.

    I will sue a cop or government official in a minute for violating my rights. If the waffle house arrest post is accurate, this kid has a slam dunk case. Police can't make up their own law and are expect to know what the heck they are doing.



    Waffle guy , get a lawyer and sue.

    Go to cracker barrel next time.

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