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Thread: Open carry question

  1. #1
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    I am sorry if this question has been asked before, but the search button is not working :? Since I received my CPL, I have been told when concealing it, it can not be visible. When open carrying it, I was told that it has to have atleast three points of view. Is this true, and is it state wide? I am asking because, today I was harrassed by an officer in Cheney, WA and he told me that I was not allowed to "open carry" I argued with him for about 5 min, and to prevent cuffs, I put the jacket over the gun (as he asked). I am just checking my facts, so when I run into him again I can stand my ground...maybe get arrested ...only to turn around and walk out of the station (so I hope)Thanks in advance for your help.



    Josh

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    Regular Member TechnoWeenie's Avatar
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    w07rolla wrote:
    I am sorry if this question has been asked before, but the search button is not working :? Since I received my CPL, I have been told when concealing it, it can not be visible. When open carrying it, I was told that it has to have atleast three points of view. Is this true, and is it state wide? I am asking because, today I was harrassed by an officer in Cheney, WA and he told me that I was not allowed to "open carry" I argued with him for about 5 min, and to prevent cuffs, I put the jacket over the gun (as he asked). I am just checking my facts, so when I run into him again I can stand my ground...maybe get arrested ...only to turn around and walk out of the station (so I hope)Thanks in advance for your help.



    Josh
    1. You are not required to conceal.
    2. There is no 'three points of view' law, he's making &%$ up (or repeating #%^ someone else made up).
    3. State law preempts all city/county ordinances. Even if they do have a law on the books, its not enforceable.
    4. If they did arrest you, they're in DEEP trouble.
    Evangelical lessons are provided upon request. Anyone wishing to meet Jesus can just kick in my door.

  3. #3
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    Welcome aboard, and sorry about the hassles you had. Everything that happened to you was total BS. Time to file a complaint and ream them hard.

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    Thanks for the info and welcomeguys. Well I will make sure that I am not concealing when I run into him. Is there a RCW that says that we can open carry, or is it the lack of a RCW that we can open carry? Thanks again

    Josh

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    So there is no actual RCW that says we can open carry, correct? This the closest thing I found on that page RCW 9.41.270, and it basically says that you cant be fidgety/grip it (unless the situation calls for it) Sorry for all the questions, I want to make sure I can firmly stand my ground. Lastly, I know concealed or not, you cant carry in a government building, bar, elementary school, and places that post a sign, correct? Thanks again.

    Josh

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    Regular Member John Hardin's Avatar
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    A general principle of law is that if there is no prohibition it is legal. There is no law in WA prohibiting open carry. There are laws regulating who may carry concealed (but none saying you must carry concealed if you have a CPL), and where you may notcarry or possess, and who may not possess firearms, and how you may not behave when carrying.

    There is also no legal force behind private signs prohibiting firearms where state law doesn't prohibit firearms. All they can do is ask you to leave, and trespass you if you don't. At that point you could be arrested for trespassing.

    Grab the gun law and training bulletin pamphlets and print up copies to carry around, and read through them.

    File a complaint against the officer, and if you don't have a voice recorder, get one.

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    Is there a place I can download the pamphlets? Thank you very much for everyones help

    Josh

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    Never mind I found it thank you

    Josh

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    Regular Member j2l3's Avatar
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    This officer is probably a transplant from another state where the restrictions he claims might exist. Unfortunately, he hasn't the sense to research the laws wherehe is now.
    CZ 75B 9mm, Ruger P94 .40 S&W, Bersa Thunder .380, AR-15 Homebuild

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    You really need to file a complaint. It will put the department on notice and if you are harassed again it will strengthen your case.

  12. #12
    State Researcher Bill Starks's Avatar
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    Someone wrote this up some time ago. I suggest you put it to use...


    Dear Sheriff _______:

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

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

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

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

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

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

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

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

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

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

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

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

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

    Sincerely,

    YOUR NAME
    ADDRESS
    PHONE NUMBER


  13. #13
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    Josh,

    I live in Cheney as well. This kind of thing (officer "citing" BS laws) is common outside of any gun laws. Since we are home to Eastern Washington University, they seem to think of themselves a little higher than the rest of us.

    If you run into problems again, have a polite response rehearsed. Know you're rights and don't be afraid if they threaten you with actions. I would assume you were conducting your self in a professional manor as you should be when OC'ing... If it happens again, you must resist the urge to argue or inform the LEO. Ask him his name, then politelyaskif you are being detained. There are other post here that cover exactly what to say after that... read up, and PRACTICE IT! As you know, brain juice gets a little slow when LEO is intimidating you.

    Last bit of advice, don't be afraid of getting arrested. If you know you're rights, and are with in them, nothing is going to happen to you. Cooperate and be POLITE.... one of the major factors in interpreting the vague "warrants alarm to others" is the behavior and actions of the accused. Your lack of attitude with cops will be good.

    I was arrested with my 3 year old daughter last Christmas eve at the Spokane International Airport for "Obstructing a LEO". We were putting quarters in everyone's expired or about to expire parking meters. Cop saw and told me it's an "Arrestable Offense" (Got chargedas grossmis.) He yelled at me, pushed me, and when I said I was a Christian,not trying to cause problems, but spread someChristmas cheer.... Hesaid "Shutup! I've had enough of you're Christian Bull$H1+, you're under arrest, I'm taking you down town"

    I was freaked out for my safety, felt deprived of everything, and my little girl was clinging to me the whole time, screaming "Daddy, whys that man yelling" , "I'm scared daddy" and the cop looked at me and said "look what you're doing now, causing all these problems"

    District attorney saw the case and said he wouldn't touch it with a pole. No Statute making meter feeding a crime, and further more called a meeting with the cop and supervisor to explain the limited extent of his authority. Case thrown out, cost me $1000 in lawyer fees, and the cop is still working, doing similar things to others.

    Had I known my rights then, I know it would have turned out with that cop begging for his job back.... But I was intimidated and scared, assumed he know better than I, and didn't know how to respond in a way that preserved my rights. If I had declined to explain my actions as "helping" and simply asked if I was being detained, and under what presumed crime.... things would have been different. We've been thinking about suing the department at least to get back my $1000....


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    LJJ wrote:
    Josh,

    I live in Cheney as well. This kind of thing (officer "citing" BS laws) is common outside of any gun laws. Since we are home to Eastern Washington University, they seem to think of themselves a little higher than the rest of us.

    If you run into problems again, have a polite response rehearsed. Know you're rights and don't be afraid if they threaten you with actions. I would assume you were conducting your self in a professional manor as you should be when OC'ing... If it happens again, you must resist the urge to argue or inform the LEO. Ask him his name, then politelyaskif you are being detained. There are other post here that cover exactly what to say after that... read up, and PRACTICE IT! As you know, brain juice gets a little slow when LEO is intimidating you.

    <snip>
    I've been meaning to say this for some time:

    PRACTICE, PRACTICE, PRACTICE!!!!!

    Not under your breath... OUT LOUD!
    I don't care if someone sees you rambling to yourself.. PRACTICE.

    Practice not only the text, but also the tone, and yes even facial expression.

    It's amazing how much of a tongue twister 'Reasonable articulable suspicion" can be when you're flustered. Muscle memory works not just for Martial Arts and Music, but also for speech.

    I remember back at the Picnic at long lake park this past summer I was going over my 'script' with some folks and telling them that my theory was that opening with "Am I under arrest?" would catch them off guard and probbably result with a response to the negative. but at that point it was just THEORY.

    My theory was proven correct on Nov 21. When asked to produce ID, I countered with "Am I under arrest?" The brief flash of uncertainty (fear?) on the Officers face before he (almost) stammered "Uhh.. no" was priceless and bolstered my confidence more than any thing else I can think of would be able to. I knew right then I had 'em by the short 'n curlies!

    I followed up with "Am I being detained?" At this point I think he detected my increased confidence and decided to push back. by responding "At this point, YES!"

    I countered with with an all business, yet polite demand (not to be confused with a request) to "Articulate your reasonable suspicion that I am enganged in an unlawful activity!"

    His response of "You're wearing a gun!" solidified my conclusion that they HAD no RAS, and that I was on the legal high ground at that point. I dug in and fortified my position from there on out. They never did manage to find out who I was (that night) and they were forced to let me go (but not before committing several state and federal crimes....some of them felonies)

    PRACTICE PRACTICE PRACTICE!!! It's AMAZING how easily the words tumble out when You have them practiced.


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    I just want to thank everyone for the advice and help. A little update; I have not yet sent a letter to the Sheriff Department, because I can not figure out the name of the Deputy. Also, I am now OC everywhere (where legal in OR). I like to think of myself as a 'pebble in Cheney to make a wave' I have had a run in with Cheney police, and he had to tell some lady at the TAJ that I am carrying legal. He told me that I should cover it up if I could because he is going to get a lot of calls. I OC around the rest of the day. haha

    Can someone please direct me to the post where I can memorize what to say. Thanks.

  16. #16
    Regular Member shad0wfax's Avatar
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    LJJ wrote:
    Josh,

    I live in Cheney as well. This kind of thing (officer "citing" BS laws) is common outside of any gun laws. Since we are home to Eastern Washington University, they seem to think of themselves a little higher than the rest of us.

    [snip]

    I have had only one LEO encounter and it had nothing to do with firearms whatsoever, but it mirrors the impression you gave in your post: At least one Cheney officer seems tothink he's in his own kingdom andhe liked to make things up ashe wentalong when it came to state laws and municipal codes. It's an extremely humorous story but it really doesn't belong on this forum. The Cheney folks can PM me if they want to hear it.

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