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Detained by police for alleged open carry in Longview, WA

deanf

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If the Longview city attorney has indeed told law enforcement that open carry is a violation of 9.41.270, then the officers were acting in good faith, and your complaint is not with them. It may or may not be with the city council (who have the power to replace the city attorney), but it is certainly with the city attorney and his erroneous opinion.
 

just_a_car

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Venator wrote:
Here is a link to the cited RCW (even though most of you know it): http://apps.leg.wa.gov/RCW/default.aspx?cite=9.41.270


This reads to me as a brandishing offense of which a handgun in a holster would not fit. I hope the case (the officer mentioned took place a week earlier) that was referred here gets thrown out as that would kill OC in Washington.
Venator, using the word "brandishing" is a big pet peeve for a few of us over on the WA forum... the reason? There is nowhere in the RCW that that word is used... thankfully. The term implies "showing" and that would include OC, IIRC, in some states.
 

kyle.huff

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deanf wrote:
If the Longview city attorney has indeed told law enforcement that open carry is a violation of 9.41.270, then the officers were acting in good faith, and your complaint is not with them. It may or may not be with the city council (who have the power to replace the city attorney), but it is certainly with the city attorney and his erroneous opinion.
I agree.. I have close ties to some in Longview politics, and unfortunately I do not believe the city attorney will change her mind.. However, it is my understanding that the city council can insist the city attorney rescind the opinion; which is why I was going to try and take that approach first.. Then again, perhaps that is not the proper way of going about it. I hope to know more after speaking a firearms savvy lawyer on Monday.
 

kyle.huff

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NavyLT,

Thanks for the support.

In the future, I plan to condition myself to handle these types of situations differently. Like I said in my first post, I am used to working along side of law enforcement, not below.

As to the attorney fees, well, in either case of where the money ultimately comes from - for the sake of putting these types of issues behind us - I think it is well worth it.

To say I cannot openly carry a firearm, and to also say I can only carry a firearm concealed, and only then with a permit or license, is to say I do not really have a constitutional right to bare arms; I am merely afforded a privilege.. My right to bare arms is not a privilege, nor is my right to free speech, or freedom of religion, etc..

As to me typically concealing or carrying openly; I more often carry openly - that particular day I was not wearing a holster with positive retention, and the store was quite busy, so I decided to conceal it. If I was wearing my serpa holster, I would have been certainly open carrying.

As for the rest of what you said; to my knowledge I was not charged with anything. I was never placed under arrest (that is, they never said I was under arrest), and I was never read my rights or taken 'down town'. My understanding is that the officers 'educated' me, and sent me on my way - only after dis-arming me, patting me down, frisking me, and telling me to sit in a chair while they rummaged through my wallet and checked if my firearm was stolen.

In any case, I will be consulting an attorney with 2a experience.

BTW: If your name is any indication to a current or previous occupation; Thank you for your service. I myself was a Navy bratt growing up. So my summertime activities were watching the Blue Angels with my dad and his jarhead friends. good memories.. =c )
 

ChuckUFarley

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My Opinion, like many others is file a complaint, you are doing right by getting any records from the PD, I understand the getting a lawyer bit, who has the time or money, yet what they did was wrong and need to be trained, I would also request a sit-down with either the training officer or the chief, but that’s just me. (Although i doubt the chief will have time for the average citizen)
 

joeroket

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BigDave wrote:
Kyle what the Officers did was out and out wrong and did not constitute a terry stop as stated before.

Here is two case laws to look over here in Washington.

http://www.impsec.org/~jhardin/gunstuff/legal/State_v_Spencer.pdf

http://www.impsec.org/~jhardin/gunstuff/legal/State_v_Casad_(unpublished).pdf

Especially the Casad ruling, even though it is unpublished, it states that it is not unlawful to responsibly walk around with an exposed firearm even though this may shock some people.

Also go look at http://nwcdl.org in the downloads where you will find training bulletins from LEO departments stating that OC is in fact legal.
 

deanf

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But again if the officers were acting on advice from their legal counsel, the city attorney, that open carry is illegal, then they were acting in good faith and cannot be held to account for this illegal stop. It is the city attorney that needs to be held to account.
 

FMCDH

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deanf wrote:
But again if the officers were acting on advice from their legal counsel, the city attorney, that open carry is illegal, then they were acting in good faith and cannot be held to account for this illegal stop. It is the city attorney that needs to be held to account.
Unless it can be proven in a court of law that the officers had received training to the contrary or should have reasonably known that the city attorney is wrong due to case law and precedence.

Education by the judicial "stick" is a good way to make sure that training has been conducted and that they and the city attorney are held to account.
 

deanf

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Any training that the officers receive should be vetted by counsel.

Common law is not up to the officers to interpret. That's the city attorney's job. The city attorney advises the police department how to proceed in certain situations based on his interpretation of common law.

The city fathers have a fiduciary responsibility to see that they hire the best counsel available to insulate themselves from lawsuits such as you suggest. To expect every police officer to know every common law case that might affect any situation they might come across is, in my opinion, unreasonable. The city fathers also apparently find it unreasonable, since they have hired an expert (the city attorney) to interpret and advise for them.

If there is any blame here, it lies with the city attorney (for giving incorrect legal advice) and the city council (for hiring a city attorney who may be incompetent.)
 

BigDave

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deanf wrote:
But again if the officers were acting on advice from their legal counsel, the city attorney, that open carry is illegal, then they were acting in good faith and cannot be held to account for this illegal stop. It is the city attorney that needs to be held to account.
I cannot go along with this line of thinking as then it would be legal doing any number of things that violate State Law, as long as some idiot in a position tells you do to so.

  • You have the final choice to enforce an unenforceable law or to violate someones rights.
  • You may very well have direction on how to respond, but it is your responsibility on how you respond.
  • Even in the Military there is issues with legal and illegal orders.
  • Just because you are told something does not exonerate you from prosecution and in this case I believe it would be against the department more so then the Officers do to training and advisement of the City Attorney (in this case is a fool).
  • Remember the old adage "Ignorance of the law is not a defense and/or an excuse"
In this case I strongly feel the Officers were wrong in how they handled it, as they should observe and then respond if their is a violation of law.
If they approach and no other actions to warrant alarm, if the weapon is concealed then a request of a CPL, being valid, have a good day.

Remember this is a law abiding citizen that has not broke any law or acted in any manner to cause alarm to place someone in fear.

It is highly likely it was a case of bare fear not real fear.
 

deanf

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In a police department there is a certain command structure. One of the branches in that command structure is legal counsel.

If officer's have received orders from their chief via the chain of command to enforce the law as if OC is illegal, and the order has been vetted by legal counsel, then in my opinion they are shielded from legal liability. They can blame the city attorney for any mistake they made, because they were acting in good faith, upon lawful orders. We're talking legal liability here, not moral or any other kind.

I understand the "no duty to obey . . ." argument. Who determines what a lawful order is? Unless an officer also has a law degree, the only way for him to determine the lawfulness of orders is to hire his own attorney, which is an unreasonable concept. What's the solution? The officers places his trust in his chain of command. If he can't do that, then he finds another job or lives with it and uses his discretion, possibly at peril of his job.
 

joeroket

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deanf wrote:
In a police department there is a certain command structure. One of the branches in that command structure is legal counsel.

If officer's have received orders from their chief via the chain of command to enforce the law as if OC is illegal, and the order has been vetted by legal counsel, then in my opinion they are shielded from legal liability. They can blame the city attorney for any mistake they made, because they were acting in good faith, upon lawful orders. We're talking legal liability here, not moral or any other kind.

I understand the "no duty to obey . . ." argument. Who determines what a lawful order is? Unless an officer also has a law degree, the only way for him to determine the lawfulness of orders is to hire his own attorney, which is an unreasonable concept. What's the solution? The officers places his trust in his chain of command. If he can't do that, then he finds another job or lives with it and uses his discretion, possibly at peril of his job.

Dean is absolutely correct. Good faith is the key phrase to it. If they have a superior, including the city attorney telling them that an action is unlawful under a specific code, especially a vague code like .270, they are acting in good faith and will enjoy privileged immunity.
 

BigDave

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I did not feel the officer or officers where in legal jeopardy while following department policy, but I do feel they were wrong in what they did.

It still does not excuse violating someones rights but in our society it does happen and I would look into changing their actions to come into compliance with the laws and look into filing suit against the department and city.
 

joeroket

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BigDave wrote:
I did not feel the officer or officers where in legal jeopardy while following department policy, but I do feel they were wrong in what they did.

It still does not excuse violating someones rights but in our society it does happen and I would look into changing their actions to come into compliance with the laws and look into filing suit against the department and city.

I absolutely agree. The first course of action in a situation like this is to attempt to show why they are wrong and provide evidence to back up the claim.
 

sudden valley gunner

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The officers also train and are versed in the law so to say there is no responsibility on their part I would disagree. The gun laws of this state are pretty straight forward for the most part and it would be irresponsible for "an officer of the law" not to be familiar with them.

Also even if they thought they had the right to stop him they had no right to run his serial #'s, there was no out right evidence or suspicion that the gun was stolen.

And like NavyLt brought out they didn't charge him with anything. So that makes me think they did know and that this was an illegal Terry stop. Or an excuse to intimidate a lawful abiding citizen.
 
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