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surrendering your weapon when stopped by the coppers

B

Boo Boo

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from what i read in the 9A.41 section only a court can make you surrender your firearm.
 
S

sirpuma

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Shreveport Citizens Disarmed By Police For 2nd Amendment Bumper Stickers

At what point does an officer have a 'right' to disarm you? I would say if he has a reasonable fear of his safety. If he pulls you over for failing to use a turn signal, he doesn't need to take your weapon. Like the case where one of our members was handcuffed and his weapon taken and emptied because he was legally OCing. His rights were violated by officers who broke the law. This should NEVER be acceptable.

So long as people lay down like beaten dogs with their tails between their legs when any police officers decides to make up his own rules, these things will only get worse. :banghead: They need to KNOW their limits and they need to hear it from the TOP down and from the BOTTOM up.
 
J

joeroket

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NavyLT wrote:
sirpuma wrote:
Shreveport Citizens Disarmed By Police For 2nd Amendment Bumper Stickers

At what point does an officer have a 'right' to disarm you? I would say if he has a reasonable fear of his safety. If he pulls you over for failing to use a turn signal, he doesn't need to take your weapon. Like the case where one of our members was handcuffed and his weapon taken and emptied because he was legally OCing. His rights were violated by officers who broke the law. This should NEVER be acceptable.

So long as people lay down like beaten dogs with their tails between their legs when any police officers decides to make up his own rules, these things will only get worse. :banghead: They need to KNOW their limits and they need to hear it from the TOP down and from the BOTTOM up.
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According to Terry v. Ohio, the Supreme Court ruled that during an official detainment, the officer has the right to frisk an individual for weapons once they have reasonable suspicion that person is armed. Upon discovery of the weapon, the officer may disarm and seize that weapon for the duration of the detainment in the interest of officer safety.

Two things are required here - reasonable suspicion for the detainment itself, followed by reasonable suspicion of the presence of a weapon. SO:

You are clocked at 15mph over the speed limit. You are detained based on reasonable suspicion (traffic stop). Officer asks if you have any weapons. You answer yes. Now he has reasonable suspicion of the presence of a weapon. He now can do two things if he wants to seize your weapon for the duration of the detainment. He can ask you to hand it over to him, or ask you where it is and if he may retrieve it. OR he can ask you to step out of the vehicle and frisk you. If the weapon is in your vehicle at this point, and you are not in your vehicle, he has no right to enter your vehicle without your permission. So - if the gun is on you, he can seize it from your person - or he can now take whatever means he feels necessary to keep you separated from the weapon in your car, which might be telling you to stay out of the vehicle, or might be asking you to come back to his car.

Now, the case of a cop answering a MWAG 911 call is completely different. He sees you open carrying your weapon, in accordance with all applicable laws. Now he has NO reasonable suspicion for a detainment. At this point he also has no right to disarm you for officer safety, even if he wants to talk to you, because he has no reason for a "Terry Stop". All that was reported to 911 was there is a guy in Wal Mart with a gun, or eating dinner or whatever. No report of any crime has actually been made, there is no crime for him to "investigate".
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According to the Terry court the officer must reasonably believe the suspect to be armed and dangerous.

Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.
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C

Citizen

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When discussing 4th Amendment court opinions it is very important to understand what you are going to do with the data, or perhaps more precisely what you can do with the data.

For example, during a foot encounter Terry and subsequent related court opinions lay outrequirements for legal justification for a detention. However, the detainee can never really know with full certainty whether the LEO has met all the requirements. Thus, there is very little the detainee can safely do to enforce his Fourth Amendment rights during the encounter itself. About all the detainee can really do safely is invoke his 4A rights by refusing consent to searches and seizures.

The main point being, that most of the information found in these discussions cannot be used until after an illegal detention when a lawsuit or formal complaint is being developed. Or, to be able to know, to a limited degree, whether an LEO is violating your rights, say, for example, you want to call him on it verbally. "Officer, are you trying to intimidate me into waiving a right I just invoked?" (voluntariness of consent issue).

Along the lines of knowing the legalities better I have been keeping links to 4A and 5A legal materials. For those interested, you can view them here:

http://opencarry.mywowbb.com/view_topic.php?id=23936&forum_id=65

Separately, traffic stops may have different rules for weapon seizure in your jurisdiction. For example, in the US Court of Appeals that covers VA has ruled in effect that police can temporarily seize any weapon during a traffic stop, evenwithout reasonable suspicion of dangerousness. I can't recall the cite. It involved federal park police chasing multiple cars; the case arose from one that got caught. The upshot is that you may need to check your state court and federal court of appeals cases.
 
J

Jeff Hayes

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NavyLT wrote:
Citizen wrote:
Click to expand...
However, the detainee can never really know with full certainty whether the LEO has met all the requirements. Thus, there is very little the detainee can safely do to enforce his Fourth Amendment rights during the encounter itself. About all the detainee can really do safely is invoke his 4A rights by refusing consent to searches and seizures.
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I respectfully disagree with that statement.

"Am I being detained?"

"No."
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Good day officer and walk away
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Now you have all of your 4th amendment rights immediately at your disposal, because the officer has admitted that you are not being detained.
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There I fixed it for you
 
C

Citizen

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Orphan wrote:
NavyLT wrote:
Citizen wrote:
Click to expand...
However, the detainee can never really know with full certainty whether the LEO has met all the requirements. Thus, there is very little the detainee can safely do to enforce his Fourth Amendment rights during the encounter itself. About all the detainee can really do safely is invoke his 4A rights by refusing consent to searches and seizures.
Click to expand...
I respectfully disagree with that statement.

"Am I being detained?"

"No."
Click to expand...
Good day officer and walk away
Click to expand...
Now you have all of your 4th amendment rights immediately at your disposal, because the officer has admitted that you are not being detained.
Click to expand...
There I fixed it for you
Click to expand...
Very good clarification.

Things like this and a few other exceptions that come to mind are why I wrote, "About all the detainee..."
 
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grishnav

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"I will not physically resist you, however, I explicitly do not consent to any questioning, searches, or seizures of my person or property. I do not wish to answer any further questions without consulting with my attorney."
 
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