imported post
guitrman1001 wrote:
SNIP We both agreed it shouldn't be on the part of the police officer but she did state that more of the longer time employees are made aware and it is the new officers that not as educated in Open Carry. I think they should be......
The elephant in the room being the 4th Amendment prohibition against unreasonable searches and seizures.
Terry v Ohio,[suP]1[/suP] a 4th AmendmentUS Supreme Court case,is clear. Police need articulable facts which taken together with reasonable inferences give reasonable suspicion of a crime before they can detain someone.
You see, cops don't have to be educated that OC is legal. All the cop has to know is that he
does not knowit is illegal.
If the cop does not know that OC is illegal, then he
doesn't even know whether he has authority to detain someone over it.
If the cop doesn't know to a dead moral certainty that OC is a crime, he can't possibly know he has legal authority to detain the OCer.
The glaringly obvious point in this case being that the cop seemed entirely willing to detain someone with a boot on their neck
without having any authority to do so.
Its not only the legality of OC that needs to be driven home. The Fourth Amendment restrictions on police need to be driven home, in spades, with a pile driver.
I mean, really. She is probably a "nice" person. But a nice person doesn't go around exceeding her authority by putting a boot on someone's head without knowing the authority to do so. Police who do so are literally making it up as they go along, and at the same time violating one of the mosthighly regarded freedoms of all.[suP]2[/suP]
In case anybody is a little shaky on this point with regard to firearms, maybe saying to themselves, "Well, guns are different." The US Supreme Court spelled it out in a case called,
Florida vs JL.[suP]3[/suP] In that case the court expressly declined to make a firearm exception to 4th Amendment protections.
I cannot emphasize enough that themuch largerissue is the Fourth Amendment, not the 2nd Amendment.
1. Terry v Ohio:
“And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0001_ZO.html
2.
Terry quoting
Union Pacific v Botsford:
No right is held more sacred, or is more carefully guarded, by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.
3. Florida v JL:
A second major argument advanced by [the government], in essence, that the standard Terry analysis should be modified to license a "firearm exception."... We decline to adopt this position.
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0529_0266_ZO.html