1st Police Interaction

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Well today was the first police interaction I have had since I have started routinely carrying. I had met up with a couple of other people this morning at Caribou Coffee in Brookfield. They had arrived before me and taken a table outside on the patio. I got my coffee and sat down with them. There was no other people on the patio and it started as a uneventful visit. After about fifteen minutes I noticed an officer approaching our table. He walked up behind me and approached my left side. As he was saying hello a whole bunch of other police appeared. I think that there were six officers and five cars. I felt rather special at that moment. The officer than stated that I knew why they were there and that some random person had spotted my mighty S&W J-frame and had called them. The officer stated that he needed ID and I told him that my ID was in my vehicle and that if he needed it I would have to go and get it. He stated that would not be necessary and that I could just tell him my info. So he called it in and I sat and continued to enjoy my coffee. I was not asked to be searched. I was not about to leave until they did. They were professional and it was an interesting non event. After they left I sat for a bit more, got a refill, and continued on my day. They asked for no information from my table companions.

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That's the way every LEO should handle the situation. good for you and our 2nd amendment right :celebrate

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No. It was a non-consensual stop due to the force of numbers and without suspicion of a crime being or about to be committed or completed.

It ended well but the violation of rights was complete, specifically the Fourth Amendment Right to be secure in ones person against unreasonable seizures.

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gila wrote:

SNIP The officer stated that he needed ID and I told him that my ID was in my vehicle and that if he needed it I would have to go and get it. He stated that would not be necessary and that I could just tell him my info. So he called it in and I sat and continued to enjoy my coffee. They were professional and it was an interesting non event. After they left I sat for a bit more, got a refill, and continued on my day. They asked for no information from my table companions.

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Unless Wisconsin has licensed open carry on foot, he had no legaljustification to demand your ID, or even require you to give your name, if they were demands.

I am not a lawyer. The statements that follow are not complete statements of the law.Also, they are only in the context of the reported encounter.

Kolender vs Lawson[suP]1[/suP] shot down statutory requirements to provide an ID document.

Hiibel vs 6th Judicial District Court[suP]2[/suP] makes clear that a state statute requiring a person to identify himself when the officer has reasonable articulable suspicion (RAS) of a crime is constitutional. In your encounter we seem to have nothing to indicate the LEO had the necessaryRAS.

US vs Mendenhall[suP]3 [/suP]gives examples of circumstances that can indicate whether a person has been seized. The encounter reported above is not clear on these points. Just a hint that the OPer might have felt compelled to comply because he "was not about to leave until they did." I offer the text below for the benefit other readers who might not be familiar with it, and so the OPer can evaluate whether he was momentarily seized/detained.



1.Kolender: http://supreme.justia.com/us/461/352/case.html

2.Hiibel: http://www.law.cornell.edu/supct/html/03-5554.ZO.html

3. Mendenhall: "Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." (emphasis added)

4. Wiki article on Stop-and-Identify statutes:

http://en.wikipedia.org/wiki/Stop_and_Identify_statutes

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Gila,

Did you feel compelled by the officer(s) to produce an ID document?

Did you feel compelled by the officer(s) to verbally identify yourself?

If yes, can you put your finger on what made you feel that way? Rather, can you put your finger on what made you reasonably conclude you were not free to disregard the officer(s)?



Encounters between police and OCers rarely, if ever, include actionable violations of the 2nd Amendment by police.

It is much more common to see violations of the 4th Amendment right against unreasonable search and seizure, and the 5th Amendment right against self-incrimination* during OCer encounters with police.

We need tolearnour 4A and 5A rights thoroughly, including how to protect them. If you don't know them, you can't possibly recognize if theyhave been violated.



*Identification is a 5A issue because requiring a person to identify himself to police was presented to the courts as a violation of 5A.The courts decided it wasn't a 5A violation underspecific circumstances. See Hiibel.

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I see that Wisconsin has a Stop-and-Identify statute:

968.24Temporary questioning without arrest. After having identified himself or herself as a law enforcement officer, a law enforcement officer may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime, and may demand the name and address of the person and an explanation of the person's conduct. Such detention and temporary questioning shall be conducted in the vicinity where the person was stopped.

Notice it requires the officer to have reasonable suspicion.

http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=968.24

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Interesting points all of you raise. I did feel that I had to provide my name verbally and I did not have provide a "physical' ID and that is what I did. After they did a quick name search it was my impression that it was pretty much done and over with. They talked to the employees working there to see if they had called and wanted me to leave. They had not called and were in fact rather embarrassed as we are long time customers that they know. What I wanted people to see was an legally armed person talked to by the police who was then told to have a nice day. I don't know who called and if they were still there, I wanted them to see that I was not about to get "chased off" because they felt uncomfortable. I have zero doubts that most OC'ers when talked to by the police have some "degree" of rights violations. This one, although not right, was at least not like Jesus' or Brad's experiences. Until we get someone like the AG to tell the police to ignore OC'ers completely, this stuff will continue. Or if the municipalities get sued enough.

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gila wrote:

Interesting points all of you raise. I did feel that I had to provide my name verbally and I did not have provide a "physical' ID and that is what I did. After they did a quick name search it was my impression that it was pretty much done and over with. They talked to the employees working there to see if they had called and wanted me to leave. They had not called and were in fact rather embarrassed as we are long time customers that they know. What I wanted people to see was an legally armed person talked to by the police who was then told to have a nice day. I don't know who called and if they were still there, I wanted them to see that I was not about to get "chased off" because they felt uncomfortable. I have zero doubts that most OC'ers when talked to by the police have some "degree" of rights violations. This one, although not right, was at least not like Jesus' or Brad's experiences. Until we get someone like the AG to tell the police to ignore OC'ers completely, this stuff will continue. Or if the municipalities get sued enough.

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As far as the RAS or not, I came to a choice. If I am asked, real nice, with out any real negative feelings, I will most likely tell the cop my name. I would not even think about handing over any ID card though.

If the cop jumps all over me, I will not talk at all. Not with out a lawyer.

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Thanks for sharing your story.

Here's my only comment. I agree that there is a violation of rights if one feels forced to provide their info, but if you have nothing to hide, why would you not provide it right away? If you politely deny it, no big deal. If more than that, you may appear beligerant and, even though you may be well within your rights, you may end up causing a scene that draws negative attention towards yourself and other gun owners. Again, and I say this as somebody who wants to be a cop so you know where my bias stands, but cops can be less-than-educated when it comes to consitutional rights. They may (wrongly) try to hook you with obstruction or something along the lines of that. Sure, you'll be set free in the end, but is it worth the hassle when you could just verbally say your info?

I've never been in that situation so can't speak from experience, but I'm just saying...

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gila wrote:

Interesting points all of you raise. I did feel that I had to provide my name verbally and I did not have provide a "physical' ID and that is what I did. After they did a quick name search it was my impression that it was pretty much done and over with. They talked to the employees working there to see if they had called and wanted me to leave. They had not called and were in fact rather embarrassed as we are long time customers that they know. What I wanted people to see was an legally armed person talked to by the police who was then told to have a nice day. I don't know who called and if they were still there, I wanted them to see that I was not about to get "chased off" because they felt uncomfortable. I have zero doubts that most OC'ers when talked to by the police have some "degree" of rights violations. This one, although not right, was at least not like Jesus' or Brad's experiences. Until we get someone like the AG to tell the police to ignore OC'ers completely, this stuff will continue. Or if the municipalities get sued enough.

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Thank you for the clarification. Understand clearly, you got checked for outstanding warrants. He was looking to arrest you.

Also, this business of consulting the store owner to see if they wanted you removed is outrageous! They went looking to evict you!?! Give me a break! They won't allow you to exercise your right to OC without suspicion, but they will go out of their way to see if the store owner wants to exercise his property rights, over a perfectly legal and constitutionally protected activity!!! Boy, oh, boy. I'd be pissed. I am pissed and I'm just reading about it.

Did the officer demand your ID? Meaning, did he use an official, demanding, or commanding tone of voice when he first asked about your ID?

Did the officer in effect continue the demand aspect by tone of voice when he said you could just give your name verbally?

You don't have to sue. You have a 1st Amendment right to petition the government for redress of grievances. A formal complaint isjust that. A good chewing in a formal complaint can do wonders.

First, even if the officers lie about what happened, even if the department does nothing,just by landing a formal complaint on their desk, you win.

It tells the police that somebody knows their Fourth and Fifth Amendment rights. Now they have to becareful. "Oh, $hit! Somebody knows what we're up to."

I would write a formal complaint. Especially if the officer's tone was demanding/official/commanding. The big advantage for you is that your encounter was brief, meaning it won'ttake muchwriting.

If you need help, PM me or somebody inthe Wisconsin sub-forum you feel confidence in.

Oh, and don't forget, the police embarrassed your friends, the store staff. It might even be worth it just a little bit to check back with the storemanager and ask how they felt about the police harassing one of their valued customers on their property.

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gollbladder13 wrote:

SNIP Here's my only comment. I agree that there is a violation of rights if one feels forced to provide their info, but if you have nothing to hide, why would you not provide it right away? If you politely deny it, no big deal. If more than that, you may appear beligerant and, even though you may be well within your rights, you may end up causing a scene that draws negative attention towards yourself and other gun owners. Again, and I say this as somebody who wants to be a cop so you know where my bias stands, but cops can be less-than-educated when it comes to consitutional rights. They may (wrongly) try to hook you with obstruction or something along the lines of that. Sure, you'll be set free in the end, but is it worth the hassle when you could just verbally say your info?

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I am going to be just a little forceful. Don't take it personally, Gollbladder13.

First, since police "can be less-than-educated when it comes to constitutional rights", please take rights to heart and really dig and learn about them. Go for a full perspective, including what it cost across the last 10 centuries to obtain, one by one, the rights we have today. Countless people suffered without them. Property seized, dispossessed, exile,consciences compelled, torture, beheadings. Countless people pushed, rioted, insurrected, rebelled, and revolution-ed to get them.

That you say that cops can be less-than-educated about rights is damning. Rights, as distilled in current case law, are the policies limiting police. Essentially you are saying police don't know, or don't care to know, fundamental policies regarding their jobs. If they don't know the policies, to that degree they are incapable of beingcompetent.

Ohio vs Reiner has something to say about "if you have nothing to hide":

But we have never held, as the Supreme Court of Ohio did, that the privilege is unavailable to those who claim innocence. To the contrary, we have emphasized that one of the Fifth Amendment's "basic functions ... is to protect innocent men ... 'who otherwise might be ensnared by ambiguous circumstances.'

Ullman vs United States quotes an earlier case:

The privilege against self-incrimination serves as a protection to the innocent, as well as to the guilty, and we have been admonished that it should be given a liberal application.

Law professor James Duane, and US Supreme Ct. Justice Robert Jackson in Watts vs Indiana had some things to say about it too. There are numerous ways what you say in talking to police can be used against you. Link below.

Is it worth the hassle?What did it cost to get the right? Given what it cost to obtain the right,the correctquestion would be, "is it worth stuffing the rights violation back in its box with a lawsuit or formal complaint? Or, is it better to just stand firmly against it at the time it is attempted, and let it go at that?"

Best wishes for a successful career in law-enforcement. Please take the time to become well educated on rights. As the Declaration of Independence says,

That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed;

"That to secure these rights, governments are instituted among men." The only legitimatereason for police to exist isto protectrights. It would be kind of silly to saypoliceshould only protect certain rights while violating others.

Ohio v Reiner: http://supreme.justia.com/us/532/17/case.html

Ullman v US: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0350_0422_ZO.html

Prof Duane and Justice Jackson:

http://www.regent.edu/admin/media/schlaw/LawPreview/

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gila wrote:

The officer than stated that I knew why they were there and that some random person had spotted my mighty S&W J-frame and had called them.

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Does the random person have a history of calling the police ? Is there a tape of their voice ? If you get other random calls and you see that it is me from a distance , will you end your duties at that point or go through this procedure again ? I did not know why you were here until you told me , thank you . My name is gila . What's your's ? Do you think police officers should conceal carry ? What do you carry as a back up ? Do you support the Second Amendment ? Can I get you something to drink ? Sure is hot .

__________________________________

I carry a S&W J snub too .

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It was an odd situation. The cop didn't seem demanding in his tone, more resigned. I refused to feel embarrassed as it wasn't my fault that someone hasn't seen the eleventy-billion news articles about the legality of OC in Wisconsin. I will probably file a complaint as there was really no reason to talk to me anyway. The primary officer I dealt with was not the highest ranking officer on the scene. The officer I was dealing with really seemed as though he didn't see a need to be talking to me at all. This is not to excuse or justify the actions, it's just that I think there were things going on "behind the scenes" that made the situation a bit strange. I will be going back to Caribou and, unless they post a sign or tell me to leave, I will be carrying.

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It was certainly odd to you that hasn't seen the eleventy-billion similar stories here on OCDO and elsewhere on the 'net. Please see the larger picture and understand that these abuses of a citizen's rights occur with horrifying frequency - and are as often dismissed as odd misunderstandings.

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gila wrote:

SNIP The cop didn't seem demanding in his tone, more resigned.

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Glad to hear you will probably file a complaint. No reason to contact you, even consensually, even though the courts say it does not violate your rights. See Terry vs Ohio. They could always just observe from a distance. That they contacted you at all carries the heavy implication that they think a citizen exercising his right to possess the means to self-defense is suspcious. Intolerable.

If the cop who did the talking was not demanding, youwon't be able to say youwere illegally detained on that point. However, the other circumstances listed in Mendenhall might still apply.

Did the 5-6 other officers sort of surround the out door dining area? Your table? Just wait in their cars? Did any of them have their hands on their guns? Glare at you? Intimidating just by force of numbers and how close they were?

By the way, just for future reference, you can avoid all this sorting out after the fact by saying just a few magic words during the encounter:

"No offense, Officer. I know you are probably just doing your job.But I do not consent to giving you my name. I will provide it if you demand it, but I am not providing it consensually."

If he still demands you verbally identify yourselfover top of your refused consent, the issue becomes much clearer. It isthen no longeran open question of whether you are seized/detained, since it is no longer a voluntary encounter. See Mendenhall--go to the link and read the paragraphs just preceding the one quoted above.

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I do see the big picture. The way I handled this situation is not the way I would handle every situation. Should I have been more of a hardass? Probably. Am I part of the problem for not being unyielding with my rights? Probably. There is a real disconnect between what the police are supposed to do and actually do in this state. It would be lovely if the AG would release another memo that would really spell all this out to the police and the public. I do not think that there was a misunderstanding on the part of the police. I think that the police will continue to do whatever they are going to until they finally face legal consequences in a meaningful way.

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I agree that there is a violation of rights if one feels forced to provide their info, but if you have nothing to hide, why would you not provide it right away?

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I will never provide my name. I refuse to give the police opportunityto make a point of retribution. Given that we ALL break the law every day (speeding) I don't want the police to know who I am. I don't want to be "on the list" that a local police department keeps of citizens that DARE to know and exercise their rights.

They get my name, they know they can't nail me for open carry, but who's to say that I am in a little po-dunk town or something where the police can't stand anyone who doesn't submit like a sheep and they decide to pay "extra" attention when you leave your house. Follow you, nail you for going 3 over the limit. Just make your life hell. They can do it EASILY.

I have observed plenty of reason to not trust the police. And I'll sleep WAY better at night knowing I didn't provide my name. IN ADDITION, I'll let that officer know that citizens DO know their rights. I'll push back against the fear and intimidation by which police strip of citizens of their rights every single day. The relationship between citizens and police will be FAR better when police begin to recognize by experience the limits of their authority. When law abiding citizens are empowered by their rights, then there is equality. Its not the case now, and WE SEE the abuses that has led to. WE SEE in the news examples of police who think they are "above the law" Many factors contribute to those attitudes by police, and I consider people... EVEN those who have nothing to hide, who allow officers on the street to over step their boundaries are sacrificing NOT ONLY their own rights, but the rights of others too.

I'm sorry, but when I'm sitting and having coffee with my friends, I WANT the police to KNOW that they have no right to interupt. Because as soon as they encounter a few open carriers who KNOW their rights and refuse to give their name THEY WILL STOP WASTING MY TIME AND THEIRS and just "drive on by" when they see nothing wrong is being done.

That's the way every LEO should handle the situation. good for you and our 2nd amendment right

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Its much better than some leo responses, but far removed from "how it should be"

IDEALLY police dispatchers should do a little probing to understand if its EVEN worth sending a squad to respond. I think there are better uses of their resources. IF NOT THAT, then fine, roll a squad who can OBSERVE FOR THEMSELVES that nothing wrong is happening. But the police should not be interupting law abiding citizens who are sitting having coffee with friends.

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gila wrote:

I do see the big picture. The way I handled this situation is not the way I would handle every situation. Should I have been more of a hardass? Probably. Am I part of the problem for not being unyielding with my rights? Probably. There is a real disconnect between what the police are supposed to do and actually do in this state. It would be lovely if the AG would release another memo that would really spell all this out to the police and the public. I do not think that there was a misunderstanding on the part of the police. I think that the police will continue to do whatever they are going to until they finally face legal consequences in a meaningful way.

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Don't be too hard on yourself. I wasn't criticizing. Literally. I really did mean for future reference. The only reason I brought it up was for yourself and other readers in case I forgot to mention it later. There are so many angles to these things and it hadn't been mentioned yet.

Regarding police not straightening up after a formal complaint,you may have more information on your specific PD, so what I say next may not apply.

Some PDs have straightened up after a formal complaint. Some took a few complaints.Unless you have other info specific to your PD, it might work after one or more formal complaints. As I understand it, they cannot afford to establish a pattern of violating rights. Itstrengthens the chances of thecitizen winning a federal lawsuit.

Even the Manassas PD in VA, despite claiming the officers did nothingwrong during the encounter, cleaned up their act after one formal complaint (and pressure from a 2A rights group.) Not one OCer has been harassed in Manassas since then. Funny how that worked out. The police decided to leave the OCers alone, and backdated it to the incident. In reality, you just know the conversation between the troops and the supervisor went something like this:

Commander: "What happened?"

Cops: "Nothing, sir."

Commander: "Well, 'nothing' had better not happen again."

Also, after a formal complaint, you might find individual officers a little less willing to cooperate with whatever is going on behind the scenes. Maybe next time the cop will tell the boss in so many words that he'll talk to the union if he is required to risk a lawsuit or his personnel file and promotion prospects again.

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hugh jarmis wrote:

I will never provide my name. I refuse to give the police opportunityto make a point of retribution. Given that we ALL break the law every day (speeding) I don't want the police to know who I am. I don't want to be "on the list" that a local police department keeps of citizens that DARE to know and exercise their rights.

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You might reconsider that, Hugh. Wisconsin has a stop-and-identify statute. Since there is no penalty written into the statute, I would assume for the moment thatthe penalty for obstruction would apply.

http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=968.24

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Citizen wrote:

hugh jarmis wrote:

I will never provide my name. I refuse to give the police opportunityto make a point of retribution. Given that we ALL break the law every day (speeding) I don't want the police to know who I am. I don't want to be "on the list" that a local police department keeps of citizens that DARE to know and exercise their rights.

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You might reconsider that, Hugh. Wisconsin has a stop-and-identify statute. Since there is no penalty written into the statute, I would assume for the moment thatthe penalty for obstruction would apply.

http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=968.24

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My guess is that Hugh meant he would never willingly give them his name.

They do need RAS for the stop and identify statute. Personally, if an officer were to ask me I'd make him demand it and not give it to him consentually. Should be safe from obstruction that way.

Thanks to Citizen for his posts, I have learned a lot about my rights from this forum and poster like him.