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Detained for CC

cynicist

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I just got stopped for "openly concealing."
I was walking home from karate practice, and came to an intersection on the highway, where there is no crosswalk light. There was a cop car right in front of me, and the guy was checking me out- I believe he could see my holster under my long shirt.
I placed my hand on it and jogged across the street, and as I expected, he pulls up behind me about a half-block away. I turn around and tell him "I have a license for it" as he's stepping out. That doesn't deter him much, and I mention again I have a license and gesture towards my back pocket, opposite of where the gun is, and he slaps the cuffs on me, explains that he's not arresting me, but he is detaining me. I wasn't sure about the law on this, but instinctively said "I don't think you can do that" he says "yes I can," pats me down, asks me if I have anything else; and I mention the extra mag and the knife. "21-XX, I'll be out with one, also... He's got a gun."
"And a license..." I mention in vain. "It's in the front flap, you'll see it as soon as you open the wallet."
I wasn't sure about what they can and can't do with CC RA, save demanding to see the license.
He takes the knife, the gun, and the mag and puts them on the hood. I could see the red dot on the side of the gun, which meant he actually took the safety off, but didn't unload it. Before he got into the car, he moved the barrel so it was pointing into the car, and then gets in. I casually mention that it was loaded and chambered.
I kept insisting that I had a CPL, and not until he put me in the car in handcuffs did he look for it. He ran my ID first, came back clean, then ran the gun for stolen, came back in my name, then the fun part:
The dispatch came back as showing no return on my CPL. Two more cops had showed up by now, since there was an incident of kid running around with a gun.
For a minute or two they were passing the license back and forth- "It looks real... Do you know whose signature that is?... Does the chief sign these?...I think I saw him leaving when he got it..." "A gun and a knife huh... "Yeah, in that neigborhood..." (the address on my CPL was from one of the worse parts of the city.) I had seen that particular officer a couple weeks before on the same block; he was checking the ground for brass after a shooting.
The guy comes over and asks who I dealt with to get it, and says they're going to call the chief and see what he says. They looked at my bag I was carrying and saw my karate stuff, and came over and made small talk about it while they were waiting for a response.
The sargeant (I think - he had stripes) recognized me from elsewhere and came up to the car and asked me something about the elsewhere, then soon after they let me out and suggested I go down to the station on Monday to get whatever needs to be fixed fixed.
They explained that when they see someone with a gun, they have to check, and considering a cop got shot about a mile from there a couple weeks ago, and the cop stopped me is rather new to the force, I'm not really mad. They told me they hoped they hadn't ruined my night, we chatted briefly about guns, they didn't bother with any of the why-do-you-carry-a-gun BS,and wished me a safe walk home.

So my question is, what can they do when they see you CC?
 

Tawnos

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I think starting with "I have a license for it" is the wrong move - it acknowledges the weapon and your nervousness in the situation. Best to start with "is there a problem" followed by (when he says "I saw your pistol, which is concealed") "am I being detained." If the officer says "no" say "have a nice day," turn around, and keep walking.

Most likely, the response will be "yeah, I saw your weapon, which is concealed, I need to <blah>." Depending on what is requested, you have a number of options. In the case of the officer who cuffed you and removed your weapon - I would have stated very clearly "I do not consent to this seizure of my sidearm nor any unlawful search based on this seizure." Do not stop the officer if (s)he proceeds to try to take your weapon, but as they are seizing I would, again, state "though I am cooperating with your request, my cooperation does not and should not be viewed as my consent. I feel coerced in this situation to have my sidearm unlawfully seized, and my cooperation should not be viewed as implied consent."

Ideally, it wouldn't come to that - a reasonable officer would respond "I saw your weapon, and would like to see your concealed pistols license as well as your identification." At this point, you inform the officer where your CPL is, and ask if they would feel more comfortable retrieving it, or if they would prefer you reach for it (and with which hand).



If, upon commencement of contact, the officer says they wish to remove it for their safety, I would still say "I do not consent to such seizure." In addition, I would probably say "the safest place for my sidearm is holstered, with the trigger covered." The key thing is that you explicitly state I DO NOT CONSENT. Moreover, stating that "my cooperation should not be viewed as implied consent" is another good phrase to remember - you should cooperate, but still firmly state your rights, especially if you are in front of their vehicle and thus within range of their cameras. Immediately after being let go, you call a lawyer and subpoena the tapes, because they *will* get erased if you don't.

In short, your rights were violated because you didn't know what they were. Hopefully, moving forward, you can better respond to such a situation.
 

Citizen

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Assuming that carrying a concealed handgun is illegal, a CCW permit being an exception, I should think the case law wouldpretty much allow what he did.

However, I would still write a formal complaint. There must be thousands of CC permits in Washington. Plus,a holstered gun? Gimme a break. Cops know bad guys don't wear holsters.

The cop grossly over-reacted. All he had to do was ask to see your permit, which I'm guessing you are required to display upon demand.

You jogged across the street--after the light turned, and when you saw him stopped, you went back to him. No furtive behavior. No nervous behavior. No "headlong flight".

No amount of cop apologist explanation is going help this one. Just because a cop was shot last week doesn't mean everything else stops and the last-week-circumstance continues to exist indefinitely.

Gimme a break.Hand-cuffed, indeed.
 

Charles Paul Lincoln

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File a complaint. The Terry stop wasn't approproate -- no RAS of a crime from what you have stated. The cop may try to say you ran, but it sounds as if it was obvious you weren't trying to evade. I understand that Yakima is having a huge gang violence problem, but the gangstas don't carry in a holster.

Print and read the training bulletins from NWCDL. It is clear from them that carrying a holstered gun is not RAS for a Terry stop. He could do a consenual stop, and I even think given circumstances there asking to see your CPL is reasonable. But cuffed and stuffed is out of line.

Make sure you do a FOIA request for the dispatch recordings, the report, and any dash cam footage. Do that immediately tomorrow morning.

Charles
 

cynicist

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the gangstas don't carry in a holster
I think thats more of an assumption. Gangstas can also be practical, and a $10 holster is practical.



In this situation, the officer immediately stated that I was being detained, so I didn't get the joy of the "am I free to leave..." this time.

File a complaint. The Terry stop wasn't approproate -- no RAS of a crime from what you have stated.
Does anyone know of any case law regarding what an LEO can do when they see a concealed (the holster was fully covered, but still obvious) weapon?
Is it grounds for detention, or merely request to see the license?
Can he take the weapon and do the regular Terry stuff, since he hasn't verified the CPL?

If I'm going to file a complaint, I need to know exactly the fine points are on this.

Maybe it's time for an Open Carry lunch in Yakima. You up for one Cynicist?
I live in Sunnyside. And I really, really try to avoid OCing in my own area.
 

j2l3

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Seattle, Washington, USA
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The Second Amendment Foundation (SAF) keeps a list of lawyers who have extensive experience in this area of law. Most will give a 30 minute free consult. I recommend you call them and get a referral.

Second Amendment Foundation
James Madison Building
12500 N.E. Tenth Place
Bellevue, WA 98005

Voice: 425-454-7012
Toll Free: 800-426-4302
FAX: 425-451-3959
 

Citizen

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cynicist wrote:
the gangstas don't carry in a holster
SNIP I think thats more of an assumption. Gangstas can also be practical, and a $10 holster is practical.

There is an FBI study of prison inmates floating around somewhere. Among the tidbits that came out of it, was the one that criminals don't wear holsters.

The idea being that they don't want to have to explain an empty holster to police.

If I recall, it was the same FBI study that foundthe inmates saying they were more afraidof armedcitizens thancops, and that they didn't care what the law was againstCC or felon in possession.
 

Charles Paul Lincoln

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cynicist wrote:
the gangstas don't carry in a holster
I think thats more of an assumption.

No offense intended, but I worked nearly a decade in corrections, have worked closely with LEO for nearly as long, and have spent the last two years specifically working on gang issues in this state. Gangsters don't use holsters -- speaking from experience and professional knowledge, not just an assumption.

Charles
 

Wheelgunner

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Bla---wups! Ganstas don't use holsters, clean their guns or take formal training and use point shooting. Interestingly, they ofter carry a BUG.

Study: http://www.stoppingpower.net/commentary/comm_cop_killers.asp


Interesting details...Tell me this quote does not chill you:

"[W]e're not working with no marksmanship... We just putting it in your direction, you know... It don't matter... as long as it's gonna hit you…if it's up at your head or your chest, down at your legs, whatever... Once I squeeze and you fall, then... if I want to execute you, then I could go from there."
 

cynicist

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Well, no offense intended back, but from my personal experience, I am aware of gangsters, or at least gang associates, who do have holsters, in which they carry their guns. Granted most don't, but it's not a get-out-of-detainment-free card.

You think cops should just ignore guns in holsters and deal with the ones in belts?

And that FBI was on cop killers in prison, not the brightest group of criminals you could find.
 

N6ATF

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cynicist wrote:
cop killers in prison, not the brightest group of criminals you could find.

Unless you're a foreign citizen or a master criminal, you're unlikely to not get caught if you kill a cop. You're essentially calling God up and asking for the 10 Plagues of Egypt to rain down upon you, or in this case, an entire department and forces from every local, state, and federal alphabet agency around for miles.

It's more the nature of the crime, rather than the intelligence of the criminal, who may or may not even realize he's killing a cop due to cops not having 360 degree text-scrolling halos proclaiming their title 24/7/365.
 

eBratt

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I'd also be interested in learning about RAS, Terry stops, and OC/CC. In my mind, stopping someone simply because you see them OCing or CCing and verifying they are legal is about as appropriate as stopping anyone you see driving to see if they have a license. Doesn't seem to add up for RAS in my mind. Curious what the actual law says.
 

cynicist

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I was able to find an unpublished State v. Aquinos, which quoted a State v. Thorne (which I haven't found yet) saying that an officer may detain someone to see if they have a license, and since they may detain them, they may also frisk/disarm them, therefore that newbie that stopped me was acting under true color of law.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wa&vol=235986&invol=o01


Aquino contends that the language of RCW 9.41.050 providing that a
person shall display a concealed weapons license "upon demand to any police
officer or to any other person when and if required by law to do so" does
not give the police unlimited authority to demand to see a license.He
then argues that even if the officers were justified in asking to see his
license, their physical detention of him and their seizure of his gun were
not justified under the statute.
The State responds that the "when and if required by law to do so" phrase
in RCW 9.41.050(b) must be read in conjunction with subsection (a), which
states that a person carrying a concealed pistol also must carry a license
if the person is outside his or her home or fixed place of business.We
agree that the two subsections read together give a police officer
authority to demand to see a concealed pistol license when the officer
knows a person is carrying a concealed weapon outside his or her home or
business.
See State v. Thorne, 129 Wn.2d 736, 761, 921 P.2d 514 (1996)
(statute must be read as a whole, giving effect to all of the language
used, with each provision being harmonized to insure proper construction).
Under this reading of the statute, the officers were authorized to stop
Aquino and ask to see his concealed pistol license.According to the
State, the accompanying detention of Aquino and the seizure of his weapon
were justified by safety concerns.The trial court agreed and explained
its reasoning in the conclusions of law supporting its CrR 3.6 ruling.
Because Sergeant Jones and Detective Milosevich knew that the
defendant was armed and potentially dangerous because he was armed, they
acted reasonably under the totality of circumstances in stopping the
defendant and removing the gun from the waistband of his pants
.Under
these circumstances, it was the least obtrusive manner to contact the
defendant while assuring the safety of the detectives, the defendant, and
any passers by.
Officer safety is a paramount concern.The court will not adopt a
policy which places officers in a position where, if things go wrong, they
must be the quickest draw.
 

SANDRAT

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Charles Paul Lincoln wrote:
cynicist wrote:
the gangstas don't carry in a holster
I think thats more of an assumption.

No offense intended, but I worked nearly a decade in corrections, have worked closely with LEO for nearly as long, and have spent the last two years specifically working on gang issues in this state. Gangsters don't use holsters -- speaking from experience and professional knowledge, not just an assumption.

Charles
My dailyCC pistol is a S&W 642,don't need a holster for that,just a back pocket or jacket pocket.
 

TechnoWeenie

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Sergeant Jones and Detective Milosevich knew that the defendant was armed and potentially dangerous because he was armed

Anyone else have a problem with that statement?

It essentially says that anyone carrying a gun is potentially dangerous, and can be disarmed.

W T F


WTF good is the right to carry a firearm if the police can take it away whenever the F they want?
 

N6ATF

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TechnoWeenie wrote:
Sergeant Jones and Detective Milosevich knew that the defendant was armed and potentially dangerous because he was armed

Anyone else have a problem with that statement?

It essentially says that anyone carrying a gun is potentially dangerous, and can be disarmed.

W T F


WTF good is the right to carry a firearm if the police can take it away whenever the F they want?

My fists of fury are potentially dangerous. Maybe they should chop my arms off... for the childruuuunnnnn!
 

Batousaii

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cynicist wrote:
I was able to find an unpublished State v. Aquinos, which quoted a State v. Thorne (which I haven't found yet) saying that an officer may detain someone to see if they have a license, and since they may detain them, they may also frisk/disarm them, therefore that newbie that stopped me was acting under true color of law.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wa&vol=235986&invol=o01


Aquino contends that the language of RCW 9.41.050 providing that a
person shall display a concealed weapons license "upon demand to any police
officer or to any other person when and if required by law to do so" does
not give the police unlimited authority to demand to see a license.He
then argues that even if the officers were justified in asking to see his
license, their physical detention of him and their seizure of his gun were
not justified under the statute.
The State responds that the "when and if required by law to do so" phrase
in RCW 9.41.050(b) must be read in conjunction with subsection (a), which
states that a person carrying a concealed pistol also must carry a license
if the person is outside his or her home or fixed place of business.We
agree that the two subsections read together give a police officer
authority to demand to see a concealed pistol license when the officer
knows a person is carrying a concealed weapon outside his or her home or
business.
See State v. Thorne, 129 Wn.2d 736, 761, 921 P.2d 514 (1996)
(statute must be read as a whole, giving effect to all of the language
used, with each provision being harmonized to insure proper construction).
Under this reading of the statute, the officers were authorized to stop
Aquino and ask to see his concealed pistol license.According to the
State, the accompanying detention of Aquino and the seizure of his weapon
were justified by safety concerns.The trial court agreed and explained
its reasoning in the conclusions of law supporting its CrR 3.6 ruling.
Because Sergeant Jones and Detective Milosevich knew that the
defendant was armed and potentially dangerous because he was armed, they
acted reasonably under the totality of circumstances in stopping the
defendant and removing the gun from the waistband of his pants
.Under
these circumstances, it was the least obtrusive manner to contact the
defendant while assuring the safety of the detectives, the defendant, and
any passers by.
Officer safety is a paramount concern.The court will not adopt a
policy which places officers in a position where, if things go wrong, they
must be the quickest draw.


Doesn't that cut into RCW 9.41.270 "warranting alarm" where a reasonable person should not be alarmed at the simple sight of a holstered or (poorly) concealed weapon? Sounds like the courts are creeping up and into position to define this RCW in a manner non-conducive to open carry, or carry period. If the Officers did not have reason to be alarmed, other than his being armed, then what's that say for the statute? Don't we have published cases where it clearly define that simply carrying a weapon is NOT cause for alarm? Shouldn't the police be held to the same standard as you and me? They are human too, and should have to feel the same penalties and punishments as the rest of us for their mistakes. Make LEO accountable. Make the courts accountable. This sounds like political positioning of the courts. Time to petition for removal or reworking of that RCW and force it to be conducive to the law abiding and respectable OC / CC gun owner.

:banghead:Out-f*ing-ragious

Bat.
 

Charles Paul Lincoln

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cynicist wrote:
I was able to find an unpublished State v. Aquinos, which quoted a State v. Thorne (which I haven't found yet) saying that an officer may detain someone to see if they have a license, and since they may detain them, they may also frisk/disarm them, therefore that newbie that stopped me was acting under true color of law.

The court stated that it is appropriate for officers to stop and ask if a person has a CPL, not do a Terry stop. Given all the circumstances of State v. Aquinos, it differs greatly from your case, from a cover garment moving to reveal a CC weapon, orfrom OC with a holster. And, as people seem to keep pointing out abour Casad, it isn't a published case, so established no precedent in Washington and only serves as insight to how the court might rule in the future.

"On February 28, 1998, Sergeant Edward Jones and Detective John
Milosevich attended a gun show for the purpose of watching for persons who
were not lawfully allowed to possess firearms.The officers were working
in an undercover capacity and wore nothing to reveal their identity as
police officers.Shortly after their arrival, Sergeant Jones noticed
Aquino, and thought that he looked familiar.Sergeant Jones watched Aquino
stop at one table, lift the waistband of his sweatshirt, remove a small
black handgun tucked inside his waistband, and hand it to a man standing
behind one of the exhibition tables.
The man examined the gun and handed
it back, whereupon Aquino replaced the gun into his waistband in front of
his left hip
and pulled his sweatshirt back down over it.
Sergeant Jones thought Aquino looked nervous when he retrieved the gun, and
also thought his actions were suspicious in light of the exhibition's
clearly posted prohibition against concealed weapons
.Jones told Detective
Milosevich what he had seen, and the officers decided to keep Aquino under
observation until he left the exhibition, and then to ask him whether he
had a concealed weapons permit.
As Aquino left the building, he walked at a normal pace.As the
officers neared, they noticed that Aquino had a hand in his left front
pocket.
When they caught up to him, Sergeant Jones grabbed Aquino's right
elbow.Detective Milosevich grabbed his left elbow and physically removed
his hand from his pocket.At the same time, Jones informed Aquino that
they were police officers and grabbed Aquino's gun.
Sergeant Jones asked Aquino whether he had a concealed pistol license.
When Aquino answered, in a heavy Spanish accent, that he did not, Jones
asked if Aquino was a United States citizen; Aquino answered that he was a
legal resident alien.Aquino responded in the negative when Jones asked
whether he had an alien firearm registration permit issued by the
Department of Licensing."

1. Defendent is in an area posted as no concealed weapons.

2. Defendent removes a concealed weapon from his waistband (no holster).

3. Defendent looks nervous.

Just the fact that he removed the gun from his waistband rather than having checked it when entering and looks nervous probably is RAS for the stop, and then he looks nervous to the officer which adds to the reasonableness. At this point, they could have stopped and asked if he had a CPL -- no harm, no foul. Whe they decide to stop him outside, he has his hand in his pocket. To me, knowing that he is armed and wanting to speak to him, and that he may be holding a gun in his hand, a Terry stop is reasonable given the circumstances. Again, this is much different than the circumstances in your case, Cynicist.

The court in Aquino found that police may stop and ask you to producea CPL if they know you are armed. In your case, they went way beyond that. If the officer is new and alone, and you are in a high-crime area like Sunnyside, it might even be reasonable for him to frisk for officer safety, but I think the whole cuff/stuff after you stated you had a permit you could produce is out of line. But, you seem to be talking yourself out of filing a complaint, which is your decision to make. I think it is at least worth a talk with Chief Radder.

The only thing I think you did that could have raised the suspicion of the officer was that you put your hand over your gun when you jogged across the street, which is typical behavior for a gun stuffed in a waistband, because otherwise it moves around and may slip out.

Charles
 

amlevin

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North of Seattle, Washington, USA
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cynicist wrote:
I placed my hand on it and jogged across the street,
You may consider a more secure holster/belt if you feel you have to put your hand on your gun when jogging. A holstered gun does not warrant alarm but a holstered gun with a hand on it is another matter.
 
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