A little OVER moderated don't ya think? When you're dealing with things people are passionate about obviously words will be slung around. Especially when stupid notions like open carrying long guns are supported.
Just sayin!
Just sayin!
And if we "just cooperate" and show our papers, like good little sheep being prepared for further intrusions later.......
With a supposed call of "disorderly man with a gun", I'd like to hear the 911 tape and th dispatch recordings as to just what was called in as the complaint and what the officers were told on the radio.
What is absolutely ASTOUNDING to me is that the officer, supposedly concerned for his safety, places a loaded weapon on teh ground some distance behind him and then fixates on Warren as an unknown pedestrian walks up, and thankfully past, the pistol and then the officer and Warren. Now that's some pretty ****** situational awareness from an officer that is supposedly disarming Warren for "officer safety".
Then again, under Terry v Ohio, and subsequent decisions, the officer can only disarm a detained individual is he ascertains that the individual is armed AND dangerous.
If the area in Medford required he have a CHL under provisions of ORS 166.173 then I Ref: Couture vs. Mass (if I recall correctly) it was ruled that the mere absence of a license does not give rise to reasonable suspicion or probable cause of criminal activity when it is legal to do so with a license. This goes off the same premise of being required to have on you a DL when driving a vehicle. However Policy cannot just stop your vehicle and do an ID check.
Is it Couture v. Commonwealth? That's the only case I could find but it doesn't look like it says anything about licenses really.
Also, Florida v. J.L. doesn't say carrying a weapon doesn't amount to disorderly, it says some stuff about anonymous reporters of crime and it also says that there isn't a firearm exception to the fourth amendment.
Absence of a license is not `an element of the crime,' as that phrase is commonly used. In the absence of evidence with respect to a license, no issue is presented with respect to licensing. In other words, the burden is on the defendant to come forward with evidence of the defense. If such evidence is presented, however, the burden is on the prosecution to persuade the trier of facts beyond a reasonable doubt that the defense does not exist." (Citation omitted.) [Note 3]
The Commonwealth argues that Jones and Toole, read together, lead to an "irrational" result, namely, that a police officer in the street must show more in determining that a gun is unlawfully carried than a prosecutor needs to prove to obtain a conviction. This argument is based on a superficial reading of the standard set forth in the Jones case. Jones dealt with the allocation of burdens in the context of a criminal trial. The particular burden to which the quoted passage from Jones pertains is not the burden of proof, but merely the burden of coming forward with evidence sufficient to raise an issue of fact. See P.J. Liacos, Massachusetts Evidence 37 (5th ed. 1981 & Supp. 1985). Where the defendant at trial has had every opportunity to respond to the Commonwealth's charge that the defendant was unlawfully carrying a handgun, where the defendant need only produce that slip of paper indicating that he was licensed to carry that gun, and where instead the defendant produces no evidence to that effect, the jury are entitled to presume that the defendant indeed did not have a license to carry the gun, and the Commonwealth need present no additional evidence to prove that point.
This scenario is a far cry from a defendant who, having merely been seen in public with a handgun, and without any opportunity to respond as to whether he has a license, is forced out of his vehicle at gunpoint and subjected to an invasive search. The Jones standard does not make an open target of every individual who is lawfully carrying a handgun.
We briefly add that, while the motion judge did not address this issue, the Commonwealth is incorrect in its claim that the stop and subsequent search of the vehicle was justified under the principles of Terry v. Ohio, 392 U.S. 1 (1968). There is no question that the stop of the pickup truck constituted a seizure within the meaning of the Fourth Amendment to the United States Constitution. See United States v. Cortez, 449 U.S. 411, 417 (1981); United States v. BrignoniPonce, 422 U.S. 873, 878 (1975). "An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, supra. As we discussed above, there is absolutely no indication that the defendant in this case was engaged in criminal activity. The mere possession of a handgun was not sufficient to give rise to a reasonable suspicion that the defendant was illegally carrying that gun, and the stop was therefore improper under Fourth Amendment principles.
The order of the motion judge is affirmed.
So ordered.
None of the cases cited by the Plaintiffs were from jurisdictions that treat a firearms license as an affirmative defense. See United States v. Ubiles, 224 F.3d 213, 214 (3d Cir. 2000); St. John v. McColley, No. 08-994, 2009 WL 2949302, at *4 (D.N.M. Sept. 08, 2009). Ubiles is a case from the Virgin Islands and, under Virgin Islands law, the absence of a firearm license is an element of the crime of unauthorized possession of a firearm. 14 V.I.C. § 2253(a); Gov’t of the V.I. v. Isaac, 45 V.I. 334, 342 (V.I. Terr. Ct. 2004). St. John is a case from New Mexico and, under New Mexico law, it is not a crime to carry a firearm without a license so long as the firearm is carried openly, which the plaintiff in St. John did. N.M. Stat. Ann. § 30-7-2; St. John, 2009 WL 2949302, at *4 (“[M]erely ‘showing a gun’ . . . is not illegal in the State of New Mexico.”). These cases are, therefore, distinguishable. See Collins, 2007 WL 4463594, at *4 (“Ubiles is distinguishable [because] the gun laws in the Virgin Islands are different from the gun laws in Pennsylvania.”).
166.262 Limitation on peace officer’s authority to arrest for violating ORS 166.250 or 166.370. said:A peace officer may not arrest or charge a person for violating ORS 166.250 (1)(a) or (b) or 166.370 (1) if the person has in the person’s immediate possession a valid license to carry a firearm as provided in ORS 166.291 and 166.292. [1999 c.1040 §5]
166.173 Authority of city or county to regulate possession of loaded firearms in public places. said:(1) A city or county may adopt ordinances to regulate, restrict or prohibit the possession of loaded firearms in public places as defined in ORS 161.015.
(2) Ordinances adopted under subsection (1) of this section do not apply to or affect:
(a) A law enforcement officer in the performance of official duty.
(b) A member of the military in the performance of official duty.
(c) A person licensed to carry a concealed handgun.
(d) A person authorized to possess a loaded firearm while in or on a public building or court facility under ORS 166.370.
(e) An employee of the United States Department of Agriculture, acting within the scope of employment, who possesses a loaded firearm in the course of the lawful taking of wildlife. [1995 s.s. c.1 §4; 1999 c.782 §8; 2009 c.556 §3]
It seems that open carry gives an individual more of a buffer to keep police away without a justifiable reason to be (legally) bothered. Conceal and people may not know you are carrying, but if a cop finds out somehow, you can be legally detained in some jurisdictions. I believe Oregon is such a jurisdiction based on ORS 166.260(4) mentioning "affirmative defenses" which are discussed reasonably well in U.S. v. McArthur, see paragraph beginning "To determine whether an exception to a criminal offense..." as well as subsequent paragraphs.
To Historyman:
166.260 Persons not affected by ORS 166.250.
(1) ORS 166.250 does not apply to or affect:
(h) A person who is licensed under ORS 166.291 and 166.292 to carry a concealed handgun.
Clearly you can see the difference in the application and language. The law makes clear the citizens responsibility to display and have in their immediate possession of a CHL if in violation of ORS 166.250 (1)(a) or (b) or 166.370 (1) and that failure to so can result in the charge. However 166.173 clearly said
Ordinances adopted under subsection (1) of this section do not apply to or affect:. Also it gives no clear indication that having the license in their immediate possession is required or that the officer may not arrest or charge the person. The absence of the language clearly gives no indication to this as an affirmative defense, especially in the absence of language explicitly indicating it as an "affirmative defense".
..... I can't deal with people that won't listen and totally ignore the facts.....
Maybe have a SmartPhone with a link to the laws?
I would never hand my phone to someone else. However I do have the .pdf version also on my phone.