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Thread: Is this the reason...

  1. #1
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    That the police ask to see our CHP when we open carry?

    18-12-214. Authority granted by permit - carrying restrictions.

    (1) (a) A permit to carry a concealed handgun authorizes the permittee to carry a concealed handgun in all areas of the state, except as specifically limited in this section. A permit does not authorize the permittee to use a handgun in a manner that would violate a provision of state law. A local government does not have authority to adopt or enforce an ordinance or resolution that would conflict with any provision of this part 2.

    (b) A peace officer may temporarily disarm a permittee, incident to a lawful stop of the permittee. The peace officer shall return the handgun to the permittee prior to discharging the permittee from the scene.

    Seems to me that if we offer them our permit they then have the ability to legally disarm us during the stop. However if we don't then it could be considered illegal search and seizure.



    And Discuss.

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    There is no additional power granted to an LEO simply because you offer your permit.

    The operative phrase here is "incident to a lawful stop". If the LEO is involved in a lawful stop and you are CCing, then they may lawfully demand your permit, detain you while they check it and disarm you during the encounter.

    Offering your permit during an OC encounter is technically as relevant as offering your Sam's Club card. OC is legal regardless and if an LEO already reasonable suspicion (RAS) about your activity you may be detained, disarmed and required to provide your "name address and identification if available" (pursuant to CRS 16-3-103), all legally.

    If they don't have RAS, offering your permit does not grant them any new authority because (1) it's not a "lawful stop" and (2) you are not acting as a permittee. A government permit that confers a privilege, which CC technically is, cannot diminish someone's constitutional rights.

    I did offer my permit during the only negative OC encounter that I've had, but only after I had been detained, disarmed and threatened with arrest. It served no purpose and next time I'd just let them arrest me.



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    Yes if they have reasonable suspicion about your activity they can do everything you said. However they can still come up to you without suspicion and ask you to volonteer your CHP even if they don't have RAS (it doesn't mean you have to show them but they can still ask). If you do that it would seem to me that they would then have the authority to disarm you while they are talking to you. The law does not state anywhere that you have to be carrying the wepon concealed for any of section (b) to apply to you. "A peace officer my temporarily disarm a permittee,..." If they ask and you offer the information I think that they may see that as a lawful stop.



    Don't get me wrong I am not saying you should give them your permit when OC'ing. I am just wondering if this is why they ask to see a permit.

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    I understand what you are saying, but again it comes down to "incident to a lawful stop". A consensual encounter where you are free to leave at any time is not a "lawful stop" or a stop at all. If you are free to leave they cannot "stop" you. "Stop" in this context seems to be referring to an "investigative stop" ala Terry V. Ohio which is obviously not consensual.



  5. #5
    State Researcher lockman's Avatar
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    Once you hand them your permit for a consensual encounter, you are still free to go but will have towait around until the LEO decides to give the permit back.

  6. #6
    Regular Member Gunslinger's Avatar
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    centsi wrote:
    There is no additional power granted to an LEO simply because you offer your permit.

    The operative phrase here is "incident to a lawful stop". If the LEO is involved in a lawful stop and you are CCing, then they may lawfully demand your permit, detain you while they check it and disarm you during the encounter.

    Offering your permit during an OC encounter is technically as relevant as offering your Sam's Club card. OC is legal regardless and if an LEO already reasonable suspicion (RAS) about your activity you may be detained, disarmed and required to provide your "name address and identification if available" (pursuant to CRS 16-3-103), all legally.

    If they don't have RAS, offering your permit does not grant them any new authority because (1) it's not a "lawful stop" and (2) you are not acting as a permittee. A government permit that confers a privilege, which CC technically is, cannot diminish someone's constitutional rights.

    I did offer my permit during the only negative OC encounter that I've had, but only after I had been detained, disarmed and threatened with arrest. It served no purpose and next time I'd just let them arrest me.

    I agree, but they may only demand your CCW if they determine or you volunteer that you are carrying concealed. In your car or OC, they may not demand your CCW. Incident to a lawful stop, the reality is that whether or not you are lawfully carrying concealed or openly--or in your car either way, is irrelevant, unless under Terry v OH they have RAS about a crime commited or about to be. If I'm walking down a street and the cop stops me and asks to see my CCW or a picture of my grandmother my response would be "why?" If I was carrying and he asked if I was armed, I said yes and he asked for my CCW, I'd show him. That is a lawful request. Once I showed it to him, I'd be on my way unless he had PC to detain me. If he wanted to disarm me, he better have RAS at least, or I'd sue in Federal Court. The fine line is CC is a privilege, per the SC, and you may have to prove you have that privilege under reasonable man doctrine if you're printing, for example. OC, where not unlawful, is not needed to be defensable. Nor is car carry.
    "For any man who sheds his blood with me this day shall be my brother...And gentlemen now abed shall think themselves accursed, they were not here, and hold their manhoods cheap whilst any speaks who fought with us on Crispin's day." Henry V

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    "If I was carrying and he asked if I was armed, I said yes and he asked for my CCW, I'd show him. That is a lawful request. "

    You need to qualify how you are carrying. If you are concealing, I agree. If openly, then no, it is not a lawful request.

    "Once I showed it to him, I'd be on my way unless he had PC to detain me. "

    If you are concealing he already has PC to detain you as CC is presumably illegal. If OCing, he does not.

    "If he wanted to disarm me, he better have RAS at least, or I'd sue in Federal Court."

    If you are CCing he already has RAS and explicit authority to disarm. If OCing, he does not (outside another circumstance).

    "The fine line is CC is a privilege, per the SC, and you may have to prove you have that privilege under reasonable man doctrine if you're printing, for example. OC, where not unlawful, is not needed to be defensible. Nor is car carry."

    I agree.

  8. #8
    Regular Member Gunslinger's Avatar
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    centsi wrote:
    "If I was carrying and he asked if I was armed, I said yes and he asked for my CCW, I'd show him. That is a lawful request. "

    You need to qualify how you are carrying. If you are concealing, I agree. If openly, then no, it is not a lawful request.

    "Once I showed it to him, I'd be on my way unless he had PC to detain me. "

    If you are concealing he already has PC to detain you as CC is presumably illegal. If OCing, he does not.

    "If he wanted to disarm me, he better have RAS at least, or I'd sue in Federal Court."

    If you are CCing he already has RAS and explicit authority to disarm. If OCing, he does not (outside another circumstance).

    "The fine line is CC is a privilege, per the SC, and you may have to prove you have that privilege under reasonable man doctrine if you're printing, for example. OC, where not unlawful, is not needed to be defensible. Nor is car carry."

    I agree.
    Sorry, thought it was evident. I meant carrying concealed. There is no PC to detain someone suspected of carrying concealed. In fact, the assumptive probability must be licensed carry. That is why it's called an "interview" not an arrest, detainment or "stop." It is mere personal supposition unless the reasonable man would so suspect, i.e., printing, and then he can question your legality but that's all--assuming you are licensed, of course. That's why you should either conceal it well or carry it openly. You are incorrect that he has RAS and any authority outside of asking for a CCW. Only in extigent circumstances where he feels and can articulate that a crime is likely to be or has been commited does RAS apply. In gun friendly states like CO, VA or NH, the first thought of the cop is you do have a CCW, unless you are acting weird. If you are stopped for an alleged traffic violation, he can ask for your license. Not having one is as illegal as unlawful CC. But, in either case, he has the duty to ask for proof of legality only. Not unreasonably assume illegality. His authority to disarm exists only until you show your CCW. Any action on his part but to return it is unlawful and actionable under various tort laws and the 4th, 5th and 14th. A cop can no more stop someone who maybe just might have an unlicensed concealed weapon than someone who maybe just might have a gram of blow in his pocket. In neither case can he search you, nor once the CCW is shown detain you for one second longer. Keep in mind that the courts assume innocence. Failing RAS or PC, so to must the cops.
    "For any man who sheds his blood with me this day shall be my brother...And gentlemen now abed shall think themselves accursed, they were not here, and hold their manhoods cheap whilst any speaks who fought with us on Crispin's day." Henry V

  9. #9
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    Thanks for clearing up the OC/CC thing. I'm still going to disagree with you on RAS/PC thing though. An LEO does not need PC to detain someone, only RAS. If the LEO has RAS that you are CCing, then he has RAS to detain you because CC is presumably illegal. You, the permit holder, have the burden to prove that you are not committing a crime in CCing by showing your permit:
    CRS 18-12-204 2(a)

    Failure to produce a permit upon demand by a law enforcement officer raises a rebuttable presumption that the person does not have a permit.
    The statues do not call a CCW check an "interview", they call it a "stop":
    CRS 1812-214 (b)

    A peace officer may temporarily disarm a permittee, incident to a lawful stop of the permittee. The peace officer shall return the handgun to the permittee prior to discharging the permittee from the scene.
    I'm not sure that the terminology matters that much, but the point is that the "interview" or "stop" or whatever you want to call it IS a detainment because you are simply not free to leave. And again it is a "lawful" stop the moment the LEO develops RAS.

    Now, if you happen to be CCing and the officer does NOT have RAS, then no, he would not have any authority to do anything at all except engage in an entirely voluntary conversation which you could walk away from at any time.

    This situation gets sticky because the LEO isn't necessarily obligated to share his RAS with you. That is for him to demonstrate to the court after the fact. What if you are concealing and you "know" no one has seen it yet you are asked for your permit? A reasonable person would probably ask the officer what RAS he has and expect a response, but then perhaps the reasonable person would decide that the LEO wouldn't ask unless he already had RAS?

    Interesting debate either way.

  10. #10
    Regular Member Gunslinger's Avatar
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    Yes it is. And the reality is that a given judge may go one way, another a different interpretation of RAS. But keep in mind, Terry v OH dealt with searching for weapons. It is narrow in scope. PC is wider but much harder to prove in court. In any event, if stopped for "suspicion of unlawful CC" as soon as you show the CCW, that's it. Anything else would be false arrest. In some states there is a difference between 'stop' and 'interview.' I'll have to check CO's definitions now that you bring it up, as it seems they are blurring the distinction.
    "For any man who sheds his blood with me this day shall be my brother...And gentlemen now abed shall think themselves accursed, they were not here, and hold their manhoods cheap whilst any speaks who fought with us on Crispin's day." Henry V

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