Open Carrying in the Bay Area

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cato wrote:

So to avoid resisting/obstructing charges or violating other laws, it is imperative to obey orders (make sure it's an order, not a request, and get it on tape). Afterward one can PRAR public documents to determine what information the police had AT the time you were detained to see if it met the RS standards of "Terry".

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Does this effectively mean that we don't have the right to remain silent if police officers are conducting an actual investigation (and not just seeing what the OCer is up to)? I haven't had any police contact to date, but I've planned on not saying a thing. Since I've always sterile carried, even if I was searched I wouldn't be identifiable. I would identify myself if that is legally required under certain situations.

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bigtoe416 wrote:

Does this effectively mean that we don't have the right to remain silent if police officers are conducting an actual investigation (and not just seeing what the OCer is up to)? I haven't had any police contact to date, but I've planned on not saying a thing. Since I've always sterile carried, even if I was searched I wouldn't be identifiable. I would identify myself if that is legally required under certain situations.

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Only if you are being stopped in a state listed above. CA has no "Stop and Identify" statute, so Hiibel doesn't apply.

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Well it definintely applies here in Concord. They've been doing it for years now. I don't understand how they get away with it when they know themselves it's against the law.

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You don't ever, ever, ever have to talk to the police. It doesn't matter what they are investigating. Watch these two videos.

http://www.youtube.com/watch?v=i8z7NC5sgik

http://www.youtube.com/watch?v=08fZQWjDVKE

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Poblacht32 wrote:

Well it definintely applies here in Concord. They've been doing it for years now. I don't understand how they get away with it when they know themselves it's against the law.

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No, Hibbel does not apply. If the police in Concord, CA are demanding ID, then they are doing so with no legal standing.

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Decoligny wrote:

Poblacht32 wrote:

Well it definintely applies here in Concord. They've been doing it for years now. I don't understand how they get away with it when they know themselves it's against the law.

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No, Hibbel does not apply. If the police in Concord, CA are demanding ID, then they are doing so with no legal standing.

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Ifyou have committed a violation, they can demand ID, and given the multitude of bicycle laws (see Cato’s post), it is a good chance that you have broken the law......You can refuse to ID yourself, just be prepared for the consequences if you are not 100% right....

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Gundude wrote:

You don't ever, ever, ever have to talk to the police. It doesn't matter what they are investigating...

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Correct, but in states with Stop & ID laws, they can usually arrest/detain you until you are identified. But then they would have to prove they were actually investigating a crime, not just making shit up.

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I'm still reading up on the laws. My next stop by them on one of my bike rides is going to be interesting!

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I made a complaint today with the city and ended up getting a call back from one of the Lt.'s who I've never spoke tobefore.I laid it all out on the table. I spoke to the Lt. about the officers here stopping people just for the hell out it to run their I.D.'s. He said they can do that if they have any suspicions. So all they have to do is make an excuse of why they stopped the person and everything is good on their end. That's what I got out of the conversation. I doubt anything will change even though they're going to speak with the officer.

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Poblacht32 wrote:

I made a complaint today with the city and ended up getting a call back from one of the Lt.'s who I've never spoke tobefore.I laid it all out on the table. I spoke to the Lt. about the officers here stopping people just for the hell out it to run their I.D.'s. He said they can do that if they have any suspicions. So all they have to do is make an excuse of why they stopped the person and everything is good on their end. That's what I got out of the conversation. I doubt anything will change even though they're going to speak with the officer.

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The bottom line here is that there isn't a law in California which states that you have to carry ID (unless you're driving), nor is there a law which states that you have to present that ID (unless you're driving).

In Kolender v. Lawson, Lawson (a black man living in San Diego) was stopped 15 times in 18 months to have his ID checked. At the time, there was a stop and identify statute in California. Lawson filed a lawsuit, which went to the supreme court, and he won. The court ruled that the California stop and identify statute was unconstitutionally vague because it had wording in it about how an officer would have to be satisfied that the identification information given was good enough.

Now in Hiibel, which came after Lawson, the supreme court ruled that if a state has a stop and identify statute, and the officer is conducting an investigation, then you can be compelled to give your name. Outside of that you don't have to say anything.

Since California doesn't have a stop and identify statute, that officer is either lying or mistaken, and you don't have to say anything.

I would HIGHLY recommend that you start keeping a log of everytime you are stopped. Write what time it was, where it was at, what they said they were stopping you for, and then file a PRAR to get data to see if they were stopping you for a legit reason. Document the hell out of everything. After you see a trend of them violating the law (or not) then you can decide what kind of action to take.

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Poblacht32 wrote:

I made a complaint today with the city and ended up getting a call back from one of the Lt.'s who I've never spoke tobefore.I laid it all out on the table. I spoke to the Lt. about the officers here stopping people just for the hell out it to run their I.D.'s. He said they can do that if they have any suspicions. So all they have to do is make an excuse of why they stopped the person and everything is good on their end. That's what I got out of the conversation. I doubt anything will change even though they're going to speak with the officer.

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Sorry, but this is another example of people wanting to have it both ways..........If you own a business in an industrial area that has no open businesses after dark and you have been burglarized a few times; you want to police to stop some guy walking or riding his bike along those darkened streets at 4 am in the morning....as long as that guy is not you right!........

Same thing with a residential area.......You look out at 4 am towards your truck that has been burglarized a few times and you see some guy standing next to it....You call the cops, you expect them to at least talk to the guy.......Well, that’s great if it’s your truck, but gosh forbid if you are the guy standing there......

I'm not saying that there is an excuse to violate someone’s rights, I am just saying that things are not as clear cut as the seem and reality sometimes must be balanced with the strict interpretation of the law....

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greg36ff wrote:

Sorry, but this is another example of people wanting to have it both ways..........If you own a business in an industrial area that has no open businesses after dark and you have been burglarized a few times; you want to police to stop some guy walking or riding his bike along those darkened streets at 4 am in the morning....as long as that guy is not you right!........

Same thing with a residential area.......You look out at 4 am towards your truck that has been burglarized a few times and you see some guy standing next to it....You call the cops, you expect them to at least talk to the guy.......Well, that’s great if it’s your truck, but gosh forbid if you are the guy standing there......

I'm not saying that there is an excuse to violate someone’s rights, I am just saying that things are not as clear cut as the seem and reality sometimes must be balanced with the strict interpretation of the law....

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Consensual contacts between the police and a person walking or biking at night is one thing. What Poblacht32 described in his second post in this thread was not consensual, he was detained seemingly without there being suspicion that any crime had occurred.

I don't want police officers detaining people because that person is out walking at a particular hour, even if I have a car or a business nearby. Now if there's been a reported crime, and the police officers initiate a consensual encounter and the person they are talking to is carrying a hammer and has a bulging backpack, then detain away.

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bigtoe416 wrote:

greg36ff wrote:

Sorry, but this is another example of people wanting to have it both ways..........If you own a business in an industrial area that has no open businesses after dark and you have been burglarized a few times; you want to police to stop some guy walking or riding his bike along those darkened streets at 4 am in the morning....as long as that guy is not you right!........

Same thing with a residential area.......You look out at 4 am towards your truck that has been burglarized a few times and you see some guy standing next to it....You call the cops, you expect them to at least talk to the guy.......Well, that’s great if it’s your truck, but gosh forbid if you are the guy standing there......

I'm not saying that there is an excuse to violate someone’s rights, I am just saying that things are not as clear cut as the seem and reality sometimes must be balanced with the strict interpretation of the law....

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Consensual contacts between the police and a person walking or biking at night is one thing. What Poblacht32 described in his second post in this thread was not consensual, he was detained seemingly without there being suspicion that any crime had occurred.

I don't want police officers detaining people because that person is out walking at a particular hour, even if I have a car or a business nearby. Now if there's been a reported crime, and the police officers initiate a consensual encounter and the person they are talking to is carrying a hammer and has a bulging backpack, then detain away.

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I understand what you are saying, but I want a police officer to stop someone walking or riding in a closed business district or industrial area at 4 am.....We are not talking 10 PM, where it's possible that you are walking home from a late nights work. It's 4 AM and there is no reason to be here. When an officer stops you, you do not get to say no and walk away. The totality of the circumstances is such that a reasonable officer would investigate.

Police cars make a lot of noise approaching, there is plenty of time to hide / dispose of tools / weapons / loot. Anyone that thinks that someone walking / riding alone in such an area should not be at least contacted is not grounded in reality and rreality is where we have to exist.

In fact there is even recent case law that states that someone running away when a police officer attempts contact is a reasonable case for detainment. I’m sorry, I do not have the cite for that, although I am sure that someone else does.

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greg36ff wrote:

bigtoe416 wrote:

greg36ff wrote:

Sorry, but this is another example of people wanting to have it both ways..........If you own a business in an industrial area that has no open businesses after dark and you have been burglarized a few times; you want to police to stop some guy walking or riding his bike along those darkened streets at 4 am in the morning....as long as that guy is not you right!........

Same thing with a residential area.......You look out at 4 am towards your truck that has been burglarized a few times and you see some guy standing next to it....You call the cops, you expect them to at least talk to the guy.......Well, that’s great if it’s your truck, but gosh forbid if you are the guy standing there......

I'm not saying that there is an excuse to violate someone’s rights, I am just saying that things are not as clear cut as the seem and reality sometimes must be balanced with the strict interpretation of the law....

Click to expand...

Consensual contacts between the police and a person walking or biking at night is one thing. What Poblacht32 described in his second post in this thread was not consensual, he was detained seemingly without there being suspicion that any crime had occurred.

I don't want police officers detaining people because that person is out walking at a particular hour, even if I have a car or a business nearby. Now if there's been a reported crime, and the police officers initiate a consensual encounter and the person they are talking to is carrying a hammer and has a bulging backpack, then detain away.

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I understand what you are saying, but I want a police officer to stop someone walking or riding in a closed business district or industrial area at 4 am.....We are not talking 10 PM, where it's possible that you are walking home from a late nights work. It's 4 AM and there is no reason to be here.

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I'd like to see this place, where people are prohibited from getting off or starting work in the early morning hours, even if they are the owner.

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greg36ff wrote:

I understand what you are saying, but I want a police officer to stop someone walking or riding in a closed business district or industrial area at 4 am.....We are not talking 10 PM, where it's possible that you are walking home from a late nights work. It's 4 AM and there is no reason to be here. When an officer stops you, you do not get to say no and walk away. The totality of the circumstances is such that a reasonable officer would investigate.

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You do get to say no and walk away unless the officer can articulate some reasonable suspicion that a crime has or is about to occur, Terry v. Ohio. Being in a industrial neighborhood at 4am doesn't constitute reasonable suspicion, it is merely a hunch, and Terry says hunches aren't enough.

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N6ATF wrote:

greg36ff wrote:

bigtoe416 wrote:

greg36ff wrote:

Sorry, but this is another example of people wanting to have it both ways..........If you own a business in an industrial area that has no open businesses after dark and you have been burglarized a few times; you want to police to stop some guy walking or riding his bike along those darkened streets at 4 am in the morning....as long as that guy is not you right!........

Same thing with a residential area.......You look out at 4 am towards your truck that has been burglarized a few times and you see some guy standing next to it....You call the cops, you expect them to at least talk to the guy.......Well, that’s great if it’s your truck, but gosh forbid if you are the guy standing there......

I'm not saying that there is an excuse to violate someone’s rights, I am just saying that things are not as clear cut as the seem and reality sometimes must be balanced with the strict interpretation of the law....

Click to expand...

Consensual contacts between the police and a person walking or biking at night is one thing. What Poblacht32 described in his second post in this thread was not consensual, he was detained seemingly without there being suspicion that any crime had occurred.

I don't want police officers detaining people because that person is out walking at a particular hour, even if I have a car or a business nearby. Now if there's been a reported crime, and the police officers initiate a consensual encounter and the person they are talking to is carrying a hammer and has a bulging backpack, then detain away.

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I understand what you are saying, but I want a police officer to stop someone walking or riding in a closed business district or industrial area at 4 am.....We are not talking 10 PM, where it's possible that you are walking home from a late nights work. It's 4 AM and there is no reason to be here.

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I'd like to see this place, where people are prohibited from getting off or starting work in the early morning hours, even if they are the owner.

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There is no such place........but there is a place somewhere in between the strict interpretation of case law, written law, Supreme Court decisions and real life........No one rule, case decision or Supreme Court ruling can cover every situation. Every court in existence has said so.

It’s not the police’s job to just sit there and wait till they are called or only act when every fact and detail is laid out in front of them. We expect our police to investigate, explore and do their best to keep everyone safe.

Stopping someone walking / riding in an area where no one has a reason to be or no one has been seen riding or walking before at that hour is how you catch criminals or even stop a crime form occurring.

I suppose you could call a lot of things unconstitutional or illegal……Stop signs impede your right to travel freely, some would say that vehicle registration is unconstitutional. When you take a job you often give up your right to free speech at work.

Always and Never do not exist, they often give way to reason and reality.

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bigtoe416 wrote:

greg36ff wrote:

I understand what you are saying, but I want a police officer to stop someone walking or riding in a closed business district or industrial area at 4 am.....We are not talking 10 PM, where it's possible that you are walking home from a late nights work. It's 4 AM and there is no reason to be here. When an officer stops you, you do not get to say no and walk away. The totality of the circumstances is such that a reasonable officer would investigate.

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You do get to say no and walk away unless the officer can articulate some reasonable suspicion that a crime has or is about to occur, Terry v. Ohio. Being in a industrial neighborhood at 4am doesn't constitute reasonable suspicion, it is merely a hunch, and Terry says hunches aren't enough.

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Sorry, but I believe that your interpretation of Terry is too literal in this case......High burglary area, walking alone, nothing open, no reason to be there; that rises to reasonable suspicion. Reasonable suspicion is not that high of a bar. Most police officer can easily articulate (justly) reasonable suspicion in that situation. Walking down a main street, or to or from an open business (24 hour Starbucks), now that’s a different story.

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Sorry, "high burglary area" + 4 AM does not equal reasonable suspicion, much less probable cause.

And the fact that you believe it should is quite disturbing.

Where did you get the idea police have a job to protect people? The Supreme Court has ruled that they don't.

You want to talk about living in reality: you're the one who's living in a fantasy world. You imagine this world where police are a proactive force of Batmen in blue and everyone, or even most people, walking on the street at 4 AM in "bad neighborhoods" are criminals who can, and ought to be, detained and hassled.

Sorry, but your views are not grounded in the reality of the legal system, and reality is where we need to exist.

The reality is that the legal system is, by its very nature, reactive. This is why police doing their made-up "job" necessarily entails all sorts of rights violations... Modern "policing" as we know it was designed to be nearly impossible under the Bill of Rights..

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greg36ff wrote:

Sorry, but I believe that your interpretation of Terry is too literal in this case......High burglary area, walking alone, nothing open, no reason to be there; that rises to reasonable suspicion. Reasonable suspicion is not that high of a bar. Most police officer can easily articulate (justly) reasonable suspicion in that situation.

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Citation?

Say you're the police officer and I'm the guy walking in the high burglary area at 4am. You stop me and I ask if I'm detained, you affirm that I am. So what crime am I suspected of having committed or about to commit? Is it burglary? Arson? Defacing public property? Theft? Assault? What?

My point here is that I'm just a guy walking along the street. You can't articulate that I've done anything wrong. All you have is an inchoate and unparticularized suspicion, which is exactly what Terry says doesn't count.

If I'm wrong I'd love to read where the Supreme Court has said otherwise.

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marshaul wrote:

Sorry, "high burglary area" + 4 AM does not equal reasonable suspicion, much less probable cause.

And the fact that you believe it should is quite disturbing.

Where did you get the idea police have a job to protect people? The Supreme Court has ruled that they don't.

You want to talk about living in reality: you're the one who's living in a fantasy world. You imagine this world where police are a proactive force of Batmen in blue and everyone, or even most people, walking on the street at 4 AM in "bad neighborhoods" are criminals who can, and ought to be, detained and hassled.

Sorry, but your views are not grounded in the reality of the legal system, and reality is where we need to exist.

The reality is that the legal system is, by its very nature, reactive. This is why police doing their made-up "job" necessarily entails all sorts of rights violations... Modern "policing" as we know it was designed to be nearly impossible under the Bill of Rights..

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Look, I get it. You hate the cops, Nobody tells you what to do because you know your rights..........I have heard that "the police have no duty to protect" before. It is a perfect example of someone living a life defined only by the latest court ruling. That all works great if you never leave the law library and no one you interact with ever does.

"No "duty to protect” is a strict legal definition that arose about a specific set of circumstances. What if I was a firefighter? "Sorry about that, baby got to burn, I have no duty to run ino that burning buildong". In the real world, or in my "fantasy world" there are such things as duty, commitment and honor that often transend narrow court rulings.Those guide my actions as much as specific case law.

Given those choices, I would rather live in my fantasy world that your narrowly defined world.


Having said that. I do respect your right to have an opinion. I just think that you are wrong.