CA_Libertarian **July 2008** open carry detention

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I believe there is no longer any harm in discussing my detention back in July 2008, so I decided to share it here.

I want to begin by apologizing. For those who have been around long enough to remember it, I once posted my story in another thread. In that thread I claimed to have audio of the entire incident. This was a bluff aimed at the officers involved and the department, as they monitor(ed) this site. After carrying uneventfully for over a year I had become complacent and left my recorder at home that day. I regret this as it may have allowed me the ability to pursue this more thoroughly.

Below I will paste a copy of my account of my experience. I typed it up within a few hours of the incident, so it is as accurate as I have to offer.

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7/5/08

Decided to get a start on my reading, so I found a shady spot to park next to Donnelly Park on Del's Lane. Sat reading for an hour or two, and then I noticed the lights. One Turlock PD unit blocked oncoming traffic while two more pulled up behind me. The officers ordered me out at gunpoint (standard felony stop), cuffed me and took my firearm. They also confiscated my pocket knife and my wallet.

As Officer Briggs cuffed me, he said, "I think you're just doing this do get attention." As he put me in his car, he stated, "you brought this on yourself, now get your legs in!" (The back seat is not made for people over 5'2" apparently so this was a task.)

One of the cuffs was put on wrong, and was cutting off circulation. However, no officers were nearby so I couldn't get any help. I managed to slide the cuff into a less painful position, but still lost feeling in both hands (and both feet due to the cramped space).

After they made sure my car was unoccupied, Officer Rodriguez opened the door and asked why I was carrying a gun. I told him, "In case I need it for self defense." He asked, "do you have a permit?" I replied, "I wasn't aware one was needed to carry a gun." He replied, "well it's illegal to carry a firearm without a permit."

I was then informed by Rodriguez that I was "under arrest for carrying a concealed weapon," and then read me my rights. They asked me several questions, most not relavent to PC 12025. I won't divulge the details of the conversation, let's just say I expressed my disbelief that I was being harassed, let alone arrested. I did explain that I was complying with twelve-o-twenty-five and twelve-o-thirty-one (thanks for the lingo breif Cato).

Then the Gould's PC guides came out. They spent a good 15-20 minutes reading up. During this time my vehicle was searched without my consent - they didn't even ask. When I called out the window to Briggs (who was standing against the rear side panel right next to the window) I got no response. Later when they were asking more irrelavent question, I asked why my car was searched without my permission. Rodriguez told me they were "checking for more guns."

Another 20-30 minutes go by. The 5 officers stood around chatting and laughing, enjoying their paid break. Then they walk back and let me out. Rodriguez takes the cuffs off and tells me to sit on the sidewalk. Then the scolding starts...

They said everything we've heard before: Rookie cop might shoot you, bad guy might steal your gun, etc. The new one I head was when Briggs said, "You know our hours are billable. I don't want to have to do that, but you're wasting our time." I argued that they should be talking to the person who called them - he wasn't impressed.

Officer Briggs then continued ranting about my wasting their time: "We're a [small] town and we don't have to waste on this. Do me a favor and play your little game in Modesto. Go to the mall and get all the attention you want. Go to the movies downtown; you'll get attention there." He also kept referring to what I do as a 'game.'

I remained polite the entire time, but expressed that I disagree with their opinions about bearing arms.

Officer Rodriguez then told me, "My Sergeant says we have to let you go; there's nothing we can charge you with. I'm going to put your firearm in your car, but don't touch it until we leave." I offered to let him put the firearm in my trunk, and he did. He walked back and after a bit more scolding, I was told I was free to go. I walked back to my car and made sure everything was returned to me. One of my cartridges had been removed from the magazine, so I put it back and returned the mags to my mag holders. The officers were all still standing around shooting the breeze, so I asked Rodriguez when they were going to go "so I can retrieve my firearm from the trunk without making you uncomfortable." He replied, "can't you just drive somewhere else to do that." So, I got in and pulled around the block (out of view) before doing so.

The police arrived at about 3:00; I was 'free to go' at about 4:00. Due to a back injury from a car accident this time in the back of the car was very painful. Not to mention the pain in my wrists. I'm still in pain as I type this, and I have a nasty goose egg on my left wrist where the cuff was improperly applied.

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What I found out through my PRA request:

Officer Rodriguez wrote an incident report, despite there being no arrest. In his report he falsifies several facts (e.g. claiming I gave consent to a search of my vehicle, that I was only detained 25 min instead of an hour, that I reported no injuries upon release, etc).

The CAD log indicated I was detained for nearly an hour.

The 9-1-1 audio clearly showed the dispatcher was made aware that the firearm was exposed. This counters the claims made in person and in the written report that the call was a report of a CONCEALED weapon.

The radio comms audio shows that the dispatcher clearly communicated an EXPOSED weapon call. Also shows it took less than 15 minutes for them to run my ID and SN and determine I was in the clear. CAD log shows I was held an additional 20+ minutes beyond this warrantless search.


What I did wrong:

Didn't have audio/video/friendly witness. (Keep in mind that to date there had been one known UOC detention in CA, so at that time we really only considered audio as a must-have.)

I complied with their questioning more than I should have, but toward the end this was mostly due to the pain I was in. I have chronic pain from injuries sustained in an auto accident many years ago, so being "cuffed and stuffed" was torture.

I offered to let them put my gun in my trunk. Not only did this allow them to decide to make me leave before getting my firearm, it also gave them a free look in my trunk. (Nothing in there anyhow, but it's the principle of the matter.)

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I won't get into all the details, but I'll just say that after careful consideration (and some stalling), I decided there's not much benefit to pursuing this civilly. I probably could make a couple bucks, but I'd rather not send the message that the propaganda is true. Hopefully our friends on the "other side" of this issue wisen up to the fact that they're getting played. Open carry is not dangerous, not a threat, and not the facade of a for-profit litigation enterprise.

However, I do have some interesting things to share that didn't really fit above.

A couple weeks after this incident, a friend of mine with inside info at Turlock PD let me know that at least one officer made it known that (s)he was "going to make an example" out of me.

I spoke to a reporter at the Modesto Bee a few days after the incident. I was told that they were very interested in talking to me, and that "the Chief of Police and the Sheriff had a meeting" about me. I never was told any further detail about this "meeting", and the reporter stopped returning my calls before we ever got a chance to meet.

The infamous Sacramento Regional Terrorist Threat Assessment Unit memo was issued. (Which indicates the meeting went further up than the Chief/Sheriff meeting.)

An anonymous source contacted me under a friendly pretense, then warned me that I have the attention of the "Central Valley Machine" and that (s)he has "seen it chew up and spit out tougher people." Still not sure if this was a friendly warning or some sort of bluff at scaring me off...


Feel free to ask questions. I'm willing to discuss most of this.

(Wrote all this up on very little sleep, so I apologize if any of it is incoherent.)

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Too bad about your trouble with the local LEO's. Did you file a citizen's complaint at the time? That is the best recourse if no civil suit is contemplated. The call logs would back up your extended detention and put the officers statements in doubt. UOC without a recorder is putting you in harms way without a way to prove a timeline, about what was really said and when. But you know that better than most.

If I am not mistaken, you have decided to leave the State, and I wish you the very best. I understand the hassle you have faced, and hope that leaving this mess of a State works out for you. Their tactics of harassment worked, and the bottom line "they" won. One less OC'er for them to deal with as far as "they" are concerned. this will only encourge them to keep these tactics up.

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Well that's a bummer there's no audio. I've been waiting a while to hear it. Understand the need to bluff though.

One thing I originally was going along with, but now disagree with is the hesitancy to sue in order to not "prove the rumors true." If the government does you wrong, you should bring forth a grievance against them. It's one thing if we're suing and getting our cases tossed out for being warrantless. It's an entire different thing if we're suing, winning, and proving that the police routinely violate our rights. If you know you have a winnable case and you don't want to take their money, just donate your winnings to a charity.

BTW, the only example CA_Libertarian has become is that he is one of the more educated people on the legality of OCing in California.

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bigtoe416 wrote:

One thing I originally was going along with, but now disagree with is the hesitancy to sue in order to not "prove the rumors true." If the government does you wrong, you should bring forth a grievance against them.

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+1

BTW, the only example CA_Libertarian has become is that he is one of the more educated people on the legality of OCing in California.

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+100

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oc4ever wrote:

Too bad about your trouble with the local LEO's. Did you file a citizen's complaint at the time? That is the best recourse if no civil suit is contemplated. The call logs would back up your extended detention and put the officers statements in doubt. UOC without a recorder is putting you in harms way without a way to prove a timeline, about what was really said and when. But you know that better than most.

If I am not mistaken, you have decided to leave the State, and I wish you the very best. I understand the hassle you have faced, and hope that leaving this mess of a State works out for you. Their tactics of harassment worked, and the bottom line "they" won. One less OC'er for them to deal with as far as "they" are concerned. this will only encourge them to keep these tactics up.

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I did file a complaint, and was assured the issues were corrected (of course). They wrote off the time discrepancy in the report as being an honest mistake.

I believe I showed their harassment tactics did not work. I promptly organized a local meetup in Turlock a week or two after my detention. I let them know I was having the event and why, but refused to give them time/location details. Had a great turnout and no hassles. I also continued openly carrying for several months, despite hearing rumors and threats attempting to deter my activities.

However, I'll go as far as saying that I don't feel like I "won" either. I made some progress, and almost certainly educated every cop in the county. Not to mention the state-wide distribution of a memo on open carry. While these are huge victories to the goals I set out with... it still doesn't feel like I won. Can't articulate exactly why... so I'll leave it at that.

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bigtoe416 wrote:

One thing I originally was going along with, but now disagree with is the hesitancy to sue in order to not "prove the rumors true."

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I agree as well. In my case, there is more going on than that. Nothing I wish to share, but if it weren't for these personal issues, I'd be more aggressive with this case.

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Two other details I forgot to add above:

Other than jacking up my back for about 2 weeks, I did sustain a minor injury. The improper cuffing on my left wrist caused nerve damage. It cost me about $100 for a doctor to tell me there's nothing they could do about it. For the first 6 months or so I would randomly lose sensation or get pins-and-needles in my left hand (like if you lay on your arm and it "falls asleep"). It slowly improved over then next 6 months or so, but even now bothers me every few weeks. There's no loss of motion, so it's really just a nuisance.

Also, the officers scratched the finish on my firearm while handling it. I had picked up my Sig P220 just a few days before this incident, so it was cherry. At the time I was angry and considered pursuing the property damage in small claims. But like anything else new, I broke it in and put a couple scratches on it myself... so now I just don't really mind. Like a scar on my own body, the scratch put there is now a fond reminder of my past.

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Your story is the emotional low of my day.

Yata hey

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CA_Libertarian

My comments were in no way meant as a "dis" to you. Your are the one that suffered. The LEO got paid the whole time he screwed with you. The reality of any thought of a law suit needs a little common sense. If you are unlawfully arrested/booked/prosecuted/badly injured, then the possibility of a good claim is possible if you want the hassle.

If you are detained for a short period of time, illegally or not, and have not suffered a loss of income, don't think you you are going to hit the legal jackpot. Your civil rights damages are probably going to be under $100 dollars, with the attorney maybe getting a much larger award, up to getting his full fee on a trial win. That is why I think the educational value of as citizen's complaint is the best way to go, and it obviously had some effect in your case. If a law enforcement agency continues a pattern of these abuses, and they are documented with complaints, a jury might decide to drop a large judgment on the agency at some point.

I speak from experience having taken a civil rights action against a police department, which they appealed all the way to the California Supreme court, and lost every step along the way. The final payout was into the six figure range. I still would not do it again if at all avoidable.

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CA_Libertarian wrote:

However, I'll go as far as saying that I don't feel like I "won" either.

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I don't think anyone ever really "wins" in this situation, you only "not lose as much".

Overall it looks like you did well, even in the face of ominous threats from jackies.

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CA_Libertarian - I feel your pain!

However, you did all of us a very good service in posting the details, from which we can learn, and move on.

Now - I'm going to address some of those details. Some are positive, some are negative. I hope you understand my intent is to help reduce undesirable LEO interactions in the future with law-abiding citizens.

By the way, I lived in Merced for a couple of years, and know some of those folks, but that was 20 years ago, so please understand I've a slight, but not definitive case of "been there, done that." I simply know the mentality.

First, I'd edit your post to remove names. You don't want to be fighting additional battles.

Second:

"After they made sure my car was unoccupied, Officer Rodriguez opened the door and asked why I was carrying a gun. I told him, "In case I need it for self defense."

I would have replied, "I am exercising my right to self defense under city, county, state, and federal law." First, that's the truth. Second, that puts them on the defensive.

"He asked, "do you have a permit?" I replied, "I wasn't aware one was needed to carry a gun." He replied, "well it's illegal to carry a firearm without a permit.""

You gave him an out, even if it was an unlawful out. I would have responded, "Sir, a permit isn't required under local, county, state or federal law, Sir." Again the "Sirs show respect. Most join the force to "serve and protect the people," but some do so as a power trip. As they have jurisdiction, "feed that now, and fight it later."

"I was "under arrest for carrying a concealed weapon."

Was it concealed?


"let's just say I expressed my disbelief that I was being harassed, let alone arrested."

Not a good approach! Seriously, you'll rarely, if ever win an argument with a cop during a stop. Quit! Gather evidence. Wait until you're both on a level playing field, such as a courtroom, then nail him on violations of the law.

And remember - any resistance during an arrest is likely to be viewed by a judge as detrimental to society and the rest of your arguments will likely get canned.

"Rodriguez takes the cuffs off and tells me to sit on the sidewalk. Then the scolding starts..."

At that point, you're free to go. Say "thank you for following the law" and walk away. If they arrest you again for refusing to take a scolding, you've got them dead to rights, as they have absolutely no jurisdiction to release an arrestee and harass him afterwords.

"Officer Rodriguez then told me, "My Sergeant says we have to let you go...."

That's your second clue to stand up, thank them for following the law, and walk away.

"The officers were all still standing around shooting the breeze, so I asked Rodriguez when they were going to go "so I can retrieve my firearm from the trunk without making you uncomfortable." He replied, "can't you just drive somewhere else to do that."

I can see his point. He made a big mistake. You're hopped. He wants to avoid a situation whereby he and his fellow officers are at increased risk for retaliation, some thing which has indeed happened in CA many times over the years.

At this point, just comply. You're not likely to require armed self-defense within a mile of a recent arrest.

"Due to a back injury from a car accident this time in the back of the car was very painful. Not to mention the pain in my wrists."

Wah. I've got a back injury, nor would I like wrist restraints, either. It's part of the procedure for subduing a suspect.

Focus on the point where you were unlawfully considered a suspect merely because you were carrying a firearm, and the fact than an hour's detention violates Judge Black's Federal Court ruling against such improper detention/harassment.

Play your cards right, and the reward could be sizable! Whine about the goose-egg on your wrist, though, and you'll get nothing but a goose-egg on your wrist.

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since9 wrote:

...

First, I'd edit your post to remove names. You don't want to be fighting additional battles.

I will not. I see no reason to grant them anonymity.

Second:

"After they made sure my car was unoccupied, Officer Rodriguez opened the door and asked why I was carrying a gun. I told him, "In case I need it for self defense."

I would have replied, "I am exercising my right to self defense under city, county, state, and federal law." First, that's the truth. Second, that puts them on the defensive.

CA has no right to self defense under city, county, state, or federal law... so this response would have made no sense at all.

"He asked, "do you have a permit?" I replied, "I wasn't aware one was needed to carry a gun." He replied, "well it's illegal to carry a firearm without a permit.""

You gave him an out, even if it was an unlawful out. I would have responded, "Sir, a permit isn't required under local, county, state or federal law, Sir." Again the "Sirs show respect. Most join the force to "serve and protect the people," but some do so as a power trip. As they have jurisdiction, "feed that now, and fight it later."

This was my way of being passive. Rather than acting like I knew more than he did about the PC in question, I simply played dumb. I mentioned PC citations as passively as I could in hopes they would listen without getting pissed that I was making them look like tools.

"I was "under arrest for carrying a concealed weapon."

Was it concealed?

Obviously not. If it was I wouldn't have been un-arrested. Here in CA many cops think PC 12025 prohibits carrying "concealABLE firearms", when in fact it prohibits carrying "concealED firearms". In CA penal code, "concealable firearm" means pretty much anything with a barrell less than 18 inches.

"let's just say I expressed my disbelief that I was being harassed, let alone arrested."

Not a good approach! Seriously, you'll rarely, if ever win an argument with a cop during a stop. Quit! Gather evidence. Wait until you're both on a level playing field, such as a courtroom, then nail him on violations of the law.

And remember - any resistance during an arrest is likely to be viewed by a judge as detrimental to society and the rest of your arguments will likely get canned.

I agree that any physical resistance is a bad idea. However, I believe it's a good idea to make it clear you do not consent to what's going on by verbally resisting their actions. That is, make it clear you don't consent to the detention, searches, etc.

"Rodriguez takes the cuffs off and tells me to sit on the sidewalk. Then the scolding starts..."

At that point, you're free to go. Say "thank you for following the law" and walk away. If they arrest you again for refusing to take a scolding, you've got them dead to rights, as they have absolutely no jurisdiction to release an arrestee and harass him afterwords.

Was I free to go? They still had my wallet, firearm, and ID. I couldn't legally drive without my DL, so they had also technically seized my vehicle. Besides that, I was ORDERED to sit on the sidewalk while surrounded by 5 officers. If you're still not convinced, I'll dig up a half dozen or so SCOTUS citations that will agree with me.

"Officer Rodriguez then told me, "My Sergeant says we have to let you go...."

That's your second clue to stand up, thank them for following the law, and walk away.

That's when I did stand up and they handed me some of my property back. No way would I thank them for following the law... that would just be stupid. Just because their abuse could have been worse doesn't mean I should thank them. And again, I couldn't just walk away as I was awaiting the return of my property. (I don't know how CO is, but here in CA if the cops take a firearm it's a bitch to get it back.)

"The officers were all still standing around shooting the breeze, so I asked Rodriguez when they were going to go "so I can retrieve my firearm from the trunk without making you uncomfortable." He replied, "can't you just drive somewhere else to do that."

I can see his point. He made a big mistake. You're hopped. He wants to avoid a situation whereby he and his fellow officers are at increased risk for retaliation, some thing which has indeed happened in CA many times over the years.

At this point, just comply. You're not likely to require armed self-defense within a mile of a recent arrest.

"Due to a back injury from a car accident this time in the back of the car was very painful. Not to mention the pain in my wrists."

Wah. I've got a back injury, nor would I like wrist restraints, either. It's part of the procedure for subduing a suspect.

"Wah?" I'll kindly endure your idiotic opinion of how you think it's sorta-okay for cops to be total pricks. But to belittle my pain... the pain I have had to live with every day of my life for the past 10 years. The pain that keeps me from doing so many things most people my age are able to. The pain that keeps me from even getting out of bed for days at a time?

Kindly go **** yourself. I'm done with you.

Focus on the point where you were unlawfully considered a suspect merely because you were carrying a firearm, and the fact than an hour's detention violates Judge Black's Federal Court ruling against such improper detention/harassment.

Play your cards right, and the reward could be sizable! Whine about the goose-egg on your wrist, though, and you'll get nothing but a goose-egg on your wrist.

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CA_Libertarian wrote:

"Wah?" I'll kindly endure your idiotic opinion of how you think it's sorta-okay for cops to be total pricks. But to belittle my pain... the pain I have had to live with every day of my life for the past 10 years. The pain that keeps me from doing so many things most people my age are able to. The pain that keeps me from even getting out of bed for days at a time?

Kindly go @#$% yourself. I'm done with you.

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Being that I've long felt that cops rarely (if ever) assume the liability they incur abusively using handcuffs on non-threatening detainees, and that they should be held fully liable, I found that to be yet another post by since9 which contains an undertone of what I'll describe as statism (for lack for a more precise term) which I find most disagreeable.

In light of this, I'm going to have to not-so-tentatively agree with CA_Libertarian's assessment on this one.

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oc4ever wrote:

If you are detained for a short period of time, illegally or not, and have not suffered a loss of income, don't think you you are going to hit the legal jackpot. Your civil rights damages are probably going to be under $100 dollars, with the attorney maybe getting a much larger award, up to getting his full fee on a trial win. That is why I think the educational value of as citizen's complaint is the best way to go, and it obviously had some effect in your case. If a law enforcement agency continues a pattern of these abuses, and they are documented with complaints, a jury might decide to drop a large judgment on the agency at some point.

I speak from experience having taken a civil rights action against a police department, which they appealed all the way to the California Supreme court, and lost every step along the way. The final payout was into the six figure range. I still would not do it again if at all avoidable.

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The case in New Mexico where an open carrier was detained for less than an hour ended up with a settlement of $20k. His losses couldn't have added up to be more than $100.

Could you cite your case so we can see what a losing case looks like? I personally feel that most of the negative encounters I read about here should prevail in court. I'd like to know when one couldn't.

CA_Libertarian wrote: ...

"Rodriguez takes the cuffs off and tells me to sit on the sidewalk. Then the scolding starts..."

At that point, you're free to go. Say "thank you for following the law" and walk away. If they arrest you again for refusing to take a scolding, you've got them dead to rights, as they have absolutely no jurisdiction to release an arrestee and harass him afterwords.

Was I free to go? They still had my wallet, firearm, and ID. I couldn't legally drive without my DL, so they had also technically seized my vehicle. Besides that, I was ORDERED to sit on the sidewalk while surrounded by 5 officers. If you're still not convinced, I'll dig up a half dozen or so SCOTUS citations that will agree with me.

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I'd be interested in reading one of those SCOTUS cases if you have one readily available. I've been interested in "lawful orders" and what is a lawful order.

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CA_Libertarian wrote:

An anonymous source contacted me under a friendly pretense, then warned me that I have the attention of the "Central Valley Machine" and that (s)he has "seen it chew up and spit out tougher people." Still not sure if this was a friendly warning or some sort of bluff at scaring me off...

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I had an open carry incident last month in Tennessee. My name picture and type of handgun I carried are plastered all over information bulletins across the State. I wasn't arrested, but detained 2.5 hours. Luckily I do have audio of some of the incident. I haven't received any of the public information I have requested, but should have most of it soon. I should also have the complaints I filed against the State rangers and Nashville police. I do have a meeting with an attorney who hasfiled civil rights1983violations next week as well.

It is too bad you couldn't/didn't sue the department. It is the only way police will learn their lesson.

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kwikrnu wrote:

I wasn't arrested, but detained 2.5 hours. Luckily I do have audio of some of the incident. I haven't received any of the public information I have requested, but should have most of it soon. I should also have the complaints I filed against the State rangers and Nashville police. I do have a meeting with an attorney who hasfiled civil rights1983violations next week as well.

It is too bad you couldn't/didn't sue the department. It is the only way police will learn their lesson.

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Two and a half hours?!?! That's not a detainment according to the SCOTUS, that's an arrest. Easiest lawsuit ever.

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bigtoe416 wrote:

...I'll dig up a half dozen or so SCOTUS citations that will agree with me.

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I'd be interested in reading one of those SCOTUS cases if you have one readily available. I've been interested in "lawful orders" and what is a lawful order.

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http://opencarry.mywowbb.com/view_topic.php?id=23936&forum_id=65 - a great bookmark I got from another member here some time ago (can't remember who brought it to my attention). The 4A cases are pretty clearly marked. You'll find, of course, Terry v Ohio, plus several cases that expand on circumstances that are considered "seizures" under the Terry standard.