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Stopped while OC ing last night
- Thread starter avdrummerboy
- Start date
imported post
avdrummerboy wrote:
avddrummerboy, Don’t take all this criticism too hard. There are a lot of guys on this site that are of the "no compromise" "My way or the highway" and "I want everything NOW" type.
That approach is largely responsible for AB1934.
They expect an immediate change in public and LEO attitudeand are offended when they walk into a store carrying a gun and someone looks cross eyed at them. A couple of years ago, anyone open carrying would have immediately been proned out at gun point and arrested (wrongly of course). Within the last year or so, things have gotten much better. The public has been educated and LEO training has occurred.
Progress is not enough for some people. It has to be EVERYTHING YESTERDAY.
Your stop was not good, it was not bad; it was middle of the road. They took your ID which they should not have done and they probably detained you too long, but all in all, not a disaster. As far as checking your serial numbers, they had every right to do that as long as they were in plain view. they just could not detain you while they did so.
Keep doing what you have been doing and learn from each encounter. Keep the recorder on at all times.
avdrummerboy wrote:
avddrummerboy, Don’t take all this criticism too hard. There are a lot of guys on this site that are of the "no compromise" "My way or the highway" and "I want everything NOW" type.
That approach is largely responsible for AB1934.
They expect an immediate change in public and LEO attitudeand are offended when they walk into a store carrying a gun and someone looks cross eyed at them. A couple of years ago, anyone open carrying would have immediately been proned out at gun point and arrested (wrongly of course). Within the last year or so, things have gotten much better. The public has been educated and LEO training has occurred.
Progress is not enough for some people. It has to be EVERYTHING YESTERDAY.
Your stop was not good, it was not bad; it was middle of the road. They took your ID which they should not have done and they probably detained you too long, but all in all, not a disaster. As far as checking your serial numbers, they had every right to do that as long as they were in plain view. they just could not detain you while they did so.
Keep doing what you have been doing and learn from each encounter. Keep the recorder on at all times.
mjones
Regular Member
imported post
thedeadcat wrote:
thedeadcat wrote:
I know its a bit of a nitpick, but case law has established that 12031(e) is not a "search" its an inspection.
ConditionThree
State Pioneer
imported post
greg36f wrote:
I don't believe any current members of the California OCDO forum have this 'no compromise, I want everything now' attitude you allege exists. I also don't believe blame for AB1934 can be ascribed to anyone but Lori Saldana and her reaction to the mass events that garnered San Diego media attention in 2009.
I also further disagree with your assertion that anyone open carrying would have been proned out 2 years ago. Or even three or four years ago. Some have had some experiences where they were detained in handcuffs and even arrested and released- but by and large, few ever had a gun pointed at them in their encounter or were commanded to the ground like a felon.
I would agree that the public and LEO's alike have been educated, but it has come at the cost of negative encounters like this one, followed up with PRAR and complaints. With increased exposure the level of police awareness follows- this is why perisistance and regularity is essential to advancing the right. If we keep doing this- policy will change to in favor of letting us alone.
greg36f wrote:
I don't believe any current members of the California OCDO forum have this 'no compromise, I want everything now' attitude you allege exists. I also don't believe blame for AB1934 can be ascribed to anyone but Lori Saldana and her reaction to the mass events that garnered San Diego media attention in 2009.
I also further disagree with your assertion that anyone open carrying would have been proned out 2 years ago. Or even three or four years ago. Some have had some experiences where they were detained in handcuffs and even arrested and released- but by and large, few ever had a gun pointed at them in their encounter or were commanded to the ground like a felon.
I would agree that the public and LEO's alike have been educated, but it has come at the cost of negative encounters like this one, followed up with PRAR and complaints. With increased exposure the level of police awareness follows- this is why perisistance and regularity is essential to advancing the right. If we keep doing this- policy will change to in favor of letting us alone.
Sons of Liberty
Anti-Saldana Freedom Fighter
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thedeadcat wrote:
thedeadcat wrote:
Nicely written!
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mjones wrote:
Hello mjones,
Bovine Scatology!
Just because a court renames a detention to an inspection, does not make the detention legal.
I believe that 12031 (e) would be ruled by our current Supreme Court to be an unconstitutional detention of otherwise, law-abiding citizens.
Here islanguage from JL v. Florida. It is about a concealed weapon and an anonymous tip--not about OC and 12031 (e), or similar. However, the fact that an "exemption from 4[suP]th[/suP] A rights" for guns is clearly not allowed by the Supremes is the important point that I get from this ruling.
The excerpted ruling by the Supremes:
A second major argument advanced by Florida and the United States as amicus is, in essence, that the standard Terry analysis should be modified to license a "firearm exception." Under such an exception, a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing. We decline to adopt this position.
Firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions. Our decisions recognize the serious threat that armed criminals pose to public safety; Terry's rule, which permits protective police searches on the basis of reasonable suspicion rather than demanding that officers meet the higher standard of probable cause, responds to this very concern. See 392 U.S., at 30. But an automatic firearm exception to our established reliability analysis would rove too far. Such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun. Nor could one securely confine such an exception to allegations involving firearms. Several Courts of Appeals have held it per se foreseeable for people carrying significant amounts of illegal drugs to be carrying guns as well. See, e.g., United States v. Sakyi, 160 F.3d 164, 169 (CA4 1998); United States v. Dean, 59 F.3d 1479, 1490, n. 20 (CA5 1995); United States v. Odom, 13 F.3d 949, 959 (CA6 1994); United States v. Martinez, 958 F.2d 217, 219 (CA8 1992). If police officers may properly conduct Terry frisks on the basis of bare-boned tips about guns, it would be reasonable to maintain under the above-cited decisions that the police should similarly have discretion to frisk based on bare-boned tips about narcotics. As we clarified when we made indicia of reliability critical in Adams and White, the Fourth Amendment is not so easily satisfied. Cf. Richards v. Wisconsin, 520 U.S. 385, 393-394 (1997) (rejecting a per se exception to the "knock and announce" rule for narcotics cases partly because "the reasons for creating an exception in one category [of Fourth Amendment cases] can, relatively easily, be applied to others," thus allowing the exception to swallow the rule). [n1]
A 12031 (e) check is an assumption by LEO that you are carrying an illegally configured weapon because it "may" be loaded. LEO has no RAS that an OCer has committed a crime, oris about to. The (e) check is based on something similar to an anonymous tip.
I don't see the Supremes allowing a loaded firearms exception to 4[suP]th[/suP] A rights on the basis of a law that assumes, an otherwise law-abiding citizen,has loaded his gun.
Disclaimer: My opinion above is just my gut feeling on how the Supremes would rule. I am usually wrong.
markm
mjones wrote:
Hello mjones,
Bovine Scatology!
Just because a court renames a detention to an inspection, does not make the detention legal.
I believe that 12031 (e) would be ruled by our current Supreme Court to be an unconstitutional detention of otherwise, law-abiding citizens.
Here islanguage from JL v. Florida. It is about a concealed weapon and an anonymous tip--not about OC and 12031 (e), or similar. However, the fact that an "exemption from 4[suP]th[/suP] A rights" for guns is clearly not allowed by the Supremes is the important point that I get from this ruling.
The excerpted ruling by the Supremes:
A second major argument advanced by Florida and the United States as amicus is, in essence, that the standard Terry analysis should be modified to license a "firearm exception." Under such an exception, a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing. We decline to adopt this position.
Firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions. Our decisions recognize the serious threat that armed criminals pose to public safety; Terry's rule, which permits protective police searches on the basis of reasonable suspicion rather than demanding that officers meet the higher standard of probable cause, responds to this very concern. See 392 U.S., at 30. But an automatic firearm exception to our established reliability analysis would rove too far. Such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun. Nor could one securely confine such an exception to allegations involving firearms. Several Courts of Appeals have held it per se foreseeable for people carrying significant amounts of illegal drugs to be carrying guns as well. See, e.g., United States v. Sakyi, 160 F.3d 164, 169 (CA4 1998); United States v. Dean, 59 F.3d 1479, 1490, n. 20 (CA5 1995); United States v. Odom, 13 F.3d 949, 959 (CA6 1994); United States v. Martinez, 958 F.2d 217, 219 (CA8 1992). If police officers may properly conduct Terry frisks on the basis of bare-boned tips about guns, it would be reasonable to maintain under the above-cited decisions that the police should similarly have discretion to frisk based on bare-boned tips about narcotics. As we clarified when we made indicia of reliability critical in Adams and White, the Fourth Amendment is not so easily satisfied. Cf. Richards v. Wisconsin, 520 U.S. 385, 393-394 (1997) (rejecting a per se exception to the "knock and announce" rule for narcotics cases partly because "the reasons for creating an exception in one category [of Fourth Amendment cases] can, relatively easily, be applied to others," thus allowing the exception to swallow the rule). [n1]
A 12031 (e) check is an assumption by LEO that you are carrying an illegally configured weapon because it "may" be loaded. LEO has no RAS that an OCer has committed a crime, oris about to. The (e) check is based on something similar to an anonymous tip.
I don't see the Supremes allowing a loaded firearms exception to 4[suP]th[/suP] A rights on the basis of a law that assumes, an otherwise law-abiding citizen,has loaded his gun.
Disclaimer: My opinion above is just my gut feeling on how the Supremes would rule. I am usually wrong.
markm
imported post
MarkBofRAdvocate wrote:
MarkBofRAdvocate wrote:
mjones isn't stating his opinion, he's saying what current case law is. I'm sure most everybody here agrees that 12031(e) checks are an unconstitutional search and seizure. Unfortunately, California courts have thus far disagreed with our assessment.
Gundude
Regular Member
imported post
OK, someone edumacate me. Whatwas the case that tested theconstitutionality of (e) checks? I missed that one.
OK, someone edumacate me. Whatwas the case that tested theconstitutionality of (e) checks? I missed that one.
zekester
Regular Member
imported post
bigtoe416 wrote:
Great case....but.....it does not pertain to this siuation....
Held: An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer's stop and frisk of that person. An officer, for the protection of himself and others, may conduct a carefully limited search for weapons in the outer clothing of persons engaged in unusual conduct where, inter alia, the officer reasonably concludes in light of his experience that criminal activity may be afoot and that the persons in question may be armed and presently dangerous. Terry v. Ohio, 392 U.S. 1, 30. Here, the officers' suspicion that J. L. was carrying a weapon arose not from their own observations but solely from a call made from an unknown location by an unknown caller. The tip lacked sufficient indicia of reliability to provide reasonable suspicion to make a Terry stop: It provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility. See Alabama v. White, 496 U.S. 325, 327. The contentions of Florida and the United States as amicus that the tip was reliable because it accurately described J. L.'s visible attributes misapprehend the reliability needed for a tip to justify a Terry stop. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. This Court also declines to adopt the argument that the standard Terry analysis should be modified to license a "firearm exception," under which a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing. The facts of this case do not require the Court to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great-e.g., a report of a person carrying a bomb-as to justify a search even without a showing of reliability.
The officer indeed.....had an observation of a weapon.....and the LEO will use the"unusual conduct" as a premise, because it is unusual for someone carrying a firearm exposed, (in light of his experience).
bigtoe416 wrote:
Great case....but.....it does not pertain to this siuation....
Held: An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer's stop and frisk of that person. An officer, for the protection of himself and others, may conduct a carefully limited search for weapons in the outer clothing of persons engaged in unusual conduct where, inter alia, the officer reasonably concludes in light of his experience that criminal activity may be afoot and that the persons in question may be armed and presently dangerous. Terry v. Ohio, 392 U.S. 1, 30. Here, the officers' suspicion that J. L. was carrying a weapon arose not from their own observations but solely from a call made from an unknown location by an unknown caller. The tip lacked sufficient indicia of reliability to provide reasonable suspicion to make a Terry stop: It provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility. See Alabama v. White, 496 U.S. 325, 327. The contentions of Florida and the United States as amicus that the tip was reliable because it accurately described J. L.'s visible attributes misapprehend the reliability needed for a tip to justify a Terry stop. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. This Court also declines to adopt the argument that the standard Terry analysis should be modified to license a "firearm exception," under which a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing. The facts of this case do not require the Court to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great-e.g., a report of a person carrying a bomb-as to justify a search even without a showing of reliability.
The officer indeed.....had an observation of a weapon.....and the LEO will use the"unusual conduct" as a premise, because it is unusual for someone carrying a firearm exposed, (in light of his experience).
Gundude
Regular Member
imported post
MarkBofRAdvocate wrote:
MarkBofRAdvocate wrote:
From what I could read there, it was about rifles on campus. There was RS involved there. Is there anything about a Starbucks (e) check?
zekester
Regular Member
imported post
The closest case is the New Mexico case...10th Circuit..except for the fact that theLEO in CA...can check your weapon to see if it is loaded or not.
Relying on well-defined Supreme Court precedent, the Tenth Circuit and its sister courts
have consistently held that officers may not seize or search an individual without a specific,
legitimate reason. See Terry, 392 U.S. at 21; Fuerschbach,439 F.3d at 1204-6 (holding that a
seizure without a reasonable suspicion of criminal activity "would violate the most minimal
Fourth Amendment standard"); Jones v. Hunt, 410 F.3d at 1228 ("Where no legitimate basis
exists for detaining [an individual], a seizure is plainly unreasonable."); Duran, 904 F.2d at 1378
("If there is one irreducible minimum in our Fourth Amendment jurisprudence, it is that a police
officer may not detain an individual simply on the basis of suspicion in the air. No matter how
peculiar, abrasive, unruly or distasteful a person's conduct may be, it cannot justify a police stop
unless it suggests that some specific crime has been, or is about to be, committed or that there is
an imminent danger to persons or property."); see also Lawrence Rosenthal, Second Amendment
Plumbing after Heller: Standards of Scrutiny, Incorporation, Well-Regulated Militias, and
Criminal Street Gangs, 41 Urb. Law. 1, 37 (2009) (“When applicable law does not ban carrying a
firearm, however, the Fourth Amendment does not permit a stop-and-frisk regardless of any
indication that a suspect is armed or potentially dangerous because there is no indication that the
suspect is violating the law.”). For example, in Sorrel v. McGuigan, 38 Fed.Appx. 970, 973 (4th
Cir. 2002) (unpublished) the Fourth Circuit denied qualified immunity to an officer who seized
an individual for lawfully carrying weapon. Noting that a state statute made the plaintiff's
Case 6:08-cv-00994-BB-LAM Document 48 Filed 09/08/2009 Page 12 of 16
13
concealed carrying of the weapon legal, the court found that, though "[q]ualified immunity
protects law enforcement officers from bad guesses in gray areas," the fact that the plaintiff's
actions were clearly permissible under the statute meant that the officer "was not in a gray area."
Id. at 974.
The applicable law was equally clear in this case. Nothing in New Mexico law prohibited
Mr. St. John from openly carrying a firearm in the Theater. See N.M. Stat. § 30-7 et seq.
Because both New Mexico law and the Fourth Amendment prohibition on unjustified seizure
were clearly established, and a reasonable officer is presumed to know clearly established law,
see, e.g., Harlow, 457 U.S. at 818-9, qualified immunity does not protect Defendants.
Accordingly, Mr. St. John's motion for summary judgment is granted with regard to his Fourth
Amendment and New Mexico constitutional claims. Defendants' motion for summary judgment
is denied with regard to the same and with regard to qualified immunity.
The closest case is the New Mexico case...10th Circuit..except for the fact that theLEO in CA...can check your weapon to see if it is loaded or not.
Relying on well-defined Supreme Court precedent, the Tenth Circuit and its sister courts
have consistently held that officers may not seize or search an individual without a specific,
legitimate reason. See Terry, 392 U.S. at 21; Fuerschbach,439 F.3d at 1204-6 (holding that a
seizure without a reasonable suspicion of criminal activity "would violate the most minimal
Fourth Amendment standard"); Jones v. Hunt, 410 F.3d at 1228 ("Where no legitimate basis
exists for detaining [an individual], a seizure is plainly unreasonable."); Duran, 904 F.2d at 1378
("If there is one irreducible minimum in our Fourth Amendment jurisprudence, it is that a police
officer may not detain an individual simply on the basis of suspicion in the air. No matter how
peculiar, abrasive, unruly or distasteful a person's conduct may be, it cannot justify a police stop
unless it suggests that some specific crime has been, or is about to be, committed or that there is
an imminent danger to persons or property."); see also Lawrence Rosenthal, Second Amendment
Plumbing after Heller: Standards of Scrutiny, Incorporation, Well-Regulated Militias, and
Criminal Street Gangs, 41 Urb. Law. 1, 37 (2009) (“When applicable law does not ban carrying a
firearm, however, the Fourth Amendment does not permit a stop-and-frisk regardless of any
indication that a suspect is armed or potentially dangerous because there is no indication that the
suspect is violating the law.”). For example, in Sorrel v. McGuigan, 38 Fed.Appx. 970, 973 (4th
Cir. 2002) (unpublished) the Fourth Circuit denied qualified immunity to an officer who seized
an individual for lawfully carrying weapon. Noting that a state statute made the plaintiff's
Case 6:08-cv-00994-BB-LAM Document 48 Filed 09/08/2009 Page 12 of 16
13
concealed carrying of the weapon legal, the court found that, though "[q]ualified immunity
protects law enforcement officers from bad guesses in gray areas," the fact that the plaintiff's
actions were clearly permissible under the statute meant that the officer "was not in a gray area."
Id. at 974.
The applicable law was equally clear in this case. Nothing in New Mexico law prohibited
Mr. St. John from openly carrying a firearm in the Theater. See N.M. Stat. § 30-7 et seq.
Because both New Mexico law and the Fourth Amendment prohibition on unjustified seizure
were clearly established, and a reasonable officer is presumed to know clearly established law,
see, e.g., Harlow, 457 U.S. at 818-9, qualified immunity does not protect Defendants.
Accordingly, Mr. St. John's motion for summary judgment is granted with regard to his Fourth
Amendment and New Mexico constitutional claims. Defendants' motion for summary judgment
is denied with regard to the same and with regard to qualified immunity.
Gundude
Regular Member
imported post
It would seem that the Calif legislature has given Calif LEO's permission to violate the 4th amendment.
It would seem that the Calif legislature has given Calif LEO's permission to violate the 4th amendment.
imported post
Gundude wrote:
Hey gundude,
Here is the language from Delong that is as close as it comes to a ruling on 12031 (e):
We hold that the examination permitted by Penal Code section 171e and section 12031, subdivision (c) is constitutional and does not violate the Fourth Amendment. In the first place, the examination of the weapon [11 Cal.App.3d 792] may hardly be deemed to be a search at all. The chamber of a gun is not the proper or usual receptacle for anything but a bullet or a shell. The loading of a gun simply affects the condition of the weapon by making it immediately useful for firing. The ammunition becomes, as it were, part of the gun. There is nothing private or special or secret about a bullet. The use of the word "examine" in the statutes instead of the word "search" is not at all a devious one. In examining the weapon, the officers are not attempting to find some kind of contraband which is unrelated to the gun itself.
But if the examination may be called a search, it is not an unreasonable one; and only unreasonable searches are forbidden by the Fourth Amendment. (Terry v. Ohio, 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868].) It is, as we have said, limited to a single purpose. It does not have about it any except the slightest element of embarrassment or annoyance, elements overbalanced by far by the purpose of preventing violence or threats of violence. The minimal intrusion does not begin to approach the indignity of the frisk, as graphically described in Terry v. Ohio, supra, at p. 17, fn. 13 [20 L.Ed.2d at p. 903]. It is true that the frisk, as sustained in the Terry case, requires as justification something different than mere possession of a firearm in a proscribed place, but it requires a good deal less than cause for arrest.
It is not a good ruling for those of us discussing 12031 (e) and OC; however, I think it is the only ruling that relates.
markm
Gundude wrote:
Hey gundude,
Here is the language from Delong that is as close as it comes to a ruling on 12031 (e):
We hold that the examination permitted by Penal Code section 171e and section 12031, subdivision (c) is constitutional and does not violate the Fourth Amendment. In the first place, the examination of the weapon [11 Cal.App.3d 792] may hardly be deemed to be a search at all. The chamber of a gun is not the proper or usual receptacle for anything but a bullet or a shell. The loading of a gun simply affects the condition of the weapon by making it immediately useful for firing. The ammunition becomes, as it were, part of the gun. There is nothing private or special or secret about a bullet. The use of the word "examine" in the statutes instead of the word "search" is not at all a devious one. In examining the weapon, the officers are not attempting to find some kind of contraband which is unrelated to the gun itself.
But if the examination may be called a search, it is not an unreasonable one; and only unreasonable searches are forbidden by the Fourth Amendment. (Terry v. Ohio, 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868].) It is, as we have said, limited to a single purpose. It does not have about it any except the slightest element of embarrassment or annoyance, elements overbalanced by far by the purpose of preventing violence or threats of violence. The minimal intrusion does not begin to approach the indignity of the frisk, as graphically described in Terry v. Ohio, supra, at p. 17, fn. 13 [20 L.Ed.2d at p. 903]. It is true that the frisk, as sustained in the Terry case, requires as justification something different than mere possession of a firearm in a proscribed place, but it requires a good deal less than cause for arrest.
It is not a good ruling for those of us discussing 12031 (e) and OC; however, I think it is the only ruling that relates.
markm
paul@paul-fisher.com
Regular Member
imported post
MarkBofRAdvocate wrote:
What needs to happen is for someone to refuse an (e) check and appeal it up the US Supreme Court. I would think they would overturn it myself. This all assumes that McDonald vs. Chicago goes 'our' way.
Generally, SCOTUS doesn't like LEO's touching our stuff unless RAS is established.
MarkBofRAdvocate wrote:
What needs to happen is for someone to refuse an (e) check and appeal it up the US Supreme Court. I would think they would overturn it myself. This all assumes that McDonald vs. Chicago goes 'our' way.
Generally, SCOTUS doesn't like LEO's touching our stuff unless RAS is established.
Gundude
Regular Member
imported post
I've heard that taking a case all the way to the Supreme Court is very expensive. Considering that Social Security is my only source of income, That exempts me.
I've heard that taking a case all the way to the Supreme Court is very expensive. Considering that Social Security is my only source of income, That exempts me.
imported post
Hey paul-at-paul,
I agree.
Unfortunately, many of us don't have a million dollars set-aside for a Supreme Court case. Also, we can't have our gun rights withdrawn while the case goes through the system.
Are you volunteering?
markm
Edit: tried to fix paul's handle.
Hey paul-at-paul,
I agree.
Unfortunately, many of us don't have a million dollars set-aside for a Supreme Court case. Also, we can't have our gun rights withdrawn while the case goes through the system.
Are you volunteering?
markm
Edit: tried to fix paul's handle.