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Thread: My detainment from April 15th

  1. #1
    State Researcher Kevin Jensen's Avatar
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    Sorry for the delayed response. Some of you may remember that I was detained after the April dinner at Piccolos. Here is what happened, the way I explained it to the Utah Highway Patrol.

    Kevin Jensen wrote:
    I am concerned with the conduct of a State Trooper that detained me on Friday evening. I apologize, as I did not ask for his name. Here is the story, so you can understand my side of the issue.

    On Friday evening, we dined with some friends at Piccolos. On our way home, we stopped at the convenience store on 1092 W. 21ST St. in Ogden. I fueled my car with natural gas, and went into the store to pay. There was a State Trooper leaning against the front counter, reading a newspaper. At first I though he might have been some kind of security for the store. The store later confirmed to me that he was not.

    As I waited in line to pay for my fuel, the Trooper walked around and behind me, and asked "You got a permit for that thing?" That thing he has inquiring about was my openly carried 1911. I replied that it was my belief that no permit was required to carry a firearm in Utah. He did not like this answer, and began to demand my ID. I politely refused to show my ID, as it is not required by Utah law.

    This further angered the Trooper, and his upper lip began to twitch very rapidly. He kept stating in a very firm tone "You need to show me your ID!" I then asked if I was being detained. He stated that I was in fact being detained, so I asked him why. He told me it was unlawful to carry a loaded firearm. I then told him that my sidearm was not loaded. He then said "It's locked and cocked, that means it's loaded!" I again told him that while it did have that appearance, that my firearm was unloaded per 76-10-502.

    The Trooper then demanded that I hand him the pistol. I told him I would not touch my firearm, as I believe that would have given him a reason to touch his. He continued to demand my ID and my firearm. I told the Trooper that I did not consent to the encounter, and that I do not consent to any searches or seizures. As he continued to demand, I told him I would not touch my firearm, but would not resist if he removed it from my holster to check if it was loaded.

    He quickly grabbed for my sidearm, and then carefully and safely removed the magazine. He did in fact confirm that it was unloaded. Surprisingly, he promptly handed it back to me. I placed the 1911 back in its holster, and placed the magazine and ammunition in my front pocket. He continued threatening me for my ID. I asked the Trooper if he was DEMANDING my ID, or simply asking to see it. He replied, "I'm demanding!"

    I told the Trooper that I did not consent to this, but since I am "being detained" and it was a "demand" that I would comply. I retrieved my Utah Concealed Firearm Permit from my wallet, and just like my pistol, he inspected it and promptly handed it back. He continued on about how I could have made this a lot easier, and just complied like he asked at first. He also stated that he could have charged me with "disorderly conduct" simply for carrying openly, and not to be surprised if a cop "draws down" on m in the future.

    I politely explained to him that most of my experiences with law enforcement have been positive, and that I have never been "drawn down" upon in my 3 years of carrying openly. He continued to insult and harass me, so I asked him if I was free to go. He then told me to leave.

    Like I said before, I have had encounters with law enforcement before, and with the lack of citizens that carry openly, I expect to have more. However, this Troopers behavior was unacceptable. He was not displaying the level of professionalism that I expect from the Utah Highway Patrol. I have talked to many Troopers at the State Capitol, and Troopers at political events with Utah's Governor, all while carrying openly. All have been polite, and professional.

    Some have suggested that I demand to know this Troopers name, and file a complaint with The Attorney General's office. I do not wish to make mountains out of mole hills. All I ask is that my unlawful detainment be recognized as just that, and that Troopers receive some sort of briefing or bulletin that citizens who choose to carry openly do not deserve to be harassed and detained for no reason.


    Thank you,

    Kevin Jensen

    ...and here is the response that I was certain would never come, two months later. The color, italics and boldness are the same as how it was received in my email.


    SGT Andrew Davenport wrote:
    I have completed my investigation of this encounter and I have prepared the following letter with my findings.


    June 19th, 2010





    Mr. Jensen,



    From your description of the events which transpired on the 16th of April, my understanding is that you feel that a State Trooper violated your right to bear arms and unlawfully detained, or seized your person by stopping you in a public place and questioning you regarding your right to carry a firearm openly. This is an allegation which we take very seriously and I have conducted an investigation and prepared this letter to answer your query.

    I spoke with all the Troopers scheduled to work Friday night in Weber and Morgan counties who could have been at the stated location. I located the Trooper who made contact with you and he wrote a report regarding your interaction. I have also collected a statement from the clerk at the store who was a third party witness to the incident. I would like to address the concerns you have, it would have been easier to speak to you by phone but since you have chosen email as the form we will use I have written this letter.

    After reading your account it is my finding that there was a misunderstanding created in part by your lack of cooperation with the Trooper’s request as well as a lack of knowledge regarding the laws of the State of Utah. It is my hope that this letter will address both issues in order to avoid such misunderstandings in the future.

    You say the Trooper approached you without provocation and asked if you had a permit for “that thing”, referring to your openly carried 1911 pistol. Had you complied and showed your concealed carry permit immediately it would have been irrelevant whether your weapon was loaded or unloaded and could have avoided the ensuing discomfort surrounding the confrontation which occurred between you and the Trooper. I would imagine that it was the Trooper’s tone and how he spoke to you that got your attention. If so then it had the desired effect, the Trooper wanted you to know that he had seen your weapon, was alarmed by your openly armed presence in the convenience store that night, and needed immediate clarification as to your legal status to possess it. It was in this very early part of your encounter where you were mistaken with regards to the law as it applied to you that night. Utah Code 77-7-15 states:



    Authority of peace officer to stop and question suspect -- Grounds.
    A peace officer may stop any person in a public place when he has a reasonable suspicion to believe he has committed or is in the act of committing or is attempting to commit a public offense and may demand his name, address and an explanation of his actions.



    Reasonable suspicion is a very low threshold of proof for an Officer to be required to have before detaining someone. The question facing us is whether a reasonable Officer would be suspicious of a crime occurring. Given the time of night, in the proximity to a very high crime area in the city of Ogden, in what is commonly known as a “stop and rob” convenience store due to direct access to an interstate highway, for the public, and especially a police Officer, to suspect a crime is about to occur or is occurring when someone comes into the store with a visible firearm is very reasonable. This Trooper merely asked you a question instead of drawing a weapon or even having you put your hands up, his response, in my opinion is innocuous at the very worst. We feel that this is a good example of proactive and thorough police work.

    It is understandable that your recollection of the events of that night is limited to your point of view. You know you have a concealed carry permit, you know that you are not a person restricted from possessing a firearm, you know that your intention is to be compliant with the law and not commit a public offense. Unfortunately, the Officer does not know this about you without stopping you and inquiring as to your legal status. The Supreme Court of the United States has found that it is not required of Peace Officers to explain away the actions of someone in the most innocent manner possible, but instead police are relied upon to view unfolding situations in a light which lends itself most to the public safety and enforcement of the law. Instead of being required to assume you are a good citizen intent on your business with a legally carried firearm, the Trooper is obligated by the public he is responsible to, to view the situation through the lens of suspicion of a crime occurring and concern for public safety while taking into account all of the pertinent evidence available to him in the moment.

    Citizens in Utah do not have carte blanche when it comes to open carry. There are regulations such as the one which you cited, without a concealed carry permit the weapon must be two mechanical actions from firing. This is when it is deemed, “unloaded”. That being said, there are other conditions which you must meet to possess a firearm in the manner which you described carrying your pistol on the night in question. Utah State code 76-9-102 states:



    Disorderly conduct.
    (1) A person is guilty of disorderly conduct if:
    (a) he refuses to comply with the lawful order of the police to move from a public place, or knowingly creates a hazardous or physically offensive condition, by any act which serves no legitimate purpose; or
    (b) intending to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof, he:
    (i) engages in fighting or in violent, tumultuous, or threatening behavior;
    (ii) makes unreasonable noises in a public place;
    (iii) makes unreasonable noises in a private place which can be heard in a public place.



    This is the statute that the Trooper you spoke with referred to. While it may not be your intent to cause inconvenience, annoyance, or alarm, it can be argued you have certainly created the risk thereof in a willful and wanton manner, which is the standard used to define recklessness. For someone who is licensed to carry a firearm loaded and concealed to instead choose to carry it in plain view and unloaded goes against the logic of having the firearm readily accessible for self defense. It would appear to most Peace Officers that it was being displayed to prove a point about Second Amendment rights and by doing so cause public inconvenience, annoyance, or alarm.

    Carrying a firearm in the open is certainly your right, as long as it does not create the conditions listed in the statute above. Most of the public do not carry firearms. Open carry is not something that most in the public are comfortable with and it does cause alarm when the public observes it. It is also not even close to being the norm among those who do carry firearms as most all prefer to carry concealed. If an Officer has reasonable suspicion that you are causing alarm, which happened in the case of the Peace Officer you were in contact with, then a Peace Officer may legally detain you while conducting an investigation into a possible offense against the public as per 77-7-15.

    Given your description of the events of your recent law enforcement encounter, you were required by law to give the requested identification to the Peace Officer when he ordered you to. You were also required to give an explanation of your actions, not give the Officer a lesson in the Utah State code. I am only led to believe that your intent was not to violate the law, but instead your reaction was from a lack of knowledge regarding the applicable codes and indignation that you felt when you assumed your rights were being violated by the Officer’s investigation. Open carry is an advertisement that you have a gun and are ready to use it, it sends this message loud and clear, but please be aware that it does not clarify your intentions to use it lawfully nor your legal right to possess it. In order for this to be established there has to be communication with others. Once your intentions and your legal status to carry are clear then you will be sent along your way to conduct your business.

    I hope that I have been able to answer some of your questions and lay to rest your allegations regarding this matter. If not then I would advise you to consult further with someone with more expertise in these matters in order to be fully informed regarding the applicable laws, especially if it is regarding something as potentially alarming as carrying a firearm in the open in public.



    Sincerely,

    Sgt. Andrew Davenport





    Sergeant Andrew Davenport
    Utah Highway Patrol
    Section Two
    Cell (801) 589-4946
    Office (801) 393-1136
    Fax (801) 393-1144
    Adavenpo@utah.gov
    "An armed society is a polite society. Manners are good when one may have to back up his acts with his life." Robert A. Heinlein

  2. #2
    Regular Member younggun20's Avatar
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    I liked your letter. Any plans for a follow up?

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    I like cops. Really do. Related to a few, even.

    This? This sounds like:

    "Trooper, the lieutenant dropped this letter in my lap. Why is it here?"

    "Well Sarge, there was this guy and........"


    Translation- His patrol sergeant's covering his troopers arse, hoping you'll let it go and not stir the pot.

  4. #4
    Regular Member LovesHisXD45's Avatar
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    It's a compelling argument, but it's not for him to decide. I say somebody is going to have to take these guys to court and let them make the final decision. That, or somebody on capital hill needs to pass some legislation that spells it all out for them. I would prefer the latter.

    It's pretty simple. Open carry in general is not illegal by codificaiton with the exception of loaded carry without permit, therefore, the act thereof should not be construed as RAS for detainment absent the commission of a crime. The officer should have observed cautiously and been ready to act but should not have detained you. If you ask me 76-10-505, if they want to get really technical about how the law is written, clearly defines the geographical area that it applies to. This means that if you are not in or on a vehicle or on a "public street", meaning the literal asphalt or pavement, then the statute does not apply, and you can carry loaded openly without a permit almost anywhere but a "public street". How about they take that and shove it where the son don't shine? If they don't understand what a public street is, then they should not be wearing a uniform, carrying a gun or operating a motor vehicle, because this would mean that they have a mental capacity less than that of a 1st grader.

    The letter basically shows that officers are trained to presume guilt before innocence and justify such mentality because of various facets of circumstances surrounding a particular place and time of day factoring in probabilities based on assumptions and history of violence and crime rate. This can also be argued the other way, assuming what is good for the goose is good for the gander, as Mr. Jensen openly carried his firearm in the open to act as a visible deterrent in such a "high crime area" at such a precarious time of night. Better to prevent and assault or mugging than to have to actively engage in self defense with said firearm if and when an assailant moves in based on the supposition that he is visibly unarmed and would make and easy mark.

    I am still scratching my head as to why in the world you chose to carry openly unloaded though. You got some splainin to do.

    Kevin
    If it isn't broke, then don't fix it, or you'll fix it until it's broke.

  5. #5
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    This looks like acommon police response.

    They've thunk up their story---and they're sticking to it.

    The main point of a formal complaint is to let the police know that you know. Half their power over the citizenry is the individual citizen's uncertainty about the law. This opens the door to police bluff,fabrication, and rights violations.

    I cannot tell the OP what to do. I can only say what I would do in his shoes.

    I would hunt up the relevant law and include it in a strongly-worded rebuttal. I would even include legal threats this time around--St. John vs Alamogordo ought to get some attention.

    The disorderly conduct thing is nonsense of course. Worse it is nonsense designed to leave the door open to further harassment. Disorderly conduct (D.C.) has specific historical manifestations. I'll bet they include things provoking a fight and that sort of thing. I'll bet nowhere in state law is there an example of OCing a gun alone disorderly conduct without additional misbehavior or threatening actions. I would just hunt up a number of real-lifeactivities that are genuinely considered D.C.

    Once the police know you know. And know you are prepared to fight in court, they will have to take another look.

    It does not really matter whether they say you are right. Nor, does it matter whether they apologize. They won't in either case. The main point is to let them know you know. This scares the hell out of petty tyrants and puts them on notice, "Oh! $hit! Somebody really does know. Now, we have to be careful." They hate that. Oh, do they hate that.


    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    << If not then I would advise you to consult further with someone with more expertise in these matters in order to be fully informed regarding the applicable laws, especially if it is regarding something as potentially alarming as carrying a firearm in the open in public.>>

    Don't these guys get any training in the OC laws? This sounds like an alarmist, MAWG statement...

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    From the response letter you received it sounds like the Sergeant would be OK with his troopers stopping and detaining drivers until it is verified that they have valid a license and registration to be driving. Because it is illegal to drive without proper license and registration and since the cops don't know if the driver is a good guy or a bad guy they must act like a law has been broken until proven otherwise.

    What ever happened to 'innocent until proven guilty'? As was stated earlier I would send a rebuttal stating that there mere act of open carrying does not give the cops a right to stop and demand ID. The trooper has the right to ask you questions, but should not get pissed if you don't answer them.

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    The cops called your bluff, now what are you going to do? The only option which will result in any meaningful action is a lawsuit.

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    Regular Member Rottie's Avatar
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    Forward this higher up the chain. The sergeant is wrong and his superiors will most likely agree. I can see his point about concern for the area, however it would also explain why you would want to have a gun in a high crime area. Dissapointing! Most troopers are very professional and would not have given you such a response.

  10. #10
    Regular Member Utah_Patriot's Avatar
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    Kevin,

    This needs to be taken higher up in the Department I would go to the top file a IA and involve the Department of Justice.
    This kind of abuse needs to stop and it needs to be dealt with quickly the Sgt was also out of line and it needs to be addressed by his higher-ups.

    I am tired of our rights being violated by officers who want to enforce their opinions and not the law. We need to feel secure in our surroundings and not be harassed by the police officers sworn to uphold the law. It's time we stand up for our rights and say no more we need to send a clear message to any department who wants to trample our rights we will not take it anymore.

    Thanks
    Zach
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    "A fear of weapons is a sign of retarded sexual and emotional maturity"

  11. #11
    Regular Member thx997303's Avatar
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    kwikrnu wrote:
    The cops called your bluff, now what are you going to do? The only option which will result in any meaningful action is a lawsuit.
    Wait a second, called his bluff?

    Being as I know the OP personally, and I also know that his knowledge of Utah law is quite thorough, what bluff?

    Anywho, this is a blatant example of a civil rights violating stop.

    In Kevin's incident here, it is quite obvious that Kevin was being detained because he was open carrying, seemingly for suspicion of carrying loaded without a permit per UCA 76-10-505

    Unfortunately for mister OEO, a footnote, number 9 to be exact, in Lund V Salt Lake states that mere possession of a firearm is not RAS.

    Also, St. John V Almagordo states the same thing.

    Of course, Disorderly conduct reads,

    76-9-102. Disorderly conduct.

    (1) A person is guilty of disorderly conduct if:

    (a) he refuses to comply with the lawful order of the police to move from a public place, or knowingly creates a hazardous or physically offensive condition, by any act which serves no legitimate purpose; or

    (b) intending to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof, he:
    (i) engages in fighting or in violent, tumultuous, or threatening behavior; (ii) makes unreasonable noises in a public place; (iii) makes unreasonable noises in a private place which can be heard in a public place; or (iv) obstructs vehicular or pedestrian traffic.

    (2) "Public place," for the purpose of this section, means any place to which the public or a substantial group of the public has access and includes but is not limited to streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.
    So, nowhere in here do I see open carry. Nor do I see anything that open carry satisfies.

    Self defense is a legitimate purpose for carrying in the open, and as per the 1st amendment, so is open carrying to make a political statement (IMHO)

    Also, according to Kevin's account of the detainment, he was not making "unreasonable noises in a private place which can be heard in a public place"

    He was not obstructing vehicular traffic, which is obvious because he was in a gas station.(unless of course you consider a wheelchair a vehicle, and there was somebody in a wheel chair trying to get around Kevin, Highly unlikely )

    It's also unlikely that he was blocking pedestrian traffic, as most officers of the law I know tend to take things to the side.

    Open carry is not Violent, tumultuous behavior, except in the rare circumstance when one might actually have to use the firearm in self defense. In that case, there are other things to worry about than Disorderly conduct.

    It MIGHT be argued that Kevin was out to cause public alarm, but according to the law, intent would need to be proven, and that is on the prosecution. Very difficult.

    Not only would it be difficult, but Kevin's posts here on OCDO as well as other sites do not support such a claim.

    Kevin's open carry (IMHO) could not be considered reckless, IIRC Kevin generally carries in a Serpa holster with "OCDO" or some such thing painted on the side. Serpas of course have a fairly difficult to defeat retention system. I know because I carry in one as well.

    Anyway, I'm sure many of you guys already know these things.

    I was bored and my typing has been getting a little rusty.




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    thx997303 wrote:
    SNIP I was bored and my typing has been getting a little rusty.
    Hope you get bored more often. Nice contribution.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Regular Member thx997303's Avatar
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    I'm always bored, but I have been trying to keep posts like this to a minimum.

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    I personally never go unloaded while OCing or CCing, but to each their own.
    Utah Certified Concealed Firearms Permit Instructor
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    Lover of Freedom

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    It may just be me, but the response that Kevin got sounded an awful lot like, shut up sit down and do as you're told. We are the law and know what's best.
    I know some really great LEOS. One has had a great influence in my life. But I have also known some really poor LEOS. I truly belive that they mean "good." But with thier positions, they need to remember, we have the right to defend ourselves. We also have the right to freedom of speech. And making a pro 2nd amendment statement, (by open carry), is legal.
    This encounter is only one step from Nazi Germany. Show me your papers now. Or I will shoot. This is still the land of the free, innocent UNTIL proven guilty. Grr. Time to go get a cup of coffee from the gas station on 21st...

    Open carrying of course. :X

  16. #16
    Regular Member LovesHisXD45's Avatar
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    The sarge was not on a public street. He was on private property that was open to the public. I still say 76-10-505 does not apply anywhere but literal public streets and stolen vehicles. I'm just saying... look at how the code reads. Is it, or is it not how it's written? Then toss in 76-1-104, 76-1-105, 76-2-101 & 77-7-15 on top of it all, and you have yourself a nice little cocktail that pretty much proves my point.

    Kevin
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    Ogden, UT???????

    Wasn't there ANOTHER problem with a LEO around there at some point??? Something serious?



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    Cypher wrote:
    Ogden, UT???????

    Wasn't there ANOTHER problem with a LEO around there at some point??? Something serious?

    You are thinking of the Mass Murder by the hands of a mad man, and an off duty cop from Ogden, UT slowed him down until the SWAT team came in and KILLED the Coward! This happened in SLC at a mall called "Trolley Square."


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  19. #19
    Regular Member Kingfish's Avatar
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    Kevin Jensen wrot
    I located the Trooper who made contact with you and he wrote a report regarding your interaction.
    Well now you can make a FOIA request for this report and take it up the chain.

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    kingfish wrote:
    Kevin Jensen wrot
    I located the Trooper who made contact with you and he wrote a report regarding your interaction.
    Well now you can make a FOIA request for this report and take it up the chain.
    I would agree!!! Hun you need to do that.

    It just makes me wonder what would have happened if I would have walked in open carrying behind him while he was being detained. I should have!!! - If I only knew what was going on I would have been in there!!!! :X If only you can rewind the past; cause I was starting to get worried sitting in the car waiting.
    "When the people fear their government, there is tyranny; when the government fears the people, there is liberty."
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  21. #21
    28kfps
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    This site is the bible for open carry. Great information. I see this is from an older string and may have been beat to death all ready. When I first read, he asked you to hand over your firearm I might have handed it to him. However your response if you put your hand on yours he may then believe, he has a reason to put his hand on his I believe was spot on. After reading the sergeant’s reply, where he said you know you are going to comply, and the officer did not and had to make that decision after accruing cretin information for the most part made since too me. Then I read the replies most believe the officer stepped all over constructional rights and did not have a legal reason for confronting you. I might agree however, for me I would have shown him the ID and permit as soon as he asked for it. Last year a similar situation happened in Las Vegas to a regular long time poster to this site. His questioning and detaining ended up with back up officers called it is a long story however, the officers were way out of line. It all started when asked to see some gun related documents and knowing by law he was not required to show them refused. Again, I would have shown it to the officer. I would have gone home a little aggravated. However as it turned out because of the internet and I believe a formal complaint it made the local media and 3000 Las Vegas police had to attend new tarring on how to approach someone open carrying. If Metro sees an open carried gun, they are required to have a suspicion of breaking the law before they can start asking for documents. It is my understanding that Metro may strike up a small-talk conversation to help clear their possible suspicion. Pushing the issues sometimes works for changes. It appears to me the trick is to figure out which issues to push. I hope because of your letter that it brings attention to the issue and the need for adjustments on their part.
    Last edited by 28kfps; 07-05-2010 at 08:13 PM.

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