Kevin Jensen
State Researcher
imported post
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:
...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:
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
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