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Thread: OC Case Law References relating to Reasonable Articulate Suspicion

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    Regular Member Damiansar-15's Avatar
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    OC Case Law References relating to Reasonable Articulate Suspicion

    Does anyone have any Open Carry case references or case law relating to OC and Reasonable Articulate Suspicion? I am specifically interested in Kansas examples, but any Federal cases would also be interesting.

    Issue:
    I have and will open carrying in Wichita, Kansas and I have a debate with my law enforcement brother on whether or not LEOs have the right to perform a Terry Stop and demand ID on OC citizens with just suspicion that their firearm may be loaded. All forms of OC is legal in Kansas, but UNLOADED OC is only legal in Wichita due to local ordinances.

    The city attorney recently had a training session for WPD and mentioned that RAS was needed for officers to stop OC citizens. Since, LOADED open carry is illegal, officers who see OC citizens carry firearms would have the right to stop, question, check ID and check the firearm to see if it is unloaded only. Once the check has occurred, the LEO would not have RAS to further detain/check on citizen. Her position was that it is reasonable to assume that the firearm is loaded and this would be committing a crime.
    This point of view did not make sense to me, because if KS LEOs have to check to see if I am unloaded, then they don’t know or should not suspect that I am loaded and breaking the ordinance. Of course, this changes if they get a call from a citizen who reports that someone was loading pistol, brandishing it, etc… Wichita does not have ordinances, like in California, which allow LEOs to specifically check for unloaded status.

    My point of view is that OC is legal, and unless WPD have RAS, they should not have the ability to stop me, even if it is to check to see that my weapon is unloaded.

    This is an important issue, because I believe WPD is incorrectly getting trained and will be violating citizens’ 4th Amendment rights by hassling them for ID and detaining them for no reason…

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    Regular Member Damiansar-15's Avatar
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    I did find this...

    The mere presence of the gun is not a violation of the law; it alone, does notprovide reasonable suspicion or probable cause.


    http://www.mml.org/insurance/shared/...er/2009_04.pdf

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    It would depend upon the State and its laws. For example OC in Illinois would provide RAS because almost all OC is unlawful. In New Mexico, according to St. John v. McColley it is not, and LEOs "should" know this--or risk civil suit.

    Also, the circumstances could dictate whether OC provides RAS in a State where it normally wouldn't. There was a case in GA where a man sued because he was stopped for OC. The court ruled against him because, at least at that time, one had to have a permit to ride a train. The fact that his gun was visible raised the question of whether he had the required permit, creating RAS.

    There is no one answer. One must consider State law and context.

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    Regular Member Thundar's Avatar
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    Quote Originally Posted by eye95 View Post
    It would depend upon the State and its laws. For example OC in Illinois would provide RAS because almost all OC is unlawful. In New Mexico, according to St. John v. McColley it is not, and LEOs "should" know this--or risk civil suit.

    Also, the circumstances could dictate whether OC provides RAS in a State where it normally wouldn't. There was a case in GA where a man sued because he was stopped for OC. The court ruled against him because, at least at that time, one had to have a permit to ride a train. The fact that his gun was visible raised the question of whether he had the required permit, creating RAS.

    There is no one answer. One must consider State law and context.
    Agree.

    Also consider:

    1) There is a big difference between not having a permit being part of the crime (an element), and having a permit being an affirmative defense to the crime.
    2) Common law and case law are also relevant, to a different extent, in each state.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Quote Originally Posted by eye95 View Post
    It would depend upon the State and its laws. For example OC in Illinois would provide RAS because almost all OC is unlawful. In New Mexico, according to St. John v. McColley it is not, and LEOs "should" know this--or risk civil suit.

    Also, the circumstances could dictate whether OC provides RAS in a State where it normally wouldn't. There was a case in GA where a man sued because he was stopped for OC. The court ruled against him because, at least at that time, one had to have a permit to ride a train. The fact that his gun was visible raised the question of whether he had the required permit, creating RAS.

    There is no one answer. One must consider State law and context.
    If checking for a license is the only purpose of the stop and they have no RAS to believe that you DON'T have a license, then wouldn't that be very similar to Delaware v. Prouse where the court ruled that an officer cannot stop a specific driver simply to check if they have a drivers license absent any other RAS of a crime? In Delaware v Prouse the court did say that License checkpoints WERE constitutional, but only if conducted in a systematic and predesignated manner. I would take this to mean that the discretion to check an OCer's license must be taken away from the individual officer and a policy put in place to check ALL people carrying weapons for licenses. If such a policy exists (such as in CA) then the stop is constitutional because it is uniform throughout the population. If there is no policy in place and the officer is using his own unbridled discretion to conduct the stop arbitrarily, then the stop is unconstitutional unless he has further RAS to believe the law is being broken (ie. someone called and told him they knew you and knew you don't have a permit)

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    Regular Member Brimstone Baritone's Avatar
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    I would think that if the stop was basically an e-check (like in California) then they would be within their authority. However, if there is not specific authority granted to do e-checks (like there is in California) I would imagine they would need RAS to stop you (for instance, is there obviously a magazine in the gun? If so, it is reasonable to believe the gun may be loaded illegally).

    Does Wichita law allow officers to do e-checks?

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    Regular Member Damiansar-15's Avatar
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    Quote Originally Posted by mcdonalk View Post
    I would think that if the stop was basically an e-check (like in California) then they would be within their authority. However, if there is not specific authority granted to do e-checks (like there is in California) I would imagine they would need RAS to stop you (for instance, is there obviously a magazine in the gun? If so, it is reasonable to believe the gun may be loaded illegally).

    Does Wichita law allow officers to do e-checks?
    No ordinances related to checking... Wichita just has an ordinance that references "loaded" firearms not being legal to carry within city limits. Basically, Wichita is technically not going against the State/Federal Constitution since cities do have the right to "regulate". Many argue that making "loaded" carry illegal goes against the intent of KS Constitution which allows OC. Since the ordinance spells out "loaded" it is understood by local PD and city attorney that unloaded carry is legal. This becomes a sticky issue if LEOs need to stop/check, since I don't believe they have the right to check status of firearm without RAS. California provides a specific ordiance granting LEOs the right to check... From what I heard in the past, Wichita PD drops folks at gun point and then cuffs them; this seems to be a bit excessive when OC is legal in Wichita...

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    Regular Member Brimstone Baritone's Avatar
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    Quote Originally Posted by Damiansar-15 View Post
    From what I heard in the past, Wichita PD drops folks at gun point and then cuffs them; this seems to be a bit excessive when OC is legal in Wichita...
    Wow. Only a 'bit' excessive?

    Hopefully someone with better Google-fu than me will find some court cases for you.

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