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Thread: Pulled Over for OC'ing in Kalispell

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    Regular Member 40s-and-wfan's Avatar
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    Pulled Over for OC'ing in Kalispell

    My wife and I spent the better part of the day driving around to all the car lots in the tri-city area looking for one we wanted but didn't have any luck. We got done at about 14:45-14:50 and decided to sit down around the Old Steel Bridge area to wait for school to get out so we could go pick up the kids.
    As we got to the west side of the bridge a FCSO Deputy pulled up, hopped out of his vehicle to use the can and left. I was standing outside the car on the phone with my jacket off, pistol in view. The deputy took off and we followed suit, going to the east side of the bridge to enjoy the scenery. Unbeknown to us, Deputy Dawg was in that same area. He pulled out and we decided we'd better head to the school. On the way there the Deputy pulled us over. He walked up to the driver's side of the car, hand on his gun with the retention strap undone. He leaned into the car and addressed my wife: "Ma'am, the reason I pulled you over is your passenger." Then looking at me, said: "Sir, is there any reason why you're packing?" I told him I was doing it "Because I can."
    At this point he instructed me to give my ID to the deputy who was standing on my side of the car. I didn't even know one was there. I turned to see a deputy I've known for years. I gave him my ID and he gave it to the primary deputy. My ID was returned and we were allowed to go on our way. It was a fairly decent encounter, but I still don't see the reasoning behind it. In the state of Montana, automobiles kill far more people than firearms do, but you don't see a Deputy Sheriff, Highway Patrolman or City Police Officer pulling someone over to check the validity or general status of a driver's license. Why do they do this for a firearm?
    No probable cause, carrying a gun is completely legal here in this state. He saw my firearm and decided to stop us to check my ID. Who cares?! Ownership of and carrying of a firearm is a right in this state and this country. Driving is a privilege, why don't they check the drivers the same way they check those of us who carry a gun?!

    I know this will start some controversy and there are those of you who will argue my mindset, but that's why I'm posting this here. I want to know what others think. I'm not looking for someone to complain about the Deputies, who handled things in a fairly positive manner. I just want opinion on the legality and validity of the stop in itself.

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    Quote Originally Posted by 40s-and-wfan View Post
    SNIP I want to know what others think. I'm not looking for someone to complain about the Deputies, who handled things in a fairly positive manner. I just want opinion on the legality and validity of the stop in itself.

    4th Amendment:

    "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated..."

    According to the OC map page, open carry is legal. Open carry in a car is legal. Unless the Old Steel Bridge area is a park under the jurisdiction of the locality and the locality restricted open carry in the park:

    Your wife was illegally seized.
    You were illegally seized.
    You had your ID illegally demanded.

    As to the cops handling things in a positive manner, phooey. Cops can be entirely polite while walking all over a person's rights. Politeness gots nothing to do with it. The question is, does the officer have legal authority to do what he does? End of story. Police know the law on seizing people short of arrest.

    It goes deeper. Too many times we have read comments here that such-and-such cop didn't know the gun laws and was to be excused (for illegally seizing a fellow American in his own state.) This is a red-herring. A mis-direction. Phooey. Cops don't need to know the gun laws. All a cop needs to know is that he does not know the gun law, or is unsure about the gun law. If he does not know, or is unsure, he cannot possibly know whether he has authority to seize someone for violating the law. If he doesn't know or is unsure, he bloody well needs to find out before he seizes someone.

    If the bridge area is a park and the locality restricted OC in the park, you might have got off lucky without a citation.

  3. #3
    Regular Member 40s-and-wfan's Avatar
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    It is a county park and fishing access but there are no restrictions in place pertaining to the carry/possession of firearms in that area.
    I hadn't thought about the possibility of this being a violation of 4th Amendment rights. The Deputy told me he wanted to see my ID. He told my wife he stopped us because he wanted to know why I was packing. There was no other reasoning behind the stop. No illegal acts were performed and no traffic laws were violated to warrant the stop in the first place.
    I want to see that same Deputy stop a truck for having a rifle in the back window and have him ask the driver why he has it in there.
    It seems to me like a way for them to pervert the laws to their liking so they can come out doing what they want/feel is right.

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    Yep, Citizen beat me to it on the 4th Amendment issues (and did a much nicer job of it than I would have).

    Your only recourse here is to file a complaint against the officer who stopped you. You won't get anything out of it, other than perhaps an agreement to issue remedial training about probable cause and RAS.

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    Regular Member 40s-and-wfan's Avatar
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    I posted this thread on another forum as well and had a retired DE State Trooper tell me: "Yes they can stop you just to check the welfare of the people in your vehicle." He told me that it's legal to stop anyone on the road. If you watch them long enough, they'll do something to screw up.
    I had to call BS on that. I don't think it's legal to do. I don't think the stop that my wife and I were subjected to today was legal and lawful. I don't feel complaining to the Sheriff, whom I know personally, would help much. I've got a call into the state Attorney General's office to see what they say about it. I'll go straight to the source. I might contact the sheriff too, but we'll see.

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    Regular Member 40s-and-wfan's Avatar
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    Stupid Me!!
    Normally I record traffic stops whenever they occur. I guess since I wasn't in the driver's seat it didn't register to me that I should record it.

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    NavyLT:

    Montana has an 'Writ of Licensure' Law, for The Purposes of Federal Law 18 U.S.C. 922(q)(2)(B)(ii), Viewable on The Montana Code here: http://data.opi.mt.gov/bills/mca/45/8/45-8-360.htm

    aadvark
    Last edited by aadvark; 04-19-2011 at 01:50 PM.

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    Quote Originally Posted by NavyLT View Post
    May I ask if you have a CCW permit (or whatever it's called in Montana)? You said you were on your way to pick up kids from school. The Federal 1000' Gun Free School Zone prohibition would still apply to you carrying your gun unless you possess a permit issued by Montana.
    The law was ruled unconstitutional,Montana does not acknowledge or enforce this law.

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    Regular Member 40s-and-wfan's Avatar
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    It was a private school. I already called the Sheriff's Office and asked them about that and they said to err on the side of caution and lock it in a glove compartment or something. The person at the SO told me they can't say for sure and for certain whether a private school falls under the same restrictions.

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    the traffic stop appears unconstitutional - 4th amendment requires reasonable suspicion of crime to conduct seizure

    this kind of police conduct is problematic - had you been a criminal, evidence from the stop would have likley been suppressed, allowing anogther bad guy to get away

    4th amendment compliant policing is what we should demand - anything less results in evidence suppression

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    Quote Originally Posted by 40s-and-wfan View Post
    SNIP It seems to me like a way for them to pervert the laws to their liking so they can come out doing what they want/feel is right.
    Yep. You read their mind.

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    Quote Originally Posted by 40s-and-wfan View Post
    SNIP I don't feel complaining to the Sheriff, whom I know personally, would help much. I've got a call into the state Attorney General's office to see what they say about it. I'll go straight to the source. I might contact the sheriff too, but we'll see.
    Then don't complain. Write a report instead. Cite the relevant statutes and court opinions.

    Don't sell yourself short on the effect you can create. The reason cops get away with this is because too many people do not actually know their rights. As soon as the cops get your report, the thought starts to occur to them, "Damn. Now somebody knows. Now, I gotta be careful."

    Even if they claim it didn't happen the way you said, even if they seem to completely ignore your report, the crucial idea does get across: "Oh, $hit. Here's another one that actually knows his rights."

    This is why you cite the relevant statutes and court opinions--it tells them you know the law. Ooops. Now they can't get away with it so easy anymore.

    Plus, by sending a report (or complaint) you build a paper trail in case they continue or retaliate.

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    As a former cop myself, I can see one potential "reasonable suspicion" the officer could try to use in his defense. Your story details that you were standing outside the bathroom, gun visible, when the deputy came out. He drove away, and you did also. You pulled off on the other side of the bridge, and apparently he had done the same. So in his mind, he's concerned that this armed person "could" be following him.

    Shortly there after, you drive away after noticing the deputy is also there. As a former cop, I can see how that might make this deputy uncomfortable. He could be concerned as to whether you might have ill intentions toward him.

    Aside from this, your story doesn't present any legal reasons why he could have stopped you. If the deputy could convince a judge that his concern for his or the public's safety (due to his perceiving you as acting oddly in 'following' him) then he could use that as his "reasonable suspicion" to stop you. That's all they need to pull over a vehicle and arrest it's movement.

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    Quote Originally Posted by NavyLT View Post
    or

    As soon as the cops get your report, the thought starts to occur to them, "Damn. Now somebody knows. Now, I gotta cover it up."
    Yes, that is too frequently a possibility.

    But, even then, things change.

    Two incidents bear this out:

    First was the outrageous treatment towards OCers at the Tony's incident in Manassas, VA back in 2007. The police basically said "nothing happened" and "we're sorry for the mean things we said amongst ourselves in our e-mails after the incident where nothing happened."

    Second was a ridiculous and outrageous seizure of a perfectly peaceful OCer at a Barnes and Noble in Alexandria, VA some time later. Cops dodged; and played creative games with FOIA requests.

    But, don't you know, that since those incidents, not one OCer has been harassed by cops in either of those jurisdictions.

    You just know that something like the scene from I Robot occurred where the detective didn't want to talk to his supervisor:

    Boss cop: "What happened?"

    Cop: "Nothing."

    Boss cop: "Well, nothing had better not happen again."



    So, the moral of the story is that even if the cops lie about what happened and give the appearance of not doing anything about it, some do get the idea.

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    Quote Originally Posted by 40s-and-wfan View Post
    SNIP I hadn't thought about the possibility of this being a violation of 4th Amendment rights.
    Just for educational points, below is an excerpt from a US Supreme Court opinion.

    No right is held more sacred, or is more carefully guarded, by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. Terry vs Ohio quoting Union Pacific Rail Co. vs Botsford.

    Read that again. No right. More sacred. More carefully guarded. Free from all restraint. Free, even from all interference. Unless by clear and unquestionable authority of law.

    Terry vs Ohio is the US Supreme Ct. case where the justices said it was reasonable for cops to seize a person if a certain standard of suspicion about a crime was met. But, some cops very carefully overlook or forget what else the court said, "No right is held more sacred..."
    Last edited by Citizen; 04-19-2011 at 09:36 PM.

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    Quote Originally Posted by Kyitty View Post
    As a former cop myself, I can see one potential "reasonable suspicion" the officer could try to use in his defense. Your story details that you were standing outside the bathroom, gun visible, when the deputy came out. He drove away, and you did also. You pulled off on the other side of the bridge, and apparently he had done the same. So in his mind, he's concerned that this armed person "could" be following him.

    Shortly there after, you drive away after noticing the deputy is also there. As a former cop, I can see how that might make this deputy uncomfortable. He could be concerned as to whether you might have ill intentions toward him.

    Aside from this, your story doesn't present any legal reasons why he could have stopped you.
    I'm sorry, but including your theory, there is still no legal reason why he could have been stopped. Hunches aren't RAS. Suspicious behavior doesn't constitute RAS. RAS is a Reasonable Articulable Suspicion that "crime is afoot", not merely the hunch that someone might do something wrong.

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    Regular Member MKEgal's Avatar
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    Quote Originally Posted by NavyLT
    Quote Originally Posted by 40s
    It was a fairly decent encounter
    I'm sorry, but I must disagree with you. There was nothing decent about that encounter at all.
    Oh, I dunno... Compared to what's happened to other OCers it went fairly well.
    He wasn't held at gunpoint, cuffed & stuffed, or shot.

    I agree it was completely illegal & should be brought to the attention of (at a minimum) the Sheriff, probably let the AG chew on it. I like the idea of a letter explaining exactly why what they did was several shades of wrong. Maybe cc the mayor on it?

    And did you know that the FBI investigates problems like this, where gov't officials (of whatever flavor, but esp. LEOs) infringe on Constitutional rights? If there's a pattern of misbehavior they'll do something more than investigate. There's a locator feature on the FBI website to help you find your closest office.
    (Now where's that "whistling innocently" smiley when you need it?)
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    Regular Member 40s-and-wfan's Avatar
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    The part that I have a hard time with is when the deputy asks me why I'm packing. I talked to the Under-sheriff here in Flathead County about this incident and asked him if it is really anyone's business why I'm carrying a gun. The way I explained it to him was this (to the best of my recollection): "Nine times out of ten, when someone asks me why I'm carrying, if I have the time I will explain to them the reason I do it. But in all honesty, if someone asks me, whether they're Federal, State, County or City police or civilian, is it really anyone's business why I choose to carry a gun?"
    His answer at this point was a firm and resounding "NO!" I am exercising a right that I have as a law abiding citizen. Can you imagine this stop if it were from a different perspective?

    Say the cop pulls you over, walks up and says "Sir (or Ma'am), I saw you on the phone back there. Is there a reason why you were speaking?" And you tell them, "Because I can." He then asks for your ID and proceeds to run you through their criminal background check procedures to see if you have ever spoken illegally in your life or said anything when you weren't being spoken to.
    I know this sounds drastic, but it's not much different. Driving a vehicle isn't a right, like Free Speech or the possession of a firearm is. Law enforcement cannot stop you just because they don't like the looks of your vehicle and they want to make sure you have all your paperwork in order. Why then, do they feel they can do the same thing with a firearm? It isn't his business what you're saying on the phone as in the previous example, and it isn't any of his business why I'm carrying a gun as was questioned in the incident that happened to me!
    Last edited by 40s-and-wfan; 04-22-2011 at 01:41 AM.

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    Quote Originally Posted by 40s-and-wfan View Post
    The part that I have a hard time with is when the deputy asks me why I'm packing. I talked to the Under-sheriff here in Flathead County about this incident and asked him if it is really anyone's business why I'm carrying a gun.
    Translation: I am being questioned about a basic human right--self-defense. In this case by a government agent no less.

    I think you'll get further with a different philosophical angle than "nobody's business." "Nobody's business" is really just an inarticulate way of refusing attention, curiosity, or communication.

    I believe a better philosophical approach is something more along the lines of: Rights are rights are rights. No justification needed. It is precisely because it is a right that no justification is needed. Also, the justifications were figured out centuries ago. If someone is genuinely curious, educating them is one thing. Being questioned is something else.

    When it comes to a government agent doing the questioning, he is out of bounds. Plain and simple. Its not your job to justify exercising a right to--of all people--a government agent. As soon as you legitimize the government asking the question, you necessarily grant the government the option to evaluate whether your justification is "good enough." Which of course just undermines the whole concept of a right. A right is a right precisely because the justifications were already deemed "good enough".

    Thus, the better answer, "No offense, officer. I know you are probably just doing your job, but I would not answer any questions without an attorney." Or, if you want to give him a little reminder, "....but, rights don't require an explanation."
    Last edited by Citizen; 04-22-2011 at 02:54 AM.

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    Regular Member stuckinchico's Avatar
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    Why am i packing?

    Well officer why are you illegally detaining me ?

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    Quote Originally Posted by stuckinchico View Post
    Why am i packing?

    Well officer why are you illegally detaining me ?
    Classic! Lotsa potential to start a losing argument while the cop hunts for something he gin up against ya. But, classic!

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    Regular Member stuckinchico's Avatar
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    Usually they step back and ask " well what do you mean?"
    ANd i hand them a pamphlet that refers to firearms not meeting RAS requirements

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    Quote Originally Posted by Kyitty View Post
    Shortly there after, you drive away after noticing the deputy is also there. As a former cop, I can see how that might make this deputy uncomfortable. He could be concerned as to whether you might have ill intentions toward him.
    So let me get this straight, the deputy is "uncomfortable".....hmmm...Guess it was like the 60's, when one was "uncomfortable" about an African American sitting at a lunch counter.

    I am "uncomfortable" when a person from Chicago comes to town, wearing a CUBS jersey...I am sure they have "ill intententions" of rooting against my beloved Cardnials......So this quailfies for RAS?...

    I don't like piercings, mohawks and Chevy Trucks....I am sure they all have"ill intentions" to take my daughter, force her to get piercings, get a mohawk and to buy a Chevy Truck.... so I guess they should all be pulled over, detained, and searched.

    Sorry, your logic has absolutey no merit.

    The Courts have said as much,

    And simple " 'good faith on the part of the arresting officer is not enough.' ... If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be 'secure in their persons, houses, papers, and effects,' only in the discretion of the police." — quoting Beck v. Ohio, 379 U.S. 89 (1964) Reasonable suspicion must derive from more than an "inchoate and unparticularized suspicion or 'hunch.' " Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968).

    As a "former cop"...I hope that you take the time to know "your" rights so that you can tell your LEO friends what mine are.

    I know it has been said many times on these forums, but it just baffles me. Law Enforcement Officials are hired (and paid by the taxpayers) to enforce the laws, and this is not bashing but a question, how is this even possible, if they do not know the laws themselves?

    It just blows me away...
    Last edited by zekester; 04-24-2011 at 07:51 AM. Reason: added terry v ohio

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    Quote Originally Posted by zekester View Post
    I am "uncomfortable" when a person from Chicago comes to town, wearing a CUBS jersey...I am sure they have "ill intententions" of rooting against my beloved Cardnials......So this quailfies for RAS?...
    My wife is from Dubuque, so she's a life-long Cubs fan. I'm from Arkansas, so I'm a life-long Cardinals fan (through the Travelers).

    We eye each other suspiciously and dance around with casual conversation on days they play each other. The rest of the time we agree to root for the other's team, so long as they're not playing each other.

    We have a standing agreement to not pull guns over NL Central games, but I'm pretty sure she could take me.
    Last edited by KBCraig; 04-24-2011 at 01:37 AM.

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    Regular Member 40s-and-wfan's Avatar
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    You know, we all say we support the Second Amendment and we all love the ability to carry a firearm, but I don't understand why some people feel that LE should be able to stop you for carrying legally, for exercising a right. You are doing nothing wrong by exercising your right, but yet some of you think that Law Enforcement should be able to stop you for any reason, just to check and make sure you're legally carrying. This is wrong. No justification, no RAS to stop, no violation of laws on your part or anything. Why then, if you are doing nothing wrong, should you be stopped?
    It's similar in my opinion, to someone saying: "I support the Second Amendment and the ability to carry concealed, but I don't think you should be able to carry openly." You either support the ability or you don't. If you ride the fence too much, you'll get a sore crotch. At some point you're going to have to get off on one side or the other.
    We either feel we have the right to carry within our local laws or we don't. We either support the Second Amendment and the rest of them or we don't. They are not multiple choice.
    At what point do we sit and look at this and say: "I don't mind if the cops pull me over, I'm legal and have nothing to hide." This may be true. You may have nothing to hide, but they still have no right to stop just on the premise that you are carrying a gun and they want to make sure you don't have a felony warrant out for attempted murder against a mother-in-law. At least they have no right to do so in the state of Montana. This does not fall under the legal allowability of a traffic stop. In Montana and according to MCA 46-5-401 they have to have "...a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense." None of this was met in my situation. I don't know about the rest of you, but I will not sit idly by while I watch local Law Enforcement trample on my rights, one by one. I don't care if it's the 1st, 2nd, 4th or any other Amendment and right. I will voice my distaste for this kind of infringement as long as I have a voice.
    Last edited by 40s-and-wfan; 04-24-2011 at 11:04 AM.

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