Citizen
Founder's Club Member
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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Pulled Over for OC'ing in Kalispell
- Thread starter 40s-and-wfan
- Start date
Classic! Lotsa potential to start a losing argument while the cop hunts for something he gin up against ya. But, classic!
stuckinchico
Regular Member
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
ANd i hand them a pamphlet that refers to firearms not meeting RAS requirements
zekester
Regular Member
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...
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KBCraig
Regular Member
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.
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40s-and-wfan
Regular Member
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.
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.
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MT4Runner
Regular Member
40s-and-wfan, I haven't checked into the oc.org forum for awhile, and I was shocked when I read this thread.
I don't want this happening in our town, either!
How can I help?
I'm down for the first $100 to your attorney.
I don't want this happening in our town, either!
How can I help?
I'm down for the first $100 to your attorney.
Gunslinger
Regular Member
You're rights were violated. You need to file a complaint against this clown.The stop was unlawful, period, and conduct like that in MT is incredible and must be stopped. You also had no legal duty to show him ID or answer any questions, and should have refused. You weren't driving, and your wife committed no violation. Where did this dick come from, Maryland? I encourage you to take action. There is no sense in living in a free state when cops think they can walk all over your rights.
Gunslinger
Regular Member
Delaware isn't Montana. Neither is CT or NY or IL. I'd put as much credibility in what some "retired" cop says as I would in eye95's opinion of police misconduct--were there such a thing....
Gunslinger
Regular Member
If the cop is that gutless, he should look for another line of work. The guy was with his wife, remember. If he's "uncomfortable" he should have his mommy knit him a sweater. I understand you're being hypothetical--to the extreme, but no court will entertain this as reasonable suspicion under the totality of circumstances. Nothing but peaceful passage occured and OCing presents no more RAS than carrying a fishing pole indicates you intend to fish at the aquarium.
Gunslinger
Regular Member
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.
As a Yankee fan, I'm suspicious of everyone...have never pulled a gun on a Red Sux fan, however...
hermannr
Regular Member
Local Law enforcement enforces local statutes. Federal law forcement (intentional sp) forces National Law. When was the last time you say a Federal LEO patrol a school zone? 1962?
The guy may not have had the absolute "right" to stop you, but he did. The most I would do is call on his supervisor and ask that the individual obtained a bit more training in Montana firearm carry law and what constitutes a legal reason to stop someone.
The guy may not have had the absolute "right" to stop you, but he did. The most I would do is call on his supervisor and ask that the individual obtained a bit more training in Montana firearm carry law and what constitutes a legal reason to stop someone.
instead of taking the easy way out and assuming you can solve the problem just by hassling your average cop, you should take it higher to where the problem really lies - education. If a plumber apprentices someone but they dont know jack then once that apprentice is in the field HE wont know jack..... So if cops go out with bad training then they wont do their job correctly.
You only need about 6 months (if that) worth of training to become a police officer and a couple trips over the monkeys bars and laps around the precinct and you are one of the nations finest.
Trigger Dr
Regular Member
The letter has been passed down to us from Mike and John.
1. Print this out and
make changes as necessary to get it to the police chief, city attorney, and city council. Mail it return receipt requested. Mail a copy to yourself and keep it sealed when it arrives.
Chief of Police
1. At present, your officers are unlawfully harassing and persons lawfully open carrying handguns **secured in holsters** on foot in your jurisdiction. Please take action to ensure your officers are brought up to speed with the authorities cited in this discussion regarding the law of open carry in Washington.
2. Non-consensual police stops of open carriers for simply open carrying is per se unlawful.
As you and your officers should already know, it is not unlawful to openly carry handguns in Washington, and that like most states, no license is required to open carry on foot, and local ordinances to the contrary are unlawful as a matter of state preemption law. RCW 9.41.290. The United States Supreme Court has established that it is a violation of the Fourth Amendment for the police to seize a person absent reasonable articulable suspicion ("RAS") of crime afoot. Terry v. Ohio, 392 U.S. 1 (1968). Accordingly, the Washington Court of Appeals has recently affirmed a trial court's holding that Washington law "does not and, under the Constitution, cannot prohibit the mere [open] carrying of a firearm in public." State v. Casad, 139 Wash.App. 1032 (Wash. App.Div.2 2007) (suppressing evidence of unlawful possession of firearms because stop of Defendant was not grounded in reasonable articulable suspicion of any crime).
Further, even during a valid Terry stop, the United States Supreme Court forbids police to even conduct a light pat down or seize weapons unless the subsequent to RAS for the stop, the "an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is [both] armed and presently dangerous to the officer or to others." 392 U.S. at 24. Stated another way, only "o long as the officer is [both] entitled to make a forcible stop, and has reason to believe that the suspect is armed **and dangerous** . . .may [he] conduct a weapons search limited in scope to this protective purpose." Adams v. Williams, 407 U.S. 143, 146 (1972) (emphasis added). So even if there were there to come a time that a Washington law enforcement officer properly seizes a person pursuant to RAS for brief investigatory purposes, the officer is not entitled to seize an openly carry weapon absent "reason to believe that the suspect is . . . [also presently] dangerous." Id. Should an open carrier stopped validly under Terry consensually produce a Concealed Pistol License, this fact weighs heavily against any officer's claim that the suspect is "presently dangerous" such that the gun maybe lawfully seized and serial numbers obtained. Accordingly, suppression of any evidence obtained in seizing the gun is likely under these circumstances.
3. Nonconsensual stops of open carriers to demand identification or check gun serial numbers is unlawful in Washington.
A mere report of a man with a gun is not grounds for a Terry stop. Florida v. J. L., 529 U.S. 266 (2000). Americans cannot be required to carry and produce identification credentials on demand to the police. Kolender v. Lawson, 461 U.S. 352 (1983). Washington does not have a "stop and ID" statute. However, even where a state enacts a "stop and ID" statute, stop must be limited to situations where RAS exists of a crime, and further, stop subject's statement of his name satisfies the ID requirement as Kolender, discussed supra, has not been overruled. Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004). Even where a state has established a duty to carry a license for some activity, absent RAS for the stop, the license cannot be demanded. State v. Peters, 2008 WL 2185754 (Wis. App. I Dist. 2008) (driver of vehicle has no duty to produce driver's license absent RAS) (citing Hiibel). Law enforcement officers seizing persons for refusal to show identification are "not entitled to dismissal of . . . [42 USC 1983 claims] based on qualified immunity." Stufflebeam v. Harris, 521 F.3d 884, 889 (8th Cir. 2008).
4. Editorializing against open carry is not the province of law enforcement.
If your officers have any objection to open carry, they should contact their state legislator on their off duty time and not use the color of authority behind their badges and uniforms to stifle both the right to bear arms and the First Amendment right of expressive conduct to open carry firearms.
5. Unlawful stops of open carriers will result in suppression of evidence even if unlawful conduct is uncovered, allowing criminals to get off the hook.
In Casad, see supra, the Appeals court suppressed evidence of the unlawful possession of firearms because law enforcement seized a man for merely openly carrying firearms in public. This result is not unusual, see Goodman v. Commonwealth, 2007 WL 2988343
(Va.App. 2007) (same result as Casad), because the result is as a matter of federal Constitutional law commanded by the United States Supreme Court. As discussed supra, see Florida v. J. L.; Hicks.
6. No qualified immunity available for law enforcement officials regarding open carrier harassment in Washington.
As it is clearly established law that the open carry of handguns in holsters is lawful without a CPL, qualified immunity does not attach to your officers for the unlawful harassment, ID checks, see Stufflebeam, discussed supra, and gun serial number checks, see also Hicks and J.L, discussed supra. Further, by way of this webform email I am putting you as the Chief of Police, and the Office of the Chief of Police, of actual notice in this matter, subjecting you to personal liability for damage claims under 42 USC 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989); Ex parte Young, 209 U.S. 123 (1908).
7. In conclusion, please know that it is the constitutional right of open carriers to enjoy the same freedom of movement and right of assembly in society as those wishing to carry concealed, or not at all. The purpose of law enforcement is to help ensure open carriers enjoy these freedoms, not to stifle them. Please contact me by email at your earliest convenience to confirm that your officers will cease harassment of open carriers immediately.
Sincerely,
YOUR NAME
ADDRESS
PHONE NUMBER
Added:
Maybe print out a bunch of these to hand out to the police at the picnic, IF they show up.
1. Print this out and
make changes as necessary to get it to the police chief, city attorney, and city council. Mail it return receipt requested. Mail a copy to yourself and keep it sealed when it arrives.
Chief of Police
1. At present, your officers are unlawfully harassing and persons lawfully open carrying handguns **secured in holsters** on foot in your jurisdiction. Please take action to ensure your officers are brought up to speed with the authorities cited in this discussion regarding the law of open carry in Washington.
2. Non-consensual police stops of open carriers for simply open carrying is per se unlawful.
As you and your officers should already know, it is not unlawful to openly carry handguns in Washington, and that like most states, no license is required to open carry on foot, and local ordinances to the contrary are unlawful as a matter of state preemption law. RCW 9.41.290. The United States Supreme Court has established that it is a violation of the Fourth Amendment for the police to seize a person absent reasonable articulable suspicion ("RAS") of crime afoot. Terry v. Ohio, 392 U.S. 1 (1968). Accordingly, the Washington Court of Appeals has recently affirmed a trial court's holding that Washington law "does not and, under the Constitution, cannot prohibit the mere [open] carrying of a firearm in public." State v. Casad, 139 Wash.App. 1032 (Wash. App.Div.2 2007) (suppressing evidence of unlawful possession of firearms because stop of Defendant was not grounded in reasonable articulable suspicion of any crime).
Further, even during a valid Terry stop, the United States Supreme Court forbids police to even conduct a light pat down or seize weapons unless the subsequent to RAS for the stop, the "an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is [both] armed and presently dangerous to the officer or to others." 392 U.S. at 24. Stated another way, only "
3. Nonconsensual stops of open carriers to demand identification or check gun serial numbers is unlawful in Washington.
A mere report of a man with a gun is not grounds for a Terry stop. Florida v. J. L., 529 U.S. 266 (2000). Americans cannot be required to carry and produce identification credentials on demand to the police. Kolender v. Lawson, 461 U.S. 352 (1983). Washington does not have a "stop and ID" statute. However, even where a state enacts a "stop and ID" statute, stop must be limited to situations where RAS exists of a crime, and further, stop subject's statement of his name satisfies the ID requirement as Kolender, discussed supra, has not been overruled. Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004). Even where a state has established a duty to carry a license for some activity, absent RAS for the stop, the license cannot be demanded. State v. Peters, 2008 WL 2185754 (Wis. App. I Dist. 2008) (driver of vehicle has no duty to produce driver's license absent RAS) (citing Hiibel). Law enforcement officers seizing persons for refusal to show identification are "not entitled to dismissal of . . . [42 USC 1983 claims] based on qualified immunity." Stufflebeam v. Harris, 521 F.3d 884, 889 (8th Cir. 2008).
4. Editorializing against open carry is not the province of law enforcement.
If your officers have any objection to open carry, they should contact their state legislator on their off duty time and not use the color of authority behind their badges and uniforms to stifle both the right to bear arms and the First Amendment right of expressive conduct to open carry firearms.
5. Unlawful stops of open carriers will result in suppression of evidence even if unlawful conduct is uncovered, allowing criminals to get off the hook.
In Casad, see supra, the Appeals court suppressed evidence of the unlawful possession of firearms because law enforcement seized a man for merely openly carrying firearms in public. This result is not unusual, see Goodman v. Commonwealth, 2007 WL 2988343
(Va.App. 2007) (same result as Casad), because the result is as a matter of federal Constitutional law commanded by the United States Supreme Court. As discussed supra, see Florida v. J. L.; Hicks.
6. No qualified immunity available for law enforcement officials regarding open carrier harassment in Washington.
As it is clearly established law that the open carry of handguns in holsters is lawful without a CPL, qualified immunity does not attach to your officers for the unlawful harassment, ID checks, see Stufflebeam, discussed supra, and gun serial number checks, see also Hicks and J.L, discussed supra. Further, by way of this webform email I am putting you as the Chief of Police, and the Office of the Chief of Police, of actual notice in this matter, subjecting you to personal liability for damage claims under 42 USC 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989); Ex parte Young, 209 U.S. 123 (1908).
7. In conclusion, please know that it is the constitutional right of open carriers to enjoy the same freedom of movement and right of assembly in society as those wishing to carry concealed, or not at all. The purpose of law enforcement is to help ensure open carriers enjoy these freedoms, not to stifle them. Please contact me by email at your earliest convenience to confirm that your officers will cease harassment of open carriers immediately.
Sincerely,
YOUR NAME
ADDRESS
PHONE NUMBER
Added:
Maybe print out a bunch of these to hand out to the police at the picnic, IF they show up.
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