Arrested for carrying

(Edited)

This evening I was arrested for "Failure to follow a lawful order." by the police in Florida.

Here is a brief summation of the situation.

Someone shot into the house next door. I came out of my house armed, but the criminal was gone.

I holstered my sidearm, and since I can open carry legally on my own property, I left the gun on.

Officers came, looked, saw, and were doing paperwork when one noticed I was cvarrying. He asked me for my permit and I simply told him that I didn't need one on my own property. He said, "He's right, he doesn't" and left. A different officer saw that I was armed, and approaced me and ordered me to disarm (I was on my own property). I refused and again stated that I was within my rights and on my own property.

After conferring with the other officers, he ordered me back into my house. I again refused to comply, I was on my own property. He arreested me for "Failure to follow a lawful order," for not going into my house when he told me to... even though I was no where near the property that was shot at.

I sat in the car for a while, then they released me after a long chewing out but only after they took my weapon and refused to return it. I was not able to get a reciept.

So they did not file charges for anything, they took my gun, and left me standing there dazed and confused. I had done nothing wrong and the only reason they even approached me was because I was armed.

So, I have three questions.
Can a police officer enter onto your property and tell you to disarm even though it is your right to carry.
Can a police officer order you to go into your house even though you have not commited a crime.
Would those orders be considered "Lawful Orders," in Florida.

1. You don't say where/what state you were in - not that it matters in the US, but laws vary so help us out here. US Handgun law site would be a start for you.

2. Did you have your recorder on? Did you video anything. So it's your word against his. Recorder=gun returned. No Recorder=maybe file suit to get HG cost money??

I'd have obeyed the order and gotten a video and a badge number and you saying I am going back into my house but will you confirm I'm on my property we are not under marshal law, yada yada. Then fight it in court

You could even have put the HG back in the house and gone outside with an obviously empty holster - again, recorder and video cam turned on - your own property, informed officer you were recording him - videoed property line, etc. He can tell the judge you were in his face in the street, for example and you can't prove you weren't.

Good luck!

He cited you with a catch all phrase. Misdemeanor. Cost you $500 to fight it, I'd guess.

NavyLT said:

I don't know. Maybe it's just me.... I think if my neighbor's house had a shot fired into it, probably about the last thing I would do is wait in my front yard with a gun for the police to arrive. But, like I said, maybe that's just me.

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+1

Common sense is running low in his household.

Cheers

Mike

NavyLT said:

I don't know. Maybe it's just me.... I think if my neighbor's house had a shot fired into it, probably about the last thing I would do is wait in my front yard with a gun for the police to arrive. But, like I said, maybe that's just me.

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Thanks for the comment, but the guy that shot was long gone. The neighbor and I were talking on the opposide side of my property and were no threat to the police. We were minding our own business whne the officer came into my yard and demanded that I disarm.

GIdeon_70 said:

Thanks for the comment, but the guy that shot was long gone. The neighbor and I were talking on the opposide side of my property and were no threat to the police. We were minding our own business whne the officer came into my yard and demanded that I disarm.

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I always carry in my yard, Most the time open, I have enough respect of scared LEO's to cover it with my shirt even in my yard, They know I carry cause it is a known fact in my neighborhood and therefore they always ask me to please continue to keep it covered.. "don't show me yours and we won't show you ours.." this is the crap that Citrus County's LEOS they don't want you to have or use the rights we have to open carry on our own property and one time I had issues with them in my yard against my wishes and I demanded they leave or produce a search warrant or a arrest warrant and they had neither and I demanded a supervisor and they left.. The supervisor finally showed and apologized for their lack of knowledge, But the next time I seen them they said they were in the right... To be there and I was wrong for carrying as they said the neighbors could deem that as a threat to their safety..

Does anyone know if you can charge a LEO with no RAS/SAF not in pursuit of a crook/crime who comes into your yard with trespassing?

ISTM if they set foot in your yard when no one has complained, you are obviously the owner (saw watering your plants or painting the siding), and just SAW you and stepped into your yard that you could call 911 and claim they were trespassing you asked them to leave, they have no reason or warrant, you have no outstanding warrants, yadda, yadda, and they refused to leave.

Imagine the LEO standing in the street demanding your ID or telling you to go inside or telling you to disarm. It's ludicrous.

/fumes :cuss:

GIdeon said:

Can a police officer enter onto your property and tell you to disarm even though it is your right to carry.
Can a police officer order you to go into your house even though you have not commited a crime.
Would those orders be considered "Lawful Orders," in Florida.

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1) If you weren't the object of investigation, weren't doing anything wrong, no.
2) No.
3) No.

The Claim and exercise of a Constitutional Right cannot be converted into a crime.
Miller v. U.S., 230 F 2d 486. 489

Hope you got names. If not, file an open records request pronto, then schedule a sit-down w/ their supervisor.
Take a recorder, preferably one that doesn't look like a recorder (if FL is a 1-party recording state).
And if those records don't contain a property receipt, that's a whole 'nother reason to complain.

IMO, it's indefensible to say 'I was on my own property', b/c without a recorder and/or a video, the LEO can just say 'he walked out onto the street and got in my face', heck the LEO may even think he did so though the OC-er was careful to stay in his yard.

I don't think a judge would make a LEO -prove- the OC-er walked into the street, and would take the LEO's word, especially since this whole charade is so ridiculous a charge/order and not a legal 'failure to follow' order.

I mean can a LEO order you to get up off your porch and perform the Macarena dance and if you don't arrest you? I'm beginning to wonder.

Oh, where to begin...

Badge-he said Florida a couple of times. The real question is- what County?

I wont even go into the recorder issue, i've covered that 1000 times in here. Not doable in the State of Florida without consent. Period, end of story. Would likely have escalated things considerably for him if he tried to in this situation.

There's another solution though= Fla. police vehicles have the officer's # and name on the front 1/4 panels of the cars, except for FHP patrol cars. (in most counties) When in an encounter, make a note of them.

As to the OP. Hanging around outside, armed, when police are responding next door-probably not the best idea. Especially if they are responding to a "shots fired" type of call. All you need is one rookie idiot and the whole day can go to hell for you fast.

I almost found this out myself a few days ago. Was standing on my property talking to one of my neighbors about a situation down the street (w/ gee, imagine this, the very folks Im OC about to begin with) Said folks had allegedly pulled a gun on another neighbor during some argument or other.
A JSO officer arrived (as is typical, some 2 hours after being called by someone) ,and as it turned out, was a new officer to our Sector, who was not familiar with recent goings-on here. He saw I was armed and came over, and asked why I was OC.
I explained it to him as simply as I could., and that I was on my own property, and no threat to him or anyone.
My neighbor, for his part, chimed in and said "I want him armed like this-especially with that guy down the block whom you are here responding too, out and about".
We both informed the officer that were members of Shaco- and to contact the Chief for a briefing if he needed. The officer said no problem, and continued on to his call.
As he drove back by on his way out, he simply waved bye to me. No more issues.

These things can be handled amicably, and without drama. But-in the future, know your Sector, know the Chief of that Sector, and have the non-emergency number for your dept. on speed dial on the cell phone, if you have one. This way, if a bonehead insists on being less than brilliant,you just place a call and ask to have it sorted out.

For my situation, I'll be addressing that at the next Shadco meeting-politely- just as a reminder to them to have officers new to our sector briefed on what's been going on out here, and to remind them that every single time they see me here, I WILL be armed at all times. Just know that going in, will be my suggestion.

GIdeon_70 said:

(Edited)

This evening I was arrested for "Failure to follow a lawful order." by the police in Florida.

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Taking the firearm was definitely illegal.

j4l said:

Oh, where to begin...

[snip]

I wont even go into the recorder issue, i've covered that 1000 times in here. Not doable in the State of Florida without consent. Period, end of story. Would likely have escalated things considerably for him if he tried to in this situation. [snip]

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I'm curious. How does Florida ignore the reality that there have been many court decisions that say the recording of a conversation that is being held in public with no expectation of privacy, especially a conversation with a public servant that is acting in the public performance of his duties, is permissable? The jurisdictions that demand all-consent seem to be tying that to old wiretap laws that aren't really relevant to today's technology.

Is Florida saying that if I am sitting on a public park bench recording bird sounds, that I have to get the consent of anyone that is talking within the range of my recorder?

ETA: http://www.citmedialaw.org/legal-guide/florida/florida-recording-law

" Florida law makes an exception for in-person communications when the parties do not have a reasonable expectation of privacy in the conversation, such as when they are engaged in conversation in a public place where they might reasonably be overheard. "

Florida seems to currently be discarding the "privacy" aspect, and hammering the consent aspect-depending on the situation.
An upcomming case here, on this very issue will tell a lot about this soon.
She initially tried the "expectation of privacy" thing, in an effort to get the case tossed out. She was, literally, laughed out of the courtroom.



"UPDATE 3-28 5:05 pm

Trial has been delayed for Kathleen Harvey, the woman accused of taping a conversation with former Leon County Commissioner Cliff Thaell.

Assistant State Attorney Nathan Prince tells us tonight that Harvey came in and asked for a public defender and was granted one. So now a case management conference has been set for April 19th.

Last week, a judge denied Harvey's request to delay the trial because she was representing herself.

Harvey is accused of taping a conversation with Thaell in 2009, which is illegal under Florida law unless all parties agree to it."

http://www.wctv.tv/news/headlines/Secret_Recording_Case_in_Court_on_Election_Day_106443269.html


My other concern is a push supposedly underway by the Sheriff's Association and the Prosecuting Atty's Association (both of whom lobbied against our OC bill, btw) to try to get our legislature to follow the Illinois path, and simply make it illegal to record Police in the line of duty, and public officials in general, at all.
And their reason for this push? The very "defense" you guys so often suggest- of this "expectation of privacy".

Could he maybe get away with such a recording -for now?Possibly, but I would'nt have suggested it right now, and in his particular situation. If anything, I'd suggest he called the non-emergency number tell what's going on at that time, and ask for the chief, or call 9/11 while it's going on, since THAT get's recorded by the dept, and is on the record. Then they cant charge HIM with having done the recording,

Also, what get's ruled on in a court in VA, MD, etc. has zero bearing on what happens in Fla. Nor does a scenario involving birds have any relation to this one. Apples-Oranges..

NavyLT said:

I don't know. Maybe it's just me.... I think if my neighbor's house had a shot fired into it, probably about the last thing I would do is wait in my front yard with a gun for the police to arrive. But, like I said, maybe that's just me.

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You and I both agree on this one, Don't let it go to your head. HA HA

Rattrapper said:

You and I both agree on this one, Don't let it go to your head. HA HA

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But that begs the question - when does an order by an officer become unlawful? I have a state right and a constitutional right to carry. He gave me an order that preempted that right and placed me in danger bu trying to disarm me. He entered my property without legal cause, and ordered me to enter my house when I was doing nothing to warrant being treated that way. He claimed that I was interfering with a police investigation when I had had no contact with the police other than a question at the start of the adventure. I was standing with friends as far as I could get from the crime, and he saw me carrying and took offense.

So again, does a gun owner have to comply with an order that violates a persons constitutional right?

And the next question follows... how much do you need to give in order to keep the peace? How far are you willing to go with your rights... giving them up?

NavyLT said:

Look at it this way.....

Neighbor calls 911 and says, "Holy crap, someone just fired a bullet into my house? No, I don't have a description of the person, the damn bullet just came through my door/window/wall!"

Cop shows up. There's a person standing in the yard next door to the house, or two doors down from the house. You honestly think that situation doesn't present RAS to investigate the guy with the gun?

Did the officer(s) handle the situation improperly? Sounds like it. But I wouldn't rely on lack of RAS, in this case, as a defense.

Here's how I would handle the situation:

1. If I KNEW there were shots fired outside, or I knew the neighbor called about a shot fired into his house, the LAST thing I would do is go outside, and I absolutely would not go outside openly carrying a firearm. In my mind, that would be just about the dumbest thing I could do.

2. If I didn't know about the shots fired, and I was in the yard when the cops showed up. Yes, I would refuse to comply with officer's requests up until the point when he explained what was going on. If he explained what was going, then I would certainly show him ID with my address on it, point to my address and tell him I was on my own property, and offer him my weapon for inspection that it had not been recently fired.

3. In the above situation, if the officer never explained to me why he was harassing me, I would fully expect to be investigated, possibly detained, until they could sort things out. Granted, the officer's SHOULD have explained their actions, but if they didn't, and I was there coincidentally, then to me it's a simple case of...well, I was just at the wrong place, at the wrong time, carrying the wrong object for that place and time!

This is a completely different scenario than simply mowing the lawn with your gun on, or eating dinner with a restaurant with your gun on and the only reason for police investigation is a MWAG call.

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Indeed. Could have been handled better on both sides, but hard to arm-chair it without being there or having more info.
But yes, one should fully expect officers arriving to a shots-fired call to be a bit edgy to begin with, and more than a little cautious around someone walking around armed at /near the scene-whether they are fully in their rights to do so or not.
As for your sidearm, you have your neighbor as witness- and the 911 call that brought the officers in the 1st place- contact the chief, or a supervisor, and ask for some remedy.

NavyLT said:

Look at it this way.....

Neighbor calls 911 and says, "Holy crap, someone just fired a bullet into my house? No, I don't have a description of the person, the damn bullet just came through my door/window/wall!"

Cop shows up. There's a person standing in the yard next door to the house, or two doors down from the house with a gun. You honestly think that situation doesn't present RAS to investigate the guy with the gun?

Did the officer(s) handle the situation improperly? Sounds like it. But I wouldn't rely on lack of RAS, in this case, as a defense.

Here's how I would handle the situation:

1. If I KNEW there were shots fired outside, or I knew the neighbor called about a shot fired into his house, the LAST thing I would do is go outside, and I absolutely would not go outside openly carrying a firearm. In my mind, that would be just about the dumbest thing I could do.

2. If I didn't know about the shots fired, and I was in the yard when the cops showed up. Yes, I would refuse to comply with officer's requests up until the point when he explained what was going on. If he explained what was going, then I would certainly show him ID with my address on it, point to my address and tell him I was on my own property, and offer him my weapon for inspection that it had not been recently fired.

3. In the above situation, if the officer never explained to me why he was harassing me, I would fully expect to be investigated, possibly detained, until they could sort things out. Granted, the officer's SHOULD have explained their actions, but if they didn't, and I was there coincidentally, then to me it's a simple case of...well, I was just at the wrong place, at the wrong time, carrying the wrong object for that place and time!

This is a completely different scenario than simply mowing the lawn with your gun on, or eating dinner with a restaurant with your gun on and the only reason for police investigation is a MWAG call.

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This. +1 Sorry, normally, I'd side with property rights. But, standing around when an LEO shows up for an unknown shooter with a gun on your side, and then to complicate the situation by trying to play armchair lawyer isn't probably the brightest idea I've seen in awhile.

Remember, just because you CAN do it, doesn't always mean it's WISE to do it.

Thanks for everyone's input. I just want to say this. If we allow the police to circumvent our rights as they see fit, with little or no justification, how long will it be before the justification is so weak to be non-existent.

I carry openly everywhere I can, in parks, fishing, everywhere. I even carry openly driving my car, and cover it as I get out. I've been a huge supporter of open carry for years and years in my area... and the police know me (in a good way - mostly) and we have a good level of communication. Was it stupid to refuse to comply with the order? Probably, as officers right or wrong) never back down. I knew that the situation would not diffuse easily, but I really only had two choices. Give up my rights and just roll over, or stand my ground on my property and face the resiting issues. I would not be much of a man if I did not at least make an effort to stand my ground. I've seen people love a cause enough to go to jail for it, and I was willing to take that route.

A few month prior to this, I did not stand my ground and did roll over. I had a burglar in my back yard, and called 911 after I armed myself. The dispatcher told me to go into my house and clear/disarm or she would not allow the police to come to my house. She did hold the police off-site for a long while, and I compromised with her that I would holster my weapon but keep it on me. My reasoning is that if the officers take 30 minutes to get to my house, a LOT can happen by then. I've seen it take longer. I spoke with the police chief about that and HE told me that I did not have to disarm when the police arrive! I also spoke to a few of the patrol officers and they told me the same. I honestly though that if I told them I was the homeowner, he would ask for ID, then let it go.

The officer crossed the line when he ordered me to leave my yard and go into my house. I'm not a five year old. You don't ground me, you don't put me into a corner, and you don't send me to my room. You don't unlawfully come onto my property and start ordering me around! Not going to happen!

He also stole my firearm, and took it with him as "a lesson," to me to comply with police orders and that I don't HAVE any rights on my property.

This has to be addressed. Police have to know the law and what is allowed and what is not allowed. I'm contacting a lawyer in the AM to see what I can do - so thank you for your opinions. I will keep you updated on how it works out as things go along.

GIdeon_70 said:

Thanks for everyone's input. I just want to say this. If we allow the police to circumvent our rights as they see fit, with little or no justification, how long will it be before the justification is so weak to be non-existent.

I carry openly everywhere I can, in parks, fishing, everywhere. I even carry openly driving my car, and cover it as I get out. I've been a huge supporter of open carry for years and years in my area... and the police know me (in a good way - mostly) and we have a good level of communication. Was it stupid to refuse to comply with the order? Probably, as officers right or wrong) never back down. I knew that the situation would not diffuse easily, but I really only had two choices. Give up my rights and just roll over, or stand my ground on my property and face the resiting issues. I would not be much of a man if I did not at least make an effort to stand my ground. I've seen people love a cause enough to go to jail for it, and I was willing to take that route.

A few month prior to this, I did not stand my ground and did roll over. I had a burglar in my back yard, and called 911 after I armed myself. The dispatcher told me to go into my house and clear/disarm or she would not allow the police to come to my house. She did hold the police off-site for a long while, and I compromised with her that I would holster my weapon but keep it on me. My reasoning is that if the officers take 30 minutes to get to my house, a LOT can happen by then. I've seen it take longer. I spoke with the police chief about that and HE told me that I did not have to disarm when the police arrive! I also spoke to a few of the patrol officers and they told me the same. I honestly though that if I told them I was the homeowner, he would ask for ID, then let it go.

The officer crossed the line when he ordered me to leave my yard and go into my house. I'm not a five year old. You don't ground me, you don't put me into a corner, and you don't send me to my room. You don't unlawfully come onto my property and start ordering me around! Not going to happen!

He also stole my firearm, and took it with him as "a lesson," to me to comply with police orders and that I don't HAVE any rights on my property.

This has to be addressed. Police have to know the law and what is allowed and what is not allowed. I'm contacting a lawyer in the AM to see what I can do - so thank you for your opinions. I will keep you updated on how it works out as things go along.

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Your initial post stated this encounter occurred in Florida. I'd be inclined to ask where you got the idea that carrying openly while in your car is lawful. You also state you carry openly in parks, but by the way you phrase it, it is separate from the act of fishing. Could you clarify please?

NavyLT said:

Respectfully, you had a third choice and a fourth choice...



3. MYOB and stay in your house to begin with.

4. After "investigating" and determining the perpetrator was gone, MYOB and return to your house.

You went outside investigating a crime that did not involve you and then you stayed in your yard waiting for the excitement to happen, and you got what you were hoping for.

I wear my gun for protection. Not for hunting down criminals fleeing the scene of a crime to which I was not even a witness.

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Ouch, I thought I WAS supposed to be the harsh/mean one here lol.
Valid points though.

And no, you dont have to "give up rights" or anything. But the only thing that gets damaged when you take the mature course might be your pride. Better that-and deal with the dept.-raise the concerns after via superiors, than risk losing the gun, or your life- just to make a point.
You arent going to be educating any officers on the scene, at the time. If they are inclined to be idiots and/or spiteful pricks, they are going to be so, and they will have the badge and the dept. to back them up.

Hopefuly a lawyer will come up with something, secure your sidearm for you, and raise the issue with the Chief/Cpt or sheriff, and perhaps settle things out- while "educating" the officers in question.
Good luck.

You can't do the Macarena with a gun, aparently.

I've had LEOs take my gun during a traffic stop and refuse to return it. No cause, no reason. I was CC at the time (w/ permit). More than one occasion. All in one county, and only in that county. So I'm saying this happened in Pinellas, it's SOP there. I had to get a copy of my 4473 before they gave it back to me, no mag, no ammo. Claimed they never received that in the first place on every occasion this happened to me.