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Thread: Requirement to show CHL during traffic stop?

  1. #1
    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    Requirement to show CHL during traffic stop?

    If an officer pulls you over and finds out you have a CHL, are you required to show it (assuming you haven't admitted to having a concealed weapon)? I'm guessing that there is no requirement since I haven't found any information that says otherwise, but I figure somebody here might know the answer. Thanks!

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    here in oregon you are not required to notify LEO about your CHL or carry status.but you are required to produce it if you are carrying concealed and asked for it.
    Last edited by Teddybearfrmhell; 10-01-2011 at 08:58 PM.
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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    Can I get a citation?

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    Quote Originally Posted by bigtoe416 View Post
    Can I get a citation?
    for what? if its not illegal, then what are you being cited for?
    *Disclaimer~ I am not an attorney, i do not give legal advice. Any opinion stated here is in no way meant to insinuate, imply, compel or encourage that you should do anything that is illegal either knowingly or otherwise. My answers however valid may not be complete or applicable to your individual situation. I strongly recommend that you do your own research, make your own decisions and hire an attorney for legal advice ~

  5. #5
    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    Quote Originally Posted by Teddybearfrmhell View Post
    for what? if its not illegal, then what are you being cited for?
    Hahaha...no, I didn't mean can I get a ticket for it. I was asking you if you could cite the law regarding showing a CHL when an officer asks for it if the officer has no idea if one is carrying concealed. Sorry for the misunderstanding.

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    i cant cite a law that doesnt exist, if there is no law saying that you must volunteer the info, there is nothing to cite.

    the following is a quote taken directly from the washington county application

    "Attention all Concealed Handgun License Holders:
    You must carry your valid concealed handgun license with you whenever you carry a concealed handgun. Failure of a person who carries a concealed handgun also to carry a concealed handgun license is prima facie evidence that the person does not have such a license.
    It is the responsibility of the individual license holder to be aware of the expiration date of their license and notify the Sheriff's Office."

    and this is the last paragraph on the marion county sheriff ccw web page....

    " possession of a concealed handgun without having a valid, current Concealed Handgun License with your current address on your person may result in your Concealed Handgun License being SEIZED and REVOKED. Always carry your CHL with you when in possession of a concealed handgun and make an appointment to have your card updated in the event you move to a new address or change your name."

    so, while you need not volunteer the info, if you are found carrying concealed you must provide your card or you will be arrested and your gun may be siezed and the chl can be revoked.
    *Disclaimer~ I am not an attorney, i do not give legal advice. Any opinion stated here is in no way meant to insinuate, imply, compel or encourage that you should do anything that is illegal either knowingly or otherwise. My answers however valid may not be complete or applicable to your individual situation. I strongly recommend that you do your own research, make your own decisions and hire an attorney for legal advice ~

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    OFF has a version of a MCSO pamphlet on Concealed Carry,

    http://oregonfirearms.org/pdfs/Restr...dProtocals.pdf

    2nd page, under "Basic Concealed Handgun Protocol",

    The law does not require that you volunteer to the
    officer that you have a firearm and CHL

  8. #8
    Regular Member We-the-People's Avatar
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    Quote Originally Posted by bigtoe416 View Post
    Hahaha...no, I didn't mean can I get a ticket for it. I was asking you if you could cite the law regarding showing a CHL when an officer asks for it if the officer has no idea if one is carrying concealed. Sorry for the misunderstanding.
    IANAL and this is NOT legal advice, just the way I read the law of the state of Oregon.

    Carrying a concealed firearm is a Class A misdemeanor per ORS 166.250. There is no exception in that statute for a CHL holder.
    ORS 166.260 however, provides that 166.250 does not apply to CHL holders.
    ORS 166.262 then provides that peace officers cannot arrest for violation of ORS 166.250 or 166.370 if the person has a CHL IN THEIR IMMEDIATE POSSESSION.
    ORS 166.370 (3) (d) then provides an exception to the prohibition on carry in "public builings" by persons with a CHL.


    Therefore, the way the law operates in our system, you would be subject to arrest for violation of ORS 166.250 (or 166.370) if you cannot produce a valid CHL for the officer when concealed carry or carry openly or concealed in a "public building". Therefore, you must show the officer your CHL....or risk being arrested.

    It should be noted that the ORS 166.260 (h) exemption from 166.250 and the 166.370 (3) (d) exception for "public buildings" do not require the CHL to be in possession, merely that one "is licensed". So, while you would be subject to arrest if you can't produce the CHL, you SHOULD (remember the courts can be screwy) be found not guilty (or the charges dropped) once you produce the CHL that was valid at teh time of the encounter.

    REMEMBER I AM NOT A LAWYER, THIS IS NOT LEGAL ADVICE.
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  9. #9
    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    I've been thinking about the following hypothetical situation today and was wondering if people agreed or disagreed with my assessment:

    You're in a public library open carrying. A police officer approaches you and asks for your CHL. Now obviously under 166.370, one has to have a CHL in order to be in the library lawfully. But does the police officer have RAS or PC to detain or arrest you by you being in the library with an openly carried firearm? I believe he cannot detain nor arrest.

    If one was to be concealed carrying, and a police officer somehow became aware of it, then under Oregon law he could probably arrest you because of ORS 166.292:

    Failure of a person who carries a concealed handgun also to carry a concealed handgun license is prima facie evidence that the person does not have such a license.
    The officer would likely argue that since no license was produced, then that constituted prima facie evidence that no license existed, and hence PC existed for arrest. Whether or not this is constitutional is a question I won't deal with here.

    But in the open carry in the library case, there isn't a ORS code that says prima facie evidence exists if one cannot produce a CHL when in a public library and carrying openly. Can the officer detain you or arrest you? I would think he cannot. There isn't a reason to suspect you've committed a crime.

    I started to wonder about this today when I was reading about a case from Connecticut called Golbberg v. Glastonbury, where a man was arrested for open carrying in a state where a license is needed to open or concealed carry. The guy's lawyer argued (unsuccessfully) that the officers lacked RAS to detain him, let alone arrest him since having a firearm isn't any indication that a crime has been committed. I tend to believe this argument even though it lost in district court.

    Sorry if I'm being pedantic over what is and isn't allowed. I'm just curious about any case law or statutes I am unaware of.

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    Regular Member VW_Factor's Avatar
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    I don't think the first thought of an LEO is going to be for a CHL, given that you are OC in the situation. I think they'd go the for ID angle first..

    That is an interesting situation and thoughts about it as well.
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  11. #11
    Regular Member We-the-People's Avatar
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    I understand where you're going with this but I don't think it would fly either in the courts or on the streets.

    166.370 (3)(4) states that the CHL exception in 166.370 (3) is an "affirmative defense" to a charge of violating 166.370 (1). I believe this changes the legal dynamic to you being statutorily guilty but the CHL provides an "affirmative defense". Thus the officers are able to detain you for suspicion of violating 166.370 until you produce a CHL.



    166.370 makes it a crime, a Class C felony, to possess a firearm in a "public building", as defined by 166.360.

    166.370 (3) (d) provides an EXCEPTION to the prohibition on carrying in a "public building". To obtain the exception you must show that you are a person who rates one of the exceptions (by showing the CHL).

    In addition, 166.380 specifically authorizes an officer to examine a firearm carried in a "public building" to determine if it is loaded and refusal "constitutes reason to believe that the person has committed a crime". This one is stupid since it's unlawful to carry without a CHL and lawful to be loaded with a CHL. The law should removed or changed to statutorily require production of the CHL (which is defacto the law anyway)...of course constitutional carry would be even better but lets be real about the current status of our legislature.

    As the second amendment stands in case law now, I feel Oregon LEO's are on pretty solid ground to make a short detention to determine if you have a CHL and examine to see if you are loaded. Silly if you have a CHL to handle your firearm as it is lawful loaded or not but that is the law as it stands.

    Interestingly, there is no penalty (i.e. it is not a crime) to refuse the 166.380 examination. It merely allows the officer to arrest you under suspicion that you have committed a crime. Unsaid but implied, violation of 166.370. Theoretically, if you have handed him a valid CHL that suspicion would have already been dashed. If you did not, once you were arrested and he "found" it, suspicion of having committed a crime would be dashed. I can't imagine why someone would do this and I'm also sure they'd throw anything and everything they could think of at you if you played this game.

    Also interesting is that under 166.370 (3)(d), the EXCEPTION is not if you have a CHL in your possession but merely that you are licensed. So if you screwed up and left it in the car or your other pants, while you might be arrested (they can access that you have CHL by your name and address I'm sure), charges should be dropped when the valid CHL is produced.

    Which brings us back to the original question and a further wonderment.....what if you do not have the CHL in possession, refuse to give ID, and refuse to a load condition examination by an officer? By the black letter of the law it seems to me that no crime has been committed (though you are subject to arrest on suspicion of no CHL) and so all charges should be dropped. BUT.....what if, in the process of identifying you the dispatch returns the information that you do indeed have a valid CHL? The officer is going to be pissed but technically it seems he would have to let you go. I'm guessing that's not how it would work out though.

    Any actual lawyers or anyone with any case law citations that might address this?
    Last edited by We-the-People; 10-11-2011 at 02:44 AM.
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  12. #12
    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    I agree that the police would probably just arrest and sort it out afterwards. I'm slightly more confident about the courts potentially looking into the legality of a detainment or arrest.

    Maybe we can figure out the correct legal response by comparing other cases to this hypothetical one.

    In Florida v. J.L. an anonymous caller reported a minor carrying a concealed handgun. The caller accurately described what the minor was wearing. The cops show up, do a Terry stop, find the gun, and arrest him. The Supreme Court says the police lacked RAS to even detain him because they declined
    ...to adopt the argument that the standard Terry analysis should be modified to license a "firearm exception," under which a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing.
    We can agree that if I'm standing outside a library with a concealed weapon and somebody anonymously reports that I'm carrying a concealed weapon without a license that the police would be unable to detain me. If I move inside the library does this change at all? I don't think so, the police still can't detain me because they lack RAS. There's a Second Circuit opinion called U.S. v. Ubiles that echos this logic (and probably lots of others that I am unaware of).

    So now we're concealed in the library. What happens when we start open carrying? Well, for one thing, now the police are absolutely sure that a firearm is present whereas before they only has an anonymous tip. Do the police have RAS now? In Delaware v. Prouse the Supreme Court said that a driver of a motor vehicle cannot be stopped solely to check their license:
    Except where there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment.
    It would seem that the same logic could apply in this case. The police could stop you if they had RAS for something else, but the mere presence of a firearm doesn't grant RAS.

    Where my logic starts to get iffy is the fact that a library is a public building and perhaps the courts would find that it is a "sensitive place" (from Heller), and thus the ability to carry a weapon there is a privilege and not a right. Perhaps the courts would be more willing to grant a "firearm exception" in that case, but perhaps the courts would think that since licensed individuals can carry firearms in a library, that it isn't truly a sensitive place, and thus is the same as any other place a firearm may be carried.

    I think the weak point in my argument is the sensitive place bit. Thanks for the feedback.

  13. #13
    Regular Member We-the-People's Avatar
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    There is a difference between the rivers license stop and an open carry in a public building stop.

    While the two seem to be the same...i.e. you need a government issued license...there is a very subtle difference.

    The violation for driving without a license is that you do not have a license, not that you were operating the vehicle on the roadway and the license grants you an exception to the crime.

    It is a crime to posses a firearm in a public building in Oregon but if you have a CHL you meet one of the limited exceptions to the statute.

    It's a subtle difference but the two are different. Add the 166.380 statute that authorizes an officer to examine the load condition of your firearm (with no mention of a CHL exemption) and the officer has statutory authority to detain you (how else could he examine your weapon).
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  14. #14
    Regular Member hermannr's Avatar
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    It has been my understanding (as a past resident of OR) that, in OR, if you are in a public building, and you are asked by LE to present your CPL, you need to do so.

    If you are not in a public building, unless you are being detained for some reasonable suspician of soem ilegal activity (just having a pistol on your person does not qualify), you do not need to show your CPL.

    I am not a lawyer, just an old man.

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