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Thread: Asking LEOs about OC

  1. #1
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    Asking LEOs about OC

    There's a recurring theme about; many people who are interested in open carry ask police and other law enforcement about open carry as if they are asking permission. Don't. There is a lot of bad information coming out of police departments around the state who do not know OC is legal, or do know and intentionally give out bad information. OC is not a crime, and this has been proven again and again... in the courts of the State of Alabama. That's why there is a list of court cases on the some website:
    [redacted]

    When cornered, many officials have commented that the Attorney General's opinion carries no weight, that it is just an opinion. However, no less than six cases have affirmed or upheld the AG's opinion and the right to openly bear arms. Still further cases state The State's position, most of which cite each other. This is clear indicator of jurisprudence regarding the right to bear arms in the state of Alabama.

    However, there is no protection against either an unlawful or a lawful arrest regardless. When you step out of the door in the morning, whether you have a gun on your side or not, you have no protection against a well-meaning but misinformed officer arresting you if he has probable cause (PC) or reasonable articulate suspicion (RAS) that a crime has occurred in his presence.

    At [redacted], we exercise our rights, but we also inform and educate. It's unfortunate that in this state, the right to bear arms is not respected as well as it should be. Because of this, if one is open carrying, one should become familiar with the process of an arrest and how to secure one's rights should an interaction occur.

    Many of us have taken to carrying voice and/or video recorders, and uploading the audio after interactions with law enforcement. This helps several ways; the OCer can peer-review his actions and determine what could have been handled better. For law enforcement, it's complete transparency of actions, and can help them review specific interactions as well.

    As many of you are discovering, some of the interactions in the past weren't handled the best way possible by either or both actors. Some people exercise rights closer to the letter of the law and/or case law than others.

    In general:

    1) Don't ask for permission from the DA, sheriff, or any other law enforcement personnel.
    2) Don't confront the DA, sheriff, or any other law enforcement personnel.
    3) Don't ask for any opinions from any of the above.
    4) Try to be respectful, and understand the process of an arrest.

    There are certain times during a detainment when specific questions may be asked that define if the officer's actions are lawful or unlawful. We've discussed this at length in the forums on [redacted]. It has been generally suggested that if you are being disarmed to request that the holster be removed with the firearm in it. However, if you are being disarmed, this may be a clear indicator of either a misinformed officer, a pending arrest, or some other situation you are unaware of or just walked into.

    5) Understand that we must respect others rights on their property. If there is a sign up that says "no firearms", please respect that. While that sign carries no weight under law, once one is approached by "someone in charge" and asked to leave, one must. Or that person will be charged with trespassing.

    A caveat: sometimes a law enforcement officer, in uniform, will be working for that business owner. This is a very confusing situation since, at first contact, it appears that the police officer is enforcing private property rules, not public law. If you make contact with a police officer under these circumstances, ask questions if the officer is on-duty or off-duty and if they are working for that store or representing the owners or management of that store. It is entirely possible that the store management may ask that you leave the premises based on fear or a lack of understanding of firearms but be too scared to approach you.

    The ability to enter to another's property while armed is based on private property law, which oddly enough allows one to occupy a structure (squat) until told by the property owner or management to leave. Again, signs don't carry the weight of law, but it is best to respect those signs (and vote with your dollars by shopping elsewhere).

    6) Right now, if you openly carry, you do so at your own peril.

    Do not expect your local law enforcement to be up on the laws regarding OC. You may hear questions like "Where did you get that?" and comments, "That's just people on the internet making stuff up." This is why I personally carry a folder with the [redacted] AND copies of several cases.

    It seems at times that the rallying call of open carriers across the nation has become the phrase "cite please." I've personally been told that it's against the law to carry a gun into an establishment that sells alcohol. Neither my pistol license nor my many searches of The Code Of Alabama of 1975 has uncovered such a law. When I've asked the people who tell me this law exists, they can't point me to it. Therefore, I assume such law does not exist.

    7) If you are arrested and choose to defend yourself in a court of law, you do so at your own peril. Some courts are very friendly to pro se defendants, some are not. If you admit to doing a given thing under oath, and that thing is the reason why you were arrested, do not be shocked when you are found guilty. You admitted guilt, under oath, in a court of law. It doesn't matter if the charge was bogus or not even a violation -- you admitted you were guilty. Anything you say after "Yes, I did it" -- even if it starts with "but" is superfluous. Courts of Law aren't Judge Judy, Wapner, Alex, Greg Mathis, or Joe Brown. That's why you hire a lawyer to represent you -- so you don't unwittingly undermine your own case. If you hire a lawyer and your lawyer wishes to settle, you may want to go lawyer shopping. Again, OC is not a crime, but there is no guarantee against a lawful or unlawful arrest.

    8) Generally speaking, it's not a good idea to carry a gun while drinking, even if drinking causes half of the reasons that you'd need a gun. My source for this information is Massad Ayoob, who has written many books on the subject of carrying guns.

    9) Last but not least, if you're openly carrying a gun, you're an ambassador for gun owners everywhere, and to some extent, for [gun-related organization]. Please try to be professional and friendly to the public, but understand that many times, you must be the bigger man and walk away from situations rather than allow them to escalate. Some refer to this as "verbal judo", or "verbal aikido". When dealing with law enforcement, you have to be pickier about how you interact because you don't know what is about to happen, and you may choose to exercise certain rights.

    People will do incredibly dumb things, like walk up to an obviously armed man and insult him several times by making very crude remarks. Some folks who don't understand the Second Amendment barely grasp the First Amendment. Remain calm, and keep your cool. Not everyone was born with common sense.

    10) Remember that you are not a police officer. Your gun is on your side to protect yourself. The Right to Bear Arms in the state of Alabama states (Section 26, Constitution of 1901 and prior constitutions) that the right to bear arms in defense of self and state shall not be infringed. You have NO duty to protect anyone around you, or to detain or arrest anyone.

    If, for some reason, you decide to perform a citizen's arrest remember that a law enforcement officer can only arrest for a misdemeanor if he sees it happen (or it happens in his presence). Felonies are a different ball game. However, criminals still have rights too, and you open yourself up to a civil lawsuit for excessive force, illegal arrest and so on. Leave the policing to the professionals. They are paid for it. If you want to be a police officer, go apply. Get to a gym and start working out.

    11) Understand and know what "deadly force" means, and for what reasons it may be used under law. Understand that those reasons are defined as "DEFENSES" under law. That means if you use deadly force, you will be arrested, and you will be tried. One of those "defenses" will set you free -- if and only if it is followed to the letter of the law.

    If you have to discharge your firearm, call a criminal defense lawyer. Better yet, have one in mind already. Or several.

    12) Your firearm is on your side to either remain there, or to be used. Please research this topic on your own time. There are many books on the matter.

    Massad Ayoob has written quite a few, as has Col. Jeff Cooper.

    13) Do NOT under any circumstances fidget with your gun in public. Do not reach down and snap or unsnap the retention device on your holster. Do not place or rest your hand on it. Do NOT turn the safety on and off. Do not adjust it. If you don't like something about your holster, adjust it at home with an unloaded weapon.

    14) Make sure that the holster you choose protects the trigger from accidental operation.

    (Understand that if you do have an accidental or negligent discharge and it's caught on tape, the internet will be making fun of you for the next five years even if the news media stops after a week.)

    15) Take a self-defense class and/or learn some non-lethal self-defense tactics. Not every situation warrants the use of deadly force and it's nice to have alternatives.

    16) Know your firearm. Know how to unholster it safely, and how to unholster it when you need to use it. Practice.

    Some firearms have gotchas. One [gun-related organization] member was directed by law enforcement to drop the hammer on a 1911 pistol with a round in the chamber (cocked and locked). The member declined because he'd previously heard about accidental discharge in that situation and also experienced it at the range by coincidence. Not every police officer is an expert at firearms. It may be assumed that since you are the owner of your firearm, you may know a few more things about a particular firearm than the police officer. It's entirely possible that you'll be treated like a complete idiot. There are at least two people there with firearms, and both for the same reason. For the safety of both the officer and yourself, we recommend that if you are to be disarmed, that you request that the firearm be removed IN the holster, no matter how degrading that may appear to be for both parties. You're not going to be thrilled about it, but it looks even worse for the police officer (particularly if you're using an in-belt holster). Remember, at the end of the day, regardless of lawful or unlawful, safety is key.

    17) Consider the things that you do and how you wind up talking to police.


    If you're a frequent speeder, slow down. If you get in fights, get some anger management classes or change your social situation.

    It is my belief that this country was borne out of a common respect for our fellow man. There are several reasons for this; many of the founders of the country fought side-by-side with each other against The British and other forces that sought to bring The Colonies under their control. Together, as a band of brothers, they formed a universal armed ruling class of individuals. Because everyone was armed, there were two choices: 1) Fight for supremacy or to be ruler or 2) agree on certain things. Those things they agreed to are now known to us as "law". Make no mistake about it: we started as armed as the Swiss and just as well trained. The Swiss maintained independence since 1251 by being well-trained and well-drilled ("well-regulated") and individually armed. In fact, throughout history since 1251, many rulers (including French kings and The Vatican) hired Swiss mercenaries for private protection. Yet the Swiss confederation was a government of the people, who agreed on common concepts. This was also the roots of our country -- a common people agreeing on common concepts called "law". There have always been those who chose to disregard law or sought to take power and/or material by force. The power of our system of government is that it allows many people to maintain a free society, something that has taken humanity over 40,000 years to come up with.

    18) If you're a felon and you're reading this, you've come to the wrong place. While the state constitution may say the right shall not be infringed, it has been infringed in the courts.

    A person convicted of a felony is not allowed to own, possess, or carry a pistol.

    (The above isn't exactly true, but it's the short version of a very long explanation.)

    19) If you feel I left anything out, please ask. There are no stupid questions.

    20) Situational Awareness. If you're carrying a loaded firearm, maintain your situational awareness at all times. Don't be nervous, but be aware.
    Last edited by Kirbinator; 04-18-2016 at 07:24 PM. Reason: cleanup
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  2. #2
    Regular Member SFCRetired's Avatar
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    +1
    Especially on asking LEOs or LEAs about Open Carry. Just yesterday, I had a young Sheriff's Deputy trying to tell me that, because I had a pistol permit, I needed to cover it up because other people might not like the sight of my openly-carried firearm!! He was also somewhat curious as to why I was carrying a 1911 clone "cocked and locked".

    I don't think I convinced him that my rights trump other people's feelings, but we did fade into a good discussion of the merits of the '03 Springfield vs. the Garand.

    One other thing; he tried to throw 13a-11-52 at me but stopped when I told him that it applied to concealed carry only and had to be taken in context with -55 and -73. They hate it when you know the law better than they do!!

    For the record, he was very polite and the whole thing was non-confrontational. Had he been rude, crude, and socially unacceptable, I'm very sure the owners of the restaurant where I was eating would have asked him​ to leave. They know both me and, more importantly, my beautiful bride.

  3. #3
    Regular Member Brimstone Baritone's Avatar
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    Kirb, that post was one in a million. I think it deserves a sticky.

  4. #4
    Regular Member MilProGuy's Avatar
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    Kirbinator:

    You have, indeed, presented an articulate and most informative host of information in your post.

    Thanks for taking the time to formulate and present your logical and cohesive thoughts on this subject.

    It is posts like yours that keeps me coming back for more!
    Last edited by MilProGuy; 11-07-2011 at 05:16 PM. Reason: edited to change font color
    Proud Veteran ~ U.S. Army / Army Reserve

    Mississippi State Guard ~ Honorably Retired


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    Excellent information. Thank you for the write up.

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    Quote Originally Posted by SFCRetired View Post
    +1
    Especially on asking LEOs or LEAs about Open Carry. Just yesterday, I had a young Sheriff's Deputy trying to tell me that, because I had a pistol permit, I needed to cover it up because other people might not like the sight of my openly-carried firearm!! He was also somewhat curious as to why I was carrying a 1911 clone "cocked and locked".
    SFC what county was this deputy from? I see you're from montgomry and was wondering if the deputy was from there too. They are supposed to know the law there.

  7. #7
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    Kirbinator,
    "However, there is no protection against either an unlawful or a lawful arrest regardless. When you step out of the door in the morning, whether you have a gun on your side or not, you have no protection against a well-meaning but misinformed officer arresting you if he has probable cause (PC) or reasonable articulate suspicion (RAS) that a crime has occurred in his presence."


    I believe there are protections.

    Other than the protections in our criminal code against unlawful arrest and unlawful imprisonment, etc., the officer puts himself at risk for civil damages because his immunity is limited:

    "Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity

    (1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or

    (2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law."
    Ex parte Cranman, 792 So. 2d 392 - Ala: Supreme Court 2000



    Also:

    Title 13A CRIMINAL CODE.
    Chapter 6 OFFENSES INVOLVING DANGER TO THE PERSON.
    Article 3 Kidnapping, Unlawful Imprisonment and Related Offenses.
    Section 13A-6-40 Definitions.
    Section 13A-6-41 Unlawful imprisonment in the first degree.
    Section 13A-6-42 Unlawful imprisonment in the second degree.

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    Quote Originally Posted by 49er View Post
    Kirbinator,
    "However, there is no protection against either an unlawful or a lawful arrest regardless. When you step out of the door in the morning, whether you have a gun on your side or not, you have no protection against a well-meaning but misinformed officer arresting you if he has probable cause (PC) or reasonable articulate suspicion (RAS) that a crime has occurred in his presence."


    I believe there are protections.

    Other than the protections in our criminal code against unlawful arrest and unlawful imprisonment, etc., the officer puts himself at risk for civil damages because his immunity is limited:

    "Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity

    (1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or

    (2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law."
    Ex parte Cranman, 792 So. 2d 392 - Ala: Supreme Court 2000



    Also:

    Title 13A CRIMINAL CODE.
    Chapter 6 OFFENSES INVOLVING DANGER TO THE PERSON.
    Article 3 Kidnapping, Unlawful Imprisonment and Related Offenses.
    Section 13A-6-40 Definitions.
    Section 13A-6-41 Unlawful imprisonment in the first degree.
    Section 13A-6-42 Unlawful imprisonment in the second degree.
    And two words make most of that useless: qualified immunity. Courts won't let their money makers get hurt.
    Don't believe any facts that I say! This is the internet and it is filled with lies and untruth. I invite you to look up for yourself the basic facts that my arguments might be based upon. This way we can have a discussion where logic and hints on where to find information are what is brought to the forum and people look up and verify facts for themselves.

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    Great post!

    Read the whole thing! Very good, thanks for your service. Looking up the books now.

  10. #10
    Regular Member William Fisher's Avatar
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    Great Post Kirbinator. I'm from Ohio and that is good advice for here (or anywhere you can OC) also.

    Thanks for the post.

  11. #11
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    Quote Originally Posted by 49er View Post
    I believe there are protections.

    Other than the protections in our criminal code against unlawful arrest and unlawful imprisonment, etc., the officer puts himself at risk for civil damages because his immunity is limited:

    "Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity

    (1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or

    (2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law."
    Ex parte Cranman, 792 So. 2d 392 - Ala: Supreme Court 2000
    I am inclined to agree with you on the highest order, however we still have Tulley v State. The state will have to decide if the officer, on the basis of black-letter law had a reasonable understanding of law. While those protections exist, they are often used as remedies for events after the fact, not before.
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