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can a leo disarm you on a complant?

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skerky10mm

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Feb 6, 2010
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bucksport, Maine, USA
I just got a call from my buddy who was open carrying in bucksport when a police officer pulled up disarmed him and made him wait till he wrote a report (leo words) and the gave the pistol back and recommended he ccw. Can a leo disarm you on first contact with no provication. A man in a passing truck called the pd and told them a man had a gun.
 
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boyscout399

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May 23, 2008
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Lyman, Maine
Terry v Ohio says that an officer can do a search for weapons and remove those weapons for officers safety. But it also says that in order to initiate a detainment in the first place, the officer must have a reasonable suspicion that the suspect has committed, is committing, or is about to commit a crime. In this case I would have asked the officers what crime they suspected I had committed and said I don't submit to any searches or seizures. The key is that if the officer insists upon it, you don't want to physically try and stop him from removing your weapon. I suggest voice or video recording the incident and saying over and over that you do not consent to the seizure without suspicion of a crime. Then if the officer has broken the law by detaining you without suspicion of any crime and taken your weapon you can file a complaint later on and maybe file a lawsuit if you so desire. Don't give them anything.

I suggest watching my video of when I was stopped in Biddeford.
 
KBCraig

KBCraig

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Can he? Sure, unless you can stop him -- something that is ill-advised and will not end well for you.

May he, legally and constitutionally? Maybe, maybe not... but even if the law and courts say he can't, there's still not much you can do about it. The courts grant wide lattitude to police, sometimes ignoring flagrant violations in the name of "officer safety".
 
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Citizen

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Fairfax Co., VA
boyscout399 said:
SNIP Terry v Ohio says that an officer can do a search for weapons and remove those weapons for officers safety. But it also says that in order to initiate a detainment in the first place, the officer must have a reasonable suspicion that the suspect has committed, is committing, or is about to commit a crime.
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+1 The only thing I might add is a small but important clarification--Terry v Ohio requires the cop to reasonably believe the detainee may be armed and presently dangerous before he can search for weapons. The cop can't just automatically search everybody he detains. In the OPers report, the weapon was OC'd so there was no doubt about the presence of a weapon. But, where was the "presently dangerous" prong?


Here is the quote from Terry v Ohio:

We merely hold today that, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. (bold emphasis added by Citizen)

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0001_ZO.html
 
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Flashlight

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Indiana
skerky10mm said:
I just got a call from my buddy who was open carrying in bucksport when a police officer pulled up disarmed him and made him wait till he wrote a report (leo words) and the gave the pistol back and recommended he ccw. Can a leo disarm you on first contact with no provication. A man in a passing truck called the pd and told them a man had a gun.
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If he was just open carrying then the officer had no reason to even make contact. Request any information related to this. Have him file a complaint and if the higher ups at the police determine that detaining and disarming people engaging in lawful activity is going to be the standard then perhaps there is a park that needs to be cleaned up in town?
 
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Citizen

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Flashlight said:
SNIP If he was just open carrying then the officer had no reason to even make contact.
Click to expand...

Not necessarily true. It matters less what the person was actually doing, than whether the cop had sufficient information to have reasonable articulable suspicion for a seizure (Terry Stop/stop/detention). Meaning, what did the caller say in his phone report? Was the caller a reliable tipster? Did the caller allege something that violated the law? See Terry v Ohio, linked above, for the beginnings of this area of law.

Yes, requesting reports, 911 call recordings, etc. is useful. I'm not saying it shouldn't be done. Its just a little too early to say the seizure was unlawful.
 
Fallschirjmäger

Fallschirjmäger

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Any time, every time you have contact with Officer Friendly outside of "Hey, how's them (insert favorite sports team) doin'?: you should do a FOIA/Open Records Act request. In this particular case I wonder what the Officer's report is going to say, "Observed male legally openly carrying so I stopped to advise him that his conduct was legal and then released same"?

Just one more reason why my driver's permit is where I need it for driving, IN my car, not in my wallet. I figure anywhere I'm going to need my license, I'm probably going to have to Drive there first.


As the informant did not state that the gentleman in this case was carrying a concealed firearm without a permit, the entire content of the anonymous tip would be a physical description of the individual, his location, and an allegation that he was carrying something lawful (a cellular telephone? a beeper? a firearm?) - U.S. Supreme court v. DeBerry
 
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skerky10mm

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bucksport, Maine, USA
Update!

I got the full storie. It was both of my friends (both open carrying) were told to put there hands on the hood of the cruiser and the leo disarmed them both and placed there pistols in the cruiser. The leo then asked if they were loaded which he got a yes to. My friends then said it is legal to open carry in maine. The leo asked why they were carrying guns and my friends said its our legal right to. The leo then called the cheif down and when he got there he talked to my friends and told them if the man filed a report the he could revoke there ccw permets! I don't get how they can revoke a permit for a person filed a report about people doing something that's legal!
 
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Citizen

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skerky10mm said:
SNIP I don't get how they can revoke a permit for a person filed a report about people doing something that's legal!
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OK. Ummm. Sure.

Well, first. You're welcome for the time we spent answering your first question, and even giving you the law so you could read it yourself.

Second, why don't you look up the statute on permits and revocation.
 
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boyscout399

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May 23, 2008
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Lyman, Maine
skerky10mm said:
I got the full storie. It was both of my friends (both open carrying) were told to put there hands on the hood of the cruiser and the leo disarmed them both and placed there pistols in the cruiser. The leo then asked if they were loaded which he got a yes to. My friends then said it is legal to open carry in maine. The leo asked why they were carrying guns and my friends said its our legal right to. The leo then called the cheif down and when he got there he talked to my friends and told them if the man filed a report the he could revoke there ccw permets! I don't get how they can revoke a permit for a person filed a report about people doing something that's legal!
Click to expand...

There are very specific things that they can revoke a permit for, and open carrying isn't one of them.
 
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boyscout399

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May 23, 2008
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Lyman, Maine
Fallschirmjäger said:
Any time, every time you have contact with Officer Friendly outside of "Hey, how's them (insert favorite sports team) doin'?: you should do a FOIA/Open Records Act request. In this particular case I wonder what the Officer's report is going to say, "Observed male legally openly carrying so I stopped to advise him that his conduct was legal and then released same"?

Just one more reason why my driver's permit is where I need it for driving, IN my car, not in my wallet. I figure anywhere I'm going to need my license, I'm probably going to have to Drive there first.


As the informant did not state that the gentleman in this case was carrying a concealed firearm without a permit, the entire content of the anonymous tip would be a physical description of the individual, his location, and an allegation that he was carrying something lawful (a cellular telephone? a beeper? a firearm?) - U.S. Supreme court v. DeBerry
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Thank you for that link. I had not read that case before. I especially like this part of it:

We have assumed--everyone connected with the case has assumed--that the police, who did not know DeBerry's name and therefore did not know that he was a felon, knew, or at least had reason to believe, that if he was carrying a concealed firearm he was violating the law. They did know. It is a crime in Illinois to carry a concealed gun, 720 ILCS 5/24-1(a)(10), with the usual exceptions for peace officers and the like (720 ILCS 5/24-2), exceptions unlikely to be applicable to DeBerry. Even if this were Texas rather than Illinois, and carrying a concealed weapon was lawful except for felons and a few other classes of ineligibles, the police would have been entitled to accost DeBerry and ask him whether he was carrying a gun. They might have a hunch he was a felon and so violating the law. It would not matter, so far as the Fourth Amendment is concerned, as we explained earlier. But if the asking crossed over to commanding, so that DeBerry was stopped, then it would be essential that the officers have a reasonable belief and not a mere hunch that if he was carrying a gun he was violating the law. But they would have a reasonable belief, because this is Illinois rather than Texas.
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This shows that in Maine where it is generally legal to Open Carry, that without a reasonable belief and not a mere hunch that you are a felon, they can't detain you. If the asking crosses over to commanding, they need a reasonable suspicion of crime. It also shows that even if they suspect you are Concealed Carrying they can't stop you unless they have a reasonable belief that you don't have a permit. The TX example says they can ASK if you have a gun, but they can't COMMAND you to stop unless they have a reason to believe that gun is illegally carried.

The only fact that saves the officer's stop of DeBerry, in my opinion, is the fact that it is unlawful in Illinois to carry a concealed weapon. The tipster informed the police that DeBerry was armed, and it appears from the facts before us that the weapon was not in plain view. I do not agree that this case would necessarily come out the same way if Illinois law, like the law of many states, authorized the carrying of concealed weapons. At that point, the entire content of the anonymous tip would be a physical description of the individual, his location, and an allegation that he was carrying something lawful (a cellular telephone? a beeper? a firearm?). This kind of nonincriminatory allegation, in my view, would not be enough to justify the kind of investigatory stop that took place here. It would mean, in states that permit carrying concealed weapons, that the police no longer need any reason to stop citizens on the street to search them. However, we do not have that situation. Because I therefore consider the Court's comments on lawful concealed weapons to be dicta, I concur in the result reached today.
Click to expand...
 
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shanebelanger

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Aug 25, 2009
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Freeport, Maine, United States
skerky10mm said:
I got the full storie. It was both of my friends (both open carrying) were told to put there hands on the hood of the cruiser and the leo disarmed them both and placed there pistols in the cruiser. The leo then asked if they were loaded which he got a yes to. My friends then said it is legal to open carry in maine. The leo asked why they were carrying guns and my friends said its our legal right to. The leo then called the cheif down and when he got there he talked to my friends and told them if the man filed a report the he could revoke there ccw permets! I don't get how they can revoke a permit for a person filed a report about people doing something that's legal!
Click to expand...

pm sent
 
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