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Thread: Being Disarmed / Hypothetical

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    Regular Member Hardbuck90's Avatar
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    Being Disarmed / Hypothetical

    This is purely for interpretation at this point but is my belief that it could / should be used in the future.

    Say you have been Terry stopped for OC'ing and an officer want's to disarm you for "officer safety" now we all know the stop is illegal to begin with and I forgot the exact case but doesn't the law now say if an officer feels uncomfortable or unsafe and does not have RAS that they are then to supposed to remove themselves from the situation.

    I just feel as if it would be double whammy per se to tell an officer "No you will not disarm me, this stop is illegal to begin with and if you feel unsafe by the presence of my legal weapon then you are required to leave the situation"

    Thoughts?

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    Regular Member SFCRetired's Avatar
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    I can see, with some officers, you finding out what grass/concrete/asphalt taste like. From past advice on this forum, what you can do is say, "I do not consent to this illegal seizure of my property, but I will not resist."

    If at all possible, request that the officer take the holster and the weapon and not unholster the weapon.

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    Regular Member decklin's Avatar
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    For the most part I agree with SFCRetired. The best thing is to say you do not consent. This is where a recorder comes in handy. Especially as it is legal in this state.
    By the way the case is Terry v. Ohio I believe.
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    This what you were talking about?

    Quote Originally Posted by NavyMike View Post
    I'm referring to the Washington State Constitution which affords greater protection than the 4th Amendment.

    I never said that the LEO needed RAS to have a conversation. In fact, I stated that this was initially a social contact; however, this incident escalated beyond a social interaction and into a seizure when the officer pulled his firearm and pointed it at the OP's chest.

    See my earlier quote from Sate v Harrington: The WA court ruled that the police officer should have disengaged from the social interaction at the point that he felt unsafe, because the officer had no reason to escalate it to a seizure. Without a reasonable suspicion, what has now escalated into a seizure becomes unconstitutional.

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    Regular Member Ironside's Avatar
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    What if there were no more Hypothetical questions?
    When those in Government fail to see the danger in too much Government, they become the danger.
    (Original quote by me)

    If we lose the Second Amendment it is only a matter of time before we lose the First Amendment, then the Fourth Amendment and then it is all downhill from there ...

    I've OCed and didn't scare the horses or stampede the women!

    It's too late to train when you are in the middle of a gunfight ... (me)

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    Regular Member Hardbuck90's Avatar
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    Jayd got it, maybe not use those exact words but we should remind them of what the law says while they are trying to do the same to us

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    Quote Originally Posted by Ironside View Post
    What if there were no more Hypothetical questions?
    If this weren't a rhetorical question, how would you answer?
    "If we were to ever consider citizenship as the least bit matter of merit instead of birthright, imagine who should be selected as deserved representation of our democracy: someone who would risk their daily livelihood to cast an individually statistically insignificant vote, or those who wrap themselves in the flag against slightest slights." - agenthex

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    Regular Member hermannr's Avatar
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    Officer friendly, my carry is a danger to no-one as long as it is in it's holster. It becomes a danger to everyone as soon as it is removed from it's protected place. To me, to you, and to the public in general. As I have committed no crime, and my carry is legal, you have no legal reason to endanger everyone in the general vacinity by removing my arm.

    This who line of questioning makes me think of the Creech murder. I know what really happened will never be known, but pastor Creech went out to confont a person in his parking lot. It was pastor Creech's habit to carry a .38 caliber revolver in a holster when he confronted someone at night. That person he confonted that fateful night was a Spokane Co. Deputy Sheriff who had parked his unmarked patrol car in Creech's business parking lot.

    Now, what I heard was Creech's revolver was in it's holster when they picked up his dead body. Also, from what I have heard of Creech, he was quite the hard-head..and it was Creech's private parking lot. In my mind what happened was Creech came out to confront the uninvited guest (the deputy), the deputy sees that Creech is armed, screams the standard "get on the ground" Creech replies with "get off my property"...deputy panics and pulls the trigger.

    http://spokanevalley.kxly.com/news/c...s-online/50657

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    Regular Member FMCDH's Avatar
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    Quote Originally Posted by Hardbuck90 View Post
    Jayd got it, maybe not use those exact words but we should remind them of what the law says while they are trying to do the same to us
    State v Harrington isn't law, its judicial opinion and legal precedence (but only if its published) that can effect the outcome of a trial, not necessarily bind the actions of an officer in the field, especially since that case had nothing to do with an openly carried firearm.

    What you are looking for would most likely be found in the officers own departmental regulations, if it even existed. I don't think your going to find the legislature getting this deep into the dos and donts of officer actions, and I am aware of no existent RCW that covers such a thing.

    I think in this case, what needs to be focused on is, request to search = seizure and seizure should not occur without RAS, which an openly carried pistol in a holster (minus any other circumstances) is not.

    Here is the ruling for your reading pleasure...
    http://www.wasupremecourtblog.com/ta...-v-harrington/
    http://caselaw.findlaw.com/wa-court-...s/1475268.html
    Last edited by FMCDH; 12-24-2011 at 01:32 PM.

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    So what happens when the LEO unlawfully removes ones sidearm?

    Say its in the holster and its removed without even being asked?
    Last edited by rbaconator; 12-29-2011 at 07:51 PM.

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    Regular Member hermannr's Avatar
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    Quote Originally Posted by rbaconator View Post
    So what happens when the LEO unlawfully removes ones sidearm?

    Say its in the holster and its removed without even being asked?
    That would be theft of a firearm, along with posessing a stolen firearm after the officer had posession,,,a "Class B"felony,,,committed by the officer. RCW 9A.56.300 no exemption for LEO's and also RCW 9A.56.310.

    The real problem here is to prove it was an actual theft...with the "solidarity" they have as in what the Spokane PD did (salute Thompson) AFTER he was convicted...

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    Regular Member bmg50cal's Avatar
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    Quote Originally Posted by rbaconator View Post
    So what happens when the LEO unlawfully removes ones sidearm?



    Say its in the holster and its removed without even being asked?



    It is an unlawful search/seizure and it is also an assault because they touched your person to make the illegal seizure.



    "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
    **** Warning the following is not sound legal advice, nor is it nice, use with caution ****


    One could claim that the touch was also sexual harassment; claim that the touch was an unwanted sexual advance. Have a smart phone recording audio; use implicature; ask damning suggestive loaded questions; it would be damaging if they aren't smart. Make sure to use some distress in your voice and not a smart, light hearted or humorous tone.


    For example:
    "Why are you touching me there?"
    "Why are you sniffing my hair?"
    "Why are you undoing your pants?"
    "Why did you put my hand there?"


    Toss in some "no," "stop," "don't"


    They can lie, you can to, so you can be manipulative, underhanded and lawfully evil in return for violations of your rights... Use every tool at one's disposal. Without RAS and PC they better stay off and away.




    **** By the way, I don't hate LEOs, just the injustices perpetrated by the select defiant and ignorant few. ****

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

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    Regular Member Badger Johnson's Avatar
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    OK why is this stupid.

    LEO comes up and starts trying to remove your holstered firearm, SA now in a narrow beam, looking for the Serpa release, etc...

    1. Gawker drives by and looking at LEO, drives into him and runs him (and you) over;
    2. Perpetrator (the Stop-ee), has a BUG and while LEO is messing around with the holstered gun, the perp draws his BUG and puts it on the LEO's temple;
    3. Sweeping, NDing, touching, dropping all occur when outside of holster not when inside holster;
    4. LEOs know who real BGs are. They don't do this to real BGs, only to law abiding citizens, (they think) who they are really not afraid of, evincing bulling behavior;

    That's why a LOT of (smart, professional, experienced) LEOs don't do this kind of thing.

    $.02
    A gun in a holster is better than one drawn and dispensing bullets. Concealed forces the latter. - ixtow

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    being disarmed real world

    So here was the situation I was in about a month ago. The animal control unit from Grant county came by to take my dogs because they killed my neighbors dog. All evidence says the dog was run over, not mauled. Anyway when the LEO made contact with me I had my Kimber in my leg holster as usual. I put my hands around the back of my neck to show I had no intention to draw. The LEO then approached me and without asking removed my pistol from the holster and placed it in his vehicle. When he was leaving he said he would put it on the real estate sign at the end of my driveway. Now I know I did some things wrong here but I don't know where to go from here. I'm still trying to prove my dogs are innocent and get them out of jail.

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    Regular Member Badger Johnson's Avatar
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    Quote Originally Posted by rbaconator View Post
    So here was the situation I was in about a month ago. The animal control unit from Grant county came by to take my dogs because they killed my neighbors dog. All evidence says the dog was run over, not mauled. Anyway when the LEO made contact with me I had my Kimber in my leg holster as usual. I put my hands around the back of my neck to show I had no intention to draw. The LEO then approached me and without asking removed my pistol from the holster and placed it in his vehicle. When he was leaving he said he would put it on the real estate sign at the end of my driveway. Now I know I did some things wrong here but I don't know where to go from here. I'm still trying to prove my dogs are innocent and get them out of jail.
    You could sue him for reckless handling of a firearm, because to take your firearm and put it on a sign which was (x) distance from you, allowing someone walking by to grab it and shoot someone, steal it, etc. is negligent, as well as reckless.

    In fact have your lawyer send him a letter with those facts and see what happens.

    Oh, I presume:
    1. You were not on your own property;
    2. You invited the deputy onto your property if you were on your property;
    3. You were running a recorder during the encounter;
    4. You took some pictures of him, his cruiser, his placing the gun on the sign, a pic of the gun where he left it, or something like that to offer as evidence you didn't just dream this.

    If you did none of the above, then 'where you should go from here' is you have learned a couple of valuable lessons. Unfortunately your dogs may pay for your carelessness with their lives. In cases of 'dog problems', I blame the owner not the dogs. You may have been innocent of this crime but it looks like you are careless in handling your canines.

    1. Always be running a voice recorder (or vid and voice) when OC-ing, even on your own property;
    2. Gather evidence when stuff like this happens, (similar to taking pics of a traffic accident, position of cars, etc. so you can show it as it happened and you appear to be trying to be honest, show truth);
    3. Keep your dogs in a pen, tied up, on leash;
    4. Gather evidence on the mauling case in a similar manner.

    Often times, a minimum of 'evidence' (not proof but something besides a person babbling something) can win you a case, or even prevent one from happening. For example if you whipped out your vid cam when the deputy was leaving and zoomed on him leaving your firearm right out in the open near the street, then they'd drop all charges and go hide under their desks. But I suspect you didn't do any of this. That's called 'due diligence'.

    Finally, sorry this happened to you. Live and learn, eh?
    A gun in a holster is better than one drawn and dispensing bullets. Concealed forces the latter. - ixtow

    Hi, I'm hypercritical. But I mean no harm, I just like to try to look deeply at life

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    Regular Member John Hardin's Avatar
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    Quote Originally Posted by Badger Johnson View Post
    That's why a LOT of (smart, professional, experienced) LEOs don't do this kind of thing
    Glad to hear it, but we still have to deal with the (stupid, unprofessional, holier-than-thou Only One) LEOs.

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    Regular Member Badger Johnson's Avatar
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    Quote Originally Posted by John Hardin View Post
    Glad to hear it, but we still have to deal with the (stupid, unprofessional, holier-than-thou Only One) LEOs.
    In Re:
    (that's why a lot of LEOS don't do this kind of thing)

    Actually I was soap-boxing, b/c I have no idea which LEOs do what for what reason. I'm guessing there are some among this force of must be have no higher IQ than 100, individuals that they select to wear badges

    I am friends with two LEOS one of whom is a chief and the other from Ohio. The one from Ohio said 'I'd have this stop under control, guy all calm and happy and ready to get cuffed and my PARTNER would come over and start sheet-stirring and the next thing he knew they were in a fight and pepper spray was flying, and it would all go to hell in a handbasket. He'd do that EVERY TIME. I couldn't wait to change departments to get away from him. There was no talking to him either, he said.'

    Another guy, HUGE dude bodybuilder where I lived would beat the hell out of everyone he stopped for little reason. Turned out he had a major case of roid rage. In fact if you tested all the LEOS in the US, I bet more than 50% of them would be positive for 'roids and stuff (he told me that because we were gym lifting buddies).

    So it's a cr*p shoot. They're totally unpredictable and that's why I fear being stopped by a LEO (I never have but for two traffic stops 30 years ago) MUCH more than by a petty criminal. You can't fight back and they're Organized...criminals are opportunistic.
    A gun in a holster is better than one drawn and dispensing bullets. Concealed forces the latter. - ixtow

    Hi, I'm hypercritical. But I mean no harm, I just like to try to look deeply at life

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    Regular Member John Hardin's Avatar
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    Quote Originally Posted by Badger Johnson View Post
    I am friends with two LEOS one of whom is a chief and the other from Ohio. The one from Ohio said 'I'd have this stop under control, guy all calm and happy and ready to get cuffed and my PARTNER would come over and start sheet-stirring and the next thing he knew they were in a fight and pepper spray was flying, and it would all go to hell in a handbasket. He'd do that EVERY TIME. I couldn't wait to change departments to get away from him. There was no talking to him either', he said.
    Question: did he ever consider taking this up with his supervisor to maybe get the behavior changed, rather than just wanting to "get away from him"? If not, why not?

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    I was on my property (rental). The dog died in the driveway shared by the 3 homes. We all pay rent to the property owner (my dad). My phone was on the charger when I went outside so I didn't record but my girlfriend saw LEO remove my pistol and my cool neighbor saw the LEO stop at the end of the driveway where he put my pistol in the mailbox instead of the real estate sign.

    I'm trying to stay on the gun end of this situation for the sake of the thread but here is some on the dog end. If a 50 pound pitbull and a 80 pound American bull dog were mauling a year old chihuahua mix there would be blood spread all over the driveway. Not in a nice neat little pool of blood in the middle of the driveway. I got pictures of the blood in the driveway showing size and some for showing distances to residences. That not the half of it but I don't wanna get in trouble for getting off subject.

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    Regular Member Fallschirmjäger's Avatar
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    Say you have been Terry stopped for OC'ing and an officer want's to disarm you for "officer safety" now we all know the stop is illegal to begin with and I forgot the exact case but doesn't the law now say if an officer feels uncomfortable or unsafe and does not have RAS that they are then to supposed to remove themselves from the situation.
    If I'm not mistaken, an openly carried firearm is perfectly legal (in and of itself) in the state of Washington.
    That being the case, I'm going to ask if I'm either under arrest being detained for suspicion of illegal activity.
    If he answers in the affirmative and begins fishing for evidence to back up his reasonable suspicion, I'm shutting the heck up.

    If he answers in the negative and just wants to "have a friendly conversation, you're not under arrest nor nuthin'. " - - -
    "Well, golly gee wilikers, Officer Friendly, I'm right sorry, but I don't have voluntary conversations with people who are better armed than I am. So, I guess you can hand me back my pistol and we can have a conversation, or you can hand me back my pistol and I'll be on my merry little way."

    He can always insist on retaining custody of my effects, but if so then I don't think there's any doubt that my person has been seized as well under the wording of the Fourth Amendment. I can stand there and make someone stupid for a long, long time.
    Last edited by Fallschirmjäger; 12-30-2011 at 06:38 PM.

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    Regular Member Mainsail's Avatar
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    Quote Originally Posted by Hardbuck90 View Post
    This is purely for interpretation at this point but is my belief that it could / should be used in the future.

    Say you have been Terry stopped for OC'ing and an officer want's to disarm you for "officer safety" now we all know the stop is illegal to begin with ...

    Thoughts?
    You don't know the stop is illegal. If you match the description of the guy that just robbed the 7-11, the stop is legal and justified. Additionally, you don't know what the officer was told. For example, if someone told 911 that you pulled the gun in a threatening manner, the stop would be legal and justified. The cop may not tell you those things, and isn't required to do so. If he believes the stop is legal for reasons such as that, and you actively resist his attempt to disarm you, expect a world of hurt to come your way- with nothing you can do after the fact. No lawyer is going to take your case to sue the department if the stop is reasonable under such conditions.

    Sometimes you fight it on the street, sometimes the battle is better fought later.

    On the street, you always ask, "Am I being detained?" If yes, then ask, "For suspicion of what crime are you detaining me?" If no, "Have a nice day officer." and walk away. No discussion, no justification of why you carry, walk away.
    Last edited by Mainsail; 12-30-2011 at 08:11 PM.

  22. #22
    Regular Member hermannr's Avatar
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    Quote Originally Posted by rbaconator View Post
    I put my hands around the back of my neck to show I had no intention to draw.

    WHY? what? in the world did you put you hands behind your head for? Submission? That just sounds you were doing just like a dog rolling over on it's back to show submission. If you had used the weapon, then maybe there might be a reason for the officer to remove the weapon, but you LET him completely control the situation when you submitted to his control before anything was even said when you put your hands behind your head. Were you expecting to be arrested or something?

    Having a pistol in a holster is no more dangerous than having a wallet in your pocket. Once it comes out of the holster, it becomes dangerous to everyone near. You should have acted as if it was not there...that would have been much better.

    From what I read of your story so far the problem appreas to be a dog problem, not a gun problem...no reason to surrender your arm, and on your (your dad's) private property too. Not no, but he$% no.

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    Regular Member Hardbuck90's Avatar
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    Quote Originally Posted by Mainsail View Post
    You don't know the stop is illegal. If you match the description of the guy that just robbed the 7-11, the stop is legal and justified. Additionally, you don't know what the officer was told. For example, if someone told 911 that you pulled the gun in a threatening manner, the stop would be legal and justified. The cop may not tell you those things.
    I understand this point, the scenario that I imagined was more of a MWAG stop / "making sure you're legal." I think if you matched the description of robbery suspect it would hardly be a civil stop where the officer greeted you and let you know he was going to disarm you...

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    Regular Member bmg50cal's Avatar
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    Quote Originally Posted by Hardbuck90 View Post
    I think if you matched the description of robbery suspect it would hardly be a civil stop where the officer greeted you and let you know he was going to disarm you...
    More likely a greeting with a firearm point at you.

  25. #25
    Regular Member Mainsail's Avatar
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    Quote Originally Posted by Hardbuck90 View Post
    I understand this point, the scenario that I imagined was more of a MWAG stop / "making sure you're legal." I think if you matched the description of robbery suspect it would hardly be a civil stop where the officer greeted you and let you know he was going to disarm you...
    I think G20-IWB24/7 had something like that happen to him. He was just in the wrong place at the wrong time, driving through an area after a robbery. It was pretty civil from what I remember, they mostly just wasted his time.

    It doesn't matter what scenario you imagine because you have no way of knowing why they're stopping you when they stop you. Also, you don't have to match the exact description, anything even close will do given the unreliability of witnesses. Domestic violence suspects are another example; those happen all over all the time.

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