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Thread: Is Carrying a gun per se Reasonable Suspicion?

  1. #1
    Regular Member Repeater's Avatar
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    Nov 2007
    Richmond, Virginia, USA

    Is Carrying a gun per se Reasonable Suspicion?

    A court in NM seems to think so:
    Rodriguez may object that the practical end result of the Court’s decision is that, in New Mexico, a police officer’s observation of a concealed handgun automatically creates reasonable suspicion. The Court acknowledges that this may be a possibility. One might object that, under the Second Amendment to the United States Constitution and state law, carrying a weapon is legal, and giving police authority to make an investigatory stop anytime they see lawful conduct is impermissible. Given that guns raise particular problems for law enforcement, making the wrong decision might not be reversible for the officer. The law tolerates some intrusion on lawful activity that presents police with ambiguous acts that could also be unlawful. In a free society, there must be a balance between legitimate police goals, public safety, and individual freedom. The Court believes that to hold that officers may not investigate this conduct under the facts of this case would unduly restrict legitimate police conduct that was reasonable under the circumstances.
    That rationale would certainly also apply to open carry, because in the court's view, it's the gun, not the mode of carry, that's per se a threat to office safety.

    The court then goes on to allow cops to seize guns for safety reasons:
    While the gun was tucked into his waistband, it was immediately within Rodriguez’ reach. Munoz testified that he removed the weapon because he was concerned for officer safety. Given that the officers actually observed the firearm and that it was immediately within Rodriguez’ reach, “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” ... Thus, under these circumstances, the officers properly obtained Rodriguez’ weapon from him to protect their safety.
    Thus, any person who possesses a gun within immediate reach is per se a threat to officer safety.

    If this sick reasoning spreads nation-wide, it would mean that any person who carries would be disarmed during any LEO encounter, because cops would have authority to assert they were in danger.

  2. #2
    Regular Member Fallschirmjäger's Avatar
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    Sep 2007
    Georgia, USA
    UNITED STATES of America, Plaintiff-Appellee,
    Anthony DeBERRY, Defendant-Appellant.
    No. 95-2232.
    United States Court of Appeals, Seventh Circuit.

    "...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..."

  3. #3
    Regular Member Fallschirmjäger's Avatar
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    Sep 2007
    Georgia, USA
    Carrying a firearm, where legal, creates the same suspicion of illegality that seeing someone drive an automobile may be driving without a license, or seeing a teen drinking from a cup or glass creates the suspicion that there is underage alcohol being consumed.

  4. #4
    Campaign Veteran MSG Laigaie's Avatar
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    Jan 2011
    Philipsburg, Montana

    In the court of appeals of the state of washington division ii , n

    Washington APPEALS Court - State Vs Casad:

    The statute does not and, under the Constitution, cannot prohibit the mere carrying of a firearm in public. Therefore the Court finds that the officers at the time of the initial contact had no reasonable articulable suspicion that any criminal activity was occurring.

    But that's just us. Our State Constitution is a good read. You can copy it if you want. use it. It's great.

  5. #5
    Regular Member MKEgal's Avatar
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    Jan 2010
    in front of my computer, WI

    some court decisions which refute the decision in the OP

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

    "The mere presence of firearms does not create exigent circumstances."
    State v. Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997), 96-2052.

    “Selective prosecution when referring to the decision to prosecute in retaliation for the exercise of a constitutional right gives rise to an actionable right under the constitution."
    County of Kenosha v. C. & S. Management, Inc. 223 Wis. 2d 373, 588 N.W.2d 236 (1999), 97−0642.

    "Stopping a car for no other reason than to check the license and registration was unreasonable under the 4th amendment."
    Delaware v. Prouse, 440 U.S. 648 (1979).

    Here's a blog post that references several important OC cases:
    "Mr. St. John’s lawful possession of a loaded firearm in a crowded place could not, by itself, create a reasonable suspicion sufficient to justify an investigatory detention."
    St. John v. McColley (with the PDF of the decision)

    The Third Circuit found that an individual’s lawful possession of a firearm in a crowded place did not justify a search or seizure.
    United States v. Ubiles, 224 F.3d 213 (3rd Cir. 2000)

    The Tenth Circuit found that an investigatory detention initiated by an officer after he discovered that the defendant lawfully possessed a loaded firearm lacked sufficient basis because the firearm alone did not create a reasonable suspicion of criminal activity.
    United States v. King, 990 F.2d 1552 (10th Cir. 1993)
    Quote Originally Posted by MLK, Jr
    The ultimate measure of a man is not where he stands in moments of comfort & convenience, but where he stands at times of challenge & controversy.
    Quote Originally Posted by MSG Laigaie
    Citizenship is a verb.
    Quote Originally Posted by Proverbs 27:12
    A prudent person foresees the danger ahead and takes precautions.
    The simpleton goes blindly on and suffers the consequences.
    Quote Originally Posted by Proverbs 31:17
    She dresses herself with strength and makes her arms strong.

  6. #6
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    Oct 2009
    , ,
    Except in Illinois. Those court case excerpts forgot that sentence.

    Sent from my GT-I9100 using Tapatalk

  7. #7
    Regular Member Dreamer's Avatar
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    Sep 2009
    Grennsboro NC
    In NC, a large part of our argument for the legality of OC hinges on two things:

    1) the NC Constitution has a VERY pointed RKBA clause in it, and
    2) "State vs. Robert S. Huntley" (1843)

    which states:

    "For any lawful purpose--either of business or amusement--the citizen is at perfect liberty to carry his gun."
    Last edited by Dreamer; 01-08-2012 at 04:39 PM.
    “A lie can travel half way around the world while the truth is putting on its shoes.”
    –Mark Twain

  8. #8
    Newbie protias's Avatar
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    Dec 2008
    SE, WI

    Regalado v. State, 25 So. 3d 600 - Fla: Dist. Court of Appeals, 4th Dist. 2009
    "Despite the obvious potential danger to officers and the public by a person in possession of a concealed gun in a crowd, this is not illegal in Florida unless the person does not have a concealed weapons permit, a fact that an officer cannot glean by mere observation. Based upon our understanding of both Florida and United States Supreme Court precedent, stopping a person solely on the ground that the individual possesses a gun violates the Fourth Amendment."
    No free man shall ever be debarred the use of arms. Thomas Jefferson (1776)

    If you go into a store, with a gun, and rob it, you have forfeited your right to not get shot - Joe Deters, Hamilton County (Cincinnati) Prosecutor

    I ask sir, what is the militia? It is the whole people except for a few politicians. - George Mason (father of the Bill of Rights and The Virginia Declaration of Rights)

  9. #9
    Regular Member Beretta92FSLady's Avatar
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    Dec 2009
    In My Coffee
    It ought not be but, it is.
    I don't mind watching the OC-Community (tea party 2.0's, who have hijacked the OC-Community) cannibalize itself. I do mind watching OC dragged through the gutter. OC is an exercise of A Right. I choose to not OC; I choose to not own firearms. I choose to leave the OC-Community to it's own self-inflicted injuries, and eventual implosion. Carry on...

  10. #10
    Campaign Veteran since9's Avatar
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    Jan 2010
    Colorado Springs, Colorado, USA
    As decided by Judge Black in the case against Alamagordo, OC is neither RAS nor PC in the state of Arizona. In fact, quite a few states have laws on their books which prohibit law enforcement from considering it as such.
    I no longer have any confidence in the moderation or administration of this forum. Nonetheless, the First STILL protects the Second, and the Second protects the First! Together, they protect the rest of our Bill of Rights and other founding documents. If you're going to do anything at all, do it right!

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