stopped by off duty deputy at Wal-Mart

Omg....you screwed up

I agree with most people when I say I'm sad you had to go through that. But you just reenforced this officers feeling he is above the law, he can harass citizens at will.

What will happen if the next person he jacks up on or off duty for doing nothing ILLEGAL doesn't want to roll over like you did.

He needs TRAINING in the US Constitusion and how to do his job.

Voice recorder, call 911 telling them you would like an officer or better yet record yourself asking if you are being detained and walk away. If he uses his tazer you just became a millionaire as you DID NOTHING WRONG.

Suggest you do a lot more reading and preparation before OC-ing again, pronto.

Print out relevant documents
Carry sterile
Run a recorder
Lawyer on speed dial
Retention holster, practice retention drills on-going
SA or situational awareness drills

You want to avoid enabling these off-duty yahoos from thinking it's ok to abrogate 2A rights by giving in as you did. You certainly don't want to be yielding to a plain clothes guy with a (possibly fake) badge without checking with 911 and getting a uniformed officer to the scene. Since that 'creates a hassle' for the yahoo, it also has, imo, deterrent value.

sawah said:

Suggest you do a lot more reading and preparation before OC-ing again, pronto.

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I woulda said the same thing, but something occurred to me.

He's a new poster. OK. Great. Glad to have him. (No, really.) As a new poster, one might think he's unknowledgeable. Fine. Easy enough conclusion.

But! He's apparently been reading the forum for some time. He knew enough to repeatedly ask whether he was being detained. Not once. Repeatedly.

This next part is not particularly a criticism; I'm just laying out conclusions: So, I'm thinking he also already knew about the right to silence and the right to refuse consent to searches and seizures and why to exercise them. Maybe he discounted it in his earlier reading. Maybe he thought we were nuts or extremists for promoting exercising rights during all police encounters. I don't know. But, I doubt he didn't know about it.

Citizen said:

I woulda said the same thing, but something occurred to me.
... I'm thinking he also already knew about the right to silence and the right to refuse consent to searches and seizures and why to exercise them....

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I just think he was caught flat-footed, never took the prompting to run a recorder and exhibited a type of stage-fright reaction. Forgot everything, tongue-tied, intimidated.

Hah, maybe this should be part of training. The tunnel-vision effect of being stopped by LEOs.

sawah said:

Hah, maybe this should be part of training. The tunnel-vision effect of being stopped by LEOs.

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No maybe about it, role play should be in our training just as it is, or should be, in theirs.

My town cop swears that he'll arrest me if I take steps to prevent his extra-legal sniff and peek.

I still have a problem with the officer confronting an armed (and potentially dangerous) individual with his young son present. Doesn't seem like a sound strategy to me...and probably against some department policy.

Like heck would I give that much ground to someone I don't even know is a real police officer. Even if he was for real he was not on duty and you are under no obligation to even begin a conversation with him let alone pull your gun from the holster in the middle of Walmart. Horrible encounter....this should be on the list of "what not to do" encounters.

Sorry it happened to you and sorry you felt intimidated, but if you are so easily intimidated into relinquishing your tool of self defense perhaps you need a little longer before you should be open carrying?

Don't mean to sound harsh but there is a myriad of things wrong with this encounter.

"Speedycat",

Welcome to the forum. I'm sorry you had to undergo the sort of unlawful harassment you did in that WalMart, but unfortunately, there are a LOT of LEOs in WV who don't care about the law (oh, they KNOW it's 100% legal to OC without a permit, they just don't care what the law says, and will harass you anyway).

I was born and raised in WV (Born in Wheeling, lived in Paden City, college at Bethany, still have relatives all up and down the Eastern Panhandle). I know the area. I have several friends and family members who are LEOs--deputies, WVSP, local cops, etc. And I have gotten into no end of discussions with a few of them about what the REAL position of the LAW is in WV. I don't know how many times I've had to pull out my laptop, go to the WVSP, WV Sheriff's Association, and the WV Legislature web sites and actually show some of these doofuses what the law ACTUALLY says--which is very often EXACTLY THE OPPOSITE to what they were saying.

Many LEOs in WV seem to think they can just "interpret" the law anyway they see fit--regardless of common law, case law precedent, or statutory wording--and unfortunately the WV Attorney General seems to think that interpreting firearms law is actually the job of the WV State Police rather than the AG's office, so they reinforce this bizarre mentality. Unfortunately, the AG's office doesn't ever suggest to LEAs that their officers actually READ the Statutes, or stay current on case law. OC in WV is a powderkeg just waiting for a match--eventually some LEA is going to get sued into next week, and ONLY then will things change. Hopefully the currently pending "Wheeling Case" will be the key to changing things permanently for WV LEAs to get their acts together...

In a nutshell, application of gun laws in WV is a Mongolian Cluster Foxtrot of epic proportions. And Morgantown, Charleston, and Wheeling seem to be the centers of this Hurricane of Unconstitutional Harassment...

If you have the "right look" you are generally left alone. That look means you are white, over 30, and clean-cut.

If you don't fit that description, (you are young, not white, have long hair, etc) you will eventually get harassed by some a$$hat with a badge trying to flex his lawman muscles--usually to impress other LEOs or family members.

Stand your ground. Know your rights. Have a voice recorder at ALL times. And have a lawyer on speed dial...

And NEVER, EVER, under ANY CIRCUMSTANCES remove you rfirearm from it's holster unless you intend on using it for self-defense. If a cop wants your gun, politely say you will not resist him seizing your property, but you DO NOT willingly give consent to it.

Get their name and badge number--either on a recording or write it down ASAP. Then file a formal complaint with his commanding officer.

Good luck in the future. and welcome to OCDO. Hopefully your future in OC will be less eventful.

you are under no obligation to even begin a conversation with him

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THIS. If you even acknowledge him, you are complying. You have ZERO reason to comply, or even answer him. You don't owe him anything. Just some idiot in walmart saying, "hey wait" should be ignored. The entire interaction with him was VOLUNTARY on your part. You volunteered to stop and listen to his questions. Then you got to the point of asking him, "am I being detained"? Once he answered, "no", you should have said, "see ya later" and started walking. It might sound rude, but it's more rude to be illegally searched by some thug. Next time, don't even respond. Or if you have to, try this.

Plain clothes nobody with badge: "Hey wait a minute".

You: "No I don't want to, see you later". (walk away) If he's whipped out and showing his badge, you could say, "thanks for the offer to contract, but no thanks, see ya fella".

Anything that has to do with leaving without complying is best. If you interact at all to begin with, remember it is VOLUNTARY, until they decide to "detain" (arrest) you. NOTHING says you have to talk to them.

In my case I was at at Kinkos making copies of the trifold pamphlet for La Open Carry Awereness League. As I stood in line at to pay the clerk a man with his young daughter (~8yo) asks me "Do you have a badge for that gun?" while motioning to my holstered pistol. I informed him that I didn't since I'm not a LEO. He pulls a wallet out, flashes a badge from the local Sheriff's Department and tells me that I can't be just carrying a gun out in the open like that unless I'm a cop. I inform him that he's incorrect, that any citizen who can legally own a pistol my carry it openly in La. He starts to get angry that I'm upsetting his worldview and comes back with "Well if that were true then my daughter here could carry a gun." I was through playing his game and told him, "You are getting mad for no reason. You know your daughter is too young to own a gun so that's not even an issue. The fact is I'm legal and I'm here like everyone else conducting private business. Have a good day." He gets his phone out, makes a call, I assume to his supervisor, and exits the store with his child. A few minutes later, as I finish paying the cashier and am about to walk out of the store he reenters, without his daughter. I guess he left her in his car. He doesn't look to happy but he doesn't try to say anything else to me or stop me. I pass him on my way out, tell him "Be Safe out there" and hand him one of the freshly printed pamphlets as I head to my car. End of encounter.
I can only assume he stepped out, told his supervisor something like "Sir, there's a big white guy in the Kinkos with a pistol in a holster on his belt. .... No he's paying for some copies he made but he's not a cop, he told me straight to my face. .... But he can't just have a gun, right? ... What? ... "
Man I wish I could have heard that conversation.

MKEgal said:

I'm a little surprised nobody has told our new member "welcome" yet (welcome!),
also that nobody has yet mentioned a few standard bits of advice:

1) carry sterile. Since you don't need a license to OC, leave it in the car. Ditto for your driver's license or other ID, unless you're planning to buy something they'll need to check your age for. Then there's no way a rogue cop can coerce or trick you into handing it over, and no way they can forcibly search you & take it.

2) watch the videos at www.flexyourrights.org They're also available on YouTube.

3) watch the video on YouTube titled "Don't Talk to Police". That's the 48-minute long version, & there are shorter part 1 & part 2 versions that all amount to the same thing. Part 1 is a law professor talking at warp speed, telling the class all the reasons they shouldn't talk to cops ["god bless the 5th Amendment"], part 2 is a law student who used to be a LEO basically confirming everything the professor says.

There's a thread over on the WI forum that has a lot of helpful info for a new carrier. Much is WI-specific, but there's a good deal of it that's general rights-related.

For example, you were arrested.
Physical seizure of person by arresting officer or submission to officer's authority and control is necessary to constitute an "arrest."
Thompson v. Boston Pub. Co., 285 Mass. 344, 189 N.E. 210, 213.
It is a restraint however slight, on another's liberty to come and go.
Turney v. Rhodes, 42 Ga.App. 104, 155 S.E. 112.

In that thread there's a link to the Don't Talk to Cops video in large bold red letters, right above a list of other useful videos, many from FlexYourRights.

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Citing court cases can be helpful. Each state has (should have) a definition of what constitutes an arrest.

WV Code - §15-1E-9. Imposition of restraint.
RSMo 544.180 Arrest

Case law only helps you in court, not in WalMart or on the side of the road. Then again, knowing the law can only help you in a courtroom.

speedycat, post many questions regarding your state's codes in the WV forum. Search that forum for threads on what is defined as a LEO in WV and when they have authority. Most folks believe that a 'cop is a 24/7 job'. This is not always the case, no matter what a LEO says. That LEO may have broken state law by 'investigating' a OCer in WV while he was/may have been off-duty. based on WV being a no permit required OC state that LEO broke the law. Placed you, himself, and his kid in peril.

Get a recorder and record if WV code permits one person consent while you are out and about OCing.

Citizen said:

I woulda said the same thing, but something occurred to me.

He's a new poster. OK. Great. Glad to have him. (No, really.) As a new poster, one might think he's unknowledgeable. Fine. Easy enough conclusion.

But! He's apparently been reading the forum for some time. He knew enough to repeatedly ask whether he was being detained. Not once. Repeatedly.

This next part is not particularly a criticism; I'm just laying out conclusions: So, I'm thinking he also already knew about the right to silence and the right to refuse consent to searches and seizures and why to exercise them. Maybe he discounted it in his earlier reading. Maybe he thought we were nuts or extremists for promoting exercising rights during all police encounters. I don't know. But, I doubt he didn't know about it.

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This incident raises a question in my mind. Please don't think me ignorant with this as it is a serious question.

Does an off duty police officer in civilian clothes have the same power and authority as he does when on duty, dressed in my police uniform? Is he within his authority to exercise the same powers as he may when on duty?

I just thought of something that gave me a "duh" moment. It wouldn't have made any difference whether or not this officer was on or off duty, whether or not he was in full uniform or jeans and a flannel shirt. This incident took place on private property! The officer has no jurisdiction on private property unless called by management/ownership (or to intervene in the obvious such as theft or malicious activity).

Am I wrong with this?

SouthernBoy said:

I just thought of something that gave me a "duh" moment. It wouldn't have made any difference whether or not this officer was on or off duty, whether or not he was in full uniform or jeans and a flannel shirt. This incident took place on private property! The officer has no jurisdiction on private property unless called by management/ownership (or to intervene in the obvious such as theft or malicious activity).

Am I wrong with this?

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To an extent, in my recollection. If someone just robbed and murdered someone then ran into a Walmart to hide from the coppers, I don't think management/owners would try to stop the police from doing their job and arresting the BG. But, and take this with a grain of salt since I heard it from an officer, the stop signs in the parking lot of Walmart aren't usually enforced unless you run over a bunch of pedestrians in the process of running the stop sign.

I can't cite and this is all hearsay so, again, take it for what you will.

ThatOneChick said:

To an extent, in my recollection. If someone just robbed and murdered someone then ran into a Walmart to hide from the coppers, I don't think management/owners would try to stop the police from doing their job and arresting the BG. But, and take this with a grain of salt since I heard it from an officer, the stop signs in the parking lot of Walmart aren't usually enforced unless you run over a bunch of pedestrians in the process of running the stop sign.

I can't cite and this is all hearsay so, again, take it for what you will.

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I'm certain you're right. Of course WalMart is a VERY large corporation so let's take this down to something more in line, as with a with a small business... although the same would apply.

Suppose you are in a friend's small engine shop and they have no problem with you OC'ing. And you happen to live in a state where open carry is not allowed. I would bet that as long as you are on the premises of this small business, an LEO has no authority to detain or arrest you when he sees you OC'ing because it is clearly private property and you are doing this with the full knowledge and allowance of the owner/manager. If you cover up when leaving to go elsewhere, you would be following the laws of your state (presuming you have the appropriate permit to conceal).

ThatOneChick said:

To an extent, in my recollection. If someone just robbed and murdered someone then ran into a Walmart to hide from the coppers, I don't think management/owners would try to stop the police from doing their job and arresting the BG. But, and take this with a grain of salt since I heard it from an officer, the stop signs in the parking lot of Walmart aren't usually enforced unless you run over a bunch of pedestrians in the process of running the stop sign.

I can't cite and this is all hearsay so, again, take it for what you will.

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Well, I think this is a 'yes, no, depends' type of question.

For starters, a law enforcement officer, on or off duty, uniformed or in plain clothes is the stipulation.

If where both the civilian and the le are legally able to be such as walmart, LE does not act as an agent of the business. But, if LE witnesses a crime, IMHO, that does not prevent the LE from acting as an LE for the purposes of investigating, reacting, arresting, etc.

If where both the civilian and the le are legally able to be such as walmart, and LE has been hired as an agent of the business, such as for security, then they would be acting as an agent of the business. Probably also as if they are an off-duty LE.

If where only the civilian is invited onto private property, unless the LE is also invited in, IMHO, standard rules apply as to the limits placed upon LE action.

SouthernBoy said:

I'm certain you're right. Of course WalMart is a VERY large corporation so let's take this down to something more in line, as with a with a small business... although the same would apply.

Suppose you are in a friend's small engine shop and they have no problem with you OC'ing. And you happen to live in a state where open carry is not allowed. I would bet that as long as you are on the premises of this small business, an LEO has no authority to detain or arrest you when he sees you OC'ing because it is clearly private property and you are doing this with the full knowledge and allowance of the owner/manager. If you cover up when leaving to go elsewhere, you would be following the laws of your state (presuming you have the appropriate permit to conceal).

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I would presume it'd depend on the cop, how their day is going, etc. I've personally encountered officers who I thought were going to razz me for OC but, threw me off guard when they only came over to tell me how awesome my gun is, and vice versa. We all know, either from personal experience or reading news stories, how well some officers follow the law.

Although, private property rights do not guarantee an officer cannot make an arrest. If they have RAS that something bad is going down in somebody's home, they do not need a warrant. Again, it'd depend on the cop and how far he was willing to go for someone OCing but, I'm sure there are officers who would shrug at the matter and others who would want to make a career out of police brutality.

wrightme said:

If where both the civilian and the le are legally able to be such as walmart, LE does not act as an agent of the business. But, if LE witnesses a crime, IMHO, that does not prevent the LE from acting as an LE for the purposes of investigating, reacting, arresting, etc.

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To an extent. If officers are called by neighbors because a husband is beating his wife, if the wife doesn't want to press charges, nothing is going to happen. What I'm about to say is hearsay but, I've had conversations with people who have stolen items from Walmart, been caught but, no charges were pressed because the items were below $50. If an officer had witnessed the theft but, Walmart says "Eh, no big deal.", I don't believe the officer would perform an arrest.

I see people running the stop signs in the Walmart parking lots around here all the time, often times in front of the police (For some reason, there is always an ambulance, fire truck, and police cars in front of this one Walmart here). I've never once seen anyone pulled over for it.

ThatOneChick said:

To an extent. If officers are called by neighbors because a husband is beating his wife, if the wife doesn't want to press charges, nothing is going to happen. What I'm about to say is hearsay but, I've had conversations with people who have stolen items from Walmart, been caught but, no charges were pressed because the items were below $50. If an officer had witnessed the theft but, Walmart says "Eh, no big deal.", I don't believe the officer would perform an arrest.

I see people running the stop signs in the Walmart parking lots around here all the time, often times in front of the police (For some reason, there is always an ambulance, fire truck, and police cars in front of this one Walmart here). I've never once seen anyone pulled over for it.

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I lived in Utah for a good part of my life but now live in Idaho. Here in Idaho parking lots are part of the private property and the stop signs are only suggestions in the eyes of the police.

My wife works for the Idaho Department of Transportation as a driving skills tester and you get into an accident in a wallmart parking lot it is considered to be a 50/50 problem, even if another car plows into your car while it is parked. The only reason the police arrive and take a report is so you can fight it out with their insurance to get repairs if you can show they caused the collision. If it would have happened on the main road then they would actually right a ticket for not stopping but on private property like a wallmart parking lot your on your own.

DocWalker said:

I lived in Utah for a good part of my life but now live in Idaho. Here in Idaho parking lots are part of the private property and the stop signs are only suggestions in the eyes of the police.

My wife works for the Idaho Department of Transportation as a driving skills tester and you get into an accident in a wallmart parking lot it is considered to be a 50/50 problem, even if another car plows into your car while it is parked. The only reason the police arrive and take a report is so you can fight it out with their insurance to get repairs if you can show they caused the collision. If it would have happened on the main road then they would actually right a ticket for not stopping but on private property like a wallmart parking lot your on your own.

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Exactly my point. =) It's up to the business owner, in some cases, whether they want to press charges or not. The stop signs in the parking lot aren't enforced that I've seen, possibly because the owner has discussed with the police that it's no big deal--unless that person plows over a bunch of pedestrians. Then, I believe, it's out of the business owner's hands.