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4th Circuit ruling supporting the 4A

MKEgal

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Oh, yeah... it supports OC too

US v. Black
Among other things,
reaffirming that a seizure takes place when a reasonable person would think s/he was not free to leave,
reaffirming that police cannot make RAS out of innocent unconnected facts,
reaffirming that refusal to comply does not give RAS, nor does complying,
reaffirming that simply being present in a "high-crime area" does not give RAS,
stating that made-up police rules are not sufficient basis for a seizure or search...

There's so much reason used & written by the Court, it's worth the time to wade through it.
It's only 17 pages, one narrow column, and a few pages at start & finish aren't part of the case.

If police officers can justify unreasonable seizures on a citizen’s acquiescence, individuals would have no Fourth Amendment protections unless they interact with officers with the perfect amount of graceful disdain.
:lol:
Black’s decision to leave was an effort to terminate an illegal seizure.
There is no reasonable suspicion merely by association.
Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.
That the officer had never seen anyone in this particular division openly carry a weapon also fails to justify reasonable suspicion.
 

OC for ME

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Given the decision in US v Black, citizen Troupe needs a attorney. The real crime was the disarming of the lawfully carrying citizen. This opinion is all that troupe will likely need to gain some level of relief and some level of retribution on those thug cops.
 

carolina guy

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Wow...all that and in NC? :)

So...being cooperative is "suspicious" to the police...and being uncooperative is also suspicious...

Guess they should be called the Charlotte-Mecklenburg Brute Squad (CMBS) for all that they want to know and follow the laws they swore to uphold and protect.

http://www.youtube.com/watch?v=qmJ2GVOEVFI
 

Ca Patriot

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This case highlights a VERY important tool that citizens can use in police confrontations.

The ruling outlined WHEN a seizure occurs and states that any information or evidence gleened AFTER the seizure occurs is illegal.

If the police stop you for a "consensual" encounter with no reasonable suspicion you should immediately ask if you are free to leave. If the police say no or if a citizen can reasonably believe that they are not free to leave then the "seizure" has occured. Therefore, any evidence obtained AFTER that moment, no matter how compeling, becomes unlawfully obtained and is non admissable.
 

OC for ME

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This case highlights a VERY important tool that citizens can use in police confrontations.

The ruling outlined WHEN a seizure occurs and states that any information or evidence gleened AFTER the seizure occurs is illegal.

If the police stop you for a "consensual" encounter with no reasonable suspicion you should immediately ask if you are free to leave. If the police say no or if a citizen can reasonably believe that they are not free to leave then the "seizure" has occured. Therefore, any evidence obtained AFTER that moment, no matter how compeling, becomes unlawfully obtained and is non admissable.
sigh.....only if the cops are fishing for a crime. If you see red squiggles under some of your words.....they mean something.
 

MKEgal

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Another thing it was nice to see in that decision - the Court didn't accept any of the acts of the 'suspects' (victims) as being suspicious. Nothing the cops claimed as RAS convinced the Court, & they threw many of their common arguments in the pot.
 

carolina guy

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Another thing it was nice to see in that decision - the Court didn't accept any of the acts of the 'suspects' (victims) as being suspicious. Nothing the cops claimed as RAS convinced the Court, & they threw many of their common arguments in the pot.

I noticed that as well.

Some of the bits I really liked:

Being a felon in possession of a firearm is not the default
status. More importantly, where a state permits individuals to
openly carry firearms, the exercise of this right, without more,
cannot justify an investigatory detention. Permitting such a
justification would eviscerate Fourth Amendment protections
for lawfully armed individuals in those states. United States
v. King, 990 F.2d 1552, 1559 (10th Cir. 1993).

Perhaps it is wishful thinking, but given that simply being legally armed is not reason for an investigative detention, disarming a legally armed person should be Unconstitutional.

I do not want to hear about "officer safety"...if they wanted a "safe" job, they should get a safer job. Don't they already have enough going for their safety? (body armor, radios, training, fitness requirements, etc)

I think it is time for OCers to INSIST that if an officer wants them disarmed "for their safety", that the officer should also similarly disarm for the Citizen's safety. In the absence of RAS for a Terry stop (or even Az v. Johnson), they have no rights to disarm you unless you are clearly "dangerous". How is it "reasonable" for a "consensual" stop where the police officer "just wants to talk" that they should be allowed to hold the upper hand??.

I would also argue that the Citizen's safety is paramount since the police have NO duty to protect, and have a much worse safety and criminal record that LAC who OC/CC.

(grrrr...this really frosts me, sorry). :)


If police officers can justify unreasonable seizures on
a citizen’s acquiescence, individuals would have no Fourth
Amendment protections unless they interact with officers
with the perfect amount of graceful disdain.

In the words of Dr. Martin Luther King, Jr., we are
reminded that "we are tied together in a single garment of
destiny, caught in an inescapable network of mutuality,"
that our individual freedom is inextricably bound to the
freedom of others. Thus, we must ensure that the Fourth
Amendment rights of all individuals are protected.
 
Last edited:

eye95

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The single most important facet of this ruling is that it referenced St. John v. McColley. (BTW, St. John is a member here.)

I have often cited this case to officers to explain that they can be held personally liable for an illegal stop based solely on OC. Some of those officers go on to say, "Oh, that's just California. That court has no jurisdiction here." I try to point out that the case may not be controlling, but it is still precedent and is compelling. An equal court in another district or circuit does not have to follow it, but unless they consider it completely wrongly decided, they almost surely will.

Well, now we have an appeals court on the opposite coast citing the case as though it is well-settled law. Still, courts in other circuits may ignore it (likely prompting a SCOTUS decision to settle the difference), but with the ruling being settled law in two circuits now, that is becoming less likely.

I don't know how wise it was for the appellant to try to flee the cops, even though the stop was illegal. Had he stuck around, his case would have been just as strong. Fleeing the police when they are bound and determined to violate your rights just might get you beat up or worse. Of course, the appellant is a thug and is probably not as bright as most of us here.

Anyway, good ruling, especially the incorporation of one of my favorite cases, St. John. We owe St. John a lot.
 

davidmcbeth

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Wow...all that and in NC? :)

So...being cooperative is "suspicious" to the police...and being uncooperative is also suspicious...

Guess they should be called the Charlotte-Mecklenburg Brute Squad (CMBS) for all that they want to know and follow the laws they swore to uphold and protect.

http://www.youtube.com/watch?v=qmJ2GVOEVFI

Ha .. the courts have noted that answering questions lowers your ability to argue being held against your will ... the courts have even seemed to give this advice: don't cooperate, it hurts your 4th amendment position...
 

OC for ME

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It is not prudent to seek a quid pro quo re disarming a cop for your safety. The courts will not entertain such a notion when a armed officer is armed as a requirement of his employer. We should hold LE accountable using US v. Black, since it draws upon other cases.

This opinion may be another step on the path to declaring that OC is a protected right irrespective of the law in each state. Those states that do not permit OC or OC with a permit may be looking at US v. Black (if they are looking that is), along with the other cases cited in this opinion and hoping that one of their uniformed minions do not make similar mistakes as did those thug cops in Black.

Only time will tell. US v. Black will be going into the ole back pocket.
 

carolina guy

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It is not prudent to seek a quid pro quo re disarming a cop for your safety. The courts will not entertain such a notion when a armed officer is armed as a requirement of his employer. We should hold LE accountable using US v. Black, since it draws upon other cases.

This opinion may be another step on the path to declaring that OC is a protected right irrespective of the law in each state. Those states that do not permit OC or OC with a permit may be looking at US v. Black (if they are looking that is), along with the other cases cited in this opinion and hoping that one of their uniformed minions do not make similar mistakes as did those thug cops in Black.

Only time will tell. US v. Black will be going into the ole back pocket.

I think it is more "reasonable" to request that an officer violate his employer's "job requirements" than it is "reasonable" that he violate my RIGHTS. It is perhaps a silly argument, but I stand by it. I believe that MY safety trumps a public EMPLOYEE's safety where I have no OBLIGATION to comply. Sure, there is always the "reality of the situation" where the police officer may decide to further trample my rights "because he can"...but why should we as a society even tolerate this as a consideration?

And you can be sure that I will chose the option that has me "going home at night", but it will be followed by a lawsuit against the department and government (state/city/county) for the civil rights violation and most assuredly, a civil suit against the officer personally.

Although, I suppose the best course (IMO) is simply stating "Unless you tell me that I am being detained, then I will be going about my LAWFUL business. Good day, sir." Then...just...simply...leave. If he does not affirmatively say you are being detained, then you are not and your obligation to interact is not at an end, it never began.

I do not like the "am I being detained?" scenario, because it leaves the status of the encounter in doubt if the officer does not answer the question directly, which is what they want...doubt plays to their advantage.
 

sudden valley gunner

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The single most important facet of this ruling is that it referenced St. John v. McColley. (BTW, St. John is a member here.)

I have often cited this case to officers to explain that they can be held personally liable for an illegal stop based solely on OC. Some of those officers go on to say, "Oh, that's just California. That court has no jurisdiction here." I try to point out that the case may not be controlling, but it is still precedent and is compelling. An equal court in another district or circuit does not have to follow it, but unless they consider it completely wrongly decided, they almost surely will.

Well, now we have an appeals court on the opposite coast citing the case as though it is well-settled law. Still, courts in other circuits may ignore it (likely prompting a SCOTUS decision to settle the difference), but with the ruling being settled law in two circuits now, that is becoming less likely.

I don't know how wise it was for the appellant to try to flee the cops, even though the stop was illegal. Had he stuck around, his case would have been just as strong. Fleeing the police when they are bound and determined to violate your rights just might get you beat up or worse. Of course, the appellant is a thug and is probably not as bright as most of us here.

Anyway, good ruling, especially the incorporation of one of my favorite cases, St. John. We owe St. John a lot.

Good points.

I for one am glad he walked away because it brought the case into another area of if he just stayed. There was a similar case in Washington I can't remember that pretty much said the same thing.

Sometimes I am glad for people the rest of us don't think of as smart, because they often help us in their dumb moves.....:p
 

MKEgal

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carolina guy said:
I do not like the "am I being detained?" scenario, because it leaves the status of the encounter in doubt if the officer does not answer the question directly, which is what they want... doubt plays to their advantage.
For a while now, Citizen has said the proper question is "why am I being detained?"
Because if you have to ask "am I?" the answer is yes, & the officers need to have a good & valid reason to do so. "Why" puts more pressure on them, puts them on notice that you feel as though you are not allowed to leave, so the encounter has become nonconsensual.

I found my way to some PDFs of Richmond, VA PD SOPs, and the one about Constitutional rights includes this gem:
If, during a field interview, a person asks if he or she must respond, or indicates that he or she feels compelled to respond, the officer shall immediately inform him or her of the right to refuse, as well as the right to leave.
 

OC for ME

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For a while now, Citizen has said the proper question is "why am I being detained?"
Because if you have to ask "am I?" the answer is yes, & the officers need to have a good & valid reason to do so. "Why" puts more pressure on them, puts them on notice that you feel as though you are not allowed to leave, so the encounter has become nonconsensual.

I found my way to some PDFs of Richmond, VA PD SOPs, and the one about Constitutional rights includes this gem:
"Field Interview" sounds so much more.....non-illegal.....does it not?

I think it is more "reasonable" to request that an officer violate his employer's "job requirements" than it is "reasonable" that he violate my RIGHTS. It is perhaps a silly argument, but I stand by it. I believe that MY safety trumps a public EMPLOYEE's safety where I have no OBLIGATION to comply. Sure, there is always the "reality of the situation" where the police officer may decide to further trample my rights "because he can"...but why should we as a society even tolerate this as a consideration?

And you can be sure that I will chose the option that has me "going home at night", but it will be followed by a lawsuit against the department and government (state/city/county) for the civil rights violation and most assuredly, a civil suit against the officer personally.

Although, I suppose the best course (IMO) is simply stating "Unless you tell me that I am being detained, then I will be going about my LAWFUL business. Good day, sir." Then...just...simply...leave. If he does not affirmatively say you are being detained, then you are not and your obligation to interact is not at an end, it never began.

I do not like the "am I being detained?" scenario, because it leaves the status of the encounter in doubt if the officer does not answer the question directly, which is what they want...doubt plays to their advantage.
I "jump" right to "am I free to leave" after the cop goes "Excuse me Sir" part. This makes the "field interview" either a detention or a request for my assistance. So far I have been very very lucky with this approach. I have me some really good cops in my little town. They even remember things they are "taught" on the side of the road.
 

carolina guy

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For a while now, Citizen has said the proper question is "why am I being detained?"
Because if you have to ask "am I?" the answer is yes, & the officers need to have a good & valid reason to do so. "Why" puts more pressure on them, puts them on notice that you feel as though you are not allowed to leave, so the encounter has become nonconsensual.

I found my way to some PDFs of Richmond, VA PD SOPs, and the one about Constitutional rights includes this gem:

I understand the "why" v. "am I" difference, and that is why I favor just squashing the presumption at the beginning and make them ACT to prolong the encounter based upon my statement. I should not have to ASK them anything at the beginning -- I am not a subject, I am a Citizen.

If they want to tell me to remain (or even lay hands), then they have -- from that moment -- declared (by words or actions) that it IS a detention. The next words from me should be that I do not wish to speak to them without an attorney present. It is a detention, and if they are going to search/seize, then there is no longer any reason to converse with them, only record and litigate.
 

Freedom1Man

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SNIP
I "jump" right to "am I free to leave" after the cop goes "Excuse me Sir" part. This makes the "field interview" either a detention or a request for my assistance. So far I have been very very lucky with this approach. I have me some really good cops in my little town. They even remember things they are "taught" on the side of the road.

That approach seems to work rather well.

It defused a cop when I jumped straight to the "Am I free to leave?" question.

He did seem rather confused after that though.
 

Deanimator

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This case highlights a VERY important tool that citizens can use in police confrontations.

The ruling outlined WHEN a seizure occurs and states that any information or evidence gleened AFTER the seizure occurs is illegal.

If the police stop you for a "consensual" encounter with no reasonable suspicion you should immediately ask if you are free to leave. If the police say no or if a citizen can reasonably believe that they are not free to leave then the "seizure" has occured. Therefore, any evidence obtained AFTER that moment, no matter how compeling, becomes unlawfully obtained and is non admissable.
My best friend here is a lawyer. He taught me that the FIRST thing out of your mouth when stopped is "Am I free to leave?" If the answer is "no", then there should be NO further interaction with the cop not MANDATED by law, such as (in Ohio) notification that you have an Ohio CHL AND you are carrying a firearm.

Leave the witty "banter" with cops to "Law & Order". If you're not free to leave, shut your mouth and let the cop talk HIMSELF into a jam.
 
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