Surrendering open carry firearms for police inspection

The Truth · Aug 8, 2014

JamesCanby said:
Under NO circumstances? Are you saying that you would physically resist any attempt by a Law Enforcement Officer to remove your firearm?

Or are you saying that you would never, under any circumstance, hand your firearm to a requesting/demanding LEO, instead requiring the LEO to disarm you?

Just looking to gain clarification of your statement.

I cannot think of a reason, if I am not in violation of any law, that LE would ever disarm me. I would like to cite Plummer v. State, 135 Ind. 308, 34 N.E. 968 (1893)* in regards to defending oneself using force against an illegal arrest (although your right to do so varies from state to state). I would also like to cite the court case Terry vs. Ohio** in regards to the police needing "specific and articulable facts" to backup a "resonable suspicion" that a crime is going to be committed. If I am open carrying and have not broken any laws it is my opinion therefore that I may not be detained or disarmed. As far as resisting, unfortunately in VA as I understand it, I have no right no resist with force unless I fear for my life or if excessive force is used. As far as willingly handing over my pistol, or willing allowing LEO to disarm me for no reason whatsoever, there's absolutely no way I am going to allow an illegal seizure, and I am willing to "take the ride" if that's what I have to do to stand up for my rights, and a law suit against the department that arrested me would surely follow. If I were in a state that allowed physical or forceful resistance to unlawful arrest or seizure, I would defend myself to the extent to which I am permitted.

This is my favorite link to post in regards to unlawful arrest or seizure... http://www.constitution.org/uslaw/defunlaw.htm

*http://en.wikipedia.org/wiki/Plummer_v._State
**http://en.wikipedia.org/wiki/Terry_v._Ohio

Please correct me if I am wrong about any of these items.

skidmark · Aug 8, 2014

The Truth said:
Under no circumstances would I EVER turn my gun over to police if I have not committed a crime. If no crime has been committed, you are under no obligation to even acknowledge LEO's query.

....

Let me tell you a story.

Many years ago I came home rather late in the evening (11:30PM-ish) to find a group of neighborhood yutes clustered around my apartment's front door because 1) it had a canopy and it was drizzling and 2) my door was the closest to the street. Several of them were also drinking. I politely (yes, as hard as that may be to believe) asked them to move aside to let me pass, and to hang out somewhere else because I was tired and did not want to be disturbed by the sounds of their conversations.

One of the crowd said a few things to the effect of declining to move and suggested a few things I could do about being tired. He also hinted at some things he was willing to do to help me not hear anything. I declined his kind offers and again asked them to step aside so I could enter my aparrtment. His companions encouraged him to go with te rest of them to find somewhere else to be. The yute in question was eventually persuaded, but not before voicing some threats that I took rather seriously about his intent to come back later and demonstrate some of his physically persuasive powers.

Went into my apartment and did some stuff for a few minutes and realized I had left some non-perishable groceries in my car which was parked in front of my door. Went out to bring them in when the yute appeared from around the corner, yelling that he was going to kill me. He met Mr. Pepper Spray - possibly for the first time. I went inside and called the cops to report what I had done (first to call is the victim, right?). Cops came out and apparently found the yute down the block a ways, laying in the middle of the street and complaining loudly.

Cops came to my apartment and took a statement from me, then asked me to do a field identification of the guy they had in the back seat. On the way the cop accompanying me noticed (for the first time:shocker

that I was OCing. He asked me to put the gun away before I went to look at the guy in the back seat. When I said I was not comfortable doing that he explained that he was not willing to take the chance that I (an otherwise unknown who had just pepper sprayed some dude) might attack the guy.

As we were discussing attempted murder charges against the guy I thought that making the field ID was more important than staying armed. As we were by this time down the block he offered to store my handgun in the trunk of one of the several squadcars parked about.He was convinced (the powers of persuasion) to let me take it out of the holster and put it in the trunk. Field ID made. (end of story - about 2 months later the yute was conviced of attempted murder and a bunch of misdemeanors and went away for 2 years)

Why the story? Because sometimes it is either more helpful or less a cause of interpersonal disagreement with the cop(s) to allow yourself to be disarmed even though you are not being detained. Pick your battles wisely. In other words, under no circumstances EVER say never.

stay safe.

peter nap · Aug 8, 2014

Actually you do have a perfect right to resist an unlawful arrest in Va. User has discussed it several times. The problem is you can't really resist an arrest or seizure without getting physical. Unfortunately, assaulting an officer is a felony here and you would be charged and ninety five out of a hundred times, be convicted.

Better to simply say you don't consent and if the cop is determined to get it, let him take it himself.

Citing cases in the field is fine...just don't be surprised when he doesn't pay any attention.

The Truth · Aug 8, 2014

skidmark said:
Let me tell you a story.

Many years ago I came home rather late in the evening (11:30PM-ish) to find a group of neighborhood yutes clustered around my apartment's front door because 1) it had a canopy and it was drizzling and 2) my door was the closest to the street. Several of them were also drinking. I politely (yes, as hard as that may be to believe) asked them to move aside to let me pass, and to hang out somewhere else because I was tired and did not want to be disturbed by the sounds of their conversations.

One of the crowd said a few things to the effect of declining to move and suggested a few things I could do about being tired. He also hinted at some things he was willing to do to help me not hear anything. I declined his kind offers and again asked them to step aside so I could enter my aparrtment. His companions encouraged him to go with te rest of them to find somewhere else to be. The yute in question was eventually persuaded, but not before voicing some threats that I took rather seriously about his intent to come back later and demonstrate some of his physically persuasive powers.

Went into my apartment and did some stuff for a few minutes and realized I had left some non-perishable groceries in my car which was parked in front of my door. Went out to bring them in when the yute appeared from around the corner, yelling that he was going to kill me. He met Mr. Pepper Spray - possibly for the first time. I went inside and called the cops to report what I had done (first to call is the victim, right?). Cops came out and apparently found the yute down the block a ways, laying in the middle of the street and complaining loudly.

Cops came to my apartment and took a statement from me, then asked me to do a field identification of the guy they had in the back seat. On the way the cop accompanying me noticed (for the first time:shocker that I was OCing. He asked me to put the gun away before I went to look at the guy in the back seat. When I said I was not comfortable doing that he explained that he was not willing to take the chance that I (an otherwise unknown who had just pepper sprayed some dude) might attack the guy.

As we were discussing attempted murder charges against the guy I thought that making the field ID was more important than staying armed. As we were by this time down the block he offered to store my handgun in the trunk of one of the several squadcars parked about.He was convinced (the powers of persuasion) to let me take it out of the holster and put it in the trunk. Field ID made. (end of story - about 2 months later the yute was conviced of attempted murder and a bunch of misdemeanors and went away for 2 years)

Why the story? Because sometimes it is either more helpful or less a cause of interpersonal disagreement with the cop(s) to allow yourself to be disarmed even though you are not being detained. Pick your battles wisely. In other words, under no circumstances EVER say never.

stay safe.

I appreciate you taking the time to tell me of your experiences. I have noted your experience and will apply judgement when being asked to disarm. In your case, I probably would not have a problem disarming since your qualm was with a civilian, not the LEO.

skidmark · Aug 8, 2014

No, my problem was the cop asking (telling) me to disarm. But it was not a battle that I wanted to fight as opposed to starting the wheels moving to put that yute away so he could reflect on his behavior.

I have the same problem with cops asking/telling me me to disarm "for officer safety" if I have chosen to engage in a consensual contact. It's the point where I tell them I'm terminating the consensual contact and some of them get all huffy and use that as an excuse to escalate to an investigatory detention.

I'm in no condition to physically resist a Girl Scout trying to help me across the street, let alone a cop who wants to detain me. And I did not like it when I was arrested. Harshly worded letters and the like can often resolve the situation satisfactorily, even if after the fact.

stay safe.

TFred · Aug 9, 2014

From Arizona, not Virginia, but another excellent State Supreme Court ruling in support of the idea that when you aren't doing anything illegal, you can't be treated like a criminal! It's astounding that this is such a difficult concept for some folks.

TFred

AZ Supreme Court: Cops Can’t Frisk Gun Owners Unless They’re “Engaging in Criminal Behavior”

A frisk can only occur under two conditions, they concluded: “officers must reasonably suspect both that criminal activity is afoot and that the suspect is armed and dangerous.” (emphasis added)

skidmark · Aug 9, 2014

Isn't this just a restatement of Terry?

stay safe.

Rusty Young Man · Aug 9, 2014

skidmark said:
Isn't this just a restatement of Terry?

stay safe.

It is, but the anti-Freedom folks seem to need a reminder of these things from time to time.:banghead:

At any rate, it wasn't long after the decision came to light that other AZ forums began to buzz about the decision; both good and bad posts, in my opinion.

Tanner · Aug 9, 2014

Magi you should attend at least one OC breakfast. That is the first time I open carried and have been doing it ever since.
Despite being a crotchety group of old curmudgeons they are very welcoming and happy to share information along side a opinion or 12.

There is one every Saturday at 0930 here and there and everywhere in between.

va_tazdad · Aug 9, 2014

Come one, come all !!!!

Tanner said:
Magi you should attend at least one OC breakfast. That is the first time I open carried and have been doing it ever since.
Despite being a crotchety group of old curmudgeons they are very welcoming and happy to share information along side a opinion or 12.

There is one every Saturday at 0930 here and there and everywhere in between.

As you well know, there are funny accented folks, beautiful women (thanks to Sidestreet and Grapeshot), youngsters (18-22), and even a 4 year old mascot (My personal favorite) and even former Yankees at the weekly breakfasts.

All are welcome, newbies and OPC members. ;>)

peter nap · Aug 9, 2014

Tanner said:
Despite being a crotchety group of old curmudgeons they are very welcoming and happy to share information along side a opinion or 12.

.

Yeah but you fit right in despite the ribbing Tanner....and you're still missed.

Grapeshot · Aug 9, 2014

peter nap said:
Yeah but you fit right in despite the ribbing Tanner....and you're still missed.

He's baaaack....and fitting in quite well

Primus · Aug 9, 2014

skidmark said:
Isn't this just a restatement of Terry?

stay safe.

That's exactly what it appears to be.

Sent from my XT907 using Tapatalk

Repeater · Aug 9, 2014

Primus said:
That's exactly what it appears to be.

Sent from my XT907 using Tapatalk

Well, there's more to it, if you read the opinion. I discuss it here.

davidmcbeth · Aug 9, 2014

TFred said:
This would be a good thread for you to read through. Virginia is in the Fourth Circuit, so the ruling does apply to Virginia:

4th Circuit rules OC not RAS to stop

Also here, this one has links to the opinion: 4th Circuit Federal Court decision on RAS and Open carry

TFred

Thanks T-Fred ... interesting read ....

XD40sc · Aug 9, 2014

MagiCyle said:
Ladies & Gents,

If a citizen is legally open carrying and a police officer asks to see the gun, does the law require the citizen to surrender the firearm for inspection?

For what purpose?

If the cop runs the serial# then that is a violation of your 4th Amendment rights (illegal search).

If you are in NY or one of the states that have imposed a boolet count restriction, and it is to count your boolets, then you don't' really live in this country to begin with.

Is he interested in buying the same gun?

Has he ever heard of the US Constitution, and have any idea idea what it contains?

Maverick9 · Aug 9, 2014

Yeah like LEOs are going to be familiar with a 4th circuit court ruling. Better print out a copy and carry it with you. While they're reading it you slink away.

sheepdog · Aug 9, 2014

...start by knowing the laws of the state you're in when the request/demand is made...some states give the officer the right to disarm you during a traffic stop, if you CC...to refuse would cost you your permit at least...the question asked here in TX is: while "holding it" for their safety during the encounter, is their running the gun a 4th violation...I haven't found a precedent yet to see...I believe that it would be a violation...

...where OC is not granted by state law, but there is no mention of OC in the law often called Constitutional carry), I wouldn't expect to see that in effect...but I'd research the law of the state involved before I'd start saying "No way, never..." not the way our Founding Fathers intended things to be but "the camel is in the tent!!!"

Lyndsy Simon · Aug 9, 2014

First of all, I've not once been bothered by law enforcement while open carrying in Virginia. I place credit for this fully at the feet of the VCDL, by virtue of the actions of its leadership and members.

That out of the way, I will not under any circumstances consent to disarm. If ordered to do so I will comply, because I'm not interested in arguing the finer points of law on the streets. If disarmed by order, I would respectfully ask that my firearm not be removed from its holster; I would far rather remove my belt. I carry a Glock 31, and I have no idea of the level of competency with firearms this theoretical LEO has. The last thing I'd want is for him or her to have their hand on a loaded handgun pointed at my leg. This also has the benefit of not exposing the weapon's serial number - if surrendered in a holster on demand for the purposes of "officer safety", removing it from the holster to run the serial number would constitute an illegal warrantless search.

As for identification, the only way I'm providing my driver's license is if I'm driving a motor vehicle on a public road. I carry a passport card, and I will provide that upon demand (not request). A passport card is legal identification, but does not contain any information regarding residency. The less information I can share, the better in my opinion.

Grapeshot · Aug 9, 2014

sheepdog said:
...start by knowing the laws of the state you're in when the request/demand is made...some states give the officer the right to disarm you during a traffic stop, if you CC...to refuse would cost you your permit at least...the question asked here in TX is: while "holding it" for their safety during the encounter, is their running the gun a 4th violation...I haven't found a precedent yet to see...I believe that it would be a violation...

...where OC is not granted by state law, but there is no mention of OC in the law often called Constitutional carry), I wouldn't expect to see that in effect...but I'd research the law of the state involved before I'd start saying "No way, never..." not the way our Founding Fathers intended things to be but "the camel is in the tent!!!"

Constitutional carry is OC or CC w/o being required to have a permission slip/permit.

OC is legal in Virginia, but not "granted by state law" - legal because of an absence of a statute denying that right to good, honest people.

Surrendering open carry firearms for police inspection

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