Guilty up proven innocent

This video was taken in Florida of two FWC Office talking/giving a presentation at a club meeting. One Officer has 8 plus years experience and the Officer that verbally states Guilty until you prove you are innocent has over 5 years experience. Obliviously they have forgotten or does not care about, One of the most sacred principles in the American criminal justice system, holding that a defendant or suspect is innocent until probable cause is their. In other words, the Officer must legitimately have reasonable suspicion that a crime has been committed, for each essential element of the crime charged. https://www.youtube.com/watch?v=mlcz27iT3Kc

Welcome to OCDO.

Unless you can cite the time-stamp where those things are said, I'm calling bullsh!t.

Listened to it twice - never heard those words. Please cite the time in the video where those things were said.

FYI - trolls and drive-by posters are not received well here.

stay safe.

They explained the law, the pitfalls of other citizens/businesses not understanding the law and that if you don't leave it in the darn holster for any reason and someone calls in about it, you're going to have some explaining to do about why you were handling it in public. For an almost entirely CC only state, sounded reasonable, practical and friendly to me.

skidmark said:

Welcome to OCDO.

Unless you can cite the time-stamp where those things are said, I'm calling bullsh!t.

Listened to it twice - never heard those words. Please cite the time in the video where those things were said.

FYI - trolls and drive-by posters are not received well here.

stay safe.

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At about 1:50, the cop on the right says something close enough to recognize what the OPer is talking about, "...its up to you to prove you weren't doing anything illegal."



In the context of police responding to a call about an OCer unholstering and handling his gun to show another who asked about it (go just a little earlier in the video to see the citizen's question that set the context), the cop gets it wrong.

Here is my take on it.

If the cop does not have reasonable articulable suspicion RAS for a detention--whether lacking indicia of reliability in the 911 call, or statutory authority, e.g., the statute forbids removing from holster, etc.--no matter what the insufficiency is, no RAS = cop cannot seize the OCer, and he doesn't have to prove his innocence.

Alternatively, if the cop for some reason does have RAS, its up to the cop to develop RAS into probable cause, emphatically not up to the OCer to prove his innocence in order to stop the cop having probable cause.

The cop really has it hind end forward as to who has to prove what. We heard a similar viewpoint in the early days of OCDO--think back to the OCers who reported illegal detentions because the cop "had no way to know whether you're a felon [in possession of a firearm]." And, "How do I know that gun isn't stolen?" And, "How do we know you're not about to (insert crime here)?" Similar viewpoint, just one step earlier in the process and lacking RAS.

I heard that and I can't argue with your interpretation, Citizen. I interpreted it as him saying in essence that if a witness says you're brandishing you are going to have to prove you weren't. Which still may be backwards but it is not as egregious in a colloquial conversation. But yeah, the cop could have said it better or, if he really does think the way Citizen interprets his comments that is certainly problematic.

Wow

skidmark said:

Welcome to OCDO.

Unless you can cite the time-stamp where those things are said, I'm calling bullsh!t.

Listened to it twice - never heard those words. Please cite the time in the video where those things were said.

FYI - trolls and drive-by posters are not received well here.

stay safe.

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Well sir skidmark, I was just showing a video that occurred in the state of Florida and you can call bullsh1t all you like and can fyi me all you care to about the troll issue, but YOU need to watch the video again the words just as the Officer stated is if he is told about the open display so the next time someone is legally carrying a weapon holstered and some anti gun person calls and makes a False statement and the Office arrives you are presumed GUILTY and you have to prove your innocent so good luck as you take the ride to the local cross bar motel.. Try viewing the video from around 1.50 seconds and remember if you were fishing and he arrived this is his stance on this issue.

deepdiver said:

I heard that and I can't argue with your interpretation, Citizen. I interpreted it as him saying in essence that if a witness says you're brandishing you are going to have to prove you weren't. Which still may be backwards but it is not as egregious in a colloquial conversation. But yeah, the cop could have said it better or, if he really does think the way Citizen interprets his comments that is certainly problematic.

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Thanks.

I would take it even further.

Regarding egregious/colloquial conversation, I have attended a police/citizen meeting. In that meeting, there was a little demonstration of a police consensual contact. Do you know, the danged cops actually asked the CCer which pocket he kept his wallet? Really. As though a free man would consensually let a government agent reach into his pocket and remove his wallet. The mentality of the police who considered that a legitimate tactic boggles the mind. The hubris is staggering. There were one or two other police twisted statements on RAS that I can no longer recall.

My point is that police set themselves up as authorities on the subject. They're coming into these meetings/discussions to build bridges or whatever. And, use their altitude as experts to influence the ideas the public take away from the meeting. "I'm the professional, the expert, and I am here to answer your questions." So, either they really don't understand the law, or they're trying to give the attendees a certain impression about their rights. Permissible deception of a suspect is one thing, but misleading a few members of the public is a whole different category. Rhetorical question: which street cop does not understand RAS when he uses it every day, multiple times a day, and has testified many times in suppression hearings about his RAS?

Speaking for myself, it would be too easy for cops to get it right even when speaking colloquially. I did. It only took me a couple seconds to figure out what I wanted to say in my first post in this thread. And, I'm not a professional using this information every day, multiple times a day.

Roughly:

If a person calls and says you are pulling it out, passing it around, it is going to be up to you to prove you were doing nothing wrong.

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Seems the Florida law is pretty close to Virginia law on brandishing http://www.floridafirearmslaw.com/o...improper-exhibition-of-firearm-or-weapon.html

Florida Statute 790.10. This statute is officially titled as "improper exhibition of dangerous weapons or firearms", and the statute states that "if any person having or carrying any . . . weapon shall, in the presence of one or more (other) persons, exhibit the same in a rude, careless, angry or threatening manner, not in necessary self defense, the person so offending shall be guilty of a misdemeanor of the first degree".

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Specifically, http://www.leg.state.fl.us/statutes...ing=&URL=0700-0799/0790/Sections/0790.10.html

So if Joe Hoplophobe calls 911 and complains the liklihood of being cited is probably pretty good. Remember, the only "witness" the cops have is the person calling 911, and the contents of that call more than likely do meet the criteria for not only RAS but PC. And once having been cited (even if the complaint does not actually contain the elements of the crime) you are going to have to prove you were not doing nothing wrong.

Ask me how I know.

I admit I did not clearly hear the comment the first two times I listened to the clip. I withdraw the bullsh!t accusation.

I'm still waiting to see if sa4007 is more than a drive-by poster.

stay safe.

Seems sa4007 crosses my path just after I post.

Guess he is not a drive-by poster either.

As I mentioned, the cop has limited information to go on - the contents of the 911 call. And as I said, if the complaint contains the elements of the crime you are more than likely going to get cited because the information in front of the cop is not just RAS but PC.

When it happens to you and the call/complaint is an outright lie it sucks, but that's the way things are. The only thing I can think of that keeps the situation from happening more often is the reluctance of most of the population to lie in order to carry out an irrational agenda, be it firearms control or drug control or animal possession control, to name a few.

I would be interested in any suggestions you might have in how to change the "system".

stay safe.

skidmark said:

Seems sa4007 crosses my path just after I post.

Guess he is not a drive-by poster either.

As I mentioned, the cop has limited information to go on - the contents of the 911 call. And as I said, if the complaint contains the elements of the crime you are more than likely going to get cited because the information in front of the cop is not just RAS but PC.

When it happens to you and the call/complaint is an outright lie it sucks, but that's the way things are. The only thing I can think of that keeps the situation from happening more often is the reluctance of most of the population to lie in order to carry out an irrational agenda, be it firearms control or drug control or animal possession control, to name a few.

I would be interested in any suggestions you might have in how to change the "system".

stay safe.

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I don't know. Wouldn't that depend on things like whether the cop has to witness it himself, indicia of reliability, felony vs misdemeanor, state case law on these poinst, etc?

I think Skid is saying that you may beat the rap in court (burden of proof not being met) but you won't beat the citation on the street (911 caller said you did it).

deepdiver said:

I think Skid is saying that you may beat the rap in court (burden of proof not being met) but you won't beat the citation on the street (911 caller said you did it).

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I hope its not gotten that bad. Back in the day, cops in VA wouldn't cite for a misdemeanor unless they witnessed it themselves. Now, whether that was a legal requirement for the cop to be able to cite, I couldn't tell you. But, I do know that cops would not cite a misdemeanor without seeing it themselves. A citizen could swear out a warrant himself, and the cops would then execute the warrant, but cops wouldn't directly cite a misdemeanor themselves unless they witnessed it, no matter how convincing the initial complaint, excluding statutory exceptions like shoplifting.

Citizen said:

I hope its not gotten that bad. Back in the day, cops in VA wouldn't cite for a misdemeanor unless they witnessed it themselves. Now, whether that was a legal requirement for the cop to be able to cite, I couldn't tell you. But, I do know that cops would not cite a misdemeanor without seeing it themselves. A citizen could swear out a warrant himself, and the cops would then execute the warrant, but cops wouldn't directly cite a misdemeanor themselves unless they witnessed it, no matter how convincing the initial complaint, excluding statutory exceptions like shoplifting.

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Back in the day I remember cops in Virginia using the sworn written statement of the complainant as the basis for obtaining a warrant. Slightly different than the citizen swearing out a warrant on their own. Still works that way.

stay safe.

skidmark said:

Back in the day I remember cops in Virginia using the sworn written statement of the complainant as the basis for obtaining a warrant. Slightly different than the citizen swearing out a warrant on their own. Still works that way.

stay safe.

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Now that you mention it, I very vaguely recall something similar. I can't quite get it back with respect to a sworn written statement of a complainant, just a general concept that deputies went to the magistrate with the complainant's report and could obtain a warrant. Its pretty hazy, and for all I know I could be misremembering, but your comment strikes a chord.

Citizen said:

Now that you mention it, I very vaguely recall something similar. I can't quite get it back with respect to a sworn written statement of a complainant, just a general concept that deputies went to the magistrate with the complainant's report and could obtain a warrant. Its pretty hazy, and for all I know I could be misremembering, but your comment strikes a chord.

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Ask Scouser how it works.

stay safe.

The FWC officer is mistaken. They often are. :uhoh:

When authorized by statute 790.25, an individual may carry any legal firearm openly or concealed without benefit of a CWFL. This includes at your home or place of work, the range (or going to/from), hunting, fishing, camping (or going to/from), and a few other situations. Oh and his insinuation that you may carry into Walmart to get bait is not supported in any case law, and is likely unlawful, as you are not going fishing, you are going to Walmart to get bait before you go fishing. But that is an entirely different topic.

OK, here's the real deal with the "display" of a firearm in Florida.

As to the display (the legal term here is 'exhibit') it is only unlawful if done in a "rude, careless, angry, or threatening manner" (790.10 - a misdemeanor). Taking your gun out of it's holster to show your buddy is not unlawful. However, 'Flashing it around' is probably going to be a problem.

Skid, the 911 call may provide enough RAS for an investigative detention (depending on a few variables), but does not provide PC for an arrest. In Florida the LEO must witness a (most) misdemeanor personally or have a sworn complaint/warrant/etc to make an arrest.

Florida Courts have repeatedly ruled that carrying under 790.25 is an "affirmative defense" that you must prove to the crimes of open or concealed carry. This means that you are treated as guilty until you prove your defense of falling within a provision of 790.25 fla stat.

We just changed the concealed carry prohibition to make a concealed carry license an element of the crime of concealed carry. That law went in to effect yesterday.

So, in Florida right now:
OC - Guilty until you prove yourself innocent.
CC - Innocent until there is good reason to believe that you are not.

StogieC said:

Florida Courts have repeatedly ruled that carrying under 790.25 is an "affirmative defense" that you must prove to the crimes of open or concealed carry. This means that you are treated as guilty until you prove your defense of falling within a provision of 790.25 fla stat.

We just changed the concealed carry prohibition to make a concealed carry license an element of the crime of concealed carry. That law went in to effect yesterday.

So, in Florida right now:
OC - Guilty until you prove yourself innocent.
CC - Innocent until there is good reason to believe that you are not.

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Well, that just turned this thread upside down.

Thanks, Stogie.

StogieC said:

Florida Courts have repeatedly ruled that carrying under 790.25 is an "affirmative defense" that you must prove to the crimes of open or concealed carry. This means that you are treated as guilty until you prove your defense of falling within a provision of 790.25 fla stat.

We just changed the concealed carry prohibition to make a concealed carry license an element of the crime of concealed carry. That law went in to effect yesterday.

So, in Florida right now:
OC - Guilty until you prove yourself innocent.
CC - Innocent until there is good reason to believe that you are not.

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Well then ... correctly stated by LE in the video. Interesting. Can't wait for FL OC given that tidbit.

Citizen said:

Well, that just turned this thread upside down.

Thanks, Stogie.

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That's the problem we are faced with. While technically, 790.25 is an affirmative defense, it is also the statute that allows one to carry/transport a gun to the range; carry a firearm in our homes, or while hunting, etc. But I can't imagine any judge in the state that would rule that an arrest (for open carry) of a hunter, while hunting w/ a valid license, or someone in their own home, would be reasonable.