Refusing the "are you armed?".... legal hypothetical

twoskinsonemanns · Sep 6, 2012

Simple enough question. In VA, if you are pulled over and the cop finds out you have a CHP by way of license plate, associated drivers etc, do you have a legal responsibility to answer a direct "are you armed?" question?

IIRC VA is not a "voluntary inform" state. But do you have the legal right to say "I'm not answering that question." if asked directly if you are armed?

Citizen · Sep 6, 2012

twoskinsonemanns said:
Simple enough question. In VA, if you are pulled over and the cop finds out you have a CHP by way of license plate, associated drivers etc, do you have a legal responsibility to answer a direct "are you armed?" question?

IIRC VA is not a "voluntary inform" state. But do you have the legal right to say "I'm not answering that question." if asked directly if you are armed?

As far as I know, there is no statutory requirement to disclose that you are armed during a police encounter or stop. I know that the concealed carry statute does not require disclosure (18.2-08).

Thus, the Fifth Amendment right against self-incrimination would be operative. Meaning, you could say, "Officer, I know you are just doing your job, but like I said earlier when you asked if I knew why you pulled me over, I would not care to answer any questions without an attorney."

However! The courts seem to give a lot of latitude to police. And, PA vs Mimms makes it clear that police can remove a person from his car for officer safety. And, Terry v Ohio makes it clear an officer can search someone for a weapon for officer safety. Both cases require legitimate grounds to seize a person in the first place.

So, don't be surprised if you are removed from the car and searched for declining to answer whether you are armed after he has seen your CHP tied to driver or registration info.

Personally, I like to tell them I'm armed. You'd be surprised at some of the stupid (s)hit cops will say into your voice-recorder. We've had more than one report of a cop in NoVA suddenly telling the driver that disclosure is mandatory and making threats. Just tasty, yummy material for a formal complaint.

peter nap · Sep 6, 2012

twoskinsonemanns said:
Simple enough question. In VA, if you are pulled over and the cop finds out you have a CHP by way of license plate, associated drivers etc, do you have a legal responsibility to answer a direct "are you armed?" question?

IIRC VA is not a "voluntary inform" state. But do you have the legal right to say "I'm not answering that question." if asked directly if you are armed?

You do but be prepared for a long siege by uninformed LEO's and don't count on the Federal courts here when it comes to lawsuit time.
That happened to Tosta Dogen and the whole thing was recorded bt him and the dashcam.

One idiot cop (granted he was from up north where he was considered normal) told him he didn't have the right to remain silent unless he'd done something illegal...

Th Federal court said ...yes they were wrong but they meant well, case dismissed.

TFred · Sep 6, 2012

Your exact question reveals a "catch-22" in the law.

Although not required by law to inform, the CHP law does require you to display your CHP if asked, and if you are actually carrying concealed.

A LEO who wishes to take advantage of this catch-22 simply needs to ask to see your CHP. If you refuse to display it for him, you must legally be NOT carrying. If you display it for him, he can probably assume that either a) you are just cooperating out of good will or ignorance, or b) that you are indeed carrying a concealed handgun.

TFred

Snippet from 18.2-308:

"The person issued the permit shall have such permit on his person at all times during which he is carrying a concealed handgun and shall display the permit and a photo identification issued by a government agency of the Commonwealth or by the United States Department of Defense or United States State Department (passport) upon demand by a law-enforcement officer."

B0wman · Sep 6, 2012

TFred said:
Your exact question reveals a "catch-22" in the law.

Although not required by law to inform, the CHP law does require you to display your CHP if asked, and if you are actually carrying concealed.

A LEO who wishes to take advantage of this catch-22 simply needs to ask to see your CHP. If you refuse to display it for him, you must legally be NOT carrying. If you display it for him, he can probably assume that either a) you are just cooperating out of good will or ignorance, or b) that you are indeed carrying a concealed handgun.

TFred

Snippet from 18.2-308:

"The person issued the permit shall have such permit on his person at all times during which he is carrying a concealed handgun and shall display the permit and a photo identification issued by a government agency of the Commonwealth or by the United States Department of Defense or United States State Department (passport) upon demand by a law-enforcement officer."

By all means correct me if I'm wrong, but the law appears to say you must give the LEO the CHP when prompted to do so, period. Reading just this section, there doesn't appear to be a situation where you could refuse.

Thank you all for discussing this. I'm finding it very helpful.

EDIT: I suppose the only situation would be if you physically did not have it with you, in which case you could not be legally CCing anyway. I guess this is what you meant. Apologies.

Vitaeus · Sep 6, 2012

So unless you need it to be in compliance with the law, don't carry your CHP or your drivers license. I believe the current term is to carry "sterile".

OC for ME · Sep 6, 2012

The rub, a cop can not, I think, disarm you just because he can. Some court opinion states that the cop has to be able to articulate, later obviously, that you posed a threat that warranted the disarming. Disarming just cuz a gun is present without a reasonable and articulable threat I believe is verboten. Folks with bigger brains than mine will likely correct my understandings if my understandings are not understanding correctly.

Then there is the practical viewpoint, the cop will disarm you and worry about whether or not he gets spanked over it being a illegal seizure later.

OC for ME · Sep 6, 2012

B0wman said:
By all means correct me if I'm wrong, but the law appears to say you must give the LEO the CHP when prompted to do so, period. Reading just this section, there doesn't appear to be a situation where you could refuse.

Thank you all for discussing this. I'm finding it very helpful.

EDIT: I suppose the only situation would be if you physically did not have it with you, in which case you could not be legally CCing anyway. I guess this is what you meant. Apologies.

I understand this is Virgina, but in MO if I don't have my CCW permit I could get a ticket for not having it on me. In that situation I would provide my DL cuz the two are tied together and the cop would see via M.U.L.E.S. that my permit was/is valid. I would likely get a warning and then have to bring my permit down to "station where ever" to have the ticket ripped up. As long as I was not a richard cranium about it that is.

peter nap · Sep 6, 2012

OC for ME said:
The rub, a cop can not, I think, disarm you just because he can. Some court opinion states that the cop has to be able to articulate, later obviously, that you posed a threat that warranted the disarming. Disarming just cuz a gun is present without a reasonable and articulable threat I believe is verboten. Folks with bigger brains than mine will likely correct my understandings if my understandings are not understanding correctly.

Then there is the practical viewpoint, the cop will disarm you and worry about whether or not he gets spanked over it being a illegal seizure later.

Depends on why you were stopped. If it was for a traffic infraction you are under arrest and he can disarm you.

ProShooter · Sep 6, 2012

B0wman said:
By all means correct me if I'm wrong, but the law appears to say you must give the LEO the CHP when prompted to do so, period. Reading just this section, there doesn't appear to be a situation where you could refuse.

at all times during which he is carrying a concealed handgun

If you are not "carrying a concealed handgun" (you are carrying openly, or not carrying at all) then you don't have to display the CHP.

TFred · Sep 6, 2012

TFred said:
Your exact question reveals a "catch-22" in the law.

Although not required by law to inform, the CHP law does require you to display your CHP if asked, and if you are actually carrying concealed.

A LEO who wishes to take advantage of this catch-22 simply needs to ask to see your CHP. If you refuse to display it for him, you must legally be NOT carrying. If you display it for him, he can probably assume that either a) you are just cooperating out of good will or ignorance, or b) that you are indeed carrying a concealed handgun.

TFred

Snippet from 18.2-308:

"The person issued the permit shall have such permit on his person at all times during which he is carrying a concealed handgun and shall display the permit and a photo identification issued by a government agency of the Commonwealth or by the United States Department of Defense or United States State Department (passport) upon demand by a law-enforcement officer."

B0wman said:
By all means correct me if I'm wrong, but the law appears to say you must give the LEO the CHP when prompted to do so, period. Reading just this section, there doesn't appear to be a situation where you could refuse.

Thank you all for discussing this. I'm finding it very helpful.

EDIT: I suppose the only situation would be if you physically did not have it with you, in which case you could not be legally CCing anyway. I guess this is what you meant. Apologies.

ProShooter said:
If you are not "carrying a concealed handgun" (you are carrying openly, or not carrying at all) then you don't have to display the CHP.

Yes, my interpretation is the same as ProShooter's. One reason that laws are so hard to get is that they write in such long sentences, so that diagramming that we all used to hate back in the 5th grade does come in handy.

I believe the phrase that limits the applicability of the rest of the whole sentence is: "at all times during which he is carrying a concealed handgun". Meaning just that, when you aren't, you don't have to...

Of course the LEO has their own interpretation, and they can arrest you for anything they want, which is why we have judges and juries.

TFred

peter nap · Sep 6, 2012

TFred said:
Of course the LEO has their own interpretation, and they can arrest you for anything they want, which is why we have judges and juries.

TFred

And why there are no LEA's in heaven!:lol:

Tanner · Sep 6, 2012

Officer: Are you aremd?

Me: God saw fit to give me two. Thanks for asking. As to why you pulled me over.... well he gave me a lead foot to.

Its a stupid joke I know

nuc65 · Sep 6, 2012

OC for ME said:
The rub, a cop can not, I think, disarm you just because he can. Some court opinion states that the cop has to be able to articulate, later obviously, that you posed a threat that warranted the disarming. Disarming just cuz a gun is present without a reasonable and articulable threat I believe is verboten. Folks with bigger brains than mine will likely correct my understandings if my understandings are not understanding correctly.

Then there is the practical viewpoint, the cop will disarm you and worry about whether or not he gets spanked over it being a illegal seizure later.

In NM last year (2011) the NM Supreme court reversed earlier decisions and decided that officer safety warranted a 'temporary' siezure without warrant that in a traffic stop the cops may with impunity deprive you or your rights. I think this government is representative of the USG and is in fact become tyrannical. The cops disarm you without warrant and without justification. In VA I don't know of any case law that addresses officer safety but I think that temporary warrantless seizure followed by warrantless search of your serial number is pretty tyrannical and it should be addressed in Legislature. The whole reason for the second amendment is defense of self and especially defense against tyranny.

Numenor · Sep 6, 2012

nuc65 said:
In VA I don't know of any case law that addresses officer safety but I think that temporary warrantless seizure followed by warrantless search of your serial number is pretty tyrannical and it should be addressed in Legislature. The whole reason for the second amendment is defense of self and especially defense against tyranny.

Something to bring up on Lobby Day perhaps? The patchwork of Stop and Identify ordinances should also be addressed. Having to search through all the city/county codes to check that is utterly silly.

KYGlockster · Sep 6, 2012

Citizen said:
However! The courts seem to give a lot of latitude to police. And, PA vs Mimms makes it clear that police can remove a person from his car for officer safety. And, Terry v Ohio makes it clear an officer can search someone for a weapon for officer safety. Both cases require legitimate grounds to seize a person in the first place.

To conduct a Terry stop it involves a little more than just legitimate grounds to seize a person. For an officer to conduct a Terry stop he must have RAS that some sort of CRIME has occured or will occur. Getting pulled over for a traffic violation does not constitute grounds for a Terry stop. Yes, an officer can remove YOU from your vehicle during a traffic stop for officer safety, but they cannot search your vehicle without PC or consent. If an officer does remove you from your vehicle, then a firearm in your vehicle is no longer a threat to the officer anyways.

And let me say that RAS is not just some hunch an officer might have, because that would not fly in court and the courts have ruled the same. If an officer has RAS then he has some exigent knowledge that would lead him to believe that you probably just committed a crime, or was in the process.

Keep in mind some states have laws that specifically authorize an officers ability to temporarily seize firearms at traffic stops, and I don't know if Virginia is one of these states or not. I know here in KY we have a statute that prohibits officers from disarming at ANY time unless very specific circumstances are met. We do not have to inform an officer if we are armed, nor do we have to show our CDWL at a stop. The only way we have to show our CDWL is if an officer asks for it, and we are carrying a CONCEALED weapon at that time. Even if he asks, it is not a criminal violation to refuse to show it, however we can be fined $25 for failing to do so. If we are carrying openly, or in any factory installed storage compartment in our vehicle, we do NOT have to show our CDWL if asked.

Click to expand...

Citizen · Sep 6, 2012

KYGlockster said:
Citizen said:

However! The courts seem to give a lot of latitude to police. And, PA vs Mimms makes it clear that police can remove a person from his car for officer safety. And, Terry v Ohio makes it clear an officer can search someone for a weapon for officer safety. Both cases require legitimate grounds to seize a person in the first place.

To conduct a Terry stop it involves a little more than just legitimate grounds to seize a person. For an officer to conduct a Terry stop he must have RAS that some sort of CRIME has occured or will occur. Getting pulled over for a traffic violation does not constitute grounds for a Terry stop. Yes, an officer can remove YOU from your vehicle during a traffic stop for officer safety, but they cannot search your vehicle without PC or consent. If an officer does remove you from your vehicle, then a firearm in your vehicle is no longer a threat to the officer anyways.

And let me say that RAS is not just some hunch an officer might have, because that would not fly in court and the courts have ruled the same. If an officer has RAS then he has some exigent knowledge that would lead him to believe that you probably just committed a crime, or was in the process.

Keep in mind some states have laws that specifically authorize an officers ability to temporarily seize firearms at traffic stops, and I don't know if Virginia is one of these states or not. I know here in KY we have a statute that prohibits officers from disarming at ANY time unless very specific circumstances are met. We do not have to inform an officer if we are armed, nor do we have to show our CDWL at a stop. The only way we have to show our CDWL is if an officer asks for it, and we are carrying a CONCEALED weapon at that time. Even if he asks, it is not a criminal violation to refuse to show it, however we can be fined $25 for failing to do so. If we are carrying openly, or in any factory installed storage compartment in our vehicle, we do NOT have to show our CDWL if asked.

Click to expand...

Nuh-uh. Read PA vs Mimms, Michigan vs Long, and in the 4th Circuit which covers VA, US v Baker.

http://ww.opencarry.org/forums/showthread.php?55914-Get-Your-4th-and-5th-Amendment-Resources-Here!!&

Click to expand...

CHILINVLN · Sep 9, 2012

It's thread like this that serious make me wonder WTF. I have no idea why some of you go through so much hassle to AVOID things that are completely harmless.

If they ask the question, just answer the question - and everyone is happy, they're happy, and you're less likely to deal with the drama of getting a lawyer and going through months off ******** for no reason at all. There is absolutely no reason why you should no disclose that you're carrying to a LEO if/when asked.

Let's remember that if they initiated a traffic stop with to begin with, you either performed something illegal or were perceived to have done so already.

twoskinsonemanns · Sep 9, 2012

CHILINVLN said:
I have no idea why some of you go through so much hassle to AVOID things that are completely harmless. Love of freedom.... I don't expect someone asking the question to understand

If they ask the question, just answer the question Some of us want to preserve the rights of free men.

Let's remember that if they initiated a traffic stop with to begin with, you either performed something illegal or were perceived to have done so already. First that's not necessarily true, second... so what! Committing a traffic violation does not automatically forfeit my rights.

Your, much too common, attitude that people should surrender their rights for convenience is repugnant.

TFred · Sep 9, 2012

twoskinsonemanns said:
Your, much too common, attitude that people should surrender their rights for convenience is repugnant.

I would say more "uninformed" than "repugnant". IMHO.

CHILINVLN said:
It's thread like this that serious make me wonder WTF. I have no idea why some of you go through so much hassle to AVOID things that are completely harmless.

If they ask the question, just answer the question - and everyone is happy, they're happy, and you're less likely to deal with the drama of getting a lawyer and going through months off ******** for no reason at all. There is absolutely no reason why you should no disclose that you're carrying to a LEO if/when asked.

Let's remember that if they initiated a traffic stop with to begin with, you either performed something illegal or were perceived to have done so already.

No problem at all in a perfect world where every LEO respects the right of citizens to carry firearms for self-defense, and who know and respect the boundaries placed on them by the Fourth Amendment. If you think you live in that world, good for you. Don't ever move. None of the rest of us do.

The simple answer to your question is that when they don't know about the firearm, they can't abuse your rights regarding it.

TFred

Refusing the "are you armed?".... legal hypothetical

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