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oc is reason to be suspected of a crime

MAC702

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Why is a FUQ so hard?
...A federal judge ruled recently that carrying a firearm openly in a park entitles responding officers to detain an individual for investigation, including disarming, questioning, and identification. ...

So what is the jurisdiction of this federal court?
 
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BrianB

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If the actual opinion (by the court) says what the article says it does, it is wrong on so many basic points of constitutional that the judge should be removed from the bench. Hopefully the person appeals. Judge is probably an anti-gun asshat.
 

BrianB

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I took the time to read the opinion (which is here).

In granting summary judgement for the officers (against the plaintiff's 1983 civil rights claim) much of the justification for the detention and arrest is due to the security guard allegedly having told the guy to leave and his refusing to do so (resulting in the suspected crime being criminal trespass). Personally I have an issue with the entire concept of being trespass warned to leave public property if you're not damaging the property, or committing some other crime, but that's another matter.

I think the judge made a bunch of errors in his ruling. I'm not going to bother elaborating on every detail, but for one he said that failure to provide ID was a basis for the detention, but the failure to provide ID occurred after the detention had already occurred (according to the judge's own ruling). I think the guy has a less-than-stellar case, so it may not be worth appealing (for him) but I wish he would since this was in the 11th Circuit (which covers where I live) and I think there's a bunch of errors that shouldn't be allowed to stand.
 

davidmcbeth

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Court says that "carrying a gun out in the open" should result in detention, questioning, and disarming. original

Fascists says that "carrying a gun out in the open" should result in detention, questioning, and disarming.
fixed

I don't like fascists ....
 

MAC702

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...I'm not going to bother elaborating on every detail, but for one he said that failure to provide ID was a basis for the detention, but the failure to provide ID occurred after the detention had already occurred...

I'll have to go read it again, but I got that the gun is cause for detention and the failure to provide ID was cause for arrest.

After all, asking for ID is already detention.
 

Primus

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I'll have to go read it again, but I got that the gun is cause for detention and the failure to provide ID was cause for arrest.

After all, asking for ID is already detention.

Negative..... TAKING the ID from someone is detention. You can show them your ID and not be detained...

Detention is when you no longer feel free to leave. So if the cop TAKES your ID then you wouldn't leave your ID behind, so your detained. If he says, "Can i see your ID?" And you just hold it up, then your not detained. If he says "You can't leave until I see your ID" Then your detained.

This is why guys yell " AM I BEING DETAINED!!" on camera. So if the officer says Yes, they can't leave. If the officer says no, then you just turn and walk away.

So.... "Hey what's your name?" No detention. "Hey give your ID" Detention. Courts have already ruled the s*** out of this.

In MA, if your involved with someone involved with anything while armed, you can demand to see their ID, based on the fact they need the ID. Kind of like driving. If you get stopped, you get demanded to see license. Refuse to provide DL or basic info, jail.
 

MAC702

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Negative..... TAKING the ID from someone is detention. You can show them your ID and not be detained...

Okay, when I said "asking for ID" I should have said "demanding ID."

If a cop is demanding your ID, you are being detained.
 

Citizen

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Negative..... TAKING the ID from someone is detention. You can show them your ID and not be detained...

Detention is when you no longer feel free to leave. So if the cop TAKES your ID then you wouldn't leave your ID behind, so your detained. If he says, "Can i see your ID?" And you just hold it up, then your not detained. If he says "You can't leave until I see your ID" Then your detained.

This is why guys yell " AM I BEING DETAINED!!" on camera. So if the officer says Yes, they can't leave. If the officer says no, then you just turn and walk away.

So.... "Hey what's your name?" No detention. "Hey give your ID" Detention. Courts have already ruled the s*** out of this.

In MA, if your involved with someone involved with anything while armed, you can demand to see their ID, based on the fact they need the ID. Kind of like driving. If you get stopped, you get demanded to see license. Refuse to provide DL or basic info, jail.

Cites, please. Forum Rule #5.
 

Citizen

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I hope few people take Ed Stone's (Examiner article author) comments seriously:

I take the opportunity to declare right here and now that I will not answer questions, I will not produce identification, and I will not voluntarily surrender my firearm to officers who attempt to detain me merely because I carry a pistol "out in the open" as a matter of routine and habit. Carrying a pistol is not a crime in this state, and Georgia Weapons Carry License holders deserve better then to be treated as nothing but a class of criminals.

Ed can do what he wants, but rabble-rousing without disclosing the legal ramifications is just plain dangerous to his readers.
 

BrianB

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I'll have to go read it again, but I got that the gun is cause for detention and the failure to provide ID was cause for arrest.

I think much of the opinion is poorly reasoned crap. This is what I was thinking of when I wrote the above.

The Court assumes that Plaintiff was detained shortly after Bell arrived at the Park when Bell, in response to Plaintiff’s question whether he was being detained, stated that he was. Plaintiff argues that when this detention occurred, Bell did not have a reasonable suspicion to detain.

He asked if he was being detained more or less immediately, so the detention occurred way before the cops ever asked for ID.

Bell was advised by a police dispatcher that a security guard had reported a suspicious person in the Park who was “carrying a gun out in the open” as he walked near a playground, who, when Bell arrived at the Park, did have a visible weapon, and who evaded Bell’s questions and requests for identification bearing a photograph, provided more than a sufficient basis constitutionally to detain Plaintiff.

Since he was already detained by the time he evaded questions and requests for identification, what the heck does it have to do with anything?

All that said, if the guy was told to leave by the security guard, offensive though it may be, he should have left and filed a complaint. Staying after being told to leave is handing them a too-easy trespassing arrest.

I still don't think it should be legal to trespass someone from public property unless they are committing a crime, but I have no idea what the case law on that (if any) may be.
 

Citizen

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This ruling runs smack into Florida vs JL where SCOTUS expressly declined to set aside standard Terry doctrine just because a gun was involved.

The only thing I can't tell is whether GA requires a permit to OC. If that was the case, the detention would have been legal as to determining whether he was a permit holder.

Otherwise, this opinion is all screwed up.

Since the decision seems to be mainly about qualified immunity, I'm not sure whether the court's abusive pronouncements are binding in criminal proceedings. Certainly, they'll make it tougher to win in a 1983 case. But, I'm not sure the ruling opens the door to police detaining OCers without something more, and seizing the gun to check for stolen.

I think this case is a good lesson in how cops can lie. Anybody wanta bet that the plaintiff's so-called evasive and confusing answers were deliberate ploys to play with the cops, that the cops knew it at the time, and those answers didn't give rise to concerns about the plaintiff's mental state until much later when the government was casting about for a defense to a lawsuit? The plaintiff had a recording device going; he wasn't a total OC rookie.

Note to self: just invoke the 5th, and keep repeating that, asking whether free to go, etc. Don't play with the cops--they'll look for a way to twist things.
 
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Fallschirjmäger

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For those who may be unaware or who do not frequent the Georgia sub-forum, the original incident is Exercising in Public Park while Armed "Suspicious"



We should not forget that Officer Bell's first official act was to make a Terry Stop of an individual that all he knew of was talking on a cellphone.

CAP: Okay. Damn that guy’s got legs. (Referring to the arrival of an officer driving a police pickup truck with a bicycle on the back.)
Bell: I worked really hard for that.
Bell: How’s everything
Cap: ‘Morning.
.....
Bell: Hey, sir, I need you to get off the phone, you can call them back.
.....
CAP: (To Bell) Am I being detained?
Bell: Do you have any I.D. on you?
CAP: Am I being detained?
Time-stamp 31:12 … (1m:12s) after contact by Ofc Bell
Bell: What’s that? Yeah, you’re being detained. Do you have any ID on you?
 

DrakeZ07

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Although I am relieved that this case was not in a federal district wherein Kentucky resides, but either way, to what effect would this ruling have, if any, on a state that explicitly gave mention to OC as constitutionally protected? I'm not sure on which state has constitutional carry, or if any does excepting my own home state. However, another question is begged to be asked. Does the full faith and credit clause give this 11th dist. case ruling any legal cause in the 6th? and if so, how would that conflict with Kentucky's constitutional Open Carry?
 

Fallschirjmäger

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The only thing I can't tell is whether GA requires a permit to OC. If that was the case, the detention would have been legal as to determining whether he was a permit holder.
Georgia does indeed require a permit to either carry openly or concealed.
HOWEVER...
As the law is written, it is similar to the requirement to possess a driving license while driving and does not presume that the act itself is illegal. It is no more legal to stop someone with a firearm 'just to make sure they are licensed' than it is to stop someone 'just to check their license' because they are seen driving in a legal manner on a public street.

Prior to about 2010(?) it was an affirmative defense, but SB208 (passed about 2010) completely rewrote that section of the law.


On topic... While the GA traffic code requires one to have a license while driving and to present said license when requested by an officer (OCGA 40-5-29 License to be carried and exhibited on demand) the applicable Code regarding firearms provides no penalty for not having the license on one's person, nor does it authorize an officer to demand such license as 40-5-29 does.
 
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Citizen

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Georgia does indeed require a permit to either carry openly or concealed.
HOWEVER...
As the law is written, it is similar to the requirement to possess a driving license while driving and does not presume that the act itself is illegal. It is no more legal to stop someone with a firearm 'just to make sure they are licensed' than it is to stop someone 'just to check their license' because they are seen driving in a legal manner on a public street.

Prior to about 2010(?) it was an affirmative defense, but SB208 (passed about 2010) completely rewrote that section of the law.


On topic... While the GA traffic code requires one to have a license while driving and to present said license when requested by an officer (OCGA 40-5-29 License to be carried and exhibited on demand) the applicable Code regarding firearms provides no penalty for not having the license on one's person, nor does it authorize an officer to demand such license as 40-5-29 does.


Excellent!

So, the judge was blowing repressive smoke when he asserted that walking "agitatedly" with a completely legal gun "near a playground" justified the stop--without bothering to mention what crime was suspected. (Note the "protect the children" card heaved in by the judge without further elaboration.)

Notice also the guard's report of a "suspicious person". Pretty vague. Wide-open to subjective interpretation.

Now that I think about it, where was the articulable criteria? The circumstances read like a hunch prohibited by Terry.
 
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Primus

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