Dayton Kroger store give lame excuse for not allowing open carry

eye95 · Apr 8, 2013

Even if you ask, I know of no requirement for the officer to explain his RAS. It has to be articulable, but nothing I know of says that he must articulate it to you.

That actually makes sense. In many stops, the officer has a lot more pressing matters than justifying himself to the potential criminal whom he has stopped. He can be called to answer later, but at the time, my primary concern is not to accidentally commit a crime.

If the cop is foolish enough to articulate a suspicion that is clearly unreasonable (into my recorder), then it becomes play time.

color of law · Apr 8, 2013

eye95 said:
Even if you ask, I know of no requirement for the officer to explain his RAS. It has to be articulable, but nothing I know of says that he must articulate it to you.

That actually makes sense. In many stops, the officer has a lot more pressing matters than justifying himself to the potential criminal whom he has stopped. He can be called to answer later, but at the time, my primary concern is not to accidentally commit a crime.

If the cop is foolish enough to articulate a suspicion that is clearly unreasonable (into my recorder), then it becomes play time.

You are correct, but so long as a reasonable person feels free to disregard the police and go about his business, the encounter is consensual and is “free to terminate” the contact with the officer. Although the officer is applying coercive pressures during the encounter virtually any restriction on the suspect’s freedom will result in a Fourth Amendment seizure.

Kaupp v. Texas (2003) 538 U.S. 626, 629 “[A] seizure occurs when the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.”; United States v. Drayton (2002) 536 U.S. 194, 201 “If a reasonable person would feel free to terminate the encounter, then he or she has not been seized.”; U.S. v. Buchanon (6th Cir. 1995) 72 F.3d 1217, 1224 “The relevant constitutional query is whether a reasonable person would have felt free to end this encounter.”

In other words, you are not obligated to answer questions and not even required to produce a driver license. RAS must be established. If the officer won't answer your question (What seems to be the problem officer?) and you are not free to go then you have been seized/arrested.

At that point shut-up.

eye95 · Apr 8, 2013

Hence my tactic to leave if he does not say that I am not free to go. I am going to make him take an overt act to establish that I am detained (or flat-out say so). Once that happens, I will only do what the law requires for a lawful detention--and nothing more. If the detention is not lawful, I will deal with that as harshly as humanly possible after the fact.

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CornfedinOhio · Apr 11, 2013

My interpretation of the RAS requirement is, the RAS is to be presented to the court. There is no requirement to present the RAS to the person being detained. I would argue an officer that supplies his RAS to his suspect is in need of training.

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eye95 · Apr 11, 2013

CornfedinOhio said:
My interpretation of the RAS requirement is, the RAS is to be presented to the court. There is no requirement to present the RAS to the person being detained. I would argue an officer that supplies his RAS to his suspect is in need of training.

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That is my understanding. The "A" stands for "articulable," not "articulated." They only have to be able to articulate it. They do not actually have to articulate it until challenged in the place for challenges, court.

color of law · Apr 11, 2013

eye95 said:
Hence my tactic to leave if he does not say that I am not free to go. I am going to make him take an overt act to establish that I am detained (or flat-out say so). Once that happens, I will only do what the law requires for a lawful detention--and nothing more. If the detention is not lawful, I will deal with that as harshly as humanly possible after the fact.

If you read enough case law (and as I pointed out above) being free to leave is based on your belief that you have NOT been seized.

The courts have made it pretty clear that your position in forcing the officer to demonstrate that your belief is incorrect (not seized), even if he has to tackle you and throw you to the ground demonstrating that your belief is incorrect is necessary. In other words, the courts require you walk away, not debate the issue.

Hence, asking the question - What seems to be the problem officer? - and it not being answered leaves me with the belief that I'm free to go, I walk away. The officer will have to seize me. Also, courts have ruled that walking away is not fleeing.

Grapeshot · Apr 11, 2013

color of law said:
If you read enough case law (and as I pointed out above) being free to leave is based on your belief that you have NOT been seized.

The courts have made it pretty clear that your position in forcing the officer to demonstrate that your belief is incorrect (not seized), even if he has to tackle you and throw you to the ground demonstrating that your belief is incorrect is necessary. In other words, the courts require you walk away, not debate the issue.

Hence, asking the question - What seems to be the problem officer? - and it not being answered leaves me with the belief that I'm free to go, I walk away. The officer will have to seize me. Also, courts have ruled that walking away is not fleeing.

What, no cite?

color of law · Apr 11, 2013

Grapeshot said:
What, no cite?

TENNESSEE v. GARNER, 471 U.S. 1 (1985)

Whenever an officer restrains the freedom of a person to walk away, he has seized that person. United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). While it is not always clear just when minimal police interference becomes a seizure, see United States v. Mendenhall, 446 U.S. 544 (1980), there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.

Dayton Kroger store give lame excuse for not allowing open carry

eye95

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