Dave_pro2a
Regular Member
Unless it's registered as a collecters vehicle afaik. Back plate only, no yearly tabs, WOOT!
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got pulled over today for OCing
- Thread starter Matt85
- Start date
Unless it's registered as a collecters vehicle afaik. Back plate only, no yearly tabs, WOOT!
Trigger Dr
Regular Member
Might be a good idea to send a copy of this to the High Sheriff
Sheriff
1. At present, your deputies are unlawfully harassing and persons lawfully open carrying handguns **secured in holsters** on foot in your jurisdiction. Please take action to ensure your deputies are brought up to speed with the authorities cited in this discussion regarding the law of open carry in Washington.
2. Non-consensual police stops of open carriers for simply open carrying is per se unlawful.
As you and your deputies should already know, it is not unlawful to openly carry handguns in Washington, and that like most states, no license is required to open carry on foot, and local ordinances to the contrary are unlawful as a matter of state preemption law. RCW 9.41.290. The United States Supreme Court has established that it is a violation of the Fourth Amendment for the police to seize a person absent reasonable articulable suspicion ("RAS") of crime afoot. Terry v. Ohio, 392 U.S. 1 (1968). Accordingly, the Washington Court of Appeals has recently affirmed a trial court's holding that Washington law "does not and, under the Constitution, cannot prohibit the mere [open] carrying of a firearm in public." State v. Casad, 139 Wash.App. 1032 (Wash. App.Div.2 2007) (suppressing evidence of unlawful possession of firearms because stop of Defendant was not grounded in reasonable articulable suspicion of any crime).
Further, even during a valid Terry stop, the United States Supreme Court forbids police to even conduct a light pat down or seize weapons unless the subsequent to RAS for the stop, the "an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is [both] armed and presently dangerous to the officer or to others." 392 U.S. at 24. Stated another way, only "o long as the officer is [both] entitled to make a forcible stop, and has reason to believe that the suspect is armed **and dangerous** . . .may [he] conduct a weapons search limited in scope to this protective purpose." Adams v. Williams, 407 U.S. 143, 146 (1972) (emphasis added). So even if there were there to come a time that a Washington law enforcement officer properly seizes a person pursuant to RAS for brief investigatory purposes, the officer is not entitled to seize an openly carry weapon absent "reason to believe that the suspect is . . . [also presently] dangerous." Id. Should an open carrier stopped validly under Terry consensually produce a Concealed Pistol License, this fact weighs heavily against any officer's claim that the suspect is "presently dangerous" such that the gun maybe lawfully seized and serial numbers obtained. Accordingly, suppression of any evidence obtained in seizing the gun is likely under these circumstances.
3. Nonconsensual stops of open carriers to demand identification or check gun serial numbers is unlawful in Washington.
A mere report of a man with a gun is not grounds for a Terry stop. Florida v. J. L., 529 U.S. 266 (2000). Americans cannot be required to carry and produce identification credentials on demand to the police. Kolender v. Lawson, 461 U.S. 352 (1983). Washington does not have a "stop and ID" statute. However, even where a state enacts a "stop and ID" statute, stop must be limited to situations where RAS exists of a crime, and further, stop subject's statement of his name satisfies the ID requirement as Kolender, discussed supra, has not been overruled. Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004). Even where a state has established a duty to carry a license for some activity, absent RAS for the stop, the license cannot be demanded. State v. Peters, 2008 WL 2185754 (Wis. App. I Dist. 2008) (driver of vehicle has no duty to produce driver's license absent RAS) (citing Hiibel). Law enforcement officers seizing persons for refusal to show identification are "not entitled to dismissal of . . . [42 USC 1983 claims] based on qualified immunity." Stufflebeam v. Harris, 521 F.3d 884, 889 (8th Cir. 2008).
4. Editorializing against open carry is not the province of law enforcement.
If your deputies have any objection to open carry, they should contact their state legislator on their off duty time and not use the color of authority behind their badges and uniforms to stifle both the right to bear arms and the First Amendment right of expressive conduct to open carry firearms.
5. Unlawful stops of open carriers will result in suppression of evidence even if unlawful conduct is uncovered, allowing criminals to get off the hook.
In Casad, see supra, the Appeals court suppressed evidence of the unlawful possession of firearms because law enforcement seized a man for merely openly carrying firearms in public. This result is not unusual, see Goodman v. Commonwealth, 2007 WL 2988343
(Va.App. 2007) (same result as Casad), because the result is as a matter of federal Constitutional law commanded by the United States Supreme Court. As discussed supra, see Florida v. J. L.; Hicks.
6. No qualified immunity available for law enforcement officials regarding open carrier harassment in Washington.
As it is clearly established law that the open carry of handguns in holsters is lawful without a CPL, qualified immunity does not attach to your deputies for the unlawful harassment, ID checks, see Stufflebeam, discussed supra, and gun serial number checks, see also Hicks and J.L, discussed supra. Further, by way of this webform email I am putting you as the Sheriff, and the Office of the Sheriff, of actual notice in this matter, subjecting you to personal liability for damage claims under 42 USC 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989); Ex parte Young, 209 U.S. 123 (1908).
7. In conclusion, please know that it is the constitutional right of open carriers to enjoy the same freedom of movement and right of assembly in society as those wishing to carry concealed, or not at all. The purpose of law enforcement is to help ensure open carriers enjoy these freedoms, not to stifle them. Please contact me by email at your earliest convenience to confirm that your deputies will cease harassment of open carriers immediately.
Sincerely,
YOUR NAME
ADDRESS
PHONE NUMBER
Last edited on Sun Jun 1st, 2008 12:59 pm by Mike
Sheriff
1. At present, your deputies are unlawfully harassing and persons lawfully open carrying handguns **secured in holsters** on foot in your jurisdiction. Please take action to ensure your deputies are brought up to speed with the authorities cited in this discussion regarding the law of open carry in Washington.
2. Non-consensual police stops of open carriers for simply open carrying is per se unlawful.
As you and your deputies should already know, it is not unlawful to openly carry handguns in Washington, and that like most states, no license is required to open carry on foot, and local ordinances to the contrary are unlawful as a matter of state preemption law. RCW 9.41.290. The United States Supreme Court has established that it is a violation of the Fourth Amendment for the police to seize a person absent reasonable articulable suspicion ("RAS") of crime afoot. Terry v. Ohio, 392 U.S. 1 (1968). Accordingly, the Washington Court of Appeals has recently affirmed a trial court's holding that Washington law "does not and, under the Constitution, cannot prohibit the mere [open] carrying of a firearm in public." State v. Casad, 139 Wash.App. 1032 (Wash. App.Div.2 2007) (suppressing evidence of unlawful possession of firearms because stop of Defendant was not grounded in reasonable articulable suspicion of any crime).
Further, even during a valid Terry stop, the United States Supreme Court forbids police to even conduct a light pat down or seize weapons unless the subsequent to RAS for the stop, the "an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is [both] armed and presently dangerous to the officer or to others." 392 U.S. at 24. Stated another way, only "
3. Nonconsensual stops of open carriers to demand identification or check gun serial numbers is unlawful in Washington.
A mere report of a man with a gun is not grounds for a Terry stop. Florida v. J. L., 529 U.S. 266 (2000). Americans cannot be required to carry and produce identification credentials on demand to the police. Kolender v. Lawson, 461 U.S. 352 (1983). Washington does not have a "stop and ID" statute. However, even where a state enacts a "stop and ID" statute, stop must be limited to situations where RAS exists of a crime, and further, stop subject's statement of his name satisfies the ID requirement as Kolender, discussed supra, has not been overruled. Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004). Even where a state has established a duty to carry a license for some activity, absent RAS for the stop, the license cannot be demanded. State v. Peters, 2008 WL 2185754 (Wis. App. I Dist. 2008) (driver of vehicle has no duty to produce driver's license absent RAS) (citing Hiibel). Law enforcement officers seizing persons for refusal to show identification are "not entitled to dismissal of . . . [42 USC 1983 claims] based on qualified immunity." Stufflebeam v. Harris, 521 F.3d 884, 889 (8th Cir. 2008).
4. Editorializing against open carry is not the province of law enforcement.
If your deputies have any objection to open carry, they should contact their state legislator on their off duty time and not use the color of authority behind their badges and uniforms to stifle both the right to bear arms and the First Amendment right of expressive conduct to open carry firearms.
5. Unlawful stops of open carriers will result in suppression of evidence even if unlawful conduct is uncovered, allowing criminals to get off the hook.
In Casad, see supra, the Appeals court suppressed evidence of the unlawful possession of firearms because law enforcement seized a man for merely openly carrying firearms in public. This result is not unusual, see Goodman v. Commonwealth, 2007 WL 2988343
(Va.App. 2007) (same result as Casad), because the result is as a matter of federal Constitutional law commanded by the United States Supreme Court. As discussed supra, see Florida v. J. L.; Hicks.
6. No qualified immunity available for law enforcement officials regarding open carrier harassment in Washington.
As it is clearly established law that the open carry of handguns in holsters is lawful without a CPL, qualified immunity does not attach to your deputies for the unlawful harassment, ID checks, see Stufflebeam, discussed supra, and gun serial number checks, see also Hicks and J.L, discussed supra. Further, by way of this webform email I am putting you as the Sheriff, and the Office of the Sheriff, of actual notice in this matter, subjecting you to personal liability for damage claims under 42 USC 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989); Ex parte Young, 209 U.S. 123 (1908).
7. In conclusion, please know that it is the constitutional right of open carriers to enjoy the same freedom of movement and right of assembly in society as those wishing to carry concealed, or not at all. The purpose of law enforcement is to help ensure open carriers enjoy these freedoms, not to stifle them. Please contact me by email at your earliest convenience to confirm that your deputies will cease harassment of open carriers immediately.
Sincerely,
YOUR NAME
ADDRESS
PHONE NUMBER
Last edited on Sun Jun 1st, 2008 12:59 pm by Mike
Last edited:
Matt85
Regular Member
thanks trigger.
the sheriff on the phone claimed they had the right to stop OCers as long as they were responding to a 911 call. no matter what i said, he simply kept repeating "we have to respond to firearms related 911 calls".
-matt
the sheriff on the phone claimed they had the right to stop OCers as long as they were responding to a 911 call. no matter what i said, he simply kept repeating "we have to respond to firearms related 911 calls".
-matt
gogodawgs
Campaign Veteran
Matt,
Their policy may be to respond. However, they do not need to make any contact. They may sit in their patrol car and observe. We know that within a few seconds of observation they will move on to another call.
Furthermore, because they have a policy to respond and the officers believe that they must make contact, YOU do not need to say anything to the officer. You may need to practice being silent, asking if you are free to go or asking if you are being detained.
Their policy may be to respond. However, they do not need to make any contact. They may sit in their patrol car and observe. We know that within a few seconds of observation they will move on to another call.
Furthermore, because they have a policy to respond and the officers believe that they must make contact, YOU do not need to say anything to the officer. You may need to practice being silent, asking if you are free to go or asking if you are being detained.
devildoc5
Regular Member
I see the situation GoGo lined out going one of two ways:
1. Officer realizes you are not speaking to them and gives up. (best situation possible)
2. Officer realizes you are "hindering an official police investigation, obstructing justice, danger to the public" and decides to disarm and arrest you. Then you spend the time going to criminal court and defending yourself. IF you win (and you rightly should) then you have to worry about the civil court and more long drawn out legal battles. )lots of time and money being spent in this scenario)
I am not saying to give up your rights in any way, heck a lawsuit may even be what is needed to get them off their high horse. I just like to make sure everyone realizes the possible ramifications associated with "being uncooperative".
The more informed you are the better equipped you will be to handle a situation and make a decision at that time. You dont just walk into a gun store and go "hey give me that pretty little shiny one over there" do you? Hopefully everyone is informed, either through previous experiences or research) and knows what they are looking for.need. Same goes for any situations involving LEO, the more knowledgeable you are, the better prepared you will be to make an informed decision, regardless of what that decision is.
1. Officer realizes you are not speaking to them and gives up. (best situation possible)
2. Officer realizes you are "hindering an official police investigation, obstructing justice, danger to the public" and decides to disarm and arrest you. Then you spend the time going to criminal court and defending yourself. IF you win (and you rightly should) then you have to worry about the civil court and more long drawn out legal battles. )lots of time and money being spent in this scenario)
I am not saying to give up your rights in any way, heck a lawsuit may even be what is needed to get them off their high horse. I just like to make sure everyone realizes the possible ramifications associated with "being uncooperative".
The more informed you are the better equipped you will be to handle a situation and make a decision at that time. You dont just walk into a gun store and go "hey give me that pretty little shiny one over there" do you? Hopefully everyone is informed, either through previous experiences or research) and knows what they are looking for.need. Same goes for any situations involving LEO, the more knowledgeable you are, the better prepared you will be to make an informed decision, regardless of what that decision is.