LEO Interaction at State Department Fed Credit Union in Arlington

[Citizen]

No more than you have RAS to stop a driver to demand their driver's license.

First, y'all arguing against ODA226's position are actually talking law. You need to come up with some cites. Ed started with a declaration about probable cause, and KBCraig here is making a declaration about RAS. So, lets see some cites. Or, acknowledge that you are speculating about the state of the law. The simple fact of the matter is that from a legal standpoint the courts are the ones that determine whether probable cause or RAS existed after the fact. Our appellate courts are literally the source of the law.

As to the simile drawn by KBCraig above, there is a big difference. Driving is not presumptively illegal. Concealed carry is presumptively illegal.

Do I like an idea that cops can just demand a CHP without reason to suspect the person does not have one? No, of course not; a CHP is an infringement on the fundamental human right of self-defense and only affects the good guys. But, I'm betting most any circuit or district court will rule the cop had RAS on momentarily seeing an otherwise CCd gun. And, I'm betting an appellate court will rule the same.

 

[TFred]

I agree to a point

The mere sight of a handgun is not a reason for a Terry stop; however, the Code of Virginia does state that:

" 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."

http://leg1.state.va.us/000/cod/18.2-308.HTMhttp://leg1.state.va.us/000/cod/18.2-308.HTM

So.... you have to show a drivers license upon demand too. Does that make the act of driving itself enough RAS to stop a car and demand to see it?

TFred

ETA: Sorry for the regurgitation, I missed the page turn.

 

[1245A Defender]

well,,,

look up WIS state V PETERS
a driver parked his car, cop pulled up, DEMANDED his DL.
driver said it was not a traffic stop, so cop didnt have RAS to make a demand.
court ruled that, even when an activity requires a permit,
absent RAS of a CRIME, the permit cannot be demanded!
driving a car and carrying a gun are lawful activities.

Wisconsin Court of Appeals Docket No. 07-2731

 

[1245A Defender]

and,,,

scenario,,,,

im OCing, talking about the weather with a cop.
im going to leave, so i put on my coat, now im CCing.
i contend that covering my gun is NOT RAS of a CRIME,
any more than getting into a car and driving away.

i think wis state v peters covers my a$$.

my CPL also says it must be shown upon demand,
the question we have to ask ourselves is,
when do we have to HONOR demands.

 

[ODA 226]

I agree to a point

The mere sight of a handgun is not a reason for a Terry stop; however, the Code of Virginia does state that:

" 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."

http://leg1.state.va.us/000/cod/18.2-308.HTMhttp://leg1.state.va.us/000/cod/18.2-308.HTM

I agree that the sight of a weapon does not give RAS for a Terry stop. No arguement there.

However, if a LEO observes a brief flash of a weapon that appears to be concealed, or the print of what a reasonable and prudent man would conclude to be a potentially concealed weapon, he has observed a potential crime being committed under Virginia Code and therefore has RAS to conduct a Terry stop and make a legal demand for the carrier of the weapon to produce photo ID and a valid CHP.

I'm not reading anymore into the law or making the presumption that the LEO is "making up" anything in order to justify his Terry stop. For him to do so is not only dishonorable, it could also be a criminal act. Just taking the law as it is written and nothing more.

 

[ed]

if a LEO observes a brief flash of a weapon that appears to be concealed, or the print of what a reasonable and prudent man would conclude to be a potentially concealed weapon, he has observed a potential crime being committed under Virginia Code and therefore has RAS to conduct a Terry stop and make a legal demand for the carrier of the weapon to produce photo ID and a valid CHP.

I disagree

 

[ODA 226]

scenario,,,,

im OCing, talking about the weather with a cop.
im going to leave, so i put on my coat, now im CCing.
i contend that covering my gun is NOT RAS of a CRIME,
any more than getting into a car and driving away.

i think wis state v peters covers my a$$.

my CPL also says it must be shown upon demand,
the question we have to ask ourselves is,
when do we have to HONOR demands.

The laws of the Commonwealth of Virginia are different from the laws of the State of Wisconsin. But we already know that...

 

[Grapeshot]

I agree that the sight of a weapon does not give RAS for a Terry stop. No arguement there.

However, if a LEO observes a brief flash of a weapon that appears to be concealed, or the print of what a reasonable and prudent man would conclude to be a potentially concealed weapon, he has observed a potential crime being committed under Virginia Code and therefore has RAS to conduct a Terry stop and make a legal demand for the carrier of the weapon to produce photo ID and a valid CHP.

Please explain the difference between your 1st and 2nd paragraphs.

Printing is not against the law in Va, neither is an inadvertent, brief flash so their is still no RAS. To be required to show "papers" is IMO a 4th Amendment violation without other evidence of a likely crime; not withstanding the statutory language of upon "demand." I see such "demand" in this circumstance as being made under "color of law" and w/o merit.

By your definition a LEO would have RAS of a "potential" crime every time he/she saw or thought they saw a gun. Been there and done that and walked away w/o complying each time.

 

[Badger Johnson]

+1
Mine is an Olympus VN-6200PC.

I have the same one. It's a good one and worth the money. Just be sure you check it's recording, because if you hold the 'on' switch too long it turns on and off again.

 

[Citizen]

Some posters are still not quite getting it.

Unless there is case law directly on point, then the question is open legally, meaning the field is open for a judge to rule either way according to his interpretation (and prejudice) of the existing case law.

Since nobody has cited a case, what is really occurring here is speculation about how a court would rule.

I'm on ODA226's side--I'm betting most any judge would rule that a momentarily visible holster or a good print was RAS.

One could think that RAS does not exist because there might be a permit; but do not forget to include in the calculation whether the courts have said police do not need to exclude all innocent explanations before detaining someone.

 

[ed]

Some posters are still not quite getting it.

Unless there is case law directly on point, then the question is open legally, meaning the field is open for a judge to rule either way according to his interpretation (and prejudice) of the existing case law.

Since nobody has cited a case, what is really occurring here is speculation about how a court would rule.

I'm on ODA226's side--I'm betting most any judge would rule that a momentarily visible holster or a good print was RAS.

One could think that RAS does not exist because there might be a permit; but do not forget to include in the calculation whether the courts have said police do not need to exclude all innocent explanations before detaining someone.

I get it and I am on the other side. This is not simply a case of a LEO walking into a bar and seeing a person that looks 15 drinking a beer and asking them for ID or sitting next to a stoplight and seeing a person that "looks" younger than 16 driving. If I print or I "unconceal" by accident (or on purpose) I don't believe that is enough. The LEO has no idea if I have a permit or not, if I am a LEO or not, etc... and in my opinion.. at this stage in the scenario, is STILL none of his business.

 

[JoeSparky]

I get it and I am on the other side. This is not simply a case of a LEO walking into a bar and seeing a person that looks 15 drinking a beer and asking them for ID or sitting next to a stoplight and seeing a person that "looks" younger than 16 driving. If I print or I "unconceal" by accident (or on purpose) I don't believe that is enough. The LEO has no idea if I have a permit or not, if I am a LEO or not, etc... and in my opinion.. at this stage in the scenario, is STILL none of his business.

Since in Virginia it is NOT uncommon for one to have a concealed permit where is the RAS that the person in this hypothesis does not have a permit?

In this one Citizen I tend to side with Ed.... we may both be seeing the same glass of water and some see it as half-full and others see it as half-empty.

Now if the cop observed one acting very nervous, sweating, twitching, over-reacting to the various visual stimuli and also sees a brief flash of a firearm the may or may not be in a holster under ones overcoat --- he then may have RAS based upon the circumstances and his experience.

 

[ed]

Now if the cop observed one acting very nervous, sweating, twitching, over-reacting to the various visual stimuli and also sees a brief flash of a firearm the may or may not be in a holster under ones overcoat --- he then may have RAS based upon the circumstances and his experience.

+1

 

[ODA 226]

Since in Virginia it is NOT uncommon for one to have a concealed permit where is the RAS that the person in this hypothesis does not have a permit?

In this one Citizen I tend to side with Ed.... we may both be seeing the same glass of water and some see it as half-full and others see it as half-empty.

Now if the cop observed one acting very nervous, sweating, twitching, over-reacting to the various visual stimuli and also sees a brief flash of a firearm the may or may not be in a holster under ones overcoat --- he then may have RAS based upon the circumstances and his experience.

I am going by the letter of the law. You and my good friend Ed are not.

If my friend Ed (even with a valid CHP) chooses to poorly conceal his weapon by allowing it to print or momentarily expose his weapon intentionally or by accident, any sworn LEO in the Commonwealth has enough RAS to perform a Terry stop and FIRMLY ESTABLISH whether or not a crime is being committed in his presence. I argue it is his DUTY to the citizenry to do so. The most conservative and the most liberal judges I know would affirm the officers' actions as presented in my scenario described above.

How "suspicious" one is acting has no bearing on establishment of RAS here. It is did the officer observe an object that a reasonable and prudent man would be lead to believe that the suspect was concealing a weapon. If the answer is yes, the officer can detain that individual to establish whether or not a violation of the law has occured.

@Ed: In this case I am describing how I would describe a weapon "firearm" as a LEO in court. I understand and appreciate your PM.
Craig

 

[KBCraig]

I'm loathe to take an opposite stance from Citizen on such matters, because I highly respect his mastery of 4A issues, but I think I must in this case.

He asked for cites to appellate decisions, while there might not be one for this specific circumstance. I don't think we need a case with similar specifics, because I believe Terry v. Ohio and Florida v. J.L. sufficiently cover this ground.

Terry and its progeny establish the concept of RAS for an investigatory detention, among other things. In this case, what would be the officer's RAS that crime was afoot? It can't be the mere sight of a firearm; although J.L. was primarily about the anonymous tip, it also established that there is no "gun exception" to the 4th Amendment.

I don't know that there is a case holding that carrying a concealed firearm is "presumptivelyl illegal" and that driving is "presumptively legal", since both require a must-issue license or permit. Unlicensed concealed carry and unlicensed driving are both illegal, neither one more than the other, just as licensed concealed carry and licensed driving are equally legal.

There is nothing about concealed carry that should cause the officer in this scenario to presume that the carrier is unlicensed.

 

[Grapeshot]

How "suspicious" one is acting has no bearing on establishment of RAS here. It is did the officer observe an object that a reasonable and prudent man would be lead to believe that the suspect was concealing a weapon. If the answer is yes, the officer can detain that individual to establish whether or not a violation of the law has occured.

Unfortunately what you just described is the "gun is bad" not the actions of the person as we purport it to be. It is further almost a perfect, classic fishing expedition - can't agree less.

Wonder how many drivers are stopped going down the road just to see if they have licenses w/o any evidence of improper or illegal action on the driver's part - same difference.

 

[Citizen]

I get it and I am on the other side. This is not simply a case of a LEO walking into a bar and seeing a person that looks 15 drinking a beer and asking them for ID or sitting next to a stoplight and seeing a person that "looks" younger than 16 driving. If I print or I "unconceal" by accident (or on purpose) I don't believe that is enough. The LEO has no idea if I have a permit or not, if I am a LEO or not, etc... and in my opinion.. at this stage in the scenario, is STILL none of his business.

No, Ed. You don't get it. Otherwise you wouldn't:

1) Be making declarations about the law without cites.

2) Speculating about how the sole authority--the courts--to determine RAS and PC would rule.

Or, are you now Judge Ed? Or, are you going to continue to pretend the crucial points above don't exist?

Look, I handed you the golden clue--whether an LEO must exclude all innocent explanations before he can make the seizure. And, ODA226 alluded to it indirectly--its the cop's job to determine whether a violation is occurring, which immediately implies he has some suspicion one might be occurring.

If you want to say, "the law shouldn't be this way" or "it ought not to be RAS" or "I hope it isn't RAS", fine. But, to persist in saying what is or isn't RAS--a legal point--without supplying a cite is both a violation of the forum rules and just downright pointless stubborness.

 

[TFred]

As to the simile drawn by KBCraig above, there is a big difference. Driving is not presumptively illegal. Concealed carry is presumptively illegal.

Other than the difference in wording of the two laws, are there any other reasons you come to this conclusion? Do you have any additional support for it? Do you believe that one is "more illegal" without a license/permit than the other?

I don't know that there is a case holding that carrying a concealed firearm is "presumptivelyl illegal" and that driving is "presumptively legal", since both require a must-issue license or permit. Unlicensed concealed carry and unlicensed driving are both illegal, neither one more than the other, just as licensed concealed carry and licensed driving are equally legal.

I agree with this... I don't know how actions that are either legal or illegal, based upon proper license or permit, can be presumed to be one or the other. I would like to see where that comes from.

Wonder how many drivers are stopped going down the road just to see if they have licenses w/o any evidence of improper or illegal action on the driver's part - same difference.

This would seem to be the question, why can't/don't LEOs just randomly stop people for absolutely no reason whatsoever?

TFred

 

[Citizen]

Other than the difference in wording of the two laws, are there any other reasons you come to this conclusion? Do you have any additional support for it? Do you believe that one is "more illegal" without a license/permit than the other?

I've already explained. You guys are the one's asserting legal principles without cites, not me. I've made it clear that I am guessing how a court would rule, and explaining why I think that. Y'all are the ones asserting the law, while carefully overlooking how a court--the people who would determine or make the law--would rule.

Look, if you're going to persist in asserting the law without cites, say so. Otherwise, I'm going to go find another thread to play in and let y'all argue around in circles, pretending to be trial court and appellate court judges.

By the way, this type of conversation, according to an explanation by Mike a few years ago, is exactly one of the reasons for the forum rule about cites.

 

[TFred]

Other than the difference in wording of the two laws, are there any other reasons you come to this conclusion? Do you have any additional support for it? Do you believe that one is "more illegal" without a license/permit than the other?

I've already explained. You guys are the one's asserting legal principles without cites, not me. I've made it clear that I am guessing how a court would rule, and explaining why I think that. Y'all are the ones asserting the law, while carefully overlooking how a court--the people who would determine or make the law--would rule.

Look, if you're going to persist in asserting the law without cites, say so. Otherwise, I'm going to go find another thread to play in and let y'all argue around in circles, pretending to be trial court and appellate court judges.

By the way, this type of conversation, according to an explanation by Mike a few years ago, is exactly one of the reasons for the forum rule about cites.

In the portion of my post you quoted, I asked three questions, and then you claimed that I am asserting the law?

The last time I checked, asking a question is pretty much what you do when you don't know something and you are trying to learn. You are the one that has made an assertion that offends my sense of logic, and that is what I'm asking you to support.

Now I see that you've said you are guessing (maybe I missed that before), perhaps we should all just move along.

TFred