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Is it legal for a law enforcement officer to disarm a person in an open-carry state?

bakertaylor28

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Sep 24, 2018
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Texas
Is it legal for a law enforcement officer to disarm a person (i.e. remove a gun from the holster) in a state that allows open-carry, on the sole allegation of "officer safety" where there is nothing more than a complaint that the majority would find uncredible under the circumstances?
 

color of law

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Per Terry officer safety is paramount. Terry was a bad opinion then and it is still a bad opinion. But, Terry does not apply to a casual/consensual encounter. There must be reasonable suspicion for Terry to come into play.

Some police officers do not like returning loaded firearms to persons that dispels the officers reasonable suspicion. In Ohio this happens, but Ohio law requires the officer to return the firearm in the same condition as when it was taken.
 

OC for ME

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The legality is a moot point on the side of the road. Typically, in my local experiences, cops do not approach OCers just cuz they is OCing.
RSMo 21.750. Firearms legislation preemption by general assembly, exceptions — limitation on civil recovery against firearms or ammunitions manufacturers, when, exception. —
1.(c) In the absence of any reasonable and articulable suspicion of criminal activity, no person carrying a concealed or unconcealed firearm shall be disarmed or physically restrained by a law enforcement officer unless under arrest; and ...
Now, will any stop of a OCer by a cop in MO now be a Terry stop? Hard to say. Cops never stop me while OCing, mostly just a glance and keep on keeping on...when they're not singularly focused on their phone that is.
 

solus

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The legality is a moot point on the side of the road. Typically, in my local experiences, cops do not approach OCers just cuz they is OCing.

snipp....
OC for ME, et al., my main concern is the anti sentiment and the explicit direction from "mom against everything" organizers have put out to their national/state/local membership to notify 911 with an exaggerated sense of the caller's fear for self/others/community by the carrier's sidearm, e.g., 'swatting'.

OR

The nice LE's belief that Terry and QI allows them to do whatever they bloody devil they want to do. As previously mentioned, several years I had two local Constables 'chase' me in Walmart 'demanding' to know why i am carrying a gun in the store. Briefly, stopped, turned, stated I was on private property, they had no reports of problems ~ therefore no RAS, thanked them for the causal chat, then turned, and walked away at my normal pace...with them trying to catch me when both their radios went off, they stopped, listed to the gruff command, and immediately turned leaving the store.

You are absolutely correct the side of the road, w/o recording/vid it tis their bailiwick and they have the home field advantage.
 

solus

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Is it legal for a law enforcement officer to disarm a person (i.e. remove a gun from the holster) in a state that allows open-carry, on the sole allegation of "officer safety" where there is nothing more than a complaint that the majority would find uncredible (sic) under the circumstances?
btw, baker&taylor could you quantify complaint circumstances, e.g., 911 caller, LE personally 'saw' a citizen OC'g, basically why did the nice LE approached citizen OC'g?

Further was said handgun returned to the citizen in a timely fashion?

Finally was the handgun illegally run through NCIC?

Sorry for the specificity but by TX OC standards you must have a Lonestar state profit center permit/license and as pointed out statutory requirements mandate you 'show your papers' to LEs. However, in NC any citizen is afforded the opportunity to OC w/o state sponsored profit center permit/license as well as no statutory mandate to stop and show your papers to NC LEs. Further OCforME has quoted chapter and verse of MO statutes. So the question remains what state are your throwing your question out to, otherwise it is bogus as there are numerous answers from the myriad of state statutes.
 

since9

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Per Terry officer safety is paramount. Terry was a bad opinion then and it is still a bad opinion. But, Terry does not apply to a casual/consensual encounter. There must be reasonable suspicion for Terry to come into play.
Agreed that's the way it's supposed to work, but "woulda, coulda, shoulda" are ideals, and reality sometimes comes up short.

Some police officers do not like returning loaded firearms to persons that dispels the officers reasonable suspicion. In Ohio this happens, but Ohio law requires the officer to return the firearm in the same condition as when it was taken.
In two traffic stops and a B&E into my home, I was asked to unload and relinquish all three times. They were almost apologetic about it, and after we finished our business, they returned my firearm and the magazine saying, "Please wait until we're gone before you reload it."

I did, and that was that.

I can understand the two roadside disarmings, but the one in my own home was all the way in the back, in my bedroom. What the hell? We were in the front hall. There was absolutely no need whatsoever for that. I came about this close to telling them, "You know what? I think we're done here. Please leave. Now." The only reason I didn't is because I have a good working relationship with the PD and didn't want to jeopardize that.
 

OC for ME

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...

I can understand the two roadside disarmings, but the one in my own home was all the way in the back, in my bedroom. What the hell? We were in the front hall. There was absolutely no need whatsoever for that. I came about this close to telling them, "You know what? I think we're done here. Please leave. Now." The only reason I didn't is because I have a good working relationship with the PD and didn't want to jeopardize that.
How did they know a pistol was in the bedroom while you all were in the front hall?
 

Firearms Iinstuctor

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Agreed that's the way it's supposed to work, but "woulda, coulda, shoulda" are ideals, and reality sometimes comes up short.



In two traffic stops and a B&E into my home, I was asked to unload and relinquish all three times. They were almost apologetic about it, and after we finished our business, they returned my firearm and the magazine saying, "Please wait until we're gone before you reload it."

I did, and that was that.

I can understand the two roadside disarmings, but the one in my own home was all the way in the back, in my bedroom. What the hell? We were in the front hall. There was absolutely no need whatsoever for that. I came about this close to telling them, "You know what? I think we're done here. Please leave. Now." The only reason I didn't is because I have a good working relationship with the PD and didn't want to jeopardize that.
What type of working relationship are you referring too.

Do you do contract work for them or do you mean you get stopped by them on a frequent basic.

How big of a PD are we talking about.

Do they have a department policy of disarming.


Requiring some one to "disarm" someone firearms in ones house seems strange as some house's would require a bit of time to do.

As far as LEO's being almost apologetic about it, that is just one of the tactics they use to get you to feel better about them doing something to you that you would not like.

You know it is for your own good.

I really don't want to search your vehicle, I really don't want to write this citation, I really don't want to arrest you. But it is actually for your own good.

I really don't want to handcuff you but department policy requires it.

ECT, ECT, ECT
 
Last edited:

solus

Regular Member
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Aug 22, 2013
Messages
7,869
Location
here nc
What type of working relationship are you referring too.

Do you do contract work for them or do you mean you get stopped by them on a frequent basic.

How big of a PD are we talking about.

Do they have a department policy of disarming.

Requiring some one to "disarm" someone firearms in ones house seems strange as some house's would require a bit of time to do.

As far as LEO's being almost apologetic about it, that is just one of the tactics they use to get you to feel better about them doing something to you that you would not like.

You know it is for your own good.

I really don't want to search your vehicle, I really don't want to write this citation, I really don't want to arrest you. But it is actually for your own good.

I really don't want to handcuff you but department policy requires it.

ECT, ECT, ECT
056CBAC4-4351-4B18-A7A7-21DBAD9D3954.jpeg
 

color of law

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Cincinnati, Ohio, USA
Thanks, but here is a quote from the case.
While the dispatcher and motorcyclist may not have known the details of Ohio’s open-carry firearm law, the police officer had no basis for such uncertainty. If it is appropriate to presume that citizens know the parameters of the criminal laws, it is surely appropriate to expect the same of law enforcement officers—at least with regard to unambiguous statutes. Heien v. North Carolina, 135 S. Ct. 530, 540 (2014).
 

Fallschirjmäger

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Cumming, Georgia, USA
Is it legal for a law enforcement officer to disarm a person (i.e. remove a gun from the holster) in a state that allows open-carry, on the sole allegation of "officer safety" where there is nothing more than a complaint that the majority would find uncredible under the circumstances?
If he's detaining me because he has a reasonable suspicion of a particularized crime, then he (I'm sure) he has the authority to disarm me for the duration of the detention and probably when/if it becomes an arrest.

On The Other Hand..

If it's a voluntary encounter and I'm Not suspected of criminal activity and he wants to disarm me when we have a little chat.... well then I hope he's got his comfy, fluffy bunny slippers on because I'm not saying anything to him while disarmed. We can stand there till the sun goes round and round or he gets another call or he just gets tired, I don't care.

Give me my firearm back and we might chat, keep it and I'll just keep my silence.... his choice :).

He wants something from me, I don't really want anything from him. I believe that's what they call a 'seller's market'. Meet my price to talk or bugger off.
 

gutshot II

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Central Ky.
If he's detaining me because he has a reasonable suspicion of a particularized crime, then he (I'm sure) he has the authority to disarm me for the duration of the detention and probably when/if it becomes an arrest.

On The Other Hand..

If it's a voluntary encounter and I'm Not suspected of criminal activity and he wants to disarm me when we have a little chat.... well then I hope he's got his comfy, fluffy bunny slippers on because I'm not saying anything to him while disarmed. We can stand there till the sun goes round and round or he gets another call or he just gets tired, I don't care.

Give me my firearm back and we might chat, keep it and I'll just keep my silence.... his choice :).

He wants something from me, I don't really want anything from him. I believe that's what they call a 'seller's market'. Meet my price to talk or bugger off.
Why would you even stay around in such a scenario? Why not just leave? If he doesn't have RAS for a stop, he doesn't have RAS to take your weapon. If he wants to chat, let him find someone else, just turn and walk away before he takes your gun. He'll let you know soon enough if you are being detained, then you can start your silence.
 

gutshot II

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Central Ky.
Unless a encounter is initiated by the citizen there is no such critter as "a consensual/voluntary encounter."
Ridiculous! I live outside a small town. I've lived here most of my life. I know several of the cops. I stop and converse with them often. We address one another by our first names/nicknames. They see me and start conversations all the time. It is just friendly chit chat. They ask about my wife and/or daughter. It is 100% "consensual/voluntary". It is no different that if you and I were talking together.
 

color of law

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Ridiculous! I live outside a small town. I've lived here most of my life. I know several of the cops. I stop and converse with them often. We address one another by our first names/nicknames. They see me and start conversations all the time. It is just friendly chit chat. They ask about my wife and/or daughter. It is 100% "consensual/voluntary". It is no different that if you and I were talking together.
Your description is not within the legal parlance of a consensual/voluntary conversation as defined by the courts as being for a law enforcement purpose.
 

gutshot II

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Your description is not within the legal parlance of a consensual/voluntary conversation as defined by the courts as being for a law enforcement purpose.
I don't speak "legal parlance" and have no desire to. Nothing I ever say or write will be in "legal parlance" unless I stumble into it. It will never be intentional.
 

color of law

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I don't speak "legal parlance" and have no desire to. Nothing I ever say or write will be in "legal parlance" unless I stumble into it. It will never be intentional.
I accept your apology for stumbling into a legal parlance. They tell me that the elderly should remove shag rugs because of their tripping potential. :D
 
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