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Open Carrier Arrested in Iowa for not showing Permit

Dennis Estell

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Sep 24, 2013
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Des Moines
The carrying weapons charge was dropped right before trial. The failure to produce weapons permit charge was then tried on its own. The states only arguement was that only the pocketbilly was required to be concealed, not the revolver or pistol. The judge agreed that the wording of the law is grammatically correct and states that all 3 be concealed. What has me thinking is that when I am stopped again(I will be OC again this friday), if I go by what the judge ruled and refuse to show my permit again, and I will be showing the officer copies of the ruling, then the officer will still(more than likely) arrest me for carrying weapons. We had a hearing for a 4th amend. violation and got nowhere because the arrest was made for refusing to provide a permit, not for carrying weapons in and of itself. Getting arresting simply because of carrying weapons, would be a HUGE 4th amend. violation. I wont even need a lawyer for that one. Probable cause for detention, sure. Probable cause for an arrest, not even close. Maybe all the naysayers ive been reading about on this thread will apologize now.
 

Tucker6900

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Iowa, USA
The carrying weapons charge was dropped right before trial. The failure to produce weapons permit charge was then tried on its own. The states only arguement was that only the pocketbilly was required to be concealed, not the revolver or pistol. The judge agreed that the wording of the law is grammatically correct and states that all 3 be concealed. What has me thinking is that when I am stopped again(I will be OC again this friday), if I go by what the judge ruled and refuse to show my permit again, and I will be showing the officer copies of the ruling, then the officer will still(more than likely) arrest me for carrying weapons. We had a hearing for a 4th amend. violation and got nowhere because the arrest was made for refusing to provide a permit, not for carrying weapons in and of itself. Getting arresting simply because of carrying weapons, would be a HUGE 4th amend. violation. I wont even need a lawyer for that one. Probable cause for detention, sure. Probable cause for an arrest, not even close. Maybe all the naysayers ive been reading about on this thread will apologize now.
What probable cause for detention? For what crime? Carrying without a permit? How did he know whether or not you had a permit? Its clear that the judge knew what the law meant, but the cops didnt. I am not in your shoes so I cant say what you should have done, but I think a not guilty verdict instead of dismissed would have served you better.

What level court was this?

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Dennis Estell

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Sep 24, 2013
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Des Moines
I said it wrong. I received NOT GUILTY verdicts on both charges, not dismissed. That's my mistake. I also went back to get my weapons permit from Madison County today, and Sherriff Craig Busch was not at all too happy with me, as he didn't want to give it back. He said he didn't agree with the judges decision. The ruling was at the district level in polk county. And I agree, the officer now has NO reason to arrest or harass me at all, especially after I show them the court papers that I have laminated and on a string that I will be wearing around my neck. I suspect that it will be ignored, and I will be arrested.....again.
 

Dennis Estell

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Des Moines
The probable cause for detention will be the Iowa carrying weapons law, which makes open or concealed carry of any kind inside city limits a crime, with the permit providing a affirmative defense. Guilty until proven innocent, literally. Which gets to the meat of it, because a blanket ban on carrying weapons of any kind inside city limits is blatantly unconstitutional, regardless of the permit laws. Of course, the detaining officer will start the usual "I don't know if your legally carrying" crap. I don't know, doesn't hold much water with me, or in court. Usually.
 

Dennis Estell

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Des Moines
I almost forgot this little tidbit. As the law is right now, the officer can walk up to anyone oc or cc and arrest them on the spot. Until the permit is produced to the officer, you are committing a crime, and they can arrest you for it no questions asked. Which is where the big 4th amend. and 2nd. amend violations come into play with the current carrying weapons law in Iowa.
 

Tucker6900

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I almost forgot this little tidbit. As the law is right now, the officer can walk up to anyone oc or cc and arrest them on the spot. Until the permit is produced to the officer, you are committing a crime, and they can arrest you for it no questions asked. Which is where the big 4th amend. and 2nd. amend violations come into play with the current carrying weapons law in Iowa.
Which part of 724 gives them the authority to arrest? And I am a little confused. In one post, you state that the judge agreed that in order to demand a permit, the weapon must be concealed, unless I understood wrong.

As far as I know, and have experienced, they hold no authority to arrest anyone for simply carry weapons until they find the person does not have a permit. And that, I believe, is where it gets sticky. Other than prior contact, an officer has no idea that you are carrying illegally, unless we are in the movie Minority Report, and without that RAS, he has no grounds for a stop, IMHO.

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Dennis Estell

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Des Moines
The carrying weapons law states that anyone carrying openly or concealed inside city limits is commiting an agg. misdemeaner. Its also states that if a permit is produced, you will not be found in violation. Where its gets tricky is that, under 724.5, I do not produce my permit while OC, the officer can arrest me and charge me with carrying weapons. That is also where it gets good, because a blanket ban on carrying a weapon inside city limits in the state is blatantly unconstitutional by anyones definition. So basically if you carry CC or OC, you are constantly in violation of carrying weapons at all times, the permit is an affimative defense so you cannot be charged with carrying weapons. So now if i comply with 724.5, I will be charged with carrying weapons based entirely on the officers "I dont know" relating to the permit. This would be a rather fun arguement to have in court.
 

saiga12boy

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Oct 19, 2012
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Colorado
I still don't get the concept of it being legal to require a permit to carry a gun. How is that not infringing?


We should push for a law in some state requiring a permit to NOT have your person or home unreasonably searched. It makes exactly as much sense after all. The courts can then try and get away with ruling that since there is an avenue available to ensure you can't be unreasonably searched the law is entirely legal. That should go over well right?

Maybe we can do it in a public initiative state like Washington. Then maybe people would start to catch on that you have to treat all of the amendments equally, not pick and choose to serve BS personal political goals.


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If a cop asks to produce a permit just show them the 2nd amendment and state "The 2nd amendment is part of the U.S. Constitution which supercedes any regulation produced by any government entity, any law that violates the constitution is null and void" if he continues to persist say "I will make your life a living hell LEGALLY, I will sue you for violating my civil rights and your life will become miserable". That's a way to make a cop back up, for non-americans wishing to practice open carrying, state that you have a natural right to possess a weapon and threaten to sue them and make their lives a living hell, maybe they will back off. If they fight dirty we need to fight dirty. This way our domestic and non-domestic friends can get away with the insane concept called freedom.
 
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John adams

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Cedar Rapids, Ia
You know that I respect your opinion, and you have given me useful advice in the past. But I have to disagree with you to a point. Yes, all those things you mentioned are correct. But there MUST be RAS for a stop. An officer cannot, IMHO, legally assume that a person who is open carrying is doing so illegally.
Wow! I came to this site to clarify whether or not in Iowa if I am legally carriying my Pistol concealed or open and a LEO asked me for my CCW am I obligated by LAW to do so? Providing there was NO PC and NO reasonalble suspision other than " they received a call" or the LEO witnessed me as in open carry. I KNOW that missing those two privisios he normally couldn't legally ask for my CCW, or an ID (drivers license) but IF the Iowa law states that I must show a Officer a ID upon demand then how am I NOT legally bound to do so?
 

Darkshadow62988

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Iowa
Wow! I came to this site to clarify whether or not in Iowa if I am legally carrying my Pistol concealed or open and a LEO asked me for my CCW am I obligated by LAW to do so? Providing there was NO PC and NO reasonable suspicion other than " they received a call" or the LEO witnessed me as in open carry. I KNOW that missing those two provisions he normally couldn't legally ask for my CCW, or an ID (drivers license) but IF the Iowa law states that I must show a Officer a ID upon demand then how am I NOT legally bound to do so?
Welcome to OCDO. Here is Iowa gun law, Chapter 724
https://www.legis.iowa.gov/DOCS/ACO/IC/LINC/Chapter.724.pdf

In a brief search, I did not find a requirement to surrender identity papers.
I am not a lawyer and this is not legal advice. This is just my understanding of this.

Carrying a loaded weapon in incorporated areas in Iowa is a crime at all times(obviously one's home is a clear exception). It is only when one presents their permit to carry weapons to a peace officers upon request/demand that the exemption from prosecution for the crime of carrying a weapon applies.

As far as needing RAS/PC to demand ID goes, if you are carrying a weapon and the LEO believes/knows it then that is their PC because having a permit to carry weapons is not the default status. They can't demand your driver's license when you aren't driving any more than they can demand your fishing or hunting license when you aren't doing those things either, but it would likely be in your best interest to do so as it will only strengthen your case if you decide to sue later. Iowa isn't like the other states that have RKBA amendments to their state constitutions. Because Iowa has yet to recognize the right to carry arms on or about one's person in public as a constitutionally protected right either in written law or in court rulings, there is no need for peace officers in Iowa to do anything but arrest every person they see carrying weapons in an incorporated area. They can do that. They can let the courts sort it out after the fact. It wouldn't be good for public relations. It wouldn't be good for their reputation in the media. It wouldn't be a worthwhile use of their time and other resources. That's why they don't do it. Nearly all LEOs in Iowa go out of their way to do things in a fair, just and courteous manner despite the fact that they have the authority to cuff and stuff anyone they see carrying a weapon in public at any time(with a few exceptions like hunting grounds and unincorporated areas).

If you're asking if Iowa is a stop and ID state, no. Technically no state is, but Iowa is tricky. If you are in public minding your own business, anyone can talk to you and you can ignore them. If a LEO talks to you then you can ignore them until they detain you. This is not only a "they say I'm detained" detention, but merely a "reasonable person would not feel free to leave the location/situation" or "one is actually incapable of leaving location/situation" that different jurisdictions(yes, even within the state) disagree on for the details of when a consensual conversation becomes a detention. Once detained, you are on the losing end on the streets, but may be on your way to the upper hand in the courts. Generally speaking, if you haven't been arrested, you can stay silent and nothing can come of it(this doesn't apply to a stop for carrying weapons because they have PC for arrest at that point). After arrest, if you feel your name may incriminate you then you do not have to provide it, but if you have no reason to believe that your name will incriminate you then you will have to, at least verbally, state your name. They may arrest you, legally or not, for refusing to cooperate, but the phrase: I have nothing to say without legal counsel/an attorney is a safe bet. After that point, you're either free to go(neither detained nor arrested) or you are detained/arrested and you need only state your name and that you will not answer any other questions without legal counsel. The police do not exist to make friends. They exist to find criminals and arrest them so they may be punished according to the law. Their job is a dangerous one and that is why they are given specific exemptions/privileges in the law. If they and you go by the book and obey the law you will be just fine. If they don't, assuming you survive, you can make an example of them(or settle for quite a bit of money). If you don't, you may lose your freedom, liberties and/or your life.
 

Liberty-or-Death

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...
Carrying a loaded weapon in incorporated areas in Iowa is a crime at all times(obviously one's home is a clear exception). It is only when one presents their permit to carry weapons to a peace officers upon request/demand that the exemption from prosecution for the crime of carrying a weapon applies. ...
Guilty unless proven innocent. Doesn't sound like liberty to me.
 

Darkshadow62988

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Iowa
So, according to your way of thinking, a police officer can stop every car on the road and demand to see all drivers licenses without ever seeing a violation of any law. Driving without a license is a violation, so just being behind the wheel is enough RAS for a stop. Is that the way it works in your mind?
It isn't my way of thinking. It is the thinking of the courts of this country. Driver's licenses are far more common than permits to carry weapons. Courts all over the country have ruled on that very topic many many many times and not all agree. Some courts, mostly lower courts, have said that driver's licenses aren't actually necessary, but once you get one you are bound by the rules you agree to by getting it. It is just difficult to get insurance, which is a constitutional requirement, that is generally the motivator for most people to get licenses(seriously, try to get insurance without a driver's license, good luck). That being said, absent any other cause it probably wouldn't fly in court to restrain someone's freedom of movement for a simple misdemeanor that most often results in only a fine. All charges under 724 in Iowa are serious or aggravated misdemeanors, with the exception of reckless use of a firearm without injury to a person or damage to property and failure to carry your permit while carrying concealed. The carrying of firearms is far less common than driving a car, though statistically less dangerous, and is seen differently by both the public and the courts. It's maddeningly illogical, but that's our country.
 

countryclubjoe

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Mar 3, 2013
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nj
From what I understand of the law, you must produce your carry permit in Iowa when LEO asks for it. But before asking for it, doesn't he have to detain you? If you're not being detained you can ignore him and just keep walking. In order to detain he must have reasonable suspicion of a crime(Terry v Ohio). Carrying a gun, where legal, is not reasonable suspicion of a crime (Deberry v US).
+1 The case law cited above is the whole case in a nut shell...

The citizen should bring suit against Walmart and also against the security guard cop.. Acting under color of law while working for a private entity is a federal crime, see title 18 USC 241/242

My .02
Regards
CCJ
 

countryclubjoe

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nj
Not all of our country. Read Delaware v. Prouse, 440 US 648. Exactly the situation that I just described.
I have an umbrella insurance policy that covers the driving issue whether licensed or unlicensed..

I am unlicensed, going on 25 years, I don't contract with the G for a privilege in exchange for my natural right to travel... I say we all should do the same, unless you DRIVE for Commercial reasons... If you are simply traveling from home to the supermarket or across country, no license is required.

My .02

If anyone needs a cite on my statement, please ask, I will supply..

Regards

CCJ
 

Darkshadow62988

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Oct 17, 2010
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242
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Iowa
Not all of our country. Read Delaware v. Prouse, 440 US 648. Exactly the situation that I just described.
I'm aware of the case. I'm also aware that Delaware isn't Iowa, has different laws and is in a different federal circuit. The courts have made it clear that they will treat cases of carrying guns and driving differently. This is more true now than before the topic became one that is good for getting tv/radio ratings up. Many times they come out in favor or liberty, but not always.

The disagreement we have seems to be whether or not we believe LEOs in Iowa need RAS or a crime or PC for arrest to stop someone carrying a firearm and ask for their permit. I've yet to see legal precedence to convince me that in Iowa someone can't legally be detained merely for carrying a firearm. I'd love for that to be the case because that would make sense and agree with the state motto. That being said having it be illegal doesn't prevent LEOs from actually doing it. LEOs have the benefit of doubt in court and if you try to argue with them on the side of the road or any other place they will likely use the threat of force or real force to get you to cooperate whether you want to or not. You can and should sue them afterwards, but you need to be alive to do it. 724 says both request and demand when referencing an officer asking for a permit and a permit holder being compelled to provide it. This case is interesting, but it wasn't composed of the necessary factors to get the answer/ruling necessary to clarify what the courts would interpret the law to mean. There might be some clarification if the OP decides to sue, but it likely wouldn't be binding on other jurisdictions unless there are appeals involved. Is 724 in violations of the 2nd amendment? Is it invalid because it violates other rights? Is it perfectly legal as is? I'm not sure, but I'm generally not an optimist and the law as written say you gotta show your papers when a LEO wants to see them.There doesn't seem to be anyone in enough of a hurry to risk their liberty/freedom to find out if that's the case. No matter how it turns out, the only way to be sure about the law being that police can't just stop someone for carrying a firearm is going to be for someone to be charged and for the case to make its way through the courts. I just don't see it happening any time soon. The .gov will try settle out of court for an amount of money people won't want to give up just to get a court ruling or there will be technical problems to get in the way like always. See how I'm not an optimist? I'd love to have reason(s) to think otherwise.

724.5 Duty to carry permit to carry weapons.A person armed with a revolver, pistol, or pocket billy concealed upon the person shall havein the person’s immediate possession the permit provided for in section 724.4, subsection 4,paragraph “i”, and shall produce the permit for inspection at the request of a peace officer.Failure to so produce a permit is a simple misdemeanor
i. A person who has in the person’s possession and who displays to a peace officer on demand a valid permit to carry weapons which has been issued to the person, and whoseconduct is within the limits of that permit. A person shall not be convicted of a violation ofthis section if the person produces at the person’s trial a permit to carry weapons which wasvalid at the time of the alleged offense and which would have brought the person’s conductwithin this exception if the permit had been produced at the time of the alleged offense.
I have an umbrella insurance policy that covers the driving issue whether licensed or unlicensed..

I am unlicensed, going on 25 years, I don't contract with the G for a privilege in exchange for my natural right to travel... I say we all should do the same, unless you DRIVE for Commercial reasons... If you are simply traveling from home to the supermarket or across country, no license is required.

My .02

If anyone needs a cite on my statement, please ask, I will supply..

Regards

CCJ
This is me asking for a cite on your statement.

This thread is over two years old and
 

Fallschirjmäger

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Cumming, Georgia, USA
So, according to your way of thinking, a police officer can stop every car on the road and demand to see all drivers licenses without ever seeing a violation of any law. Driving without a license is a violation, so just being behind the wheel is enough RAS for a stop. Is that the way it works in your mind?
Not the person being asked, but....
No. Because that is not the way the traffic law is written for driver's licenses but it is the way the law is written as regards to firearms.
321.174 Operators licensed — operation of commercial motor vehicles.
1. A person, except those expressly exempted, shall not operate any motor vehicle upon a highway in this state unless the person has a driver’s license issued by the department valid for the vehicle’s operation.
.....
3. A licensee shall have the licensee’s driver’s license in immediate possession at all times when operating a motor vehicle and shall display the same upon demand of a judicial magistrate, district associate judge, district judge, peace officer, or examiner of the department. However, a person charged with violating this subsection shall not be convicted and the citation shall be dismissed by the court if the person produces to the clerk of the district court, prior to the licensee’s court date indicated on the citation, a driver’s license issued to that person and valid for the vehicle operated at the time of the person’s arrest or at the time the person was charged with a violation of this section. Upon dismissal, the court or clerk of court shall assess the costs of the action against the defendant named on the citation.
versus
724.4 Carrying weapons.
1. Except as otherwise provided in this section, a person who goes armed with a dangerous weapon concealed on or about the person, or who, within the limits of any city, goes armed with a pistol or revolver, or any loaded firearm of any kind, whether concealed or not, or who knowingly carries or transports in a vehicle a pistol or revolver, commits an aggravated misdemeanor.
The key here*, and I'm NOT saying that I agree with it is that an officer becoming aware that someone is armed with a dangerous weapon has an articulable suspicion that said person is in violation of 724.4 until some other evidence proves otherwise. With 321.174, the suspicion would have to be that said person was unlicensed before they could be stopped (unless they were seen performing something against the traffic code.)

* Also note that I'm speaking in generalities and not specifics, in order Not to waste everyone's time getting every 't' dotted and 'i' crossed.
 
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Darkshadow62988

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Iowa
The law clearly states that carrying a concealed weapon or firearm in a city is a crime. It says that if someone carrying it concealed then they have to present their permit to the officer on request/demand. It states that a person won't be convicted of the crime if they present a permit that was valid at the time and their conduct fell within the constraints of that permit. Simply because the law states someone will not be convicted of a crime does not mean the act itself is not a crime. Only once a person has presented a peace officer with a permit does the exemption apply. Before that, just like when someone doesn't get caught for committing any other crime, it is merely that they didn't get caught committing a crime. It seems stupid that the law was written this way, but that's what it is. You can't stop someone for driving because they haven't committed a crime by driving that they become exempt from by presenting a license. They aren't committing a crime by driving with a license. Everyone who carries a firearm is committing a crime. It is only a question of whether that person can be convicted of that crime. Whether they can't be convicted because they are exempt by behavior and presenting their permit on request/demand or at trial or by mere chance is irrelevant to the courts. Simply not convicting people of crimes does not mean crimes are not being committed. How many people are drinking underage at any given time? How many low value items are shoplifted everyday? Nobody is going to argue those acts aren't crimes. They just aren't crimes that people are being convicted and sentenced for committing. Carrying a firearm(a crime) and driving(not a crime) are different. Carrying a firearm by itself is RAS if not outright PC.
 

IA_farmboy

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Linn County, Iowa, USA
Darkshadow, I agree with what you are saying just not precisely how you got there. This thread has dragged on already with the back and forth over splitting legal hairs so I won't go into where I disagree. I agree that the way the law is written and interpreted does allow a LEO to stop any armed person to ask for a permit. It sucks but that is how it is until we get a law or court case that states otherwise. Same goes for public intoxication laws, the way it is written an officer can declare someone intoxicated and then the accused must argue innocence before a judge.

When it comes to stopping people while driving to check for licenses I've been stopped for no cause before for law enforcement to check my license. I was pissed. Court cases have ruled again and again that roadblocks to check for licenses and drunk drivers is a violation of constitutional protections. However, Iowa State Patrol has somehow avoided getting this challenged. I checked the law and the ISP is allowed to stop people without cause so long as it is to enforce traffic safety (they can check for license and registration and for proper vehicle operation) and game laws (all taken game is in season, within take/possession limits, properly tagged). In spite of this I saw drug dogs during the roadblock where I was stopped.

We have a lot of laws in Iowa that empower LEOs to effectively harass the law abiding if they so choose. They can stop anyone that they believe to be armed, that is sufficient cause in law. They can stop anyone they believe to be intoxicated, again that is cause. They can stop anyone driving to check for licenses so long as they stop everyone else. What constitutes "enough" drivers stopped for it to be not considered discriminatory would be an interesting little factoid to find out.

I'd suggest that rather than going back and forth on whether or not this arrest was lawful that we discuss how we go about changing the law to avoid this from happening in the future. We've had permitless carry get proposed in the state legislature before, let's try again.
 

Darkshadow62988

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242
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Iowa
Darkshadow, I agree with what you are saying just not precisely how you got there. This thread has dragged on already with the back and forth over splitting legal hairs so I won't go into where I disagree. I agree that the way the law is written and interpreted does allow a LEO to stop any armed person to ask for a permit. It sucks but that is how it is until we get a law or court case that states otherwise. Same goes for public intoxication laws, the way it is written an officer can declare someone intoxicated and then the accused must argue innocence before a judge.

When it comes to stopping people while driving to check for licenses I've been stopped for no cause before for law enforcement to check my license. I was pissed. Court cases have ruled again and again that roadblocks to check for licenses and drunk drivers is a violation of constitutional protections. However, Iowa State Patrol has somehow avoided getting this challenged. I checked the law and the ISP is allowed to stop people without cause so long as it is to enforce traffic safety (they can check for license and registration and for proper vehicle operation) and game laws (all taken game is in season, within take/possession limits, properly tagged). In spite of this I saw drug dogs during the roadblock where I was stopped.

We have a lot of laws in Iowa that empower LEOs to effectively harass the law abiding if they so choose. They can stop anyone that they believe to be armed, that is sufficient cause in law. They can stop anyone they believe to be intoxicated, again that is cause. They can stop anyone driving to check for licenses so long as they stop everyone else. What constitutes "enough" drivers stopped for it to be not considered discriminatory would be an interesting little factoid to find out.

I'd suggest that rather than going back and forth on whether or not this arrest was lawful that we discuss how we go about changing the law to avoid this from happening in the future. We've had permitless carry get proposed in the state legislature before, let's try again.
Getting permitless carry would be great, but we need to be aggressive and productive on all fronts. We need to hound the legislature, in civil and productive ways, to get them to see us as more than just a small group of people. We need to recruit more people by asking the right questions, being good examples to the public and being inviting rather than abrasive. We need to call out BS/lies when we see it and do it as often as we can so the liars are seen for their true colors and reason and liberty prevail. The legislature is going to do what the legislature thinks is going to be most beneficial for its members. They always have and they always will. It's about the dollars. The candidate who spends the most or has the most spent on them wins nearly every time. There are article galore about that topic.

I don't really have a problem with gutshot. He and I may disagree, but I've been wrong about what he's said before(and lots of other things too, that's life) and learned quite a bit from him. In this case, if he's right and I'm wrong, it's a +1 for liberty and the people and a -1 to tyranny. I don't see that as a bad thing. I would really just rather be sure because if I'm right and he's wrong we will only come to know that at the cost of someone's precious resources and possibly their ability to continue exercising all the freedoms/liberties they have now.
 
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