Frisked at WalMart

[Liko81]

imported post

walrus wrote:

I have a ccw license. I had my pistol in its holster stuck in my back pocket. I would say it was covered up most of the time by my long shirt. I knew it was visible at times but didn't care one way or the other b/c of my ccw and Ky being an open carry state.

First mistake I think. Concealed means concealed, and open means open. A person carrying in a tuckable IWB holster, not printing, raises approximately zero alarms. A person carrying openly at 3:00 or 4:00, or "Virginia Open"in an IWB plainly visible, looks like he knows what he's doing, and though it may cause some alarm, most people even if they notice the gun will assume you are supposed to have it.

However, sticking your gun in a back pocket (even if it's also in a holster) and not making a conscious effort to plainly display or completely conceal, is a signal to others that you are not supposed to have that weapon, and are poorly trying to hide it. That just says "gangbanger" even to many gun carriers, and though legal, obviously does not project an image of a guy who knows what he's doing.

This is when the manager I had talked to earlier and two other workers walk up to me. She says she is sorry but she was doing her job with the safety of others in mind. Then she says she may feel safer knowing I legally have a gun.?

Sounds like you might have a convert. Even ifyou're still accosted, that manager will know you're good, andas she said she might feel safer with a gun owner around her, that sounds like a person who might consider carrying themselves (outside work of course, Wally World has a no-guns employee policy AFAIK)

Maybe if people knew their laws and libertiesI wouldn't have to go thru this.Maybe if she had asked me the first timeshe talked to me about my gun or to see a permit, or to keep it covered up because I wasmaking someone uncomfortable.

Welcome to OCDO. That's what we do; educate others around us thatopen carryis in fact legal, and not evidence of any other criminal impulse. Now, here in Texas it is in fact not legal to OC :banghead:. It is a de facto rural OC state; it's not a crime to OC a handgun when hunting or on your own property, and in rural communities this is extended; everyone has a gun, the sight of a gun is not alarming unless the person carrying it is alarming by himself, and even the sound of a gun being shot is an everyday thing; if you have a couple acres you haul some fill dirt to an out-of-the-way corner on your lot and target shoot. SoI think, for the most part, if Texas passed legal OC in some form, Texans would by and large be fine with it.

What do you think? Any thoughts on what the officer meant by disorderly conduct?

Disorderly conduct charges are a common intimidation tactic used by police who are against civilian OC. You may find yourself cooling your heels in a holding cell for it, but it would be a false arrest and malicious prosecution resulting in a nice addition to your retirement fund. There was a Supreme Court ruling that clarified some points of Terry v Ohio, including the fact that OCif legal in the jurisdiction does not constitutethe required RAS for a detention. Even if it is only legal when the individual is licensed to do so (i.e. Georgia), the officer must presume the individual is licensed unless there is evidence to the contrary.

In addition, every disorderlyconduct law I have read (about a dozen sofar)requires intent. You must carry that weapon in a manner reasonably calculated and intended to intimidate or cause alarm. Again, the courts have ruled that a gun in its holster on the hip of a lawful individual is not by itself evidence of intent to cause alarm,nor is the gun carried in a manner calculated to do so,even if it does in fact cause alarm.

 

[asforme]

imported post

Liko81 wrote:

walrus wrote:

I have a ccw license. I had my pistol in its holster stuck in my back pocket. I would say it was covered up most of the time by my long shirt. I knew it was visible at times but didn't care one way or the other b/c of my ccw and Ky being an open carry state.

First mistake I think. Concealed means concealed, and open means open. A person carrying in a tuckable IWB holster, not printing, raises approximately zero alarms. A person carrying openly at 3:00 or 4:00, or "Virginia Open"in an IWB plainly visible, looks like he knows what he's doing, and though it may cause some alarm, most people even if they notice the gun will assume you are supposed to have it.

I'll second this. If I saw a gun playing peekaboo I'd get paranoid too. You may notice me staring. Of course when you see me OCing and strike up a friendly conversation then all suspicion will probably go away.

 

[deepdiver]

imported post

asforme wrote:

walrus wrote:

I had my pistol in its holster stuck in my back pocket.

I'll second this. You may notice me staring.

:uhoh:



*the dangers of selective quoting .... *

 

[superdemon]

imported post

As a police officer in central, KY, I'll weigh in on this...

I agree with those saying you need to maybe change your carrying habits.

Open carry is no problem, but I would add some caveats:

1. Don't look like a thug.

2. Either have it clearly open, or completely concealed.

3. Being in a Wal-Mart at 2:00 am (is that the right time?) with a gun playing peak-a-boo? Bad idea. The people working those hours are constantly afraid of robbery risks, and whether you meant to or not, they got that vibe off of you.

4. In KY, Disorderly Conduct is one of those "catch-all" type charges, basically for when you are either making an ass of yourself,or"alarming, annoying or affronting" the general public. I would venture to say that the carry condition(sloppy) + time of day+ location = some general alarm.

I am not in the habit of blindly either supporting or denouncing police action that I wasn't there to witness, but your contact with KSP seemed fairly innocous.

 

[superdemon]

imported post

Ohio Patriot wrote:

Mike wrote:

I think the LEO's overreacted...

I think what the LEOs did was illegal.

Did the LEOs have RAS that a crime had been committed?
Did the LEOs have RAS that a crime was being committed?
Did the LEOs have RAS that a crime will be committed?

If the answer to each of these questions is,"No," then don't mince words. What the LEOs did was illegal.

When I do something illegal I am arrested. Why is there a different standard for LEOs??

No, what they did was not illegal, and your last question, "Did the LEOs have RAS that a crime will be committed?" is why.

A sloppily carried gun in a store in the early moring hours? Bad idea, and it is our job to check those kinds of things out. Again, his contact amounted to no more than a Terry stop, and I do about a hundrred of them a week, and trust me, if it wound up in court, the above conditions would justify the stop. He wasn't searched, he wasn't manhandled, they simply checked his CCW status, then gave him some advice on how to actually avoid being Terry stopped in the future.

 

[Gunslinger]

imported post

superdemon wrote:

Ohio Patriot wrote:

Mike wrote:

I think the LEO's overreacted...

I think what the LEOs did was illegal.

Did the LEOs have RAS that a crime had been committed?
Did the LEOs have RAS that a crime was being committed?
Did the LEOs have RAS that a crime will be committed?

If the answer to each of these questions is,"No," then don't mince words. What the LEOs did was illegal.

When I do something illegal I am arrested. Why is there a different standard for LEOs??

No, what they did was not illegal, and your last question, "Did the LEOs have RAS that a crime will be committed?" is why.

A sloppily carried gun in a store in the early moring hours? Bad idea, and it is our job to check those kinds of things out. Again, his contact amounted to no more than a Terry stop, and I do about a hundrred of them a week, and trust me, if it wound up in court, the above conditions would justify the stop. He wasn't searched, he wasn't manhandled, they simply checked his CCW status, then gave him some advice on how to actually avoid being Terry stopped in the future.

He was searched without giving consent. He could have been asked to produce his ID/CCW. When the cop touched him, without consent, he committed battery. The store manager was a sheep, so no surprise she whined to the cops; the cops had no legal right to search him based upon only OCing. However, they would have been justified in disarming him, for their safety, and asking him for id. That they searched him was a violation of his 4th Amendment rights and the tort of battery. Terry stop does not apply in this case and if you used that in court with a judge who wasn't some halfwitted Traffic Court dipshit, it would be tossed. I agree that the "stop" was justified; however, in no way was a Terry search legal.

 

[superdemon]

imported post

Gunslinger wrote:

superdemon wrote:

Ohio Patriot wrote:

Mike wrote:

I think the LEO's overreacted...

I think what the LEOs did was illegal.

Did the LEOs have RAS that a crime had been committed?
Did the LEOs have RAS that a crime was being committed?
Did the LEOs have RAS that a crime will be committed?

If the answer to each of these questions is,"No," then don't mince words. What the LEOs did was illegal.

When I do something illegal I am arrested. Why is there a different standard for LEOs??

No, what they did was not illegal, and your last question, "Did the LEOs have RAS that a crime will be committed?" is why.

A sloppily carried gun in a store in the early moring hours? Bad idea, and it is our job to check those kinds of things out. Again, his contact amounted to no more than a Terry stop, and I do about a hundrred of them a week, and trust me, if it wound up in court, the above conditions would justify the stop. He wasn't searched, he wasn't manhandled, they simply checked his CCW status, then gave him some advice on how to actually avoid being Terry stopped in the future.

He was searched without giving consent. He could have been asked to produce his ID/CCW. When the cop touched him, without consent, he committed battery. The store manager was a sheep, so no surprise she whined to the cops; the cops had no legal right to search him based upon only OCing. However, they would have been justified in disarming him, for their safety, and asking him for id. That they searched him was a violation of his 4th Amendment rights and the tort of battery. Terry stop does not apply in this case and if you used that in court with a judge who wasn't some halfwitted Traffic Court dipshit, it would be tossed. I agree that the "stop" was justified; however, in no way was a Terry search legal.

No, sir, he was not searched. He was Terry'ed. Read his description of the stop again.

In KY, there is no such thing as "battery".

No cop worth his salt is going to let a person who is carrying in their back pocket reach into that general area to produce ID. Keep your firearm away from your ID, and this won't happen.

You say he was openly carrying, but by his own description, he was not doing so.

Beleive me, I am the most libertarian police officer you are very going to meet. (That's libertarian, not liberal.) As a matter of fact, I am a strict Constitutionalist when it comes to most matters. I firmly believe in the Citizen's right to carry. I even believe in the decriminalization of marijuana, as I think the state has no right to tell me or you what we can and cannot ingest. I REFUSE to participate in our department's "traffic safety checkpoints" (read that as "roadblocks") as I firmly believe they are absolutely unconstitutional. (I will lay down my dazzilngly brilliant reasoning for that last one if the mods say it is ok.)

I use this analogy for carrying:

(Some) People are never going to be fully comfortable with open carry. I equate it to pickingyour nose in public. If I am walking down the street, and I suddenly decide, 'I really need to get that booger out of my nose.", and I start digging in there second-knuckle deep, people are going to see and react. Most are going to be disgusted. If I pick in public, I have tobe ready for the reaction, and not expect completeimmunity from citizen's reactions.If you choose to either pick your nose, or carry openly, you are going toget reactions from people. Some are going to react in a way that youor I find unreasonable, but remember that it is reasonable to them.We carry on the justification that it makes us feel safer, and some people are going to react to our carry by calling the police, on the same justification, that they feel safer after the police come out and check the person out. You can't change that fact, my friend. That is simply human nature, and there is nothing that youor I can do aboutthat fact.

If we want to make open carry more accepted, then the burden is on us to do it in a way that shows we can carry in a professional, clean, mature, non-threatening manner. We're not going to convert anyone with the scenario described in the initial post.

If you choose to openly carry, then do it in a clean, professional manner. Stuck in a back pocket, "kinda covered", in a store at 02:00 is a bad idea. Walking in with it in a professional hip or S.O.B rig, making eye contact, smiling and greeting the staff as you pass them, is a good idea.

I read in other threads about someone wanting to carry on a thigh rig. Man, nothing is going to scream "gun nut" like a tactical thigh rig at the mall.

 

[Gunslinger]

imported post

superdemon wrote:

No, sir, he was not searched. He was Terry'ed. Read his description of the stop again.

In KY, there is no such thing as "battery".

No cop worth his salt is going to let a person who is carrying in their back pocket reach into that general area to produce ID. Keep your firearm away from your ID, and this won't happen.

You say he was openly carrying, but by his own description, he was not doing so.

Beleive me, I am the most libertarian police officer you are very going to meet. (That's libertarian, not liberal.) As a matter of fact, I am a strict Constitutionalist when it comes to most matters. I firmly believe in the Citizen's right to carry. I even believe in the decriminalization of marijuana, as I think the state has no right to tell me or you what we can and cannot ingest. I REFUSE to participate in our department's "traffic safety checkpoints" (read that as "roadblocks") as I firmly believe they are absolutely unconstitutional. (I will lay down my dazzilngly brilliant reasoning for that last one if the mods say it is ok.)

I use this analogy for carrying:

(Some) People are never going to be fully comfortable with open carry. I equate it to pickingyour nose in public. If I am walking down the street, and I suddenly decide, 'I really need to get that booger out of my nose.", and I start digging in there second-knuckle deep, people are going to see and react. Most are going to be disgusted. If I pick in public, I have tobe ready for the reaction, and not expect completeimmunity from citizen's reactions.If you choose to either pick your nose, or carry openly, you are going toget reactions from people. Some are going to react in a way that youor I find unreasonable, but remember that it is reasonable to them.We carry on the justification that it makes us feel safer, and some people are going to react to our carry by calling the police, on the same justification, that they feel safer after the police come out and check the person out. You can't change that fact, my friend. That is simply human nature, and there is nothing that youor I can do aboutthat fact.

If we want to make open carry more accepted, then the burden is on us to do it in a way that shows we can carry in a professional, clean, mature, non-threatening manner. We're not going to convert anyone with the scenario described in the initial post.

If you choose to openly carry, then do it in a clean, professional manner. Stuck in a back pocket, "kinda covered", in a store at 02:00 is a bad idea. Walking in with it in a professional hip or S.O.B rig, making eye contact, smiling and greeting the staff as you pass them, is a good idea.

I read in other threads about someone wanting to carry on a thigh rig. Man, nothing is going to scream "gun nut" like a tactical thigh rig at the mall.

Terry v. Ohio, 392 U.S. 1 (1968), was a decision by the United States Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures was not violated when a police officer stopped a suspect on the street and searched him without probable cause to arrest.

The Court held that police may briefly detain a person if they have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. For their own protection, police may perform a quick surface search of the person's outer clothing for weapons if they have reasonable suspicion that the person stopped is armed. This reasonable suspicion must be based on “specific and articulable facts” and not merely upon an officer's hunch. This permitted police action has subsequently been referred to in short as a “stop and frisk”, or simply a “Terry stop”. The Terry standard was later extended to temporary detentions of persons in vehicles, known as traffic stops.

The rationale behind the Supreme Court decision revolves around the understanding that, as the opinion notes, “the exclusionary rule has its limitations”. The meaning of the rule is to protect persons from unreasonable searches and seizures aimed at gathering evidence, not searches and seizures for other purposes (like prevention of crime or personal protection of police officers).

No grounds for a Terry Search--even if there were, taking his wallet without his permission exceeds it.

At common law, battery is the tort of intentionally (or, in Australia, negligently) and voluntarily bringing about an unconsented harmful or offensive contact with a person or to something closely associated with them (e.g. a hat, a purse). It is a form of trespass to the person. Unlike assault, battery requires an actual contact. The contact can be directly between the tortfeasor and the victim, or the tortfeasor may bring about the contact between an object and the victim. For example, A intentionally runs over B with his car. This is a battery. Battery is actionable per se, meaning that a claim for the tort may succeed without proof of damage.

Intent: The degree and quality of intent distinguishes tortious battery from criminal battery. The degree and quality of intent sufficient for battery also varies across different common law countries, and often within differing jurisdictions of those countries. In Australia, negligence in acting is sufficient to establish intent. Within the US, an intent to do the act that ultimately results in contact is sufficient for the tort of battery, while a intent to inflict an injury on another is required for criminal battery.

In the United States, the common law requires the contact for battery be "harmful or offensive". The offensiveness is measured against a 'reasonable person' standard. Looking at a contact objectively, as a reasonable person would see it, would this contact be offensive? Thus, a hypersenstive person would fail on a battery action if jostled by fellow passengers on a subway, as this contact is expected in normal society and a reasonable person would not find it offensive. Harmful is defined by any physical damage to the body.



In re battery: it exists, and goes back to the Azzises and earliest American Common Law, in every state as a tort. It is also, in every state, a criminal offense, although I use it in the tort sense here as he would sue to recover damages, in this case exemplary only, as he suffered no real damages.

I agree with the substance of what you say, butthe cops acted unlawfully in this circumstance. Given the time of day, the fact that he was sloppy in his carry of the weapon, the manager was a sheep who bleated, etc, I don't think the cops were particularly unreasonable, but they exceeded their authority under law. That is a fact. If I were the guy--of course I carry in a holster only, openly, I would have had a conversation with the cops to allow them to articulate their reasonable suspicion of my criminal action or intent. If they were polite, I would be too, but tell them, notwithstanding, thatthey exceeded their authority when they took my wallet by whatever interpretation of Terry they used. If they were less than polite, I'd file a complaint with the Attorney General's office, not the local fuzz, under the appropriate abuse under color of authority statute.

You sound like the kind of cop we need more of. What is your favorite doughnut flavor?

 

[superdemon]

imported post

Again, no.

It exists "in every state" as a principle of law, as a theory, not as a fact.

The closest thing to "battery" in KY is assault.

Think of it this way:

Carrying the gun concealed WAS unlawful, if and only if he did NOT have his CCW. Having the CCW is a positive defense against the crime of CDW. Therefore, they obtained his OL to run it through LINK/NCIC to see if he had a CCW on file.

You see, in fact, he was carrying unlawfully , until they obtained the info saying he wasn't. The principle of "innocent until proven guilty" does not apply to these face-to face encounters. That idea is reserved for the courtroom. What I or any other LEO need to do on the street to do our job safely is a whole nother matter. Anytime someone is licensed or certified to circumvent established law, the burden is upon the person to prove they are doing so lawfully.

If he had been smart enough to NOT carry so close to his wallet, the LEO's would not have reacted the way they did. Again, I am not going to ask you to get your wallet out if it is that close to your weapon. They had to seperate him from his weapon in order to safely determine if he had a CCW. If he had his weapon on his hip, where officers could keep an eye on it while he reached for his wallet, things would have been different. The big issue here is how close the weapon was to where a reasonable person would think his wallet would be.

As an LEO, I have to think of my safety, the subject's safety, and the safety of those around me.

If he is not going to carry in a more responsible manner, then this is how he is going to be treated.

As an aside, it has been established in KY law that if the weapon itself is not visible, but the LEO can tell a weapon is there, it is not concealed. Example: Your weapon printing so badly through a shirt that the outline of the weapon is clearly visible. While the LEO cannot "see" the weapon, it is not "concealed".

 

[Gunslinger]

imported post

superdemon wrote:

Again, no.

It exists "in every state" as a principle of law, as a theory, not as a fact.

The closest thing to "battery" in KY is assault.

Think of it this way:

Carrying the gun concealed WAS unlawful, if and only if he did NOT have his CCW. Having the CCW is a positive defense against the crime of CDW. Therefore, they obtained his OL to run it through LINK/NCIC to see if he had a CCW on file.

You see, in fact, he was carrying unlawfully , until they obtained the info saying he wasn't. The principle of "innocent until proven guilty" does not apply to these face-to face encounters. That idea is reserved for the courtroom. What I or any other LEO need to do on the street to do our job safely is a whole nother matter. Anytime someone is licensed or certified to circumvent established law, the burden is upon the person to prove they are doing so lawfully.

If he had been smart enough to NOT carry so close to his wallet, the LEO's would not have reacted the way they did. Again, I am not going to ask you to get your wallet out if it is that close to your weapon. They had to seperate him from his weapon in order to safely determine if he had a CCW. If he had his weapon on his hip, where officers could keep an eye on it while he reached for his wallet, things would have been different. The big issue here is how close the weapon was to where a reasonable person would think his wallet would be.

As an LEO, I have to think of my safety, the subject's safety, and the safety of those around me.

If he is not going to carry in a more responsible manner, then this is how he is going to be treated.

As an aside, it has been established in KY law that if the weapon itself is not visible, but the LEO can tell a weapon is there, it is not concealed. Example: Your weapon printing so badly through a shirt that the outline of the weapon is clearly visible. While the LEO cannot "see" the weapon, it is not "concealed".

Tort Law (Vol. 13, Kentucky Practice Series)


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Find in one volume discussions of case and statutory law in the three major areas of tort law: intentional torts, negligence, and strict liability. The content also covers Kentucky decisions on which current law is based; law from other jurisdictions that can suggest guidelines in areas where there is little Kentucky authority; and laws from other jurisdictions. Topics covered include intent; vicarious liability; intentional infliction of emotional distress; interference with business or family relationship; and abuse of power.

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If you really want to find out that KY does have the tort of battery, here's the book to buy. Assault is an action threatening battery. Battery is the unprivleged physical contact. Two separate but existing offenses, in criminal law, or torts, in civil. Battery is an intentional tort of the three types, and believe me it does exist in KY just like every other US state. If you don't want to pay the $131, a law library--or even a large regular library, will have the book.

The rest of you post does nothing to refute my claim that the taking of the guy's wallet was unlawful--even under Terry, and I don't believe Terry was justified. Even if it was, the act of taking the wallet is not protected conduct under Terry and is battery upon OP's person. We can argue about it all day, but you're a cop and I'm a lawyer. I'd bet on me in both instances--and especially when it comes to tort law.

 

[superdemon]

imported post

If you are an attorney, then you will understand the exigency of NOT allowing the indivual (Walrus, was it not?) to reach into the area where he had already demostrated he was carrying a weapon.

Yes, we can sit here and debate all day, but the fact remains that not only was he Terry'ed and released, he was given advice on how to not have it happen again. He had to prove he was carrying in compliance with the statute, as the CCW gave him permission to violate the statute.

And as an attorney, you have to admit that at neither a pretrial conference, probable cause hearing, or at a trial, would anyone find fault (other than a defense attorney, but hey, that's their job, so whatever) with the officers' actions.

 

[Gunslinger]

imported post

superdemon wrote:

If you are an attorney, then you will understand the exigency of NOT allowing the indivual (Walrus, was it not?) to reach into the area where he had already demostrated he was carrying a weapon.

Yes, we can sit here and debate all day, but the fact remains that not only was he Terry'ed and released, he was given advice on how to not have it happen again. He had to prove he was carrying in compliance with the statute, as the CCW gave him permission to violate the statute.

And as an attorney, you have to admit that at neither a pretrial conference, probable cause hearing, or at a trial, would anyone find fault (other than a defense attorney, but hey, that's their job, so whatever) with the officers' actions.

I don't practice, working for the Air Force, but keep in mind this is a Civil matter, not criminal. Preponderence of evidence prevails, not guilty beyond a reasonable doubt. Hypothetical, as I said no real and limited punitive damages would accrue, so not worth the legal fees, time or trouble, but the plaintiff would win. The cops, if we allow Terry was lawful, could pat him down but not reach into his pocket. After determining it was a wallet, not a weapon, they could then ask him for CCW, ID or to borrow 5 bucks. They did not, under any definition of lawfulness, have the right to reach into his pocket after determination there was no weapon there.

 

[superdemon]

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You've obviously NOT seen the weapons that can be carried IN A WALLET. Again, real-world experience here versus classroom theory on your end.

Will will simply have to agree to disagree.

 

[Gunslinger]

imported post

superdemon wrote:

You've obviously NOT seen the weapons that can be carried IN A WALLET. Again, real-world experience here versus classroom theory on your end.

Will will simply have to agree to disagree.

Fair enough, but remember that classroom theory in Law School is based on stare decisis--real case law.

I could never be a cop. If I arrested a child murderer, rapist, etc, I'd turn into an executioner. Stay safe out there, copper!

 

[deepdiver]

imported post

Welcome to the forum SuperDemon. Look forward to your input on the forum. Good discussion with you and Gunslinger!

 

[walrus]

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Glad this has generated some discussion. The pistol was in fact in an iwb holster while in my left back pocket. Wallet was in the right back pocket. Usually it is on my side but the work pants I was wearing were way to tight for that.



Funny thing about all this is that several monthsbefore thisI was stopped in my vehicle by 1 KY State Policeman. Told him I was carrying and had permit. He was cooler. Told me to cross my hands together. He held them with one of his and proceded to disarm me. This was a littleworrisome as he was standing in front of me and tryingto pull my pistol out of the holster(probaly the same IWB). He took the knife I told him of as well and put them in my front seat. Then he asked for my ccw and drivers license. He stayed between my car and me. Finally when all was good he told me to wait for him to get into his car before I got into mine. All this occured downtown but Ihad pullec off the main street away from traffic. If I am stopped I like to do that if possible.

 

[Bill Starks]

imported post

walrus wrote:

This is when the manager I had talked to earlier and two other workers walk up to me. She says she is sorry but she was doing her job with the safety of others in mind. Then she says she may feel safer knowing I legally have a gun.?

Sounds to me like the manager needs to get some more training from corporate. Walmart policy mirrors state law. We've had this issue in Washington as well however I carry the Walmart Security Chief's Phone number in my cell for just such a situation.