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How to handle a officer who feels he needs to disarm you ?

Fallguy

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Sep 21, 2007
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McKenzie Tennessee, USA
I don't believe you are correct, sir. The officer is not legally obligated to consider each and every facet that may prove conduct is innocent. He merely has to observe conduct that a reasonable man would consider criminal.

While a person may have the most innocent of reasons to be running down the road while holding a bag from which there is a stream of orange smoke while the police are responding to a silent bank robbery call; the police are not required to consider that you always keep your money in bags and that your 5-year old just happened to sneak a smoke bomb into it that morning.

They have observed conduct consistent with an illegal act and have authority to investigate it. If you have no explanation as to why you have a bag full of smoking orange money, they aren't required to check the serial number of each bill to see if it was in the bank's possession mere minutes earlier. If you refuse (as is your right) to say anything, they have probable cause to make an arrest. It will easily be proven or disproven in court and since you've "not been harmed" there's no recovery to be made.


It's illegal to exceed the speed limit, but if you can prove necessity (such as being chased by a T-rex or to escape dozens of thug motorcyclists) then you won't be penalized.

AFAIK that is the difference between a defense and an exception. If something is a defense you have to show (defend yourself) that you meet that defense. If there is an exception, then by definition you are not breaking that law if you meet one of the exceptions.

But as said above, having a permit in TN is a defense, not an exception.
 

KYGlockster

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In TN you must have a HCP (handgun carry permit) to carry. The mode of carry seems not to matter.

Cop sees gun, you are breaking the law. A cop would be a idiot to not detain you, only long enough to check for a HCP.

Now, how many cops actually obey the law and detain every TN citizen they witness carrying a gun? How many cops detain a TN citizen they witness with a gun shaped bulge? How many cops?

Why would the "cop" be an idiot to "not" detain someone for openly carrying? Just because I cross into TN from KY I should be looked upon as a criminal for openly carrying my firearm? The Second Amendment should be enough for an officer to use his discretion and not contact those that are simply exercising their Second Amendment rights, regardless of state law.

Absent RAS of an ACTUAL criminal offense that warrants my time, I will never detain anyone for carrying a firearm, openly or concealed. Just because there is a law on the books doesn't mean it must be enforced every time someone violates it. Any law that forbids someone from exercising their Second Amendment rights is unconstitutional in my opinion, and I refuse to enforce such laws.
 

Fallschirjmäger

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If the officer really wants to hold onto it, let him, but remember you're not required to answer any questions beyond name, rank and serial number, and probably not even those.

"Sorry, Officer, I don't have voluntary conversations with people that are better armed than I am. If I'm free to go, I'll have my firearm and be on my merry little way. Or, you can return my firearm and we can have a little chat. If I'm not free to go, then I've been advised to exercise my right to remain silent and am exercising my right. I want my attorney before answering any further questions."
 

Primus

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I'd say about 95% of them do. It all depends on the circumstances so I try to ask OC folks not to jump the gun (no pun intended) when there's LEO interaction and you get disarmed. There are BOLOs sent out daily that can be ambiguous in nature sometimes so an officer may be acting on information through NCIC/NLETS when he stops you. You may not know what he knows and take his actions as completely unwarranted where in his mind he was either confirming or dispelling that you were someone that was either wanted or looked similar to a person involved in a nearby crime, etc.

If the LEO goes crazy overboard you still need to obey his commands, but go through the appropriate channels (with agency supervision) after the encounter.

Heck the geographical area can be a factor (i.e. rural v. urban v. airport ) in the officer's decision whether to approach or not.

+1
 

KYGlockster

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To the original poster:

When an officer can disarm you depends on the situation at hand. Yes, state laws are very different and you will have to consult them. What is also very important is case law that has been established by the Sixth circuit and SCOTUS.

To begin, an officer can not disarm you just to disarm you. If you are approached by an officer on the street and it is a consensual encounter, then disarming you is out of the question -- legally. If the officer has RAS that a crime is afoot, then he can pat you down if he has reason to believe you are armed AND DANGEROUS. There are numerous things that can lead an officer to believe you are dangerous. Previous criminal history; area of encounter; time of day; suspicious activity on your part; and so forth. These things by themselves can not be used to establish RAS, but two or more combined can. If an officer has a reasonable suspicion that you are armed AND DANGEROUS then he can check for weapons and disarm if weapons are found -- this is known as a Terry frisk. Keep in mind that this is only a light frisk of your outer clothing to check for anything that feels like a weapon. If you are wearing a heavy coat, the officer can check under the coat, but again, can only pat where a weapon could be concealed. The Terry frisk CAN NOT be used to check for other illicit items such as drugs and so forth. An officer can only search for such items if he has probable cause to search for them. See Terry v. Ohio, 392 U.S. 1 (1968)

Now, if you are in a vehicle the game changes a little. If you are stopped in your vehicle an officer can ask you to exit the vehicle if he believes it is necessary for safety. Not only this, but if he has RAS that you are armed AND DANGEROUS, then he can check the passenger compartment of your vehicle for weapons. This would mean any area where the driver could access while setting in the driver seat, which is pretty much anywhere. Keep in mind he must have RAS that you are dangerous, and RAS does not exist if the officer merely has a "hunch." I do not agree with this SCOUTS ruling, but it is the law of the land until it is overturned. See Michigan v. Long, 463 U.S. 1032 (1983)

Keeping with vehicles, now lets talk about being a passenger in a vehicle that has been detained. If an officer has RAS that the driver of the vehicle is armed AND DANGEROUS, then that officer can also check the passenger(s) of the same vehicle for weapons. The court concluded that this is permissible regardless of whether the officer has RAS to believe the passenger(s) is engaged in criminal activity. The court held that a passenger in a vehicle is lawfully detained if the vehicle and driver have been lawfully detained. Basically, even though you were not the reason for the stop, you are still detained as long as you are a passenger in the vehicle. See Arizona v. Johnson, 555 U.S. (2009)

We all hear about people calling in to dispatch about a man with a gun, when that man is simply openly carrying a properly holstered handgun. Most of these "tips" are anonymous, yet the police investigate them nonetheless. So, can police detain and Terry frisk an individual simply because an anonymous tipster partially describes them and states they possess a firearm? NO! The SCOTUS ruled that an anonymous tip, without specific information about a firearm, does not give officers RAS to detain an individual and conduct a Terry frisk. The courts require an indicia of reliability and credibility for any anonymous tip. See Florida v. J.L., 529 U.S. (2000)

I hope this helps. Some of these rulings I agree with and some of them I don't. However, this is the legal guidelines that officers must abide by to be operating within the intent (as determined by SCOTUS) of the US Constitution. You should always research state law and court precedent so that you can be knowledgeable in all aspects involved when carrying a firearm or other deadly weapon.
 
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KYGlockster

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If the officer really wants to hold onto it, let him, but remember you're not required to answer any questions beyond name, rank and serial number, and probably not even those.

"Sorry, Officer, I don't have voluntary conversations with people that are better armed than I am. If I'm free to go, I'll have my firearm and be on my merry little way. Or, you can return my firearm and we can have a little chat. If I'm not free to go, then I've been advised to exercise my right to remain silent and am exercising my right. I want my attorney before answering any further questions."

Name, rank and serial number? Why would the individual detained be required to "answer" his rank? and serial number? In many states it isn't even a requirement to provide your name if you are detained or arrested, as is the case here in KY. If the state has a law that requires identification then you must identify, but absent such a law identification of any kind is not required. See Hiibel v. Sixth Judicial District of Nevada, Humboldt County, 542 U.S. 960 (2004)
 

davidmcbeth

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I don't believe you are correct, sir. The officer is not legally obligated to consider each and every facet that may prove conduct is innocent. He merely has to observe conduct that a reasonable man would consider criminal.

While a person may have the most innocent of reasons to be running down the road while holding a bag from which there is a stream of orange smoke while the police are responding to a silent bank robbery call; the police are not required to consider that you always keep your money in bags and that your 5-year old just happened to sneak a smoke bomb into it that morning.

They have observed conduct consistent with an illegal act and have authority to investigate it. If you have no explanation as to why you have a bag full of smoking orange money, they aren't required to check the serial number of each bill to see if it was in the bank's possession mere minutes earlier. If you refuse (as is your right) to say anything, they have probable cause to make an arrest. It will easily be proven or disproven in court and since you've "not been harmed" there's no recovery to be made.


It's illegal to exceed the speed limit, but if you can prove necessity (such as being chased by a T-rex or to escape dozens of thug motorcyclists) then you won't be penalized.

You are likely correct .... RAS yes, PC no ... I'll check into it ... RAS v PC grrrrr... thx for the correction
 

OC for ME

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Why would the "cop" be an idiot to "not" detain someone for openly carrying? Just because I cross into TN from KY I should be looked upon as a criminal for openly carrying my firearm? The Second Amendment should be enough for an officer to use his discretion and not contact those that are simply exercising their Second Amendment rights, regardless of state law.

Absent RAS of an ACTUAL criminal offense that warrants my time, I will never detain anyone for carrying a firearm, openly or concealed. Just because there is a law on the books doesn't mean it must be enforced every time someone violates it. Any law that forbids someone from exercising their Second Amendment rights is unconstitutional in my opinion, and I refuse to enforce such laws.
Because, in TN, it is against the law to be armed with a handgun, OC or CC, without a CHP.

Simple, a TN cop sees you with a gun, you have broken the law. A TN cop must stop and verify that you have a defense via the CHP. I don't make this stuff up. Guns are different in the eyes of LE when compared to driving. If a TN cop knows you have a gun and he does not detain you to investigate whether or not you have a defense then he is derelict in his duties and likely committing a criminal act for not investigating. His personal views regarding the 2A notwithstanding.

To the original poster:

When an officer can disarm you depends on the situation at hand. Yes, state laws are very different and you will have to consult them. What is also very important is case law that has been established by the Sixth circuit and SCOTUS.

To begin, an officer can not disarm you just to disarm you. <snip>
While you may apply the "and dangerous" component, you may be a rare cop. All a cop has to do is verbalize to a judge, long after the encounter by the way, that he perceived you to be dangerous and thus he disarming you was justified. Happens all the time. Cops says so and it was so. The instances of a judge disagreeing with that claim are on par with a Big Foot sighting, extremely rare to say the least. Judges, elected ones, will not piss-off cops and not be seen as soft on crime.

I would like for a cop to get past all the "past criminal activity" crap and focus on the need for the contact, none of those thing you wish to determine can be determined by mere visual observation other than the OC of a properly holstered handgun. Why did you stop the citizen.

Do criminals look different? Why does the time of day matter? Where should I not go and when? Why do cops wish to control my movements? "If you (the citizen) are found to be here, at this time, that alone is sufficient cause to detain you. In the name of public safety that is." "You cooperate and in 5 minutes or less and we are all good."

Cops who say they disarm regardless of the circumstances are likely the only honest cops on this particular subject. There can be no measure of safety for me when I am disarmed without my consent. The entire reason I go armed is for my safety. I must place my safety in the hands of a man who has disarmed me for his safety.

Ironic if you think about it. I get disarmed for my safety.....:rolleyes:
 

KYGlockster

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Because, in TN, it is against the law to be armed with a handgun, OC or CC, without a CHP.

Simple, a TN cop sees you with a gun, you have broken the law. A TN cop must stop and verify that you have a defense via the CHP. I don't make this stuff up. Guns are different in the eyes of LE when compared to driving. If a TN cop knows you have a gun and he does not detain you to investigate whether or not you have a defense then he is derelict in his duties and likely committing a criminal act for not investigating. His personal views regarding the 2A notwithstanding.

While you may apply the "and dangerous" component, you may be a rare cop. All a cop has to do is verbalize to a judge, long after the encounter by the way, that he perceived you to be dangerous and thus he disarming you was justified. Happens all the time. Cops says so and it was so. The instances of a judge disagreeing with that claim are on par with a Big Foot sighting, extremely rare to say the least. Judges, elected ones, will not piss-off cops and not be seen as soft on crime.

I would like for a cop to get past all the "past criminal activity" crap and focus on the need for the contact, none of those thing you wish to determine can be determined by mere visual observation other than the OC of a properly holstered handgun. Why did you stop the citizen.

Do criminals look different? Why does the time of day matter? Where should I not go and when? Why do cops wish to control my movements? "If you (the citizen) are found to be here, at this time, that alone is sufficient cause to detain you. In the name of public safety that is." "You cooperate and in 5 minutes or less and we are all good."

Cops who say they disarm regardless of the circumstances are likely the only honest cops on this particular subject. There can be no measure of safety for me when I am disarmed without my consent. The entire reason I go armed is for my safety. I must place my safety in the hands of a man who has disarmed me for his safety.

Ironic if you think about it. I get disarmed for my safety.....:rolleyes:

Any officer that says he is disarming you for your safety is ridiculous. The only safe place for a firearm is where it is not being handled, which in most instances would be the holster it is carried in. Any officer that disarms someone for officer safety is ridiculous as well unless that officer can justify a reasonable suspicion that the person armed is actually a danger. Anyone who has a permit to carry a concealed firearm is obviously not a danger to anyone, and they should never be disarmed in my opinion.

As for checking someone for a permit who is carrying a firearm, I do not have to verify they have said permit in Kentucky. In Kentucky carrying a concealed weapon without a CDWL is a misdemeanor offense, and I can use my own judgment and discretion when determining whether or not to approach. If I decide not to approach then I have lawfully exercised the discretion granted to me and have not violated any statutes. Normally I will never know if someone is carrying concealed. If someone is carrying a firearm and all I can see is a portion of the grip or the tip of the barrel then according to case law here in KY that firearm is carried openly. I can identify that as a firearm so I have no need to approach.

I don't agree with the things and actions that the SCOTUS has ruled constitute RAS, but that was their ruling. Do I believe someone with a past criminal history warrants a Terry stop every time I see them? Absolutely not. However, there are some people that I have dealt with that do get stopped quite often, because these people have been convicted of very serious criminal offenses in the past and based on that and their conduct at the time of the contact warrant a Terry stop. These people normally have well over ten to fifteen felony convictions. It makes me wonder why they are out walking in public when they have such violent offenses on their record, but they are nonetheless. These are people that do not care about people or their rights and will do anything to someone to get what they want.
 
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Fallschirjmäger

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If the officer really wants to hold onto it, let him, but remember you're not required to answer any questions beyond name, rank and serial number, and probably not even those.

Name, rank and serial number? Why would the individual detained be required to "answer" his rank? and serial number? In many states it isn't even a requirement to provide your name if you are detained or arrested, as is the case here in KY. If the state has a law that requires identification then you must identify, but absent such a law identification of any kind is not required. See Hiibel v. Sixth Judicial District of Nevada, Humboldt County, 542 U.S. 960 (2004)
1) I apologize that my poor attempt at humor was misunderstood. "Name, rank and serial number" is a reference to the laws of war, where such information is required to be provided to one's captors.
2) "... and probably not even those." As you said in many states not even that is a requirement.

On the converse side, here's what our good friends at Officer.com have to say about those who don't "cooperate" when questioned....

BigToe416 was quite legally carrying openly when accosted by officers in Corvallis, Oregon. He was subsequently arrested, charged and given a court date. At court, he was successful in his defense. He sued the Corvallis police department and was successful.
News of this reached the fine people at Officer.com and some posters had these pearls of wisdom to share....

Shush said:
Officer.com]
Reading the court document on this - I would have to say that the judge missed this one. The officer was specifically assigned to this area because it was considered a high crime area. He sees a man walking along in attire that is typical of a thug culture*, displaying a pistol on his side. This is reasonable suspicion. He approaches the guy. The guy says "am i being detained?" The officer says no, but i want to speak with you.

The guy refuses to cooperate.[emphasis in original]

After refusal to cooperate, he eventually asks again if he is detained - to which the officer says yes.
...
I never said it was a crime to remain silent. I said his remaining silent increased the reasonable suspicion[emphasis by poster]. High crime area, uncooperative person, displaying a firearm, - totality of circumstances. His silence added to the reasonable suspicion.
By him being uncooperative with the police, who are just trying to confirm he is not a lunatic, he has successfully created a precedent. Now, reasonable suspicion is no longer valid.

Two things of note:
The officer appears to be of the mind that RAS is no longer valid if you remain silent or refuse to cooperate when you are not required to do so.
and
No one... ever answered what one poster most reasonably asked, "... reasonable suspicion... of what?"

_______________
**"I was wearing jeans, a brown zip-up hooded sweatshirt, a beanie and ... fingerless gloves"
 
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marrandy

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I don't make this stuff up. Guns are different in the eyes of LE when compared to driving. If a TN cop knows you have a gun and he does not detain you to investigate whether or not you have a defense then he is derelict in his duties and likely committing a criminal act for not investigating. His personal views regarding the 2A notwithstanding.


That's funny because the courts have repeatedly ruled, that police officers have no duty to respond to protect the public.

This was following repeated lawsuits by peoples partners and families who were raped, seriously injured and killed as the police failed to respond.
 

marrandy

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I seem to have lost track of the post, but anyway. Someone said...

"We all hear about people calling in to dispatch about a man with a gun, when that man is simply openly carrying a properly holstered handgun."


So the correct response from a properly trained dispatch is to ask a follow-up question. Is the weapon holstered or not. Then explain that Open and concealed carry is legal in Tennessee.

Its so simple.

No wasted police time.

No aggravated citizen filing complaints and having their time wasted.

Why is it so difficult for some people to do the obvious, common sense solution to mitigate the issue.
 
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KYGlockster

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I seem to have lost track of the post, but anyway. Someone said...

"We all hear about people calling in to dispatch about a man with a gun, when that man is simply openly carrying a properly holstered handgun."


So the correct response from a properly trained dispatch is to ask a follow-up question. Is the weapon holstered or not. Then explain that Open and concealed carry is legal in Tennessee.

Its so simple.

No wasted police time.

No aggravated citizen filing complaints and having their time wasted.

Why is it so difficult for some people to do the obvious, common sense solution to mitigate the issue.

Because common sense isn't so common these days.
 

Fallguy

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I seem to have lost track of the post, but anyway. Someone said...

"We all hear about people calling in to dispatch about a man with a gun, when that man is simply openly carrying a properly holstered handgun."


So the correct response from a properly trained dispatch is to ask a follow-up question. Is the weapon holstered or not. Then explain that Open and concealed carry is legal in Tennessee.

Its so simple.

No wasted police time.

No aggravated citizen filing complaints and having their time wasted.

Why is it so difficult for some people to do the obvious, common sense solution to mitigate the issue.

I hear what you're saying, but actually OC/CC is not legal it TN, it is illegal and you can defend yourself against that charge by having a permit.

....and as former dispatcher, you can't rely very much on what a caller tells you they are observing.

But I agree follow up questions about what else is the person doing, etc... is a must.
 

Fallschirjmäger

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Simple, a TN cop sees you with a gun, you have broken the law. A TN cop must stop and verify that you have a defense via the CHP. I don't make this stuff up. Guns are different in the eyes of LE when compared to driving. If a TN cop knows you have a gun and he does not detain you to investigate whether or not you have a defense then he is derelict in his duties and likely committing a criminal act for not investigating. His personal views regarding the 2A notwithstanding.
I'll believe you IF you can show me one court case of an officer convicted of a criminal act for not investigating, OR one officer who was officially penalized by his department for dereliction of duty in not investigating someone he sees armed.

As they say, citations or it didn't happen.
 
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DamonK

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I hear what you're saying, but actually OC/CC is not legal it TN, it is illegal and you can defend yourself against that charge by having a permit.

....and as former dispatcher, you can't rely very much on what a caller tells you they are observing.

But I agree follow up questions about what else is the person doing, etc... is a must.

That's not how a permit works... that would be like saying that driving is illegal, but a licence gives you a defence when you get arrested, for driving. Do you see how ridiculous your assertion is now?

Sent from my DROID4 using Tapatalk 2
 

MKEgal

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DamonK said:
That's not how a permit works... that would be like saying that driving is illegal, but a licence gives you a defence when you get arrested, for driving.
Right. That's how many licenses / permits work.
It's illegal to operate a motor vehicle on public ways, but one exception which makes it not a crime is having a valid driver's license.

Drawing examples from my own state (YMMV), it is illegal to possess a handgun in a tavern, but there is a short list of exceptions to that rule which make possession of a handgun in a tavern not a crime. (One of which is having a concealed carry license.)

Second, it is illegal to carry a concealed "weapon", and again there is a short list of exceptions which make concealed carry not a crime. Having a ccl is one exception.
 

MKEgal

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"his remaining silent increased the reasonable suspicion"
I heard the same thing from a student this past weekend. She said her husband was a deputy sheriff & he's said that's how he and his co-workers respond.
Since when has exercising a Constitutionally-protected civil right been a crime, or RAS of a crime? :mad:
 
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