Werz
Regular Member
Exactly. But that conflicts with his narrative, so it cannot be a part of his reality.
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Lawsuit filed for illegal open carry stop of forum member RCall
- Thread starter MyWifeSaidYes
- Start date
BB62
Accomplished Advocate
It's so fun (and valuable!) to see that people are still chasing their tails over this matter.
If an officer's intent is to try and turn a consensual encounter into a detainment, a number of officers have already proven that it doesn't matter whether you follow the law a) as it's written, b) how you interpret it, or c) how courts, your lawyer, or an internet lawyer (or "lawyer") interpret it.
Depending on the officer's bias and interest, your experience may range from "You're free to go", to "Thanks, you're free to go", to "You should expect this to happen all the time if you keep this up", to being charged with something "just because".
What the point of this endless concentration on street-corner lawyering on this subject is, I'll never understand. You decide on your course, and you go along for the ride - whether or not your interpretation of the law is supported by multiple court decisions or legal scholars. Depending on the outcome, you're unlikely to be compensated in a court of law for your trouble, you may get a department to change their policy, or you may not - but by God, you're certain of what the law is! (you think)
Oh, and did anyone mention that you're still not sure whether the stop was valid in the first place under the principles of Terry?
Now, please resume the pointless discussion.
If an officer's intent is to try and turn a consensual encounter into a detainment, a number of officers have already proven that it doesn't matter whether you follow the law a) as it's written, b) how you interpret it, or c) how courts, your lawyer, or an internet lawyer (or "lawyer") interpret it.
Depending on the officer's bias and interest, your experience may range from "You're free to go", to "Thanks, you're free to go", to "You should expect this to happen all the time if you keep this up", to being charged with something "just because".
What the point of this endless concentration on street-corner lawyering on this subject is, I'll never understand. You decide on your course, and you go along for the ride - whether or not your interpretation of the law is supported by multiple court decisions or legal scholars. Depending on the outcome, you're unlikely to be compensated in a court of law for your trouble, you may get a department to change their policy, or you may not - but by God, you're certain of what the law is! (you think)
Oh, and did anyone mention that you're still not sure whether the stop was valid in the first place under the principles of Terry?
Now, please resume the pointless discussion.
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eye95
Well-known member
Um. The point of these discussions is to help folks make that determination of a course of action. Based on my personal experience, I have decided to proceed as follows:
1. Ask if I am free to leave.
2. If the officer says yes, leave.
3. If the officer says no, assume that the detention is lawful and comply with all laws covering my behavior during a lawful detention, including providing name, address, and DOB. I will allow my self to be disarmed for officer safety after I have made it clear that I consent to no searches and seizures.
4. If the officer does not answer, I will slowly and deliberately start to leave. If he verbally or physically stops me, do #3. If he does not, #2. If he stops me using physical contact, I will make sure that his actions are part of the recording: "Officer, why are you grabbing me? I do not consent to any seizure (or any searches).
Of course, the recorder has been running the whole while.
Sent from my iPad using Tapatalk.
<o>
1. Ask if I am free to leave.
2. If the officer says yes, leave.
3. If the officer says no, assume that the detention is lawful and comply with all laws covering my behavior during a lawful detention, including providing name, address, and DOB. I will allow my self to be disarmed for officer safety after I have made it clear that I consent to no searches and seizures.
4. If the officer does not answer, I will slowly and deliberately start to leave. If he verbally or physically stops me, do #3. If he does not, #2. If he stops me using physical contact, I will make sure that his actions are part of the recording: "Officer, why are you grabbing me? I do not consent to any seizure (or any searches).
Of course, the recorder has been running the whole while.
Sent from my iPad using Tapatalk.
<o>
My adult children's felines keep trying to teach me about the dangers of curiosity; yet I ask...
What might those be?
color of law
Accomplished Advocate
Absence of any comprehensible standard for inclusion and exclusion is precisely what offends the Due Process Clause.
eye95
Well-known member
The reason that I capitalize State is out of recognition that they are not merely departments of the federal government, but the sovereign entities that created it and ceded to it very specific powers. In those 18 ways, the federal government may exercise authority over the States. In all other matters, the States (the word is literally synonymous with "nation") retain the authority ceded to them by the People (also capitalized) through the individual constitutions.
We have forgotten that power flows up from the People to the States to the federal government, rather than vice versa. Too many folks think that we are a hierarchy, with power emanating from the top at the discretion of those at the top.
Sent from my iPad using Tapatalk.
<o>
We have forgotten that power flows up from the People to the States to the federal government, rather than vice versa. Too many folks think that we are a hierarchy, with power emanating from the top at the discretion of those at the top.
Sent from my iPad using Tapatalk.
<o>
Hmm... interesting and well thought out, eye.
Admittedly, my feeble capitalizing of the word was based on whether I could determine if it was being used as a proper noun or not. I usually give up on that one. Although, I do capitalize Patriot, People, and Liberty as usage seems to dictate (in my brain at least) or for emphasis.
Question to the whole thread...
If one is a CHL holder and one's firearm is not covered, is one required to comply with a law enforcement request to cover it up? In other words, when walking about (NOT in a vehicle), is an order by law enforcement to cover the firearm considered a lawful order that must be obeyed or is it merely an officer request/suggestion?
Admittedly, my feeble capitalizing of the word was based on whether I could determine if it was being used as a proper noun or not. I usually give up on that one. Although, I do capitalize Patriot, People, and Liberty as usage seems to dictate (in my brain at least) or for emphasis.
Question to the whole thread...
If one is a CHL holder and one's firearm is not covered, is one required to comply with a law enforcement request to cover it up? In other words, when walking about (NOT in a vehicle), is an order by law enforcement to cover the firearm considered a lawful order that must be obeyed or is it merely an officer request/suggestion?
Nit-pick here... make that "ceded" become "loaned" and I would really like your reasoning.
ETA: Upon further review, I'd also rather describe it as power flowing from the people down to government. IDK when, exactly, the People began to consider government servants above them but that might be symptomatic of the same issue that you are addressing.
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eye95
Well-known member
Not a nit-pick. You are recognizing that the cession of power is not permanent and is revocable. Of course, the only attempt to revoke that cession resulted in a war that the revokers lost.
On your question: No, you do not need to comply with a LEOs demand to cover your firearm. Nothing gives him the authority to make such a demand. If anyone thinks otherwise, I would ask them to cite the ORC or the court case that acknowledges any such authority.
Now, if the LEO is making the request on behalf of a property owner (or his agent) when I am on that property, then I would comply (or leave), not because the LEO has that authority, but because I know he merely needs to call over the owner to make the request.
Sent from my iPad using Tapatalk.
<o>
On your question: No, you do not need to comply with a LEOs demand to cover your firearm. Nothing gives him the authority to make such a demand. If anyone thinks otherwise, I would ask them to cite the ORC or the court case that acknowledges any such authority.
Now, if the LEO is making the request on behalf of a property owner (or his agent) when I am on that property, then I would comply (or leave), not because the LEO has that authority, but because I know he merely needs to call over the owner to make the request.
Sent from my iPad using Tapatalk.
<o>
Makarov
Regular Member
Should Roy have cooperated
The root of this issue on whether Roy should have cooperated depends on the mood set by the police officer. Obviously this officer has no "Human Relations Skills" and has personal bias toward open carry. So when he (the officer) acted as Mr. bad ass, Roy went into defense mode. I would have done the same thing in his place. All of my encounters have been casual encounters. Although the police disagreed with my stance, no one was shackled, no guns were drawn and no one was detainment. But of course I have grey hair and Roy is a strapping young lad. I'm sure there was discrimination based on age. Its just like the old saying mutual respect starts with respect.
So lets get off the topic on whether Roy should have ID himself and move to promotional awareness of his case for a win in court.
The root of this issue on whether Roy should have cooperated depends on the mood set by the police officer. Obviously this officer has no "Human Relations Skills" and has personal bias toward open carry. So when he (the officer) acted as Mr. bad ass, Roy went into defense mode. I would have done the same thing in his place. All of my encounters have been casual encounters. Although the police disagreed with my stance, no one was shackled, no guns were drawn and no one was detainment. But of course I have grey hair and Roy is a strapping young lad. I'm sure there was discrimination based on age. Its just like the old saying mutual respect starts with respect.
So lets get off the topic on whether Roy should have ID himself and move to promotional awareness of his case for a win in court.
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eye95
Well-known member
Should could have two meanings (at least).
Should, under the law, have Roy cooperated? No. We now know for a fact that the officers had zero RAS, that the stop and the subsequent searches and seizures were illegal, and that the officers violated Roy's rights.
Should, as a matter of practicality, have Roy cooperated? Yes, to an extent. At the moment of a stop, we have no way of ascertaining whether a stop is lawful or not. If we assume it is unlawful and it turns out not to be, we will end up committing a few process crimes, even if we are not guilty of any underlying crime. Innocence of the underlying crime does not mitigate process crimes. Just ask Martha Stewart.
If we assume the stop is lawful and it turns out not to be, we end up having said more than the law would have demanded. However, if we are careful enough to assert that we consent to no searches or seizures, then the inevitable continued hole-digging by the cop can be resolved later in a court.
In Roy's case, he initially assumed that the stop was unlawful, but later gave in to doubt about his perception. He was correct from the get. The stop was unlawful. If we assume that the stop is unlawful, and it turns out to be so, then we have (luckily) ended up in the same spot as the second scenario, and been spared having to identify ourselves. meh. Giving one's name, address, and DOB will make you look better on the tape. You are cooperating to the extent required by the law and doing not one whit more. The cop comes off looking like a demanding thug.
As I have said before, try to end the encounter. Failing that, act as though it is lawful, but no lagniappes! The officer gets what the law demands, a stern warning not to take one iota more, and nothing else. Not even a lesson in the law--no matter how badly he needs it.
JMO
Should, under the law, have Roy cooperated? No. We now know for a fact that the officers had zero RAS, that the stop and the subsequent searches and seizures were illegal, and that the officers violated Roy's rights.
Should, as a matter of practicality, have Roy cooperated? Yes, to an extent. At the moment of a stop, we have no way of ascertaining whether a stop is lawful or not. If we assume it is unlawful and it turns out not to be, we will end up committing a few process crimes, even if we are not guilty of any underlying crime. Innocence of the underlying crime does not mitigate process crimes. Just ask Martha Stewart.
If we assume the stop is lawful and it turns out not to be, we end up having said more than the law would have demanded. However, if we are careful enough to assert that we consent to no searches or seizures, then the inevitable continued hole-digging by the cop can be resolved later in a court.
In Roy's case, he initially assumed that the stop was unlawful, but later gave in to doubt about his perception. He was correct from the get. The stop was unlawful. If we assume that the stop is unlawful, and it turns out to be so, then we have (luckily) ended up in the same spot as the second scenario, and been spared having to identify ourselves. meh. Giving one's name, address, and DOB will make you look better on the tape. You are cooperating to the extent required by the law and doing not one whit more. The cop comes off looking like a demanding thug.
As I have said before, try to end the encounter. Failing that, act as though it is lawful, but no lagniappes! The officer gets what the law demands, a stern warning not to take one iota more, and nothing else. Not even a lesson in the law--no matter how badly he needs it.
JMO
Well, my plan has always been to ask the 'question' ("Am I free to go", "Am I being detained"). If I am not free to go, am being detained, then I will ID. In my view this puts the burden on the officer to 'put up or shut up', so to speak. I didn't do this in Highland County for a variety of reasons but did make sure that the city chief of police (who was one of the two officers that 'had a chat with me' at the fairgrounds -- he played 'good cop') knew that ANY subsequent stops by him or his officers whilst I am open carrying will be dealt with in that manner. I told him that they would have to put up or shut up. He said that I wouldn't have any future problems.
In case I haven't stated before; I support Roy Call completely in this matter. I'm proud of the way he handles himself and am grateful to him for standing up on these issues.
In case I haven't stated before; I support Roy Call completely in this matter. I'm proud of the way he handles himself and am grateful to him for standing up on these issues.
Werz
Regular Member
eye95
Well-known member
Just watch out for the officer not answering. "No, Your Honor. I never told JmE that he was detained. He was always free to leave. My encounter with him was 100% consensual."
You must get him to answer your free-to-go question in word or in deed, and you must get that answer on the recording. If he does not answer, slowly start to walk away. If he orders you to stop or grabs you, you can now reasonably believe that you are detained. If he grabs you, which an audio recording will not pick up, make a statement about him grabbing you. "Ow, you didn't have to grab me. You could've just told me that I wasn't free to go." Or, "Since you grabbed me, I must assume that I am not free to go."
The onus is now on him.
You must get him to answer your free-to-go question in word or in deed, and you must get that answer on the recording. If he does not answer, slowly start to walk away. If he orders you to stop or grabs you, you can now reasonably believe that you are detained. If he grabs you, which an audio recording will not pick up, make a statement about him grabbing you. "Ow, you didn't have to grab me. You could've just told me that I wasn't free to go." Or, "Since you grabbed me, I must assume that I am not free to go."
The onus is now on him.
color of law
Accomplished Advocate
Being charged with a crime is a detention. If the cop admitted that it was a consensual encounter the cop shot himself in the foot.
eye95
Well-known member
What JmE and I are talking about is a general plan for a police encounter, not necessarily a protection against being charged with a crime.
In neither of my encounters with the police was I charged with a crime, yet I was detained both times.
The first time I was inexperienced and naive. I had no recorder. However, the fact that I was held for over two hours in a room at the back of the mall and that they brought down all manner of cops kinda made it clear that I was not free to go. Faced with the undeniable facts, the deputy chief had no choice but to apologize for an unlawful detention or to go unapologetically rogue. Wisely, he chose to apologize and advise his officers that OC is perfectly legal and does not provide RAS for a Terry stop.
The second time I was stopped, I recorded and I knew enough to ask if I was free to go. It took a few attempts to get them to answer, but they did. The fact that I was surrounded by five cops did not get on the tape, but one of the officers saying that I was not free to go did. Within about five minutes, they realized that they had stepped in it. I was told that I was free to go. At that point, *I* decided to continue the encounter on a consensual basis and demanded a supervisor come down.
So, since you must know that there are a lot of kinds of detentions besides being charged with a crime, your puzzlement is puzzling.
We must all have a plan for any stop. It's just a matter of time before before we are detained for OC.
On edit: Added the missing "not" (bolded). Thanks BB62.
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BB62
Accomplished Advocate
eye95
Well-known member
I left out a "not."
Thanks.
Thanks.
color of law
Accomplished Advocate
So, you actually meant to say: "No, Mrs Loopner"?
eye95
Well-known member
No. I meant to say what I said.