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Open Carry Case Lost - 10th Circuit Appeal

KBCraig

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Aug 7, 2007
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Granite State of Mind
Might I remind EVERYONE, PALO included, that pat downs under terry are only allowed when a suspect is considered both armed AND dangerous.
Terry is often mis-interpreted as being protective of individual rights. It is not; it is a terrible ruling that created an exception to the 4th; the camel got his nose under the tent flap, and now we're up to our necks in fleas and dung.
 

DCR

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, ,
I know it's anold thread, but there's a lesson for today

Thought you'd be safe voting Republican on everything from local to state to federal offices because Republicans are all 2A supporters?
Think again. Your good Sheriff Johnson? Republican. Your local prosecutors? Republican. Your local judges? Appointed by the governor based on a short list from the judicial council-Republicans.
Republicans tend to be law-and-order conservatives who give tremendous deference to law enforcement, particularly when it comes down to the universal LEO mantra of "officer safety" versus individual rights. Wyoming deserves the politicians it elects, and unfortunately the OP has born the brunt of Wyoming's blind Republican partisanship and voting.
My point is not Republicans are bad and everyone should vote Democrat-far from it. Rather, people need to know that conservatism has some undesirable aspects to it, as this miscarriage of justice clearly demonstrates. People need to look beyond party to truly understand that voting Republican because the party and candidate talk a good RKBA line can put people and parties into power whose conservative philosophy actually works against RKBA and OC in real-world application like this.
I hope the OP has come out of this ok, and that the people of Lincoln County come to their senses and remove Sheriff Johnson post haste.
 
Last edited:

davidmcbeth

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Jan 14, 2012
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earth's crust
So, now the courts have OK'd suspicionless stops, arrests, and detentions...

So, the powers that be say 'don't resist an unlawful arrest, take it to court afterwards'..

Well, that clearly won't work.

Looks like the judge is forcing people to make a decision that will end up with people resisting unlawful arrests.
I don't care what courts think for the most part as courts don't care what other courts think, even higher courts, if it does not jive with their thinking.

The court system is broke and has been for >100 yrs.
 

OC for ME

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White Oak Plantation
Thought you'd be safe voting Republican on everything from local to state to federal offices because Republicans are all 2A supporters?
Think again. Your good Sheriff Johnson? Republican. Your local prosecutors? Republican. Your local judges? Appointed by the governor based on a short list from the judicial council-Republicans.
Republicans tend to be law-and-order conservatives who give tremendous deference to law enforcement, particularly when it comes down to the universal LEO mantra of "officer safety" versus individual rights. Wyoming deserves the politicians it elects, and unfortunately the OP has born the brunt of Wyoming's blind Republican partisanship and voting.
My point is not Republicans are bad and everyone should vote Democrat-far from it. Rather, people need to know that conservatism has some undesirable aspects to it, as this miscarriage of justice clearly demonstrates. People need to look beyond party to truly understand that voting Republican because the party and candidate talk a good RKBA line can put people and parties into power whose conservative philosophy actually works against RKBA and OC in real-world application like this.
I hope the OP has come out of this ok, and that the people of Lincoln County come to their senses and remove Sheriff Johnson post haste.
Conservatism (conservative) does not equal republican. Many republicans cloak themselves in conservatism to garner votes...research usually gives a different picture of a republican as nothing more than a big government liberal with a gun. Conservatism abhors these violations of individual liberty. True conservatives would have never prosecuted this citizen in the first place.
 

LibertyReloaded

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Oct 9, 2013
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Home of the Free
Probably a good thing there was OP audio since the LEO audio/video is missing. Convenient?

Wow, is that PALO guy for real? SMH.

I believe this is what's called Judicial Tyranny. As if we needed more examples of that!
 

F350

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Mar 22, 2012
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The High Plains of Wyoming
All,

I'm currently working on a video that will explain all of this and give a few more details. To update you guys, though, the Sheriff from Lincoln County, Shane Johnson, has been in contact with my command since the 10th Cir Appeals court loss. The guy tracked down EVERY single post/comment I've made since 2006 that could be used against me, compiled them, and then sent them to my Chain of Command. He's now attempting to use his position to intimidate/coerce me via my chain of command.

I've been in contact with legislators in the State Legislature and would appreciate it if you guys would as well. If we cannot rely on the courts, we're going to have to try and influence local law to reign in our wayward servants.

Apparently, a ton of people were calling Sheriff Shane Johnson and giving him and his officers an earful. He doesn't like the negative exposure. More to follow.
The wife and I are getting ready to take a trip to that part of the state, I'll make it a point not to spend a dime in Lincoln County.
 

twoskinsonemanns

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Apr 12, 2012
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WV
Probably a good thing there was OP audio since the LEO audio/video is missing. Convenient?

Wow, is that PALO guy for real? SMH.

I believe this is what's called Judicial Tyranny. As if we needed more examples of that!
He's a cop. Why wouldn't he agree with police-state tactics and authority?
 

The Truth

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Jul 18, 2014
Messages
1,972
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Henrico
PALO makes good points about respect, but that respect goes both ways. You can't violate people's rights just because you feel you've been slighted. You can't take things personally when in a professional position of law enforcement. Your job is to enforce the law. That's it. As a citizen, we are not obligated to do anything but cooperate with the law.

On the flipside, I consider myself an anti-statist, but if I'm ever pulled over while OC, I will inform the officer although it is not legally required for me to do so in VA. Why? because as PALO said, my goal is NOT to conceal. I don't hide my pistol when I walk by police, I proudly wear it outside my waistband. It's not a threat, it's so they know I'm a good guy, the same way permission-slip carriers proudly pass over their CHP. "Officer, I'd like to make you aware that I am OC at this time." I think something as simple as that could even have some effect on whether or not a ticket is written for whatever the RAS or PC happened to be initially.

Am I voluntarily - if only momentarily - giving up my 5th Amendment rights? Sure. Am I giving up my 4th Amendment rights? As an OCer, I don't believe so. In the case of a police encounter however, I'd rather dictate as much of the dynamic as I can to avoid any confusion, and to give the officer some assurance in case he is on edge for any reason. Other than the declaration of being OC, I'd only answer pertinent questions with concise answers in a professional manner. All should be well.

I guess I don't really understand why the initial response to the officer was, "I do not consent to searches," if you were OCing. I could comment further, but what's done is done an it really doesn't matter what I would have done. At the same time, the arresting cop is a huge blankety blank piece of blank, and you got screwed with the verdict. I would appeal it as far up as you can afford.
 

Ezek

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Jan 19, 2015
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411
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missouri
PALO makes good points about respect, but that respect goes both ways. You can't violate people's rights just because you feel you've been slighted. You can't take things personally when in a professional position of law enforcement. Your job is to enforce the law. That's it. As a citizen, we are not obligated to do anything but cooperate with the law.

On the flipside, I consider myself an anti-statist, but if I'm ever pulled over while OC, I will inform the officer although it is not legally required for me to do so in VA. Why? because as PALO said, my goal is NOT to conceal. I don't hide my pistol when I walk by police, I proudly wear it outside my waistband. It's not a threat, it's so they know I'm a good guy, the same way permission-slip carriers proudly pass over their CHP. "Officer, I'd like to make you aware that I am OC at this time." I think something as simple as that could even have some effect on whether or not a ticket is written for whatever the RAS or PC happened to be initially.

Am I voluntarily - if only momentarily - giving up my 5th Amendment rights? Sure. Am I giving up my 4th Amendment rights? As an OCer, I don't believe so. In the case of a police encounter however, I'd rather dictate as much of the dynamic as I can to avoid any confusion, and to give the officer some assurance in case he is on edge for any reason. Other than the declaration of being OC, I'd only answer pertinent questions with concise answers in a professional manner. All should be well.

I guess I don't really understand why the initial response to the officer was, "I do not consent to searches," if you were OCing. I could comment further, but what's done is done an it really doesn't matter what I would have done. At the same time, the arresting cop is a huge blankety blank piece of blank, and you got screwed with the verdict. I would appeal it as far up as you can afford.
I think we are missing two key points in this case.

ONE he invoked his 4th amendment rights, this is not inexplicable, nor does it give justification to the OP's treatment.

TWO failure to answer questions is allowed by the 5th amendment, it also does not create an argumentative/resistive atmosphere. it is allowed by constitutional law. the OFFICER made it so by getting all butthurt over a citizen knowing his rights.

THIS NEEDS TO GO TO A HIGHER COURT THEN THEM! this judge is a tyrannical ruler, and should be disbarred, and removed from ever holding a public office AGAIN!, his ruling is treason to our constitutional republic, and the rights enumerated by it.
 

Tneedham

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Mar 29, 2016
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Walsh County, North Dakota
Am I voluntarily - if only momentarily - giving up my 5th Amendment rights? Sure. Am I giving up my 4th Amendment rights? As an OCer, I don't believe so.
The 5th Amendment only applies if you are suspected of committing a crime. (For the record, I will ALWAYS answer honestly to a LEO's question regarding a weapon. I can see that he has one, I might as well level the playing field.) If you get pulled over for speeding, whether or not you have a gun is irrelevant to the crime. Therefore, to refuse to answer a question about a weapon is pretty pointless. I don't know of a state where, "Speeding while armed" is a higher fine/more points/more severe than just speeding.

That said, I didn't listen to the recording, cause I just don't have time, so I don't know what the stop was about. Now, if the cop said something like, "I have been told that you are illegally carrying a firearm, do you have any weapons on you?" I would then qualify that question as relevant under the 5th Amendment. He has told you that he suspects (or that he is there investigating a suspicion) of an illegal weapon. Even in that situation, for MY safety I would say, "I have a legal weapon on my *___* hip, with a round loaded in the chamber. Beyond that officer, since you have informed me that you are looking for an illegal weapon, I hereby do not consent to any searches of my person, property or effects, as guaranteed by the 4th Amendment of the United States Constitution, and I will also, at this time, respectfully choose to remain silent and invoke my 5th amendment right in so doing."

That is how I would handle the situation, I know that I wouldn't be legally required to do whatever, but with all of the crap that cops are facing today, I'm going to at a minimum let him know that I'm armed. One less thing to surprise him, and I don't really want a cop to be surprised. I want a cop to be as comfortable as possible, so that triggers to get pulled. I have a home to get to just like he does.
 

OC for ME

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Hands on steering wheel with DL/Insurance card in hand. You are seized under the 4A during a traffic stop. Don't answer any question not specifically related to the seizure. You being disarmed is not for your safety...ever! You are being removed from a safe situation, in your vehicle, and placed in a unsafe situation, now standing on the side of the road.
 

solus

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here nc
The 5th Amendment only applies if you are suspected of committing a crime. (For the record, I will ALWAYS answer honestly to a LEO's question regarding a weapon. I can see that he has one, I might as well level the playing field.) If you get pulled over for speeding, whether or not you have a gun is irrelevant to the crime. Therefore, to refuse to answer a question about a weapon is pretty pointless. I don't know of a state where, "Speeding while armed" is a higher fine/more points/more severe than just speeding.

That said, I didn't listen to the recording, cause I just don't have time, so I don't know what the stop was about. Now, if the cop said something like, "I have been told that you are illegally carrying a firearm, do you have any weapons on you?" I would then qualify that question as relevant under the 5th Amendment. He has told you that he suspects (or that he is there investigating a suspicion) of an illegal weapon. Even in that situation, for MY safety I would say, "I have a legal weapon on my *___* hip, with a round loaded in the chamber. Beyond that officer, since you have informed me that you are looking for an illegal weapon, I hereby do not consent to any searches of my person, property or effects, as guaranteed by the 4th Amendment of the United States Constitution, and I will also, at this time, respectfully choose to remain silent and invoke my 5th amendment right in so doing."

That is how I would handle the situation, I know that I wouldn't be legally required to do whatever, but with all of the crap that cops are facing today, I'm going to at a minimum let him know that I'm armed. One less thing to surprise him, and I don't really want a cop to be surprised. I want a cop to be as comfortable as possible, so that triggers to get pulled. I have a home to get to just like he does.
one, you are prob not a person of color or you wouldn't so boldly make the statements, especially in light of the recent MN traffic stop.

two, follow the sage advice stated throughout the forum...keep you big mouth shut...at all times. please don't try to play verbal word games with the nice LEs they are better trained at the exercise than you are, meaning you will lose
supplied for your viewing pleasure...the law professor is the gold standard ~ https://www.google.com/#q=how+to+talk+to+the+police+youtube

three, follow number two and do not engage with the "IAW this amendment or that" KYBMS

finally, i hope, after explaining how you handled the situation, you enjoy the ride.

ipse
 

Tneedham

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Walsh County, North Dakota
one, you are prob not a person of color or you wouldn't so boldly make the statements, especially in light of the recent MN traffic stop.

three, follow number two and do not engage with the "IAW this amendment or that" KYBMS
True. I'm not a "person of color" if that is what the political correct way to say it is now. I don't keep up on that, nor do I care about Political Correctness, but I digress.

I mostly included that for the sake of the reader, I would likely just say something much simpler like, "i don't consent to searches, and at this time I'm going to invoke my right to silence" and then do so.

I understand the point of not talking to cops, I didn't watch that video just now, but I think I've seen it. If not, I assure you I have watched a massive amount of videos, and I have been in contact with my attorneys.

Further, in North Dakota if they ask you if you have a weapon you are required to answer honestly, and further still, if you are asked to produce an ID while you are carrying a weapon you are required to produce one. So in my State, I would argue, I am correct. Though, what the law is in Wyo, I don't know. A different law could bring about a different response.

As to the unfortunate event in Minneapolis, you had a trigger happy cop who thought this guy could be the guy who carried out an armed robbery in the area 4 days earlier. No, he wasn't wanted or "suspected" but it was mentioned in the radio traffic just prior to the incident. He was already nervous, and he allegedly told the man to provide his ID, and then when he was informed of the firearm he told the man not to move and the guy still moved. (All of this is hearsay and we don't know the particulars.

However, I GUARANTEE you that if this guy hadn't mentioned the firearm and the cop saw it, he still would be dead today. His answer yes had nothing to do with his death, and by all logic it should have prevented it. The cop, as far as I can tell, was simply trigger happy and dead wrong.

Lastly, I completely understand the idea of not telling a cop anything. If that is what your attorney advises, by all means go for it. Mine advises otherwise, and no offense, I'll let him do the guiding since he is the one who will be defending me should anything happen.

I just know that the probability of getting home to my wife and kids is higher when I tell the cop, "yes sir, I do have a firearm." vs. "I don't consent to searches". I don't carry as a political statement, or as a police educator or anything like that. I carry so that I deter any potential threats, and so that I have the easiest method of defense at my fingertips should the deterrent fail.

I want to get home, not school a cop on how to properly handle a stop. If you guys want to do that, more power to you.
 

twoskinsonemanns

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Apr 12, 2012
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WV
If you get pulled over for speeding, whether or not you have a gun is irrelevant to the crime. Therefore, to refuse to answer a question about a weapon is pretty pointless.
Would you answer all irrelevant question or just those concerning being armed?
 

Tneedham

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Mar 29, 2016
Messages
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Walsh County, North Dakota
"Mr. Needham, do you know how fast were you going?" Anything you or anyone says will be used against you in court. You will either admit to speeding or to inattentive driving with no defense to the cop's speeding ticket. KYBMS
This happened to me about a year ago. This is obviously not word for word, because I don't have that good of a memory. However, you get the basic gist of what happened. I have found that if you are relaxed and humorous with cops, they will work with you. Doesn't work every time, and I have had several instances when I have gotten a ticket, and I easily could fight and win them (though in this situation, the prosecutor would likely argue that I admitted guilt even though I was intending to joke, as you'll see in the loose transcript below.) however, North Dakota has such low speeding fines that it isn't good for the pocket book to take work off just to go fight a $10 ticket. The most expensive ticket I have gotten was $50 and that was going 10 over when the speed limit was 70.

"Mr. Needham do you know how fast you were going?"
"I sure do officer. Why do you ask?"
"Well, because I picked up going a little fast today, are you in a hurry?"
"No Sir, I'm just trying to keep up with traffic."
*Officer looks in both directions* "Mr. Needham, we are the only people out here."
"So you can see how far behind I am then!"
*Officer laughs* "I tell you what, I only had you at about 7 over but anything over 70 I'm required to write a ticket for. As you know the speed limit is 65, and I clocked you at 72. I'll knock it down to 70 for you so it will be a $10 ticket and no points. Does that sound Okay with you?"
"Only if you will be as lenient with the other drivers when you catch up to them, but on a serious note sir, I appreciate that. I understand you have a job to do, however I do have a question as to the speed you clocked me at, did you say 72?"
"Yes sir I did, would you like to see my Radar?"
"No sir, I don't believe that's necessary. I believe that your radar said that, I don't think you would pull me over and lie to me. I just find that interesting because I purposely set my cruise at 55 miles per hour because I'm running out of gas and the nearest gas station is 42 miles away. You can see my gas gauge is already on 'E'. I understand that you have to write a ticket, but I know for a fact that I was not going 72mph."
"Well sir, you are more than welcome to take this to court, but since I'm required to write the ticket if I pick up a vehicle going faster than 70mph, I will be issuing you a ticket."
*3-5 minutes later*
"Mr. Needham I will not be writing you a ticket afterall. I looked at my RADAR's log to see when it was last calibrated and it was well over a month ago. We are supposed to calibrate them every 20 days, I appologize for holding you up. Would you like me to follow you to the gas station to ensure you don't have to walk a ways?"
"I would appreciate that, if you are able to do that."


I understand that if you don't say anything you have a higher probability of winning a court case. If I get stopped for no reason (DUI checkpoint for example), I don't say a word. I don't answer any questions, I sit there quietly. I role down my window and I act like they aren't there. I have never had an issue, nor have I had to wait longer than about 30-45 seconds.

Again, I get it. I am just not an activist. I'm a normal person, carrying a weapon for personal defense and that's it.
 
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