Encounter with Sheriffs Dept. on I 10 Stop

[Potent Dagger]

Ok so what, I see him pumping gas, he may work for the gas station, if I did not see him exit the car or enter the car, there is no predicate offense for me to suspect him of.

Realistically, yes, I may infer that he is the owner of the car, and yes I may infer that he had the gun on him when he got there, but I hate making too many assumptions when the facts usually will present themselves if one has patience.

Now the second he enters the vehicle, they we have something to discuss.

Lets say I see him drive into the parking lot, get out OCing and begin to pump gas,,,,then yes we will have a conversation about if he has a permit. In this instance I know for a fact he was carrying in a vehicle, and that is what Alabama law prohibits, carrying in a vehicle, the fact he is OCing outside the car is not an offense. The issue of does he have a permit will determine if he is arrested, and it is his demeanor when I approach him that will determine how I approach him and what tactics I employ based on my judgment of the situation and the relative risks involved.

If the gas station is crowded like they get at 5 pm on Friday afternoon where I live, my immediate concern will be tilted toward letting him finish pumping his gas, and then leave while I observe him, and then to stop him a short distance away, with backup if available, but getting him away from the crowd would be my overriding concern for their safety just in case things go south.

You express your appreciation for the "dilemima" officers face when stopping someone who has a weapon, and I appreciate your acknowledgment that there is at least some dilemma for officers in this situation. I can tell you that in the training that LEO's undergo, there is almost no attention given to contact with LAC's who happen to be armed. So many officers, have been killed and so many more have been wounded in confrontations with armed individuals that there is a tendency by all LEO' to error on the side of officer survival and apologize later, than be too complacent or cavalier in approaching someone we know or suspect is armed.

You know when we OC or even when we CCW, it is about us exercizing our rights, when it is the LEO trying to determine if a person is committing a weapons offense, it then becomes about our life. I guess it would be different if the vast majority of the people LEO's encountered who are armed were LAC's and not dangerous criminals.

Really? On foot filling a gas can? Do not OCers in Alabama not pump gas into their vehicles while they are OCing? Hyperbole and deflection. If you see a OCer pumping gas into a vehicle is it not reasonable to deduce that he may enter that vehicle and drive away? Now, I understand that the decision to act or not act on your observations must be carefully weighed and various elements considered. I respect the dilemma that a officer is placed in when trying to balance LE and respecting a citizens rights. I doubt that I have the temperament to do the job. But the question stands, you see a dude OCing pumping gas into a vehicle....I accept that you see the world surrounding citizens and lawfully their exercising their 2A right differently than I do.

 

[bigtoe416]

Sorry for jumping in the middle of the conversation. I had some relevant cases to cite that others may find interesting.

1. Carrying a handgun in an automobile concealed or openly is an offense, but there is an exception, if you have a permit. The Officer who contacts you during a traffic stop does not have RS to willy nilly begin a Terry stop. But at the moment he observes a handgun, he does have RS to begin a Terry investigative detention to determine if you are committing a felony criminal act. He is not required to determine if you have a permit before he takes positive steps to insure his safety. All he knows is that he has just gone from a run of the mill traffic citation to a possible serious felony offense. Officers are not required “to explore and eliminate every theoretically plausible claim of innocence,” including affirmative defenses, before making an investigative stop. Ricciuti v. New York City Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997); see also Jocks v. Tavernier, 316 F.3d 128, 135 (2d. Cir. 2003)

The full quote for Ricciuti is, "Once a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest." So based on the full quote, the question becomes is the presence of a firearm where a license is required to legally have that firearm probable cause? The courts have been fairly clear that the mere presence of a firearm, without more, does not even constitute reasonable suspicion, let alone probable cause. See U.S. v. Ubiles, where Ubiles, a Virgin Island man, was carrying a concealed weapon, "This situation is no different than if Lockhart had told the officers that Ubiles possessed a wallet, a perfectly legal act in the Virgin Islands, and the authorities had stopped him for this reason." Contrast this to the same court's ruling in U.S. v. Valentine where a face to face informant's tip that a man had a gun in addition to the suspect's behavior, location, and time of day added up to justify reasonable suspicion.

A case that is strangely similar to proposed scenario where during a traffic stop a gun comes into view is U.S. v. King. In that case a man was honking his horn to get traffic to move past an accident. An officer approached to tell the man to stop honking because he was causing a dangerous situation. While the officer was talking to the driver, she noticed a pistol in the car and immediately drew her weapon and ordered the driver out of the car. The court ruled that even though the driver was detained for a brief moment while the officer told him to stop honking that the presence of a weapon in the car did not amount to reasonable suspicion or probable cause.

2. If you refer back to my first post in this thread, and several subsequent comments, I have tried to impress on our readers that one of the primary reasons for informing the officer at the onset of contact that you are armed, and possess a permit, is that action removes the mere possibility of the officer going into a Terry Stop mode of dealing with you if he suddenly become aware you are armed. He has your DL, He has your valid pistol permit, he has no RS to move beyond this exchange. He can run your DL, He can call the S.O. or the State, to validate your permit is current and not revoked or suspended, but he also knows that absent some other triggering event, that is as far as he can go. The Officer has met a person who is cooperative with the Officer, has volunteered to the Officer that he is armed, and he has proved that he is not committing what is otherwise a felony. Now after doing this, what RS does the officer have to suspect that he is in danger which would justify him even contemplating taking custody of the persons weapon,,,,I sure can not come up with one.

The U.S. v. King citation above would seem to suggest that this assertion is not true.

3. "Just as probable cause may exist although a suspect is in fact innocent, probable cause may exist where the police do not know of the existence or validity of an exculpatory defense.”); Humphrey v. Staszak, 148 F.3d 719, 724 (7th Cir. 1998)", Once the officer suspects you are committing an offense by carrying a gun in a vehicle, you bear the burden of correcting the officers impression that he is dealing with an armed and potentially dangerous criminal by providing him with proof of the validity of your innocence, That is why you have the permit in the first place.

I can't seem to find this quote in Humphrey v. Staszak. Seems like it is from Jocks v. Tavernier. Of course, in order for this quote to be relevant, an officer would need probable cause, which the above cases seem to suggest would require more than merely the presence of a firearm.

4. In State v. Timberlake, 744 N.W.2d 390 (Minn. 2008), police officers stopped the defendant’s car based solely on a 911 call from an identified private citizen. The caller said that he had just seen “a black male and black female . . . leaving a gas station in a white Pontiac Grand Prix,” and that, before they left the gas station, he had seen the black male with a gun. Id. at 392. The officers’ stop and subsequent search revealed evidence that was the basis of the defendant’s conviction for felon in possession of a firearm.
Also see United States v. Cooper, 293 Fed. Appx. 117 (3d Cir. 2008),United States v. Bond, 173 Fed. Appx. 144, 146 (3d Cir. 2006); United States v. Collins, Nos. 05-1810, 01-CR-00780, 2007 WL 4463594, at *4 (E.D. Pa. Dec. 19, 2007). Now lets assume you are OCing, no violation of Alabama statute is involved in OC, even at a gas station pump, but if a civilian not knowing Alabama's OC law exception, calls the 911 and tells them he saw you get into your ford explorer and head west, then the police do have RS for a Terry Stop of your vehicle,,,,,they have RS to do so based on the prohibition against carry in a vehicle. When they stop you they will already be in Terry Mode and "felony Stop Mode" and your best resort is to have your DL and permit at the ready.

Timberlake really bolsters your argument. I think it's incorrect and conflicts with Ubiles, but it looks like it was never appealed to the U.S. Supreme Court. Are there any U.S. Supreme Court cases that discuss detainment/seizure and exculpatory defenses such as licenses or permits?

5. What can trigger the officer having cause to take possession of your weapon during a Terry Stop. The mere presence of a weapon held by a suspect during the stop is the answer. "The officers were entitled to take Raissi’s handgun because they knew Raissi had concealed it on his person and would have easy access to it while they questioned him." Georgia Carry. Org, INC.,et al v. Metroploitan Atlanta Rapid Transit Authority, Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977) (“The bulge in the jacket permitted the officer to conclude that [the defendant] was armed and thus posed a serious and present danger to the safety of the officer." The manner in which the officer takes possession of the weapon may vary from asking the suspect to hand the weapon to the officer, to much more aggressive tactics....this is a matter of the officers judgment of the totality of the circumstances and the risk involved with dealing with a suspect he judges to be compliant, cooperative, and non threatening, or a suspect he deems to be evasive and nervous though generally compliant, or even such behaviors as exhibiting non-verbal physical indications of entering a "fight or flight" posture.

Mimms definitely backs up your argument as does the MARTA case.

I guess what it comes down to is how the law is written? The MARTA decision seems to suggest this (see page 13), although I haven't done any analysis on the cases I cited to see if everything falls together nicely. Thanks for the citations, they've been interesting to read.

 

[Fallschirjmäger]

Regarding GCDO v MARTA
Raissi was stopped because there was RAS that he could have been in violation of O.C.G.A. § 16-12-123 Bus or rail vehicle hijacking; boarding with concealed weapon. The weapon was an element of the crime.

Had the firearm been openly carried, it is doubtful that MARTA could have found RAS for him violating the code and PC for his brief seizure would not have existed. Without probable cause, the seizure of his person and personal effects would have been illegal.

In the end, (well 15-30 minutes really) Raissi left on MARTA, holstered and semi-happy. Not exactly a loss.
Am I sure about that? Well, ... being given the 'stink eye' by MARTA police while riding the train (and Very openly carrying) to and from the Capitol a few times gives me a pretty good indication.






Also in the end, MARTA wound up paying for the judgement against them. Eh, not so much of a win.

 

[OC for ME]

I respectfully concede to your point on the gas station scenario.

PD - Post #31 - But we also have to remember that how we react to officers during our encounters with them will have an impact on not only the outcome of those encounters, but may impact on how the officer reacts to the next person they stop who is OCing or CCWing.

I completely agree that the citizen must take the high road, it is the right thing to do. Yet, the unlawful demands and actions made by those two LEOs that stopped me certainly were not fostering a environment of mutual respect and cooperation. It is extremely difficult to respect a LEO who you know is violating the law and your rights. During those two situations my only concern was to do the best I could to ensure that any attempts at redress by me would not be compromised by my attitude and behavior. Sad state of affairs actually. Coerced respect is not respect.

This is very troubling to me, professionals that may not move on like nothing happened. It appears that you are asking citizens to do that very thing, move on from the negative encounter that they may have not initiated, like it never happened. And a different, possibly undeserving, citizen bearing the brunt of a LEO's displeasure at the 'last guy'.

Your actions as a result of a discovered gun during a traffic stop cannot be viewed in any light other than negative by the law abiding citizen that you aim your weapon at, of course this presumes that the citizen is actually law abiding, discovered only after the gun aiming/cuffed/searched part is over. I know that some LEOs do not do these things, are they irresponsible and reckless for not employing these measures in every situation where a citizen is discovered to be armed, potentially in violation with the law?

As far as I am concerned, your actions will far outweigh any congeniality after the fact when you have determined, that which I already know, that I am not some dangerous felon. The damage has been done and cannot be undone as far as my view of you as a LEO. The next time I am compelled to interact with a LEO that is not you, I now have a level of apprehension regarding him, based on your actions, that this different LEO may react in the same manner as you did. If I have a different experience then a different view will be held for that LEO and not of you. Regardless of this other LEOs actions I will always be apprehensive of you based on my past experience with you.

Where does this leave us? I must make contact with every LEO in my region to determine the ‘good’ from the ‘bad’, unrealistic of course, while you and your fellow officers are under no obligation to treat a citizen with respect and deference. It is fortunate that the vast majority of LEOs are very professional, very respectful and very engaging. They are this way because of who they are as people, and not because of their profession. I for one am proud to have them as police officers.

Where as we citizens must, out of necessity, be polite and respectful because the consequences are very real and can be very severe if we are not, due to the unknown 'few bad' LEOs out there. Ironically, OCers are almost exclusively LACs, who overwhelmingly support LE, even in the face of LE's publicly stated negative views regarding OC and OCers, and in some instances hostile actions against OCers.

PD - Post #13 - We all recognize there are some officers, a minority, who are hostile to civilians carrying weapons, Openly or even with a CCW permit, but they are vastly outnumbered by officers who support the second amendment.

It would be more beneficial to LE and citizens, if LE and LEOs were on the same page regarding the 2A. Yes, even if it means that the rank and file LEO were not in support of our 2A right outside of the home. At least everyone will know where all parties stand.

If you and the vast majority of LEOs support the 2A then prove it by promoting it, advocating for legislation to make all of the states constitutional carry states, I know, a few already are. Advocate for candidates who are pro-2A. Why does LE lobby for CCW expansion (privilege) and not constitutional carry (right)? Why in a few states LE continues to lobby for the little to no right to self defense outside of the home? Why does the individual LEO say one thing, but their profession says and lobbies for the other thing?

I can only gather that the rank and file LEO supports reasonable restrictions on our 2A right. Restrictions that by and large do not apply to off-duty LEOs. If this is not the case then why do the various LEO unions, as a result of the rank and file sentiment towards a citizen's 2A right, not come out against the official chief/sheriff association(s) public positions.

As to that minority of LEOs you speak about....well, in my opinion, it appears that it is left up to the citizen to address their waywardness via the courts, which also does not promote goodwill between LE and the citizenry.

 

[Brimstone Baritone]

You (Potent Dagger) have made the comparison several times between having a weapon in a vehicle and committing a felony. Please, I'm begging you as one Alabamian to another, to cite the law you are referring to.

The reason I ask, is the only law I know of that would pertain is this:

License to carry pistol in vehicle or concealed on person - Required.

No person shall carry a pistol in any vehicle or concealed on or about his person, except on his land, in his own abode or fixed place of business, without a license therefor as hereinafter provided.

The penalty for which is:

Penalties; seizure and disposition of pistols involved in violations of certain sections.

(a) Every violation of subsection (a) of Section 13A-11-72 or of Sections 13A-11-81 or 13A-11-82 shall be punishable by imprisonment for not more than five years. Every violation of subsection (b) of Section 13A-11-72 or of Sections 13A-11-73, 13A-11-74 and 13A-11-77 through 13A-11-80 shall be punishable by imprisonment for any term less than one year or by a fine of not more than $500.00, or both. The punishment for violating Section 13A-11-78 or 13A-11-79 may include revocation of license.
...

Or, that is to say, a misdemeanor. Unless you are referring to 13A-11-72, in which case: "Officer, what gives you reason to suspect that I am a person forbidden to possess a pistol?"

 

[Potent Dagger]

I concede the point, on further review carrying without a permit is in fact a misdemeanor, also unless you are also a person prohibited then it is a felony?

But as far as the scenario goes it does not matter if it is a Class A Misdemeanor or a Class C Felony, it is still a violation of the law to carry in a vehicle and seeing that a person is carrying in a vehicle does invoke RAS for a Terry Stop in states where it is illegal to carry in a vehicle. Now in many states, carry in a vehicle is not a crime, and therefore seeing someone carrying in a vehicle is not RAS for a Terry Stop absent some other circumstances.

Terry is not limited to felonies only, nor is it limited to those circumstances where a weapon may be observed, it is the RAS that a criminal act may be being committed or may be about to be committed. In the actual Terry v Ohio case, it was the repeated walking back and forth of a person(s) in front of a business that raised the suspicion of the Officer that the person was up to no good. Last time I looked walking back and forth on a city street was not a criminal offense, but it is a behavior known to occur by a person planning a robbery or a burglary.

What might give rise for me to suspect a felony possession by a prohibited person will depend on what comes back when I run them for Warrants/Criminal History.

Sorry for the mis-statement on the offense level and I sincerely appreciate your correcting my error on the charging level of the offense.



UOTE=Brimstone Baritone;1679212]You (Potent Dagger) have made the comparison several times between having a weapon in a vehicle and committing a felony. Please, I'm begging you as one Alabamian to another, to cite the law you are referring to.

The reason I ask, is the only law I know of that would pertain is this:


The penalty for which is:


Or, that is to say, a misdemeanor. Unless you are referring to 13A-11-72, in which case: "Officer, what gives you reason to suspect that I am a person forbidden to possess a pistol?"[/QUOTE]

 

[Potent Dagger]

I concur with much of your observations. Alabama has a long way to go as far as respecting the rights of Alabama Citizens to exercise their rights as it relates to firearms.

I think part of the problem is that from a "purest" standpoint, some of the OC community want LEO's to totally disregard "man with a gun" calls for service from alarmed citizens. I am seriouly doubting that this is either a good goal to have or a practical one to achieve.

IMHO Much of the resentment from the LEO community to open carry is derived from several factors.

First they know that LAC's can get a permit for concealed carry, which many of them, espeically at the higher ranks, view as sufficient to the purpose of the right to carry. At the lower ranks, the patrol officer who must respond to such calls, the resentment stims from the waste of the officers time, which can then be compounded by a citizen who is less than cooperative in allowing the officer to complete his inquiries and get on with something more important.

Second they know that many citizens (uneducated ones) are alarmed by seeing an armed citizen who is not also eaisly identifiable as an LEO. I think of all the public venues where armed individuals went on a shooting spree, and the media coverage of these events, and one can easily understand their concerns for their safety upon seeing someone enter a wal mart or other location with an open carry gun, even though you and I know from a statistial standpoint their media induced paranoia is not justified. The officers who oppose open carry do not like having to run down these calls because evan after they contact us, the citizen who made the call is probably just as big a pain in the ass as the officer consider us to be.

Third, because of the fact that many "Man with a gun" calls result in the arrest of prohibited persons, I think one might make a good argument that it is good public policy for police to investigate these types of calls. The fact that officers are called on to investigate these matters does mean, like it or not, that issues of public and officer safety are a consideration when the officer makes contact with a person they can see is armed, or who they have been lead to believe is armed. Each officer has to make a call based on his own perceptions of the risk factors in the situation, as to the manner in which he deals with the encounter. In a crowded Wal Mart the approach and demeanor of the officer may be very different than in a traffic stop.

Forth, even the officers who endorse and support OC will have to admit that making contact with an armed person under any circumstances is not the same as contacting someone for say littering, jaywalking, speeding, or any number of other offenses where the officer does not suspect or know the potential offender is armed.

Fifth, I think being very confrontational with officers, who are unfortuately required to investigate these "man with a gun" calls, does not win us any allies in our effort to make OC a widespread publically accepted practice. The officers have a justified reason to investigate the call, and a cordial conversation that allows them to rapidly determine that no offense is being committed so they can move on to the next call for service I think is the much perferable course of action on the CCW/OCers part. We do not turn the event into more than it has to be and the officers can see we are just exercising our rights. This in turn may lead to some officers not being so aggressive in dealing with instances of OC.

This is why I only OC under certain limited circumstances, like when it is blazingly hot, and wearing a jacket is out of the question, or where the nature of my attire is not conducive to concealed carry. If I am wearing slacks and a shirt, the shirt is always tucked in, meaning that I either have to OC or wear a jacket, and when it is 92 and 98 % humidity, that ain't gonna happen.

I even hate to raise the issue, but there is something I have been thinking about, and I would like to hear your opinion as well as anybody else.

The other night I was doing some online research on OC and CCW and I came across a website that sells Badges, and on the badges it says "State of Alabama" then under that it says "Concealed Pistol Permit", and it also has a space for your permit number to be engraved on the badge. Alabama has no statute that I am aware of that makes wearing a badge illegal as long as it does not identify you as a LEO. The Alabama statute on impersonation of an LEO requires you to try to perform some act as an LEO. So these badges, simply worn on a belt clip or on a chain around ones neck is not an offense in Alabama.

Now from the standpoint of OCing, part of the problem is when Mr. Or Ms. Busy Body sees us carrying they go into panic mode and call the cops....Why, because they see the gun and no badge to go with it that allows them the illusion that the person that has a weapon is "OK" and not a threat to them or others.

The other part of the problem is that if we conclude that it is good public policy for police officers to investigate "man with a gun" calls, the use of a badge by OCers may have the effect of greatly reducing those calls from paniced citizens in cases where there is no legitimate public safety concern. If they see an OCer carrring a gun and wish to assume from also seeing a badge that we are police officers, and thus no threat, I see no harm or foul in letting them continue to operate under the illusion. Since wearing a badge is no more a crime in Alabama than OCing is, I see no real harm in the practice, except from the possible adverse reaction of some LEO's.

I know there will be some officers who will resist the use of badges by OCers because they will contrive the circumstances that we are "wanna be" cops. I think it is a meritless argument. I was at the court house in Mobile recently and observed any number of non-LEO City employees wearing badges on belt clips who were in fact City Inspectors from the Urban Planning Office, the Building Code Enforcement Office, and the Revenue Department. I remember looking at one guy as he was walking down the hall and until he got close enough for me to read the badge, I just thought he was an unarmed LEO walking the halls fo the courthouse.

Does anyone have any experiences with these type of badges, and can you describe any confrontations you might have had with police officers while wearing one, or as a result of wearing one ?

I would also like to hear opinions of anyone else on the releative merit or lack of merit to using badges to reduce the likilyhood of police receiving "man with a gun" complaints or do you think it will result in OCers being reported for impersonating a police offcer and armed ?

I guess what I am looking for is a middle ground that allows OCers to go about their lives exercizing their rights, and still allow for officers to properly investigate "man with a gun" calls when it is a legitimate public safety concern. My own version of utopia I guess.

I respectfully concede to your point on the gas station scenario.

I completely agree that the citizen must take the high road, it is the right thing to do. Yet, the unlawful demands and actions made by those two LEOs that stopped me certainly were not fostering a environment of mutual respect and cooperation. It is extremely difficult to respect a LEO who you know is violating the law and your rights. During those two situations my only concern was to do the best I could to ensure that any attempts at redress by me would not be compromised by my attitude and behavior. Sad state of affairs actually. Coerced respect is not respect.

This is very troubling to me, professionals that may not move on like nothing happened. It appears that you are asking citizens to do that very thing, move on from the negative encounter that they may have not initiated, like it never happened. And a different, possibly undeserving, citizen bearing the brunt of a LEO's displeasure at the 'last guy'.

Your actions as a result of a discovered gun during a traffic stop cannot be viewed in any light other than negative by the law abiding citizen that you aim your weapon at, of course this presumes that the citizen is actually law abiding, discovered only after the gun aiming/cuffed/searched part is over. I know that some LEOs do not do these things, are they irresponsible and reckless for not employing these measures in every situation where a citizen is discovered to be armed, potentially in violation with the law?

As far as I am concerned, your actions will far outweigh any congeniality after the fact when you have determined, that which I already know, that I am not some dangerous felon. The damage has been done and cannot be undone as far as my view of you as a LEO. The next time I am compelled to interact with a LEO that is not you, I now have a level of apprehension regarding him, based on your actions, that this different LEO may react in the same manner as you did. If I have a different experience then a different view will be held for that LEO and not of you. Regardless of this other LEOs actions I will always be apprehensive of you based on my past experience with you.

Where does this leave us? I must make contact with every LEO in my region to determine the ‘good’ from the ‘bad’, unrealistic of course, while you and your fellow officers are under no obligation to treat a citizen with respect and deference. It is fortunate that the vast majority of LEOs are very professional, very respectful and very engaging. They are this way because of who they are as people, and not because of their profession. I for one am proud to have them as police officers.

Where as we citizens must, out of necessity, be polite and respectful because the consequences are very real and can be very severe if we are not, due to the unknown 'few bad' LEOs out there. Ironically, OCers are almost exclusively LACs, who overwhelmingly support LE, even in the face of LE's publicly stated negative views regarding OC and OCers, and in some instances hostile actions against OCers.

It would be more beneficial to LE and citizens, if LE and LEOs were on the same page regarding the 2A. Yes, even if it means that the rank and file LEO were not in support of our 2A right outside of the home. At least everyone will know where all parties stand.

If you and the vast majority of LEOs support the 2A then prove it by promoting it, advocating for legislation to make all of the states constitutional carry states, I know, a few already are. Advocate for candidates who are pro-2A. Why does LE lobby for CCW expansion (privilege) and not constitutional carry (right)? Why in a few states LE continues to lobby for the little to no right to self defense outside of the home? Why does the individual LEO say one thing, but their profession says and lobbies for the other thing?

I can only gather that the rank and file LEO supports reasonable restrictions on our 2A right. Restrictions that by and large do not apply to off-duty LEOs. If this is not the case then why do the various LEO unions, as a result of the rank and file sentiment towards a citizen's 2A right, not come out against the official chief/sheriff association(s) public positions.

As to that minority of LEOs you speak about....well, in my opinion, it appears that it is left up to the citizen to address their waywardness via the courts, which also does not promote goodwill between LE and the citizenry.

 

[Potent Dagger]

I appreciate your commentary. You remark that you think there is a conflict between Timberlake and Ubilies.

In Ubiles, the Virgin Islands does not have a law against carrying a handgun even in a crowd. A person told police Ubilies was armed, but provided no information that would trigger the RAS required under Terry v. Ohio. When the police made contact with Ubilies and patted him down, lacking the RAS that Terry requires means that any evidence that they find are the fruits of the poisonous tree. In fact they found a handgun on Ubilies, but what made the handgun illegal was that it was not registered to Ubilies as required by law. Regardless if they had found the a shrunken head in Ubiles pockets, and that proved by DNA to belong to a beheaded murder victim, the head would not have been admissible either.

You ask the all important question " is the mere presence of a handgun RAS in states where a license is required to carry it. In my opinion, and I think most court opinions, the answer is yes. But lets stick to Alabama.

In Alabama, Ubiles is not applicable case law except in cases of open carry. Unlike the Virgin Islands, Alabama has three primary circumstances that make possession of a weapon illegal. Carrying a weapon in a vehicle, Carrying concealed on or about your person, or carry by prohibited individuals. If the police officers are told that a person is carrying a gun in their car, concealed on their person, or is being carried by a person who is a prohibited person, then the police have RAS to suspect a crime is being committed. In Ubiles, the Virgin Islands authorities had no RAS that Ubilies was in fact committing an offense by merely having a gun, or was about to commit an offense while he possessed a gun.

If, in Ubiles, the informant had told police that they knew Ubiles was a convicted felon and had on his person a handgun, then they have RAS as a felon may not possess a handgun. If the informant had told police that Ubilies had said he was going to shoot someone when he saw them, then they would have RAS. If the informant had told police that Ubiles had a gun and he knew the gun was not registered, they would have had RAS. But because the Virgin Islands does not make mere possession of a firearm an offense concealed or otherwise, like in a crowded protest or a demonstration, there was no RAS for them to proceed with a Terry Stop. Ubiles conviction was for possession of an unregistered firearm, not illegal possession of a firearm. since the police lacked RAS for the stop, their following discovery that Ubiles handgun was in fact not registered resulted from an illegal detention and search.

In king, I think the same is true. King was allowed to have a gun in the car as no statute expressly prohibited him from doing so,,,honking his horn or otherwise. The officer saw the gun, was obviously taken by surprise, and reacted;, now we know that a angry motorist honking his horn is not RAS in states that do not prohibit guns in vehicles. I also am of the opinion that if King was in Alabama the outcome would be different as Alabama does prohibit guns in vehicles which would have given the officer RAS.

If king were in Alabama the officer would have RAS for a Terry Stop, and it is at that point that the officer is not first required to explore all possibilities, like the person may have a permit to carry. Officers are not required “to explore and eliminate every theoretically plausible claim of innocence,” including affirmative defenses, before making an investigative stop. Ricciuti v. New York City Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997); see also Jocks v. Tavernier, 316 F.3d 128, 135 (2d. Cir. 2003)

In contrast Louisiana has no offense related to having a gun in a vehicle, so King and to a lesser extent Ubiles are highly relevant in that state, and absent some other factor or circumstance giving rise to RAS, it would not be reasonable for a person who had a gun in a car to be stopped under a Terry Stop.

In Florida v. D.L. the court did not expand to a "weapons only" justification for a terry stop. But in that case, the core of the reasoning was that the tip that led police to D.L. was an anonymous tip, which various courts have found are unreliable, and do not reach RAS, unless the police can obtain some other independent reliable information that verifies the credibility of the informer or the information.

I am not of the opinion that Open Carry is RAS for a Terry Stop in Alabama, however, I agree with US v. Valentine that "where a face to face informant's tip that a man had a gun in addition to the suspects behavior, location, and time of day added up to justify reasonable suspicion. there are other circumstances which may support RAS for a Terry Stop of a person who is OCing. Also I do think that the majority of Alabamians would support as good public safety policy, the ability of police to investigate "man with a gun" calls, even if the end result of that investigation is that no crime is being or had been committed.

In those circumstances where RAS does exist, the fact that the subsequent investigation proves to the officers that the suspect has committed no crime and he is released from the investigatory detention as soon as that determination of innocence can reasonably be made, then there is no violation of the rights of the detained person. However, when a stop is conducted, if the suspect wishes to provide an affirmative defense, like possession of a valid pistol permit, it is his responsibility to do so in a forthright manner, as being uncooperative, evasive, or failing to disclose his affirmative defense, resulting in prolonged detainment or even arrest, also does not give rise to a violation of his rights when he finally asserts the affirmative defense and proves his is innocent. You can not blame the police for charging you with Murder if you did not tell them you were in another state when the offense was committed, likewise you can not hold police responsible for prolonged detainment in a Terry Stop for a weapons violation if you decline to promptly produce your permit.

Sorry for jumping in the middle of the conversation. I had some relevant cases to cite that others may find interesting.



The full quote for Ricciuti is, "Once a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest." So based on the full quote, the question becomes is the presence of a firearm where a license is required to legally have that firearm probable cause? The courts have been fairly clear that the mere presence of a firearm, without more, does not even constitute reasonable suspicion, let alone probable cause. See U.S. v. Ubiles, where Ubiles, a Virgin Island man, was carrying a concealed weapon, "This situation is no different than if Lockhart had told the officers that Ubiles possessed a wallet, a perfectly legal act in the Virgin Islands, and the authorities had stopped him for this reason." Contrast this to the same court's ruling in U.S. v. Valentine where a face to face informant's tip that a man had a gun in addition to the suspect's behavior, location, and time of day added up to justify reasonable suspicion.

A case that is strangely similar to proposed scenario where during a traffic stop a gun comes into view is U.S. v. King. In that case a man was honking his horn to get traffic to move past an accident. An officer approached to tell the man to stop honking because he was causing a dangerous situation. While the officer was talking to the driver, she noticed a pistol in the car and immediately drew her weapon and ordered the driver out of the car. The court ruled that even though the driver was detained for a brief moment while the officer told him to stop honking that the presence of a weapon in the car did not amount to reasonable suspicion or probable cause.



The U.S. v. King citation above would seem to suggest that this assertion is not true.



I can't seem to find this quote in Humphrey v. Staszak. Seems like it is from Jocks v. Tavernier. Of course, in order for this quote to be relevant, an officer would need probable cause, which the above cases seem to suggest would require more than merely the presence of a firearm.



Timberlake really bolsters your argument. I think it's incorrect and conflicts with Ubiles, but it looks like it was never appealed to the U.S. Supreme Court. Are there any U.S. Supreme Court cases that discuss detainment/seizure and exculpatory defenses such as licenses or permits?



Mimms definitely backs up your argument as does the MARTA case.

I guess what it comes down to is how the law is written? The MARTA decision seems to suggest this (see page 13), although I haven't done any analysis on the cases I cited to see if everything falls together nicely. Thanks for the citations, they've been interesting to read.

 

[bigtoe416]

You ask the all important question " is the mere presence of a handgun RAS in states where a license is required to carry it. In my opinion, and I think most court opinions, the answer is yes. But lets stick to Alabama.

I think you're wrong here, but maybe not, hopefully we can figure out how this should work in court.

In U.S. v. McArthur the court does a decent job explaining when an officer has RAS for a stop.

To determine whether an exception to a criminal offense is an element of the crime or an affirmative defense, we undertake a three-part inquiry. We begin with the language and structure of the statute. Next, we examine the legislative history of the provision. Finally, we decide whether the defendant or the government is better situated to adduce evidence tending to prove or disprove the applicability of the exception.

What this means to me is whether or not an officer can detain an individual to see if he is permitted to do something varies from state to state. In Ubiles the officers couldn't detain him after having a person inform them that he was carrying a weapon. Why is this different from the MARTA case or Valentine? Well the Virgin Island law says:

Whoever, unless otherwise authorized by law, has, possesses, bears, transports or carries either, actually or constructively, openly or concealed any firearm...

The way this law is written makes it so it is only illegal unless otherwise authorized by law. It doesn't say it is outright illegal and then provide exceptions to the law. The exception is "built in" to the law, if you will. If the officers in Ubiles wanted to detain him they would need more information to add on top of having a firearm to build up to reasonable suspicion.

In Valentine the court briefly touches on this difference here:

Unlike the Virgin Islands, New Jersey not only makes it a crime when a person “knowingly has in his possession any handgun, including any antique handgun, without first having obtained a permit to carry the same,” but also New Jersey presumes that someone carrying a handgun does not have a permit to possess it until the person establishes otherwise.

The law in New Jersey doesn't mention that any exceptions exist. You have to get to the next code to see that there are exceptions for anybody. This seems to be consistant with what the court in McArthur said.

In the MARTA case, an individual has to be licensed to carry openly or concealed. The law prohibiting the carry of firearms says,

No person shall carry a weapon without a valid weapons carry license unless he or she meets one of the exceptions to having such license as provided in subsections (a) through (g) of this Code section.

This wording would seem to suggest that having a carry license would not qualify as an affirmative defense. But if you look at the license wording you'll see,

It shall be required that any license holder under this Code section have in his or her possession his or her valid license whenever he or she is carrying a weapon under the authority granted by this Code section, and his or her failure to do so shall be prima-facie evidence of a violation of Code Section 16-11-126.

And based on this we must conclude that the legislature intended the carry license to be an affirmative defense.

Which brings us to Alabama. As Brimstone Baritone pointed out, the Alabama carry law reads,

No person shall carry a pistol in any vehicle or concealed on or about his person, except on his land, in his own abode or fixed place of business, without a license therefor as hereinafter provided.

Applying the three-prong test here should determine if the possession of a carry license is an affirmative defense. The wording suggests that the license is not an affirmative defense, but perhaps there is a line somewhere similar to Georgia's that makes it clear that the license is an affirmative defense. I'm totally unfamiliar with Alabama law, so I'll let the more educated people handle that question.

Hopefully this makes some sense and I haven't totally gone off the deep end.

 

[Kirbinator]

BigToe, check these out:

http://alabamaopencarry.com/docs/kjvstate.pdf - cites most of the cases

http://alabamaopencarry.com/docs/AG1955.pdf:

Carrying pistol.---No person shall carry a pistol, concealed, in any vehicle or on or about his person, except on his land, in his abode or fixed place of business without a license therefor as hereinafter provided."

Obviously, this section prohibits only the carrying of concealed pistols away from a person's land, abode or fixed place of business, without a license. No reference is made to unconcealed pistols. Accordingly, the entire field of regulation of pistols having been preempted by Act No. 636, supra, and section 163 having thus been impliedly repealed, the operation of Section 163, supra, was not revived by the later relaxing of this strict control by virtue of the 1951 amendment
of Section 175, supra.

http://alabamaopencarry.com/docs/ago-1984-205.pdf
A person afoot requires no license.

 

[OC for ME]

I concur with much of your observations. Alabama has a long way to go as far as respecting the rights of Alabama Citizens to exercise their rights as it relates to firearms.

Thanks, it is not just Alabama, Missouri is similar to Alabama except we here do not require a permit other than to CCW on foot.

I think part of the problem is that from a "purest" standpoint, some of the OC community want LEO's to totally disregard "man with a gun" calls for service from alarmed citizens. I am seriously doubting that this is either a good goal to have or a practical one to achieve.

Not totally disregard....well, maybe some folks. How about this, this is my ideal response to a MWAG call by LE. If a felony crime is not reported, roll on over, observe, if no criminal activity observed, then sit back and watch. How long does it take you to come to a conclusion one way or the other? If ya got nothing, clear the call and keep on rolling. Unless of course, you happen to not agree with OC being a lawful activity then go right ahead and make contact.

IMHO Much of the resentment from the LEO community to open carry is derived from several factors.

First they know that LAC's can get a permit for concealed carry, which many of them, especially at the higher ranks, view as sufficient to the purpose of the right to carry.

This truly is unfortunate. How can the rank and file, who allegedly 'support' a citizen's 2A right change these views?

At the lower ranks, the patrol officer who must respond to such calls, the resentment stems from the waste of the officers time, which can then be compounded by a citizen who is less than cooperative in allowing the officer to complete his inquiries and get on with something more important.

The LEO resents the OCer? What on earth for? I think the resentment is misplaced.

Second they know that many citizens (uneducated ones) are alarmed by seeing an armed citizen who is not also easily identifiable as an LEO. I think of all the public venues where armed individuals went on a shooting spree, and the media coverage of these events, and one can easily understand their concerns for their safety upon seeing someone enter a Walmart or other location with an open carry gun, even though you and I know from a statistical standpoint their media induced paranoia is not justified.

I wonder what the average number of MWAG calls are each day in Arizona? It is not media induced paranoia, it is a simple misunderstanding of the applicable laws by the citizenry. If the 'Top Cops' around the state, and the 'Gov' came out and simply stated that a visible and properly holstered 'handgun' is not against the law in this state, then the issue would be fairly addressed and the number of calls would plummet. Average folks understand simple concepts....I'll not hold my breath on any help from the 'Top Cops' or the 'Gov'.

The officers who oppose open carry do not like having to run down these calls because even after they contact us, the citizen who made the call is probably just as big a pain in the ass as the officer consider us to be.

Then LEOs must find a away to reduce them. Placing the burden on the lawfully OCing community to reduce these calls for LE is illogical.

Third, because of the fact that many "Man with a gun" calls result in the arrest of prohibited persons, I think one might make a good argument that it is good public policy for police to investigate these types of calls. <snip>

I disagree. If the specific facts of each situation matter, then general assumptions before hand should not be used.

Forth, even the officers who endorse and support OC will have to admit that making contact with an armed person under any circumstances is not the same as contacting someone for say littering, jaywalking, speeding, or any number of other offenses where the officer does not suspect or know the potential offender is armed.

You continue to cling to the premise that OC, where not illegal, can even be compared to littering. A MWAG call gives the LEO RAS, or that is what will be claimed by LE. Is it not correct that unless a felony crime is 'reported' then the LEO must witness the misdemeanor crime before they contact the OCing citizen for a possible misdemeanor offense....wait, I remember, casual contact by a LEO is not a 'detention'. Nothing illegal about the cops just stopping random citizens, randomly and engaging in casual conversation. Now, if a citizen asks that LEO 'am I being detained', then gets a 'no' response, then walking away will end the MWAG call....right? Oddly enough, LE rarely stops random citizens, the non-OCing citizens, randomly, to engage in casual conversation.

Fifth, I think being very confrontational with officers, who are unfortunately required to investigate these "man with a gun" calls, does not win us any allies in our effort to make OC a widespread publicly accepted practice. <snip>

Is it possible that the MWAG resulted in a unlawful detention, regardless of the duration of the detention? Is it possible that the citizen making the call, due to ignorance, committed a misdemeanor for filling (the call) a false report? Is it possible that the vast majority of OCer/LEO contacts should never have happened? Does LE investigate the caller with the same vigor as the OCer? I think that LE rarely investigates the caller as vigorously as the OCer.

This is why I only OC under certain limited circumstances, <snip>

Your support of OC is limited by your background as a LEO. I can only conclude that you are not 'really' in support of OC for all citizens.

I even hate to raise the issue, but there is something I have been thinking about, and I would like to hear your opinion as well as anybody else.

If LE supports this, then I would support this, put in writing via statute. Make it a 'option' for the citizen to purchase from the state. No different than designing a badge for any LEA. Clearly and distinctly unique to CCW. If the CCW permit is no longer valid then the citizen must return to the issuing authority or any local LEA. Then LE and the state MUST promote it to 'train' the citizenry. If none of the above then I am not in favor of this badge idea.

<snip>

I know there will be some officers who will resist the use of badges by OCers because they will contrive the circumstances that we are "wanna be" cops. <snip>.

YA THINK!....Here in Missouri, it is a crime to not come to the aid of the civil authority "or when lawfully summoned in aid of the civil power," (Missouri Constitution Article I, Section 23). Yepper, there are statutes that define the penalty. I think it is a misdemeanor at worst but I could be wrong.

PD, if you support OC, then OC daily where OC is not prohibited. Put yourself out there and do the very things that you recommend that we all do to increase acceptance. Walk in my shoes, you do the things I do to protect my rights.

If ya search around here on OCDO you may find that 'good cops' are typically classified as the 'cops' that 'check me out' but keep on going, or look at me/pistol on my hip, then get back to shooting the breeze with the cutie behind the counter at my local QuickTrip.

 

[Daylen]

Badges are for LEOs and wanabees. Tricking the public is unhealthy to liberty.

 

[OC for ME]

Badges are for LEOs and wanabees. Tricking the public is unhealthy to liberty.

You did read PD's post where he stated the below.

<snip> I was at the court house in Mobile recently and observed any number of non-LEO City employees wearing badges on belt clips who were in fact City Inspectors from the Urban Planning Office, the Building Code Enforcement Office, and the Revenue Department. I remember looking at one guy as he was walking down the hall and until he got close enough for me to read the badge, I just thought he was an unarmed LEO walking the halls fo the courthouse.

"Badges are for LEOs, city inspectors, code enforcement, revenuers, urban planners, health inspectors....oh, and wanabees too."

 

[Daylen]

You did read PD's post where he stated the below.

"Badges are for LEOs, city inspectors, code enforcement, revenuers, urban planners, health inspectors....oh, and wanabees too."

I think my original statement stands You simply listed people who are not armed by the government, but are still about enforcing law. Or perhaps they belong in the wanabee section...

 

[OC for ME]

Point taken. On the other-hand, Those that I listed do not enforce laws, they ensure compliance with administrative directives. If they find non-compliance then charges may be filed against those not in compliance. I wonder when the last time a patio was poured without a building permit and LE was called to cite the offender. I do understand that it may be considered semantics, but in a court of law there may be a difference.

 

[DocWalker]

I think my original statement stands You simply listed people who are not armed by the government, but are still about enforcing law. Or perhaps they belong in the wanabee section...

I really can't believe someone hasn't typed it yet...."Badges...we don't need no stinking badges!". There it has been put out there, now everyone can go on with their day.

 

[Kirbinator]

Is that the OCDO equivalent of Godwin's?

 

[Potent Dagger]

With respect to the badge issue, I think I also said at the start "I hated to bring it up",,,,,,go with your gut every time.

OUCH

You did read PD's post where he stated the below.

"Badges are for LEOs, city inspectors, code enforcement, revenuers, urban planners, health inspectors....oh, and wanabees too."

 

[OC for ME]

You did request an opinion, I went with my gut and complied with your request.

 

[Daylen]

Is that the OCDO equivalent of Godwin's?

Related at least I think.