Lawsuit filed for illegal open carry stop of forum member RCall

[BB62]

AFIK, there are only the two threads, this one and one that exists to point out that the lawsuit is getting media coverage.

What's the problem?

My post was posted on the THIRD of three threads, evidently just before they were combined.

 

[OC for ME]

Mexican Carry.....and it needs to be carried in back.....to avoid confusion.....that is.....

 

[MAC702]

... all Call had to do was cooperate....

You know how when you meet this hot girl, and things are going great, and you walk her home, and then hope she'll, um, "cooperate?"

Yeah, it's like that.

 

[eye95]

You know how when you meet this hot girl, and things are going great, and you walk her home, and then hope she'll, um, "cooperate?"

Yeah, it's like that.

I swear to God, it wasn't rape. If she'd only cooperated...

 

[Makarov]

Channel 7 in Dayton will be airing an open carry report

Channel 7 in Dayton will be airing on their 11 PM news Tuesday, May 21, 2013, an open carry story. The previews I seen have indicate media bias against the cause, but I could be wrong. Some of the scenes in the preview were relating to the Riverside event. Please watch!

 

[eye95]

Channel 7 in Dayton will be airing on their 11 PM news Tuesday, May 21, 2013, an open carry story. The previews I seen have indicate media bias against the cause, but I could be wrong. Some of the scenes in the preview were relating to the Riverside event. Please watch!

I called them to make sure that they have checked out this site. Roy's story needs to be featured in the piece.

 

[MyWifeSaidYes]

Could someone record the news story, please?

I think it would be good for folks in other markets to see it, regardless of bias.

 

[ATM]

...Almost right.
Citizens have an absolute right to remain silent. They don't have to say anything at any time. In fact, there's rarely anything to be gained from speaking to officers, unless you're the one who called for help.
...

Perhaps, but it is a commonly infringed right with duty to inform laws and the like codified in many states.

 

[MyWifeSaidYes]

Perhaps, but it is a commonly infringed right with duty to inform laws and the like codified in many states.

Definitely an infringement, but the result in Hiibel means that ORC 2921.29 is not unconstitutional.

If you are in a PUBLIC PLACE, and if suspected of a crime OR of being a witness to a felony, you shall not refuse to provide your name, address or date of birth.

 

[color of law]

Definitely an infringement, but the result in Hiibel means that ORC 2921.29 is not unconstitutional.

If you are in a PUBLIC PLACE, and if suspected of a crime OR of being a witness to a felony, you shall not refuse to provide your name, address or date of birth.

When any of us are carrying concealed we understand that we must inform an officer of our conceal carry status and also have identification on our persons and supply that identification if requested.

When open carrying we are not required to have any type of identification on our persons. Knowing that the Ohio legislature passed ORC 2921.29.

Under Terry v. Ohio, 392 U.S. 1 (1968), a law enforcement officer has wide leeway during an investigatory stop. But, that wide leeway is not unlimited. A stop under Terry is limited by the Fourth Amendment of the U.S. Constitution and also limited by Article 1 Section 14 of the Ohio Constitution. ORC §2921.29 is unconstitutional as written. ORC §2921.29(A) states in part “No person who is in a public place shall refuse to disclose the person’s name, address, or date of birth, when requested by a law enforcement officer who reasonably suspects either of the following:...” ORC §2921.29 goes well beyond the holding of Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, et al, 542 U.S. 177 (2004).

The U.S. Supreme Court in Hiibel stated that:

Beginning with Terry v. Ohio, 392 U. S. 1, the Court has recognized that an officer's reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. Although it is well established that an officer may ask a suspect to identify himself during a Terry stop, see, e.g., United States v. Hensley, 469 U. S. 221, 229, it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer, see Brown, supra, at 53, n. 3. The Court is now of the view that Terry principles permit a State to require a suspect to disclose his name in the course of a Terry stop. Terry, supra, at 34.

The Hiibel court made it abundantly clear that, until Hiibel, an open question existed as to whether a suspect can be arrested and prosecuted for the refusal to answer questions, ie a suspect exercising their Fifth Amendment right. Through Hiibel the U.S. Supreme Court has ruled that the Terry principles permit a State to require a suspect to disclose his name in the course of a Terry stop. The Court did not extend that principle beyond the giving of the suspect's name.

ORC §2921.29 states “no person...shall refuse to disclose the person’s name, address, or date of birth.” The term “or” in Websters dictionary is a conjunction introducing an alternative. Thus, in plain English ORC §2921.29 allows a person to give one of the three alternatives. But, what if an arresting officer charges an Accused with not supplying all three because the officer treated the term “or” as if it meant “and.” According to ORC §1.02(F) (“And” may be read “or,” and “or” may be read “and” if the sense requires it.) the officer is permitted to make such interpretation. The officer's interpretation, however, would be in direct violation of ORC §1.42 which states in part “Words and phrases shall be read in context and construed according to the rules of grammar and common usage.” Accordingly, the application of term “and” in ORC §2921.29(A) would then be in direct violation of Hiibel. Clearly, ORC §2921.29(A), when applied with the term “and” instead of “or”, would be beyond what the U.S. Supreme Court has allowed under the Fourth Amendment and therefore, ORC §2921.29 would be unconstitutional.

If an Accused gave their name, but was arrested and jailed for not giving his address and date of birth, the arrest and jailing would be under the color of law and in violation of the Accused's constitutional right under the U.S. and Ohio Constitution.

 

[eye95]

The story was disappointing to say the least.

I called them yesterday to alert them to OCDO, and they ignored it. Instead, they contacted CC advocates to discuss OC! They did not address the illegal behavior for which the city and its personnel are being sued. They discussed Roy's behavior, which was perfectly lawful, but ignored the unlawful behavior by the police.

Had they taken even a few minutes to discuss this case with an open carrier, they might have had a shot at presenting a balanced story.

I tried to leave comments on the story on their site. Not possible. So I called them. I got a guy who clearly didn't give a rat's ass.

Obviously, the reporter and the producer had some preconceived notions that they allowed to dictate the story. What a shame.

Maybe they'll follow up. I don't expect they will.

I gotta say, WHIO was my preferred source for TV news. If they don't try to get the whole story, I'll choose another news outlet here in the Dayton area.

 

[Suckerspawn]

ORC §2921.29 states “no person...shall refuse to disclose the person’s name, address, or date of birth.” The term “or” in Websters dictionary is a conjunction introducing an alternative. Thus, in plain English ORC §2921.29 allows a person to give one of the three alternatives. But, what if an arresting officer charges an Accused with not supplying all three because the officer treated the term “or” as if it meant “and.” According to ORC §1.02(F) (“And” may be read “or,” and “or” may be read “and” if the sense requires it.) the officer is permitted to make such interpretation. The officer's interpretation, however, would be in direct violation of ORC §1.42 which states in part “Words and phrases shall be read in context and construed according to the rules of grammar and common usage.” Accordingly, the application of term “and” in ORC §2921.29(A) would then be in direct violation of Hiibel. Clearly, ORC §2921.29(A), when applied with the term “and” instead of “or”, would be beyond what the U.S. Supreme Court has allowed under the Fourth Amendment and therefore, ORC §2921.29 would be unconstitutional.

If an Accused gave their name, but was arrested and jailed for not giving his address and date of birth, the arrest and jailing would be under the color of law and in violation of the Accused's constitutional right under the U.S. and Ohio Constitution.

I don't believe you are reading this correctly. The statute says, “no person...shall refuse to disclose, this, this or this". If it read, "must disclose, this, this, or this" your understanding would be correct.

 

[Makarov]

Channel 7 Report on the RCall Riverside Incident and Open Carry

Below is the transcript of the report that was aired. I will produce an video off the TV and publish it tonight. Have fun tearing appart the liberal Anti-gun slant. Especially the comment by Tom Hagel a professor of law from the University of Dayton. He Says...

"The lawsuit in federal court is focused on how the officer responded. "It shows a clash between the law and common sense. I can't imagine a person not thinking under the circumstances that the officer did not have the right to at least walk up and ask some questions,"

I say...REALLY!

http://www.whiotv.com/news/news/advocates-put-police-gun-laws-test/nXyH5/

By Jim Otte, I-Team Reporter

RIVERSIDE, Ohio —

Advocates of "open carry" of weapons are testing police on their knowledge of state laws and then posting the results on the internet.

The most recent case involved a Tipp City man, Roy Call, who walked into a Speedway gas station at 3201 Valley Pike in Riverside at 4:30 am on August 28, 2012 with a gun holstered on his hip in full view by anyone in the store. A customer alerted a police officer who happened to be in the store parking lot. When the officer asked Call who he was and what he was doing, Call said he was exercising his Second Amendment rights and initially declined to identify himself. The officer arrested Call and charged him with obstructing official business.

Call eventually produced identification and was released. Later, the charge against him was dropped but Call filed a lawsuit in federal court alleging his rights were violated and demanded $3.6 million.

Larry Moore, a leader of the Buckeye Firearms Association, said Call was within his rights to openly carry a weapon. The store does not have a sign telling customers that guns are not allowed. "Open carry is legal. It's constitutional under our Ohio constitution but a lot of people don't understand that and maybe our law enforcement community is not as well educated about it as they should be," Moore said.

Prof. Tom Hagel of the University of Dayton Law School confirmed the legality of "open carry." He said almost half of the states in the country allow it with some restrictions. Still, Hagel said the lawsuit in federal court is focused on how the officer responded. "It shows a clash between the law and common sense. I can't imagine a person not thinking under the circumstances that the officer did not have the right to at least walk up and ask some questions," Hagel said.

The city of Riverside is supporting its officers and their handling of the incident. Police Chief Mark Reiss told the I-Team that officers make decisions in the field every day that have to balance people's rights and public safety. "Given the circumstances that existed that evening, the time of day, the type of establishment and given the fact that convenience stores are often targets for robberies, I think it was reasonable for the officers to make that approach and ask that person for that identity," Reiss said.

Moore said though the officers overreacted and should not have detained Call. "We understand that law enforcement officers have a very difficult and dangerous job on the street," Moore said. Still, Moore added that people have the right to carry their weapons openly without a license. He described the situation as a thin double-sided coin of rights and responsibilities. "A little respect on both sides will go a long way," Moore said.

The suit in federal court was not the only response from Call after the incident. He obtained a copy of the police dash-cam video of the incident through a public records request and posted it on YouTube. He added quotes from sections of Ohio Law on when people must identify themselves to police officers. The internet posting is among many others from around the country showing how local police react to "open carry" situations.

Anti-gun advocate Sean L. Walton Sr. , of the Community Initiative To Reduce Gun Violence, said he questions the motives of advocates who might think is within their right to carry a weapon openly into a gas station.

"The public is hyper-sensitive and I consider it insensitive. I just wonder what is the intended purpose of this open display?" Walton said.

A spokesman for Speedway and its parent company, Marathon Petroleum Corporation, Jamal T. Kheiry, declined comment.

Roy Call and his attorney, Charles McFarland declined requests for an interview.

 

[eye95]

The problem with the language is that it is a not/or. There is only one way to interpret a not/or in logic. There are two ways it can be interpreted in English. One of those ways is clearly the intent of the law. The other is the one that color of law says is the literal meaning.

If I were ever charged under this law, I would use the defense proposed by color of law. Unfortunately, I think that defense would lose.

"[N]o person...shall refuse to disclose the person’s name, address, or date of birth." =
"It is unlawful to refuse to disclose your name, address, or date of birth." =
"It is unlawful to do one of the following: to refuse to disclose your name, to refuse to disclose your address, or to refuse to disclose your date of birth."

OR

"[N]o person...shall refuse to disclose the person’s name, address, or date of birth." =
"It is unlawful to refuse to disclose one of the following: your name, your address, or your date of birth." =
"You must disclose one of the following: your name, your address, or your date of birth."

It all is in how you distribute over the or. In logic, syntax rules would be used to dictate that distribution with zero ambiguity. English syntax rules are not nearly as precise and are not designed to eliminate ambiguity. Context and intent are our only tools for doing so.

I think the courts would go with intent and interpret the law in the first way. color of law does point to yet another defense that contends that laws that require more than your name are unconstitutional. I think that one has promise, although it would work only if you provide your name without address or date of birth.

(Note the "or" in my last sentence. What did I mean by it?)

 

[BB62]

Below is the transcript of the report that was aired. I will produce an video off the TV and publish it tonight...

Here is a link to the WHIO news-talk radio version, which appears to be exactly the same text:

http://www.newstalkradiowhio.com/news/news/advocates-put-police-gun-laws-test/nXyH5/

 

[MyWifeSaidYes]

I think I finally get what COL is focusing on with the OR vs. AND argument:


1) You have a 5A right to remain silent.

2) SCOTUS says a state can require you to provide your name as part of a Terry stop.

3) Under ORC 2921.29, you must not refuse to provide your name, address or date of birth.

4a) If treated as separate items (OR), you can provide your name only, following the constitutional portion of ORC 2921.29. If LEO is happy with that, no problem.

4b) If treated as combined items (AND), that fails Hiibel. LEO won't be happy with just your name. Shut your mouth, enjoy the ride and contact your lawyer.

5) If charged with ORC 2921.31 (Obstruction of Official Business), Hiibel appears to give you privilege to not provide address and/or date of birth.

 

[eye95]

It sure sounds like Hiibel, by itself, will be useful--IF one has provided his name. The "or" argument, by itself would be a loser, IMO.

The two in conjunction (pun intended) would probably be a winner, due to Hiibel only.

Will it or won't it? Only her judge knows for sure.


Sent from my iPad using Tapatalk.

<o>

 

[BB62]

I think I finally get what COL is focusing on with the OR vs. AND argument:..

Your summary is accurate.

 

[color of law]

It sure sounds like Hiibel, by itself, will be useful--IF one has provided his name. The "or" argument, by itself would be a loser, IMO.

The two in conjunction (pun intended) would probably be a winner, due to Hiibel only.

Will it or won't it? Only her judge knows for sure.

<o>

Case Summary
Case Number: C/08/CRB/10514
Common Pleas Case Number:
Case Caption: STATE OF OHIO vs. XXXXXXXXXXX
Judge: DWANE MALLORY
Filed Date: 4/2/2008
Case Type: -
Race: WHITE
Sex: M
Age: 70
Date of Birth: 2/12/1943
Bond Amount: $1000 10% CASH
Count : FAIL TO DIS PERS INFO 2921-29 ORCN
Disposition: 08/25/2008 321 ACQUITTED BY COURT


The guy above only gave his name and refused to give his address and date of birth. He even told the cop that Hiibel only required giving his name.
He filed a motion to dismiss based on the above analysis.
The judge denied his motion, but then acquitted him. If the judge granted his motion he would have had to find 2921.29 unconstitutional.

 

[eye95]

So the "or" argument remains untested.