NM: Judge tell police to leave OCers alone

[DaveTN]

Maybe you could educate me as to how legally OC'ing a weapon in a state where no permit is required to OC is a crime. Where is the PC or RAS to justify a stop under the 4th Amendment simply because of a lawful exercise of rights? No crime is being committed. Now tell me again how a detainment and/or search is REASONABLE when there has been no crime committed?

Okay… let me fill you in.

In this country we have spent a lot of time and money putting systems like 911 and crime stoppers in place. Most large Police departments are reactive not proactive; they go from one call to the next. The public needs to be assured that if they call in an emergency someone will come. They also need to know that they can call anonymously when they see what they believe to be a crime; or a crime about to occur.

I am not talking about arresting someone for carrying a gun, I am not talking about searching anyone. I am simply stating that your contention that a cop needs PC to approach you for carrying a gun is ridiculous. If they are acting in good faith they are shielded from any lawsuit you choose to threaten them with. Sure, you can always find an attorney to take your money; but it probably won’t be one of the good ones.

I have no idea what happened in Norfolk, if you would like to post some names and dates we can discuss it. If someone won a lawsuit against the city it was probably because the cops weren’t acting in good faith.

Cops are everyday people trying to do a job, some are good at it others are not. Do they go to law school or are they experts on Constitutional law? Nope, and no one expects them to be. They make mistakes.

If you choose not to answer any questions when you are stopped; that’s fine. Everyone has to do what they are ready to take reasonability for. In the meantime if I am stopped by a cop I will treat him with dignity and respect, I will answer whatever he asks me and then be on my way. Hopefully I will have made a new friend. I have walked in his shoes and know what he has to deal with.

If you don’t mind saying, what do you do for a living?

[Fallguy]

Dave, you and I don't always agree, but I can't argue with anything above.

[DaveTN]

Dave, you and I don't always agree, but I can't argue with anything above.

I’m usually right when we disagree and you know it.

[Guest Abominable_Hillbilly]

I’m usually right when we disagree and you know it.

So, it's your contention that a police officer in a legal-to-OC state can detain and compel ID from someone who is merely OC'ing? No other articulable facts. Just a 911 call that someone is OC'ing. We're not talking about a consensual encounter where the officer is simply speaking to a citizen. We're talking about an actual seizure.

EDIT: I read a little further, Dave. Sorry if I misunderstood you. Please clarify, though. Is this cause for seizure, or isn't it?

BTW, the Fourth Amendment clearly defines reasonable search and seizure as being predicated on probable cause. It's right there in plain language.

[Fallguy]

I’m usually right when we disagree and you know it.

At least one of us thinks so.....

[Guest crotalus01]

justme - OC IS illegal in TN, and CC as well, permit or not. The permit is a defense against breaking the law. I think it is silly, but that is how the law reads.

[Guest justme]

justme - OC IS illegal in TN, and CC as well, permit or not. The permit is a defense against breaking the law. I think it is silly, but that is how the law reads.

I understand all of that, but still

OC is legal in Tennessee WITH a permit. Otherwise you would have all permit holders crowding the jails and the court dockets simply in order to simply show their permit and have the DA say--"yep, they have a legal defense, we move to dismiss the case your honor..."

In several "normal" states you do not even need a permit to carry--OC or CC.

Edited September 26, 2009 by justme

[Guest justme]

Okay… let me fill you in.

In this country we have spent a lot of time and money putting systems like 911 and crime stoppers in place. Most large Police departments are reactive not proactive; they go from one call to the next. The public needs to be assured that if they call in an emergency someone will come. They also need to know that they can call anonymously when they see what they believe to be a crime; or a crime about to occur.

I don't disagree with that. I do say that 911 dispatchers should be properly trained and take the time to find out whether the person is carrying a holstered gun, or is the gun in their hand, or what are they doing--minding their own business, threatening people...and then relay that information to the police so they don't simply draw their weapon on a guy who is minding his own business.

I also say--the police should be aware in an OC legal, non permit needed state--AK, VA, KY, NH are fine examples, that OC'ing is not of itself enough to justify any type of non-consensual stop.

Most people who dial 911 about an OC'er is only wanting to cause problems for the OC'er and the police.

I am not talking about arresting someone for carrying a gun, I am not talking about searching anyone. I am simply stating that your contention that a cop needs PC to approach you for carrying a gun is ridiculous. If they are acting in good faith they are shielded from any lawsuit you choose to threaten them with. Sure, you can always find an attorney to take your money; but it probably won’t be one of the good ones.

I don't believe I ever stated that a cop needs PC or RAS to approach you. I said they need PC or RAS to non consensually detain you under the 4th Amendment. Difference there.

I have no idea what happened in Norfolk, if you would like to post some names and dates we can discuss it. If someone won a lawsuit against the city it was probably because the cops weren’t acting in good faith.

Hours after Norfolk City Hall visit, gun advocate is detained | HamptonRoads.com | PilotOnline.com

old story from 2008, but they paid this gentleman money to avoid a lawsuit. There is also an active, ongoing civil rights lawsuit against the city of Dickson, Pa, after their harassment and mistreatment of OC'ers who were minding their own business, the case that started this discussion out of NM, and soon I would think several such cases to come out of Wisconsin.

Cops are everyday people trying to do a job, some are good at it others are not. Do they go to law school or are they experts on Constitutional law? Nope, and no one expects them to be. They make mistakes.

And the "mistakes" they make can be life altering/life ending, for a normal every day person. When they start trying to interject their personal opinion onto others under the guise of authority--they have stepped over the line. Check the permit, if one is required, say thank you and have a nice day and let gun owners be. They should not try to make up laws as they go along, try to interpret law as they see fit, or impose personal opinions. Many don't like OC--fine, but they should not belittle, harass or put down others who do.

If you choose not to answer any questions when you are stopped; that’s fine. Everyone has to do what they are ready to take reasonability for. In the meantime if I am stopped by a cop I will treat him with dignity and respect, I will answer whatever he asks me and then be on my way. Hopefully I will have made a new friend. I have walked in his shoes and know what he has to deal with.

and I too will treat them with dignity and respect, and I would expect the same from any encounter. Whether and to what extent I would answer questions will be determined by the situation. It is not a crime to refuse to answer questions, regardless of what they tell you.

If you don’t mind saying, what do you do for a living?

I'm not a police officer, but I do work with the public every day, and that is where I will leave it.

[DaveTN]

So, it's your contention that a police officer in a legal-to-OC state can detain and compel ID from someone who is merely OC'ing? No other articulable facts. Just a 911 call that someone is OC'ing. We're not talking about a consensual encounter where the officer is simply speaking to a citizen. We're talking about an actual seizure.

EDIT: I read a little further, Dave. Sorry if I misunderstood you. Please clarify, though. Is this cause for seizure, or isn't it?

BTW, the Fourth Amendment clearly defines reasonable search and seizure as being predicated on probable cause. It's right there in plain language.

No, I’m not saying that there is cause for arrest, search or permanent seizure of weapons. I’m saying that in this case Officers clearly had reason to approach this guy and remove him from the theater. I’m also saying that if a person calls the Police on someone open carrying; contact will be made. At that point what the Officer sees will determine how things go. At that point you also have choices to make, you can refuse to answer questions, or you can cooperate. Both you and the Officer can do whatever you are ready to take reasonability for.

But this is a moot point for those of us in Tennessee. It is illegal to carry a firearm in Tennessee. If you have an HCP and refuse to show it or give ID; I would guess you are subject to arrest on weapons charges.

[Guest justme]

DaveTn,

you never answered my original question, so I'll post it again.

Question: Where is the PC or RAS to detain someone in an OC legal, non permit required state simply because they are OC'ing?

Edited September 26, 2009 by justme

[Guest Abominable_Hillbilly]

I understand all of that, but still

OC is legal in Tennessee WITH a permit. Otherwise you would have all permit holders crowding the jails and the court dockets simply in order to simply show their permit and have the DA say--"yep, they have a legal defense, we move to dismiss the case your honor..."

In several "normal" states you do not even need a permit to carry--OC or CC.

OC is ILLEGAL in Tennessee. Period. It's terribly important to remember that and to always think that way. Not because you're going to wind up in jail if you have a facially valid permit, but because one needs that mindset as a starting point when considering encounters with the police in this state.

I had a Johnson City officer tell me that not informing a police officer during a traffic stop was "a good way to eat some asphalt." He gave me a devious grin with that comment, suggesting that I'd somehow deserve it, too.

In Tennessee, a police officer almost always has clear, cut-and-dried probable cause to believe a crime is being committed if he or she sees a person carrying a firearm in public. A court is going to give a cop tremendous leeway when considering how the officer chooses to deal with a crime involving an armed suspect. There are certain police officers who believe the easiest way to solve and prevent problems is to intimidate and humiliate citizens whom they believe to be "troublemakers" of some sort.

[Guest justme]

I’m also saying that if a person calls the Police on someone open carrying; contact will be made.

again, if you are in a state where OC without a permit is legal---no crime is committed to justify a detainment.

where is the RAS or PC to justify anything except a consensual contact?

[Guest justme]

OC is ILLEGAL in Tennessee. Period. It's terribly important to remember that and to always think that way. Not because you're going to wind up in jail if you have a facially valid permit, but because one needs that mindset as a starting point when considering encounters with the police in this state.

I had a Johnson City officer tell me that not informing a police officer during a traffic stop was "a good way to eat some asphalt." He gave me a devious grin with that comment, suggesting that I'd somehow deserve it, too.

In Tennessee, a police officer almost always has clear, cut-and-dried probable cause to believe a crime is being committed if he or she sees a person carrying a firearm in public. A court is going to give a cop tremendous leeway when considering how the officer chooses to deal with a crime involving an armed suspect. There are certain police officers who believe the easiest way to solve and prevent problems is to intimidate and humiliate citizens whom they believe to be "troublemakers" of some sort.

I got what you are trying to say now. I read you 5/5

[Guest justme]

OC is ILLEGAL in Tennessee. Period. It's terribly important to remember that and to always think that way. Not because you're going to wind up in jail if you have a facially valid permit, but because one needs that mindset as a starting point when considering encounters with the police in this state.

and that is exactly why I carry a recorder in my car, and always on when I am in it.

I had a Johnson City officer tell me that not informing a police officer during a traffic stop was "a good way to eat some asphalt." He gave me a devious grin with that comment, suggesting that I'd somehow deserve it, too.

You are not required to inform them, even if you have a gun in your car. I hope you have that conversation on audio..

In Tennessee, a police officer almost always has clear, cut-and-dried probable cause to believe a crime is being committed if he or she sees a person carrying a firearm in public. A court is going to give a cop tremendous leeway when considering how the officer chooses to deal with a crime involving an armed suspect. There are certain police officers who believe the easiest way to solve and prevent problems is to intimidate and humiliate citizens whom they believe to be "troublemakers" of some sort.

and this is why we should carry around recorders. Makes filing complaints a lot easier when you have evidence of abusive behavior.

[DaveTN]

DaveTn,

you never answered my original question, so I'll post it again.

Question: Where is the PC or RAS to detain someone in an OC legal, non permit required state simply because they are OC'ing?

again, if you are in a state where OC without a permit is legal---no crime is committed to justify a detainment.

where is the RAS or PC to justify anything except a consensual contact?

RIF

[Guest justme]

RIF

Again, where is the RAS or PC for a detainment under the 4th Amendment where I am conducting a perfectly legal activity where no crime is being committed? Call or no--if no crime is being committed, and OC without a permit is legal--where is the justification for a non-consensual stop?

I'm not talking about a permit required state like Tn. I am talking about in a normal state like Alaska, Kentucky, North Carolina, Virginia or New Hampshire, Arizona, and even Wisconsin--where OC is the only legal way to carry, as Wisconsin law prohibits concealed carry--and yet Wisconsin police seem determined to bring down multiple civil rights lawsuits against them by violating the rights of its' citizens...

The police want to us to believe that ignorance of the law is no excuse...why should ignorance of the law be an excuse for them?

Edited September 26, 2009 by justme

[Glock30Owner]

And I agree--OC with a permit is legal in Tennessee, and that the police under the law have the ability to detain someone carrying a gun long enough to verify they have a permit...

I'm curious about something that possibly only a LEO could answer for certain. If a LEO approaches an OCer in TN and asks to talk to them and the OCer says "No thanks" and walks away... what happens?

[Dropkick Murphy]

I'm curious about something that possibly only a LEO could answer for certain. If a LEO approaches an OCer in TN and asks to talk to them and the OCer says "No thanks" and walks away... what happens?

I'm former LEO from California, but not currently.

You are obligated to stop and speak to the police officer while he conducts an investigation. However, your detention must be brief as you are not under arrest. If the detention takes longer than a responsible amount of time the police officer must let you go.

If you refuse to stop you are impeding him from advancing or completing his investigation. He is then authorized to make you stop by reasonable means. If everything checks out, and no crime has been committed from the original probable cause, he might cite you for obstruction.

I don't know the penal codes in Tennessee, but if you want to read more about it google "PC 148 California". Most penal codes are the same from state to state.

Hope that answers your question.

[Smith]

I'm former LEO from California, but not currently.

You are obligated to stop and speak to the police officer while he conducts an investigation. However, your detention must be brief as you are not under arrest. If the detention takes longer than a responsible amount of time the police officer must let you go.

If you refuse to stop you are impeding him from advancing or completing his investigation. He is then authorized to make you stop by reasonable means. If everything checks out, and no crime has been committed from the original probable cause, he might cite you for obstruction.

I don't know the penal codes in Tennessee, but if you want to read more about it google "PC 148 California". Most penal codes are the same from state to state.

Hope that answers your question.

How does that work with the "right to remain silent" or the 5A? or do those apply only after you are under arrest? Which technically you are if you are involuntarily stopped. Just curious. I thought silence was the only real defiance one had.

[DaveTN]

How does that work with the "right to remain silent" or the 5A? or do those apply only after you are under arrest? Which technically you are if you are involuntarily stopped. Just curious. I thought silence was the only real defiance one had.

You do not have a right to not answer questions. Your “right to remain silent†is your right against self incrimination. It means that you do not have to answer questions that could incriminate you. Generally speaking Miranda kicks in when you go from an involved party (or a witness) to a suspect. You only need be advised of your rights if you are being questioned or interrogated as a suspect.

<O:p</O:p

If you have committed no crime and you are refusing to answers questions you could possibly be charged with obstructing an investigation. (Assuming the Officers are stopping you about a specific crime and not just as a suspicious person.)

<O:p</O:p

Also, a court can remove your right to remain silent either by granting you immunity or determining your statements would not cause you to be charged with a crime.

<O:p</O:p

Being stopped is not an arrest. You can be detained without being arrested. The best way to know if you are free to leave; is to ask.

If you are going to become uncooperative on a stop I would suggest that you learn the law first. Paying a lawyer to learn can be very expensive; even if you are cleared.

[Guest dlstewart01]

1. What you say to the police is always important. What you say can be used against you, and it can give the police an excuse to arrest you, especially if you bad-mouth a police officer.

2. You must show your driver's license and registration when stopped in a car. Otherwise, you don't have to answer any questions if you are detained or arrested, with one important exception. The police may ask for your name if you have been properly detained, and you can be arrested in some states for refusing to give it. If you reasonably fear that your name is incriminating, you can claim the right to remain silent, which may be a defense in case you are arrested anyway.

3. You don't have to consent to any search of yourself, your car or your house. If you DO consent to a search, it can affect your rights later in court. If the police say they have a search warrant, ASK TO SEE IT.

4. Do not interfere with, or obstruct the police -- you can be arrested for it.

IF YOU ARE STOPPED FOR QUESTIONING

<HR align=left width="75%" noShade>1. It's not a crime to refuse to answer questions, but refusing to answer can make the police suspicious about you. If you are asked to identify yourself, see paragraph 2 above.

2. Police may "pat-down" your clothing if they suspect a concealed weapon. Don't physically resist, but make it clear that you don't consent to any further search.

3. Ask if you are under arrest. If you are, you have a right to know why.

4. Don't bad-mouth the police officer or run away, even if you believe what is happening is unreasonable. That could lead to your arrest.

IF YOU'RE STOPPED IN YOUR CAR

<HR align=left width="75%" noShade>1. Upon request, show them your driver's license, registration, and proof of insurance. In certain cases, your car can be searched without a warrant as long as the police have probable cause. To protect yourself later, you should make it clear that you do not consent to a search. It is not lawful for police to arrest you simply for refusing to consent to a search.

2. If you're given a ticket, you should sign it; otherwise you can be arrested. You can always fight the case in court later.

3. If you're suspected of drunk driving (DWI) and refuse to take a blood, urine or breath test, your driver's license may be suspended.

IF YOU'RE ARRESTED OR TAKEN TO A POLICE STATION

<HR align=left width="75%" noShade>1. You have the right to remain silent and to talk to a lawyer before you talk to the police. Tell the police nothing except your name and address. Don't give any explanations, excuses or stories. You can make your defense later, in court, based on what you and your lawyer decide is best.

2. Ask to see a lawyer immediately. If you can't pay for a lawyer, you have a right to a free one, and should ask the police how the lawyer can be contacted. Don't say anything without a lawyer.

3. Within a reasonable time after your arrest, or booking, you have the right to make a local phone call: to a lawyer, bail bondsman, a relative or any other person. The police may not listen to the call to the lawyer.

4. Sometimes you can be released without bail, or have bail lowered. Have your lawyer ask the judge about this possibility. You must be taken before the judge on the next court day after arrest.

5. Do not make any decisions in your case until you have talked with a lawyer.

IN YOUR HOME

<HR align=left width="75%" noShade>1. If the police knock and ask to enter your home, you don't have to admit them unless they have a warrant signed by a judge.

2. However, in some emergency situations (like when a person is screaming for help inside, or when the police are chasing someone) officers are allowed to enter and search your home without a warrant.

3. If you are arrested, the police can search you and the area close by. If you are in a building, "close by" usually means just the room you are in.

We all recognize the need for effective law enforcement, but we should also understand our own rights and responsibilities -- especially in our relationships with the police. Everyone, including minors, has the right to courteous and respectful police treatment.

If your rights are violated, don't try to deal with the situation at the scene. You can discuss the matter with an attorney afterwards, or file a complaint with the Internal Affairs or Civilian Complaint Board.

Edited October 17, 2009 by dlstewart01

[Smith]

You do not have a right to not answer questions. Your “right to remain silent†is your right against self incrimination. It means that you do not have to answer questions that could incriminate you. Generally speaking Miranda kicks in when you go from an involved party (or a witness) to a suspect. You only need be advised of your rights if you are being questioned or interrogated as a suspect.

<o></o>

If you have committed no crime and you are refusing to answers questions you could possibly be charged with obstructing an investigation. (Assuming the Officers are stopping you about a specific crime and not just as a suspicious person.)

<o></o>

Also, a court can remove your right to remain silent either by granting you immunity or determining your statements would not cause you to be charged with a crime.

<o></o>

Being stopped is not an arrest. You can be detained without being arrested. The best way to know if you are free to leave; is to ask.

If you are going to become uncooperative on a stop I would suggest that you learn the law first. Paying a lawyer to learn can be very expensive; even if you are cleared.

Only reason I asked was that the first day at the academy the drill Sgt. made it abundantly clear that any stop by LE was technically an arrest. The reason being you could not voluntarily keep going without some interaction and his permission to leave. Thus technically detaining, for whatever reason, is an arrest. Thanks, Dave.

[DaveTN]

Only reason I asked was that the first day at the academy the drill Sgt. made it abundantly clear that any stop by LE was technically an arrest. The reason being you could not voluntarily keep going without some interaction and his permission to leave. Thus technically detaining, for whatever reason, is an arrest. Thanks, Dave.

He blew the first day, what did he teach on the second day?

What academy are you talking about?

[Smith]

He blew the first day, what did he teach on the second day?

What academy are you talking about?

Haha, Metro Nashville. I don't remember much from day 2. I was really sore and tired!

[Glock30Owner]

I don't know the penal codes in Tennessee, but if you want to read more about it google "PC 148 California". Most penal codes are the same from state to state.

Hope that answers your question.

There is nothing in Tennessee law that I can find that requires anyone to speak to the police, though IIRC there is something about lying.

I probably should have posed my question a bit differently. I'm speaking of a consensual stop (where the officer indicates you are not being detained or arrested).

I've never had anything like this happen to me, and I honestly don't expect anything like this to happen. Officers in the Nashville area, in my personal experience, are very professional and appear to know the difference between enforcing the laws and violating rights (as reported in various places around the country).