NM: Judge tell police to leave OCers alone

[Guest theolog]

That ruling doesn't effect me or the way I properly do my job. And it's out of touch with reality, just as your armchair musings are.

I enjoyed your cute personal jab there at the end, but I've not violated anyone's rights in 10 years and I hope to make it 20 more. I'm pretty confident that you don't know my job better than I do. I was trying to share another point of view with you, but you're not even willing to read it over and consider it, so I've wasted my time.

[Fallguy]

Yep, no reason for LEOs to go by court rulings.....they can do as they please.

But your right, the ruling doesn't directly affect a LEO in TN or NC, but that wasn't the topic of discussion in this thread.

My comment wasn't directed at anyone specific unless they don't plan to go by court rulings that do affect them.

...and that is what I'm discussing....a US district court judge's ruling, not my own personal, armchair musings.

Always glad to be or service, even if it is only as a waste of someone's time.

[Guest theolog]

Yep, no reason for LEOs to go by court rulings.....they can do as they please.

Once again you've said something that I didn't, and your anti-police bias shows. Dialing back the hyperbole just a bit might help your reading comprehension. You seem to have no concept of police procedure and my explaining it didn't help.

But your right, the ruling doesn't directly affect a LEO in TN or NC...

Which is exactly what I just said, and you then tried to contradict.

...but that wasn't the topic of discussion in this thread.

Sometimes forum conversations branch out while still remaining true to the original post. Very little in life (and even law) is black and white.

...not my own personal, armchair musings.

No, they were definitely your own armchair musings!

Always glad to be or service, even if it is only as a waste of someone's time.

Complete and utter waste of time on you. But they might have been worth it for someone else. Luckily smart assery isn't a one-way street. In the meantime, why be bothered with experience when you can argue your case from opinion?

[Guest jwb68]

Same thing.

<O:p</O:p

Don’t fall into the “intent to go armed” trick bag. In the opinion of the AG that merely means “Readily accessible and available for use in the carrying out of purposes either offensive or defensive.”

<O:p</O:p

If the gun is inaccessible or unavailable for use; you could make an argument. But carrying a loaded firearm (or one that could be loaded quickly) is a crime in Tennessee.

<O:p</O:p<O:p</O:p

No it is not the same thing. Intent is an element of the crime that must be established. It has been upheld as recently as 1992.

. . . It is necessary in such cases for the State to prove the accused's intent and purpose in carrying the weapon was to be and go armed, because the mere act of doing so may be lawful and does not establish criminal intent and does not create a presumption of guilt and does not deprive him of his presumption of innocence. (citation omitted)

It CAN be inferred from other actions but must be proven. If I am carrying an unloaded weapon, just because I can run down to Wal-mart an buy a box of ammo (if they have any) does not mean I have an intent to go armed. If the ammo is close by my person and easily obtained you have a better argument.

However if you will show me the the legal doctrine of "intent to go armed trick bag" I may change my mind. As far as the Ag goes...he is just another attorney. He may or may not be right and besides I have been unable to locate an opinion dealing with the issue. Maybe a cite?

As to the Kendall opinion you cite. It does not apply to your assertion that carrying an unloaded firearm is the same as carrying with the intent to go armed. In Kendall, the Defendant was in a hack with a loaded firearm behind him in the seat.

Edited September 19, 2009 by jwb68

[DaveTN]

No it is not the same thing. Intent is an element of the crime that must be established. It has been upheld as recently as 1992.

. . . It is necessary in such cases for the State to prove the accused's intent and purpose in carrying the weapon was to be and go armed, because the mere act of doing so may be lawful and does not establish criminal intent and does not create a presumption of guilt and does not deprive him of his presumption of innocence. (citation omitted)

It CAN be inferred from other actions but must be proven. If I am carrying an unloaded weapon, just because I can run down to Wal-mart an buy a box of ammo (if they have any) does not mean I have an intent to go armed. If the ammo is close by my person and easily obtained you have a better argument.

However if you will show me the the legal doctrine of "intent to go armed trick bag" I may change my mind. As far as the Ag goes...he is just another attorney. He may or may not be right and besides I have been unable to locate an opinion dealing with the issue. Maybe a cite?

As to the Kendall opinion you cite. It does not apply to your assertion that carrying an unloaded firearm is the same as carrying with the intent to go armed. In Kendall, the Defendant was in a hack with a loaded firearm behind him in the seat.

Intent is an element of most crimes, nothing special about this one. The “trick bag” I refer to is thinking that because the word “intent” is used in the language there is some special requirement to prove, or some special loophole that will get you off when charged with carrying without a permit; there is not. Or more importantly that some here think there is a requirement to have some special devious intent other than carrying a gun for protection without getting an HCP.

It is illegal to carry a loaded firearm in the state of Tennessee.

<O:p</O:p

I am not now, nor have I been addressing carrying an unloaded firearm: I specifically stated a loaded firearm. Carrying an unloaded firearm in your vehicle is legal in Tennessee, I haven’t cared enough to check to see if carrying an unloaded firearm on your person is legal or not. I would assume it is legal.

<O:p</O:p

I agree the AG is just another lawyer. His opinion is just that; an opinion. It is a guide for those that want clarification. If the cops or a prosecutor don’t like his opinion they are not bound by it.

<O:p</O:p

So… you are talking about unloaded guns and I am talking about loaded guns. We are not in disagreement about anything.

Edited September 19, 2009 by DaveTN

[Guest jwb68]

In post 41 you seemed to be saying that carrying a weapon was the the same as carrying a weapon with the intent to go armed. I will say however that there is at least one case where a person was carrying a loaded weapon in their car and the court held that there was no intent. If you would like a cite I will be most happy to find it and post it for you. It is a case from the 80s and came from Hendersonville if memory serves.

Edited September 20, 2009 by jwb68

[Guest jwb68]

Intent is an element of most crimes, nothing special about this one. The “trick bag” I refer to is thinking that because the word “intent” is used in the language there is some special requirement to prove, or some special loophole that will get you off when charged with carrying without a permit; there is not. Or more importantly that some here think there is a requirement to have some special devious intent other than carrying a gun for protection without getting an HCP.

It is illegal to carry a loaded firearm in the state of Tennessee]

I would agree with you in just about all cases if it is carried on your person. I would not agree with you in all cases for the gun being in the vehicle. I will agree that a cop would piss his pants and pick you up for the gun regardless of what you told him and that a D.A. would probably charge you.

Edited September 20, 2009 by jwb68

[DaveTN]

In post 41 you seemed to be saying that carrying a weapon was the the same as carrying a weapon with the intent to go armed.

No, I was saying that knowingly carrying a loaded gun in the state of Tennessee is illegal unless you pay for that privilege.

I am making no statements about carrying unloaded guns…. Period.

<O:p</O:p

You seem to be alluding to the fact that there may be some problem proving intent. Sure, the kid that was recently arrested for having a gun at school under the seat of his truck that his father left there may have a shot. Because if you believe him he had no knowledge of the gun and therefore no intent. Anyone could try that in court. “That’s not mine Officer! I have no idea how that gun/dope/booze got in my car.†Is not a defense I would want to try.

[Guest justme]

Exactly. Unfortunately, the "call for service" argument isn't often understood by proponents of open carry.

because in many cases, the "call for service" turns into a violation of civil rights.

I've responded to a couple dozen legal open carry "man with a gun" calls in my career. They all went something like this:

"Hey, what's up, officer?"

"Nothing sir, we got a call about you carrying a weapon."

"Is that illegal?"

"Nope. Not at all. But we got a call. How do you like that Glock?"

"Man, I love it."

"Where do you shoot?"

"XYZ range."

"Oh yeah? Me too. Maybe I'll see you there."

"That'd be cool."

"Hey, you wouldn't mind me checking your ID real quick, would you?"

"No sir, not at all."

"Thanks, buddy, and I appreciate your understanding."

"Thanks for being cool about this, officer."

"No problem. See you at the range."

And what do you do if they refuse to show you ID? OC is perfectly legal without a permit in NC, therefore the mere possession of a holstered firearm is not sufficient grounds to initiate a stop, call for service or no, unless there are other circumstances in play--complaint that the individual was brandishing the firearm, threatening individuals with it, pointing it at someone....but the mere possession of a holstered firearm is not a reason to stop someone.

Edited September 21, 2009 by justme

[Guest canynracer]

based on what you quoted why would someone to refuse? seems like a friendly exchange, so why not?

[Guest justme]

based on what you quoted why would someone to refuse? seems like a friendly exchange, so why not?

why not submit to an illegal search? why not submit to allowing your vehicle to be searched, and your home. or your bag that you may have with you, and be demanded of your papers every time you go onto the street?

It is the whole concept. The "friendly exchange" is meant as a psychological ploy to get you to comply and hand over your ID when there is no reason to do so. Nothing more or less.

If you have no lawful reason to show your papers--then don't show your papers is my opinion. If OC is legal without a permit, then it means that mere possession of a handgun is not a lawful, legal reason to stop you or demand your papers.

The better question is--why should we comply and show our papers when there is no requirement under the law to do so?

Edited September 21, 2009 by justme

[Guest Abominable_Hillbilly]

based on what you quoted why would someone to refuse? seems like a friendly exchange, so why not?

Because you're free.

It's up to each individual. As I've said before, I'd have no problem with these encounters if it was as easy to refuse consent as it was to give it. Unfortunately, some police officers don't like being told "no," even if it's perfectly lawful to refuse consent. They don't accept the citizen's decision, and they use some pretty dubious methods to try to get around the refusal.

[Guest theolog]

because in many cases, the "call for service" turns into a violation of civil rights.

Really? How many have you answered to know that?

And what do you do if they refuse to show you ID?

It depends on the totality of the circumstances. No one has refused yet because it isn't an unreasonable request. I can easily articulate that identifying someone in that kind of contact following a 911 call is reasonable and not invasive. If they don't want to show me ID, I'll ask for name and date of birth. If they refuse that, I can articulate detaining them long enough to establish identity. But again, it depends on the circumstances, which can change easily case-to-case.

Normally, when I'm cordial with people, they're cordial back. In the real world, they understand what is taking place and they realize that being friendly and compliant puts officers at ease and doesn't raise any red flags.

OC is perfectly legal without a permit in NC, therefore the mere possession of a holstered firearm is not sufficient grounds to initiate a stop, call for service or not.......but the mere possession of a holstered firearm is not a reason to stop someone.

Wrong. I can stop and talk to anyone I want to (voluntary contact/free to go). Calls for suspicious persons, gun carrying are not, are DEFINITELY sufficient grounds to stop someone (either voluntary contact or brief investigative detention, depends on the circumstances and what can be articulated).

[Guest theolog]

As I've said before, I'd have no problem with these encounters if it was as easy to refuse consent as it was to give it. Unfortunately, some police officers don't like being told "no," even if it's perfectly lawful to refuse consent. They don't accept the citizen's decision, and they use some pretty dubious methods to try to get around the refusal.

Like I said, I've answered quite a few of these calls myself (open carry) and I've stopped dozens upon dozens of people openly carrying in their vehicles. In all those personal encounters there has never been a "search." Only an ID request. There hasn't even been a pat-down. In all the open carry vehicle encounters, I've taken away exactly two weapons during the stop. One was stolen, the other was possessed by a convicted felon.

I've also stopped quite a few drivers with CCWs. Never searched or took their weapons either. Could I? Sure, easily if the circumstances were right and I could articulate it. But CCW holders aren't a threat to me. Open carriers aren't a threat to me. But if someone calls 911, it's going to be checked. And I'm willing to bet that the way I handle it (brief, reasonable, and friendly) won't be faulted by the courts if it ever got that far. I also think the way I handle it is within the spirit of the New Mexico decision as there is normally no detention, search, etc.

[Fallguy]

Of course you're in NC (for others that may not know) not NM like where this ruling was issued.

Different laws, in different states of course mean different ways things are handled.

[Guest Abominable_Hillbilly]

Like I said, I've answered quite a few of these calls myself (open carry) and I've stopped dozens upon dozens of people openly carrying in their vehicles. In all those personal encounters there has never been a "search." Only an ID request. There hasn't even been a pat-down. In all the open carry vehicle encounters, I've taken away exactly two weapons during the stop. One was stolen, the other was possessed by a convicted felon.

I've also stopped quite a few drivers with CCWs. Never searched or took their weapons either. Could I? Sure, easily if the circumstances were right and I could articulate it. But CCW holders aren't a threat to me.

Seizing a motorist is not exactly similar to the situation at hand. I'd assume the initial seizure was based on PC of a traffic violation. There doesn't appear to be any PC in the NM case.

Open carriers aren't a threat to me. But if someone calls 911, it's going to be checked. And I'm willing to bet that the way I handle it (brief, reasonable, and friendly) won't be faulted by the courts if it ever got that far. I also think the way I handle it is within the spirit of the New Mexico decision as there is normally no detention, search, etc.

This is going to depend on the citizen. If you don't have PC or RAS, and yet you exhibit a show of authority such that a reasonable person felt compelled to ID, then you've violated the law. Have the courts in North Carolina determined that a phone call from a concerned citizen is PC or RAS? If they have, then I'm mistaken. I have a hard time believing that one lonely articulable fact will rise to the level needed to compel ID. Perhaps it does.

I don't have any problem with the police answering MWAG calls and approaching a citizen. What I have a problem with is, just as I said above, the fact that refusing consent is much harder than giving it. The courts routinely find that encounters are consensual even though there's a clear demonstration of authority on the part of the officer/s involved. Simply being in uniform and squaring off in front of a citizen is very powerful to most private citizens.

Take a look at this video. Notice the trooper's demeanor and posture. I guarantee you a court would've found his behavior to amount to a show of authority that is less than a seizure. How many people would feel free to just walk right around this man and continue enjoying their liberty? In this instance, the trooper's command presence doesn't work.

[Guest jwb68]

Everything I write in the next two posts is basically a restatement of post #33. Good job, Dave!

Because openly carrying a driver's license doesn't often result in people calling 911 to report a "man with a license," whereas openly carrying a firearm in suburban or urban areas often results in people calling 911 to report a "man with a gun."

Exactly. Unfortunately, the "call for service" argument isn't often understood by proponents of open carry.

I've responded to a couple dozen legal open carry "man with a gun" calls in my career. They all went something like this:

"Hey, what's up, officer?"

"Nothing sir, we got a call about you carrying a weapon."

"Is that illegal?"

"Nope. Not at all. But we got a call. How do you like that Glock?"

"Man, I love it."

"Where do you shoot?"

"XYZ range."

"Oh yeah? Me too. Maybe I'll see you there."

"That'd be cool."

"Hey, you wouldn't mind me checking your ID real quick, would you?"

"No sir, not at all."

"Thanks, buddy, and I appreciate your understanding."

"Thanks for being cool about this, officer."

"No problem. See you at the range."

And what happens if I politely decline to show you my I.D.?

[DaveTN]

Seizing a motorist is not exactly similar to the situation at hand. I'd assume the initial seizure was based on PC of a traffic violation. There doesn't appear to be any PC in the NM case.

A man with a gun call is always going to get a response. Any cop in his right mind is not going to stand around and tell the caller he doesn’t have cause to approach the gunman. It’s just not going to happen.

<O:p</O:p

The Judge in this case just didn’t like the search. I don’t think he is trying to send a message to leave people that are open carrying alone.

<O:p</O:p

In Tennessee open carrying is illegal; so a cop can stop you and ask to see your HCP if he so chooses.

<O:p</O:p

You don’t ever walk around a cop that is talking to you and “Enjoy your freedomâ€. If you do it may be short lived. You have no idea why he is stopping you. You ask “Am I free to leave?†and go from there.

[DaveTN]

And what happens if I politely decline to show you my I.D.?

He answered that in post #63.

[Guest jwb68]

He answered that in post #63.

Gotcha. Didn't see it. Thanks

[Guest Abominable_Hillbilly]

A man with a gun call is always going to get a response. Any cop in his right mind is not going to stand around and tell the caller he doesn’t have cause to approach the gunman. It’s just not going to happen.

I never asserted otherwise, either. I stated categorically that I have no problem with the police making contact on MWAG calls. The issue I raised was refusing/granting consent.

The Judge in this case just didn’t like the search. I don’t think he is trying to send a message to leave people that are open carrying alone.

I think the message was "don't initiate a search on someone simply because they are engaging in lawful activity that involves a firearm." Or, in other words, leave the OC'er alone to the extent that you have no PC or RAS suggesting crime is afoot.

In Tennessee open carrying is illegal; so a cop can stop you and ask to see your HCP if he so chooses.

<o></o>

Yes, but we weren't discussing that issue.

[Guest justme]

Really? How many have you answered to know that?

all you have to do is read a little to see how many times it happens...example is what took place in Dickson, Pa...a civil rights lawsuit is now ongoing as a result of that. It does happen, and we both know it.

Really? How many have you answered to know that?It depends on the totality of the circumstances. No one has refused yet because it isn't an unreasonable request. I can easily articulate that identifying someone in that kind of contact following a 911 call is reasonable and not invasive. If they don't want to show me ID, I'll ask for name and date of birth. If they refuse that, I can articulate detaining them long enough to establish identity. But again, it depends on the circumstances, which can change easily case-to-case.

it depends on the circumstances. We are assuming of course we are in a state where OC is legal without a permit--like Virginia, Kentucky, NC...If I am minding my own business, chances are, unless you can give me a legal reason to show ID--you most likely would not see any. I would give only the information required under the law.

In the real world, they understand what is taking place and they realize that being friendly and compliant puts officers at ease and doesn't raise any red flags.

And that is what it is all about--being compliant yes?

Wrong. I can stop and talk to anyone I want to (voluntary contact/free to go). Calls for suspicious persons, gun carrying are not, are DEFINITELY sufficient grounds to stop someone (either voluntary contact or brief investigative detention, depends on the circumstances and what can be articulated).

Yes you can--you are allowed to exercise your First Amendment rights--but if the person chooses to discontinue the voluntary contact--you either would have to allow them to go, or detain them for purposes of the 4th Amendment. Any consensual contact may be broken at any time.

As for calls for suspicious persons--if OC is legal without a permit--then there is nothing suspicious about a person OC'ing a gun...you would need more to justify a stop. How can you justify a stop based on perfectly legal (up to that point) conduct? Someone is minding their own business, OC'ing a gun, no obvious criminal acts afoot--and you can justify a stop based only on a "suspicious person" call?

[Guest justme]

A man with a gun call is always going to get a response. Any cop in his right mind is not going to stand around and tell the caller he doesn’t have cause to approach the gunman. It’s just not going to happen.

<o></o>

"Gunman"? A "gunman" is someone who is actively shooting or has just shot someone...an OC'er is someone who is exercising his/her rights under certain state Constitutions...not every state makes it's citizens pay for a privilege--they actually give them rights...

And you are wrong by the way--they cannot simply walk up and begin investigating a person for carrying a gun in some states--Alaska, Virginia---without more, simple possession of a gun cannot justify a stop for purposes of the 4th Amendment.

The Judge in this case just didn’t like the search. I don’t think he is trying to send a message to leave people that are open carrying alone.

<o></o>

you can see it that way if you want to--but regardless, it is a small victory for the people.

In Tennessee open carrying is illegal; so a cop can stop you and ask to see your HCP if he so chooses.

<o></o>

False--OC in Tennessee is legal under the law as long as you have a permit. However, when the police stop a person here--they should confine their stop to its originally stated reason--check the permit and let us be on our way. To begin fishing by asking other questions is simply wrong. If I am stopped and they want to see my permit--I'll show it to them. I won't however simply answer any and every question they want to ask simply because they want to ask it. I show them my permit, they run it and see it is legal--it should be--thank you, have a nice day sir, and let me be on my way.

You don’t ever walk around a cop that is talking to you and “Enjoy your freedom”. If you do it may be short lived. You have no idea why he is stopping you. You ask “Am I free to leave?” and go from there.

Agree--ask if you are being detained up front, make them verbally admit you are being detained, get it the entire encounter on audio. Whether you refuse to answer questions, or fully comply and answer every question asked is entirely up to the individual.

Edited September 25, 2009 by justme

[DaveTN]

And you are wrong by the way--they cannot simply walk up and begin investigating a person for carrying a gun in some states--Alaska, Virginia---without more, simple possession of a gun cannot justify a stop for purposes of the 4th Amendment.

Certainly they can, and they can do it in any state. Find me a cop, just one, that will not approach a person that is open carrying when a citizen has called in on that person. And nothing in the 4th amendment prohibits it.

<O:p</O:p

For your version of the 4<SUP>th</SUP> to work you would need to remove the word “unreasonableâ€. It is there for a reason.

<O:p</O:p

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[Guest justme]

Certainly they can, and they can do it in any state. Find me a cop, just one, that will not approach a person that is open carrying when a citizen has called in on that person. And nothing in the 4th amendment prohibits it.

<o></o>

Show me where a crime has been committed to the point that the officer can legally detain the person. No PC or RAS means no lawful detention.

The police tried to constantly detain an individual in Norfolk Va...ended up in a nice lawsuit against the city. OC is legal in many states--which means there is no crime being committed to justify the stop.

yes,they can do a consensual contact--but as a general rule I have, if they ask if they can talk to you for a minute--well no, I'd really rather not be delayed unless you are planning to detain me--and that will tell you whether the contact is consensual or not, and then go from there.

For your version of the 4^th to work you would need to remove the word “unreasonable”. It is there for a reason.

<o></o>

Yep, I understand how the 4th Amendment is written... 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?

Edited September 25, 2009 by justme