OpenCarry.org: "Is it legal to resist a civil rights violation?"

[dariks]

There's no problem with that at all. Cops should be able to do their job effectively, and remove hazards from a crime-scene. I just wanted to make it clear that this provision doesn't give law-enforcement free reign to confiscate a lawfully carried firearm for no reason at all.

Absolutely correct. They do not have free reign to confiscate any of my lawful property. However, if the officer in question decides to "make up" a reason to keep my firearm then there's nothing I can/will do to stop him. Argrue--Absolutely! Assault/Fight--Not a chance.

But I guarantee that the first call I make will be to a darn good lawyer, because I'm suing him, the department, the city, his dog, etc..

[molonlabetn]

Absolutely correct. They do not have free reign to confiscate any of my lawful property. However, if the officer in question decides to "make up" a reason to keep my firearm then there's nothing I can/will do to stop him. Argrue--Absolutely! Assault/Fight--Not a chance.

But I guarantee that the first call I make will be to a darn good lawyer, because I'm suing him, the department, the city, his dog, etc..

Well, him making up a reason to sieze my firearm isn't, of itself, a direct threat to my life... so there would be no justifiable forceful recourse anyways. That's an administrative/civil issue, especially after he has been made very aware that I object to it.

However, if the LEO strips me of my means of self-defense, even for a valid reason, I will hold him ultimately responsible for my safety.

[dariks]

Is there a problem with that? It lets an officer disarm you while he determines if you will be arrested for something. He returns the handgun if you aren't arrested and are determined not likely to harm someone when you get it back. At that point you are released from the scene. Yes, it's the officer's judgment call. That's part of what we pay them to do.

I asked an officer that I know, in the western TN area, what his personal policy is when he stops someone for speeding who also has a carry permit.

His policy (and I'm paraphrasing here):

--Before coming to a stop he pulls up close enough to the vehicle to read the license plate

--Runs plate (and sees that you have a HCP)

--approaches vehicle (don't remember if he said he has his hand on his weapon or not)

--asks if you have any firearms on or in your vehicle

--disarms you

--unloads your weapon and places it on hood or roof of your vehicle

--gives ticket

--hands unloaded weapon back to you

--asks that you do not reload weapon until you have left the scene

--end of story

Now I intensely dislike the idea of the officer being able to disarm me!! I am a law abiding citizen, minus the occasional speeding ticket, and have done nothing to deserve being treated this way. BUT looking at it from his viewpoint I can see why he would. He doesn't know me from Adam and he has a very strong desire to go home at night to his wife (his words). So with that in mind, the safest thing for HIM and HIS safety is make sure that I am unarmed.

[molonlabetn]

"Officer, have I done something with my firearm which threatens your safety? If not, I strongly object to being treated this way. Why am I being detained?"

I'll probably still end up being disarmed, but he won't have had any cause to do so... Cut and dried.

[Marswolf]

I don't know of any officers in my area who will take your gun for just a normal traffic stop, but I can see that as valid in some cases.

The law says, "The officer shall return the handgun to the permit holder before discharging the permit holder from the scene". Basically, the intent of the law is that if you are being discharged from the scene, you get your gun back. Otherwise, you are being arrested.

[saintsfanbrian]

Okay, first off, how does the officer know by running the plates that I have an HCP? The HCP is tied to a drivers license not a vehicle registration. I could loan my car to my brother in law that doesn't have an HCP and your friend or any other officer wouldn't be any the wiser as to who is driving the vehicle. I can understand the officer walking up to ANY vehicle with their hand on their firearms. We live in dangerous times and it is their safety that they are worried about first. That is fine with me, as my safety (when I am alone) or my families safety is the FIRST thing that I am worried about. If Bubba the officer starts affecting a felony arrest on me for a simple speeding violation, then I hope like heck his dashboard cam is running in order to cover HIS rearend because there will be charges levied. Now, if I am speeding through town and do not yield to lights and sirens when I see them behind me then I can understand. Otherwise, get out of your cruiser, walk up to my car (cautiously understood) and ask me for my license, registration and proof of insurance. With the exception of the registration, I keep all of that (including my permit) together in the same part of my wallet. I hand all of that to the officer (including the permit.) I know TN state law doesn't require me to inform the officer, but I think if I let him know on the front end that I am one of the "good guys" both of our time spent together will go a lot smoother and we both will be a little more at ease. He will know, by that simple act, that other than going a little too fast, or forgetting to signal a lane change, or having a broken taillight fixed, that I am not a ruthless criminal out to do him any harm. At least that is my hope of how the officer will take it. Now, if the officer decides to still disarm me over a simple speeding ticket, sure, as long as he isn't going to go running off with my gun on some other call and leave me defenseless and as long as he realizes that for the duration of our interaction, my and my families safety is HIS responsibility should some thing happen.

I still can't see myself using force against a police officer that is being overly agressive. I can see myself "curling up" in a ball on the ground to protect my vitals. I sometimes think about getting a dashboard and trunk cam for my cars. Just incase you get that overzealous officer that feels they have something to prove and will take a simple "What seems to be the problem officer" as resisting arrest. I know that there aren't many of those out there, but they are out there.

[Guest Hyaloid]

I too would hand over my weapons if the officer asked for it during a "routine" stop (i.e. speeding, etc).

I WOULD voice my discomfort however with handling a firearm during the situation. God forbid, but the one time in my life I'll have a ND, it would happen with a cop by my side. Murphey is alive and well.

The less people handle their weapons, the better.

Let's turn the tables. Ok?

I'm a nutcase. Just robbed a store and murdered my family, but the cop doesn't know that yet. I have a CHP, but mere possession of the firearm has corrupted my ability to behave rationally, and I am now a homicidal maniac.

Now, this cop pulls me over for speeding, and asks that I take my weapon out of my holster and hand it to him. His hand is on his duty weapon, ready to go "just in case". I decide that I'll hand the cop my weapon, bullets first. Unless he is Billy the Kid reincarnated, he won't draw faster than I can shoot. He is asking me to unholster my weapon, and I have a DISTINCT advantage if I were bent on homicide. Now, he can unholster his and hold me at gunpoint while I am disarming, but MOST cops that disarm a CHP holder don't do that, because deep down they KNOW we are law abiding and pose no threat.

If I were a threat and being disarmed because of "officer safety", why in the world would you give me an advantage on my draw? Pull you weapon if you think I am a threat, otherwise leave me and the weapon alone!

[molonlabetn]

Honestly... I would refuse to handle my weapon during a stop. The last thing I need is to be commanded to hand it over, and then shot because I was 'reaching for my gun'.

They can retrieve it for themselves, if they must. Besides, I'd rather be out of the vehicle, and more clearly viewed by the dash-cam at that point. I'll want that footage later.

[Guest Hyaloid]

Honestly... I would refuse to handle my weapon during a stop. The last thing I need is to be commanded to hand it over, and then shot because I was 'reaching for my gun'.

They can retrieve it for themselves, if they must. Besides, I'd rather be out of the vehicle, and more clearly viewed by the dash-cam at that point. I'll want that footage later.

C'mon man, we all know an LEO would never issue an order contradictory to what they expect you to do!

[ame=

]

[/ame]

I agree.. I'd rather the officer get it him or herself. However, I carry a GLOCK, so THEY'd probably ND into my thigh. Murphey is alive and well, I think I said that already

[Urse]

I myself have been disarmed during a traffic stop and it went almost exactly like described in dariks post except he did not ask about my firearm until after I had handed him my permit. I informed him I was armed and that I would prefer if he handled the weapon. He had me step out of the car and stand facing the side of my vehicle with my arms on the roof while he disarmed me. Afterwards, I got back in my vehicle while he went back to his car and did whatever it is they do in there. He returned and issued me a warning for speeding and handed me my unloaded Kahr K9 and asked me not to reload it until he had left. he then complemented me on it being a nice carry weapon and told me to have a good night. After he left I realized I had my 642 J-frame in my pocket(it is always there). Oh well no harm no foul. If I am out and about I can appreciate that the police do not know me and they want to go home to their families at the end of their shift. I will be cooperative. That said, when I took my carry permit class at Guns & Leather the instructor relayed a story about a County deputy that disarmed a permit holder when he noticed a Kel-Tec in his back pocket at a convenience store. The deputy disarmed the man and confiscated his weapon on the premise that it was illegal to carry a weapon wherever alcohol was sold. He evidently did not know about the onsite consumption part of the law. The permitholder did get a lawyer and filed charges against the sheriffs department. Luckily for them the plaintaff accepted a formal verbal and written apology from both the deputy and the sheriff. It seems to me that often we as citizens are more aware of some laws than the officers themselves. After all they have alot more of them to keep up with. I will cooperate while in public because I am not breaking any laws and I carry extras on my person and in my vehicle. I also carry less lethal means of defending myself. Now that said my home is a different story I think we can all look at the gross civil rights violations that happened in New Orleans during Katrina and see that sometimes you might have to disobey the law in the best interest of you and your family's safety. Although I am a firm believer that a few throw away firearms are a good solution to that scenario.

[The Rabbi]

Based on what you look like, if I were the officer I'd have you handcuffed spread eagle on the ground

(j'k big guy)

It sounds like all this got started when you handed him your carry permit. If I am stopped for an out of date tag or something, I'm not telling the officer anything. It isnt relevant to the situation and there is no reason to mention it. If he asks me to step out of the car then I'll tell him I have a permit and where the weapon(s) is/are located. Then ask, how would you like to handle this?

I tend to think being cooperative, if not especially helpful, works best.

And given some of the news stories about THP I'd consider asking them to turn over their weapon for my own safety.

[dariks]

Okay, first off, how does the officer know by running the plates that I have an HCP? The HCP is tied to a drivers license not a vehicle registration.

I probably misinterpreted what he said. I thought that he had told me he could tell I have an HCP by running my plates, but that doesn't make a lot of sense. As you said, it is tied to your DL and not your vehicle registration.

[Urse]

Based on what you look like, if I were the officer I'd have you handcuffed spread eagle on the ground

(j'k big guy)

Yeah I can see that.

[Marswolf]

We went through this carry permit not being linked to your tags before.

http://www.tngunowners.com/forums/showpost.php?p=13944&postcount=64

Under the current circumstances, and considering you do not have to volunteer your carry status to an officer in Tennessee, I just wouldn't mention it. It might possibly come up when they run your DL, but that apparently is normally by officer request.

You guys need to learn to be friendly and smile at officers. A little banter and friendliness can keep you out of a lot or trouble. Works in dealing with drunks who want to fight you too.

[Urse]

My encounter was pleasant he did not give me a ticket!

[Guest ProguninTN]

We went through this carry permit not being linked to your tags before.

http://www.tngunowners.com/forums/showpost.php?p=13944&postcount=64

Under the current circumstances, and considering you do not have to volunteer your carry status to an officer in Tennessee, I just wouldn't mention it. It might possibly come up when they run your DL, but that apparently is normally by officer request.

You guys need to learn to be friendly and smile at officers. A little banter and friendliness can keep you out of a lot or trouble. Works in dealing with drunks who want to fight you too.

Your comments may work, but not all encounters involve vehicular stops. An encounter could occur on foot. I would be more worried about an encounter on foot because it would be easier to discern that I have a weapon. Either due to accident exposure, or because I choose to carry openly (which is lawful in this state). Citizens and officers alike should familiarize themselves with the statutes, cases, and AG opinions submitted by the various posters in this thread. I'll even add one. Florida v. J.L. 529 U.S. 266 (2000).

[The Rabbi]

Your comments may work, but not all encounters involve vehicular stops. An encounter could occur on foot. I would be more worried about an encounter on foot because it would be easier to discern that I have a weapon. Either due to accident exposure, or because I choose to carry openly (which is lawful in this state). Citizens and officers alike should familiarize themselves with the statutes, cases, and AG opinions submitted by the various posters in this thread. I'll even add one. Florida v. J.L. 529 U.S. 266 (2000).

Another good reason to carry concealed.

There is less likelihood of being stopped on foot. What is he stopping you for?

This is an area where citizens really need to know their rights because if they don't they will give up a lot.

I've had Black customers in my shop complain about police stopping them and asking if they can frisk them. I told them that if he is asking then he has no right to do so. If he could he wouldn't ask.

[towerclimber37]

I've had Black customers in my shop complain about police stopping them and asking if they can frisk them. I told them that if he is asking then he has no right to do so. If he could he wouldn't ask.

great point! my answer? only If I can frisk you first.

[Guest Phantom6]

great point! my answer? only If I can frisk you first.[/quote]

This from a Gun Toucher!

:rofl:

[DaveTN]

Frequently, the police will observe somebody who needs to be checked out. That is the purpose of a stop and frisk, which has many different names: a field interview, a field inquiry, a threshold inquiry, or just routine questioning. Terry v. Ohio (1968), an 8-1 decision with only Justice Douglas dissenting, gave police the right to temporarily detain somebody if there are specific articulable facts leading a reasonable police officer to believe a crime might be occurring. This standard is known as "reasonable suspicion," although some people call it articulable suspicion or more than mere suspicion. It is not necessary for the officer to articulate or identify a specific crime they think is being committed, only that a set of factual circumstances exist that would lead a reasonable officer to believe that criminal activity is occurring. Note that arrest, search, and seizure require probable cause, or what a "reasonable person" would believe. Stop and frisk, by contrast, requires what a "reasonable officer" would believe. Reasonable suspicion is one step below probable cause and one step above a hunch.

[Guest Hyaloid]

Frequently, the police will observe somebody who needs to be checked out. That is the purpose of a stop and frisk, which has many different names: a field interview, a field inquiry, a threshold inquiry, or just routine questioning. Terry v. Ohio (1968), an 8-1 decision with only Justice Douglas dissenting, gave police the right to temporarily detain somebody if there are specific articulable facts leading a reasonable police officer to believe a crime might be occurring. This standard is known as "reasonable suspicion," although some people call it articulable suspicion or more than mere suspicion. It is not necessary for the officer to articulate or identify a specific crime they think is being committed, only that a set of factual circumstances exist that would lead a reasonable officer to believe that criminal activity is occurring. Note that arrest, search, and seizure require probable cause, or what a "reasonable person" would believe. Stop and frisk, by contrast, requires what a "reasonable officer" would believe. Reasonable suspicion is one step below probable cause and one step above a hunch.

Interesting you bring this up... IANAL, but I did stay at a Holiday Inn Express

I wonder what the apllicability of the Terry stop is to a CCW holder. The officer is to have reasonable suspicion of a crime, right? There are officers that frisk and disarm solely based on the citizen possessing a CCW. My question would be, what is the CRIME that the officer is REASONABLY suspicious they are commiting, other than being a LEGALLY armed citizen?

I am just thinking out loud here, and do not mean to imply that officers shouldn't stop and question "suspicious" activity, however, I think this ruling opens the civilian population open to potential abuse of police power. It's a slippery slope, as they say

[The Rabbi]

Frequently, the police will observe somebody who needs to be checked out. That is the purpose of a stop and frisk, which has many different names: a field interview, a field inquiry, a threshold inquiry, or just routine questioning. Terry v. Ohio (1968), an 8-1 decision with only Justice Douglas dissenting, gave police the right to temporarily detain somebody if there are specific articulable facts leading a reasonable police officer to believe a crime might be occurring. This standard is known as "reasonable suspicion," although some people call it articulable suspicion or more than mere suspicion. It is not necessary for the officer to articulate or identify a specific crime they think is being committed, only that a set of factual circumstances exist that would lead a reasonable officer to believe that criminal activity is occurring. Note that arrest, search, and seizure require probable cause, or what a "reasonable person" would believe. Stop and frisk, by contrast, requires what a "reasonable officer" would believe. Reasonable suspicion is one step below probable cause and one step above a hunch.

Thanks. That was the best most concise description of a Terry stop I've seen.

But it clarifies that merely sitting at a bus stop is not grounds for a Terry stop, or many other circumstances.

And yeah, it is an erosion of civil rights.

[DaveTN]

I wonder what the apllicability of the Terry stop is to a CCW holder.

It should be no different than for any other citizen. A permit is a privilege; not a right.

The officer is to have reasonable suspicion of a crime, right?

The standards are so low that almost anything he says the Judge will buy. It’s like needing PC to stop your car because the cop has a “gut feelingâ€. Any well trained cop can have PC in a couple of blocks of following you.

There are officers that frisk and disarm solely based on the citizen possessing a CCW.

How many times has it happened to you? And I’m not asking that to be a smart azz, my state did not allow carry so I have no idea how much this happens. In the cases you know of what reason did the Officers give? Is there Tennessee case law on a Police Officer stopping a person because the Officer sees a gun?

My question would be, what is the CRIME that the officer is REASONABLY suspicious they are commiting, other than being a LEGALLY armed citizen?

In my state if I stopped someone I had to be prepared to answer that question. But I didn’t have to answer it to the person I was stopping and I didn’t have to answer it right then. (Certainly I would give them an explanation in most cases; when I have my weapon pointed at them and I am disarming them is not one of those cases.)

I am just thinking out loud here, and do not mean to imply that officers shouldn't stop and question "suspicious" activity, however, I think this ruling opens the civilian population open to potential abuse of police power. It's a slippery slope, as they say

Some people will always believe their forth amendments rights are being violated. Our founding fathers used the word “unreasonable†for a reason. A Police Officer that needs wide latitude on the forth amendment to stay alive and a private citizen that sees stop and frisk as a violation of his rights will never agree. Police Officers have the very basic right to stay alive. So far the courts have recognized that; I believe that is exactly what our founding fathers would have wanted. I am the first to agree that there are bad cops out there. But if you think they are bad now, what do you think you will have if the courts decide that your privilege is more important than an Officers life.

Interesting you bring this up... IANAL, but I did stay at a Holiday Inn Express

I am just thinking out loud here..,

Not only did I not sleep at a holiday inn last night, but I don’t know Tennessee criminal law. But let me do some thinking out loud.

Let’s say that you believe you are being stopped because the Officer saw your firearm. But in reality the Officer is stopping you because you match the description of a guy that has just shot three people to death in the parking lot of a gas station.

I do however know Illinois law. So let me throw this out in case any of you are like the lady that decided to carry her firearm in Illinois. You can be as innocent as the day is long but most Officers are not going to have any discussion with you until the threat to them is over; that means you are being disarmed.

[The Rabbi]

It should be no different than for any other citizen. A permit is a privilege; not a right.

I do however know Illinois law. So let me throw this out in case any of you are like the lady that decided to carry her firearm in Illinois. You can be as innocent as the day is long but most Officers are not going to have any discussion with you until the threat to them is over; that means you are being disarmed.

I think courts see the permit as a privelege here. I also think they are wrong.

And note to self: avoid IL like the plague.

[Guest ProguninTN]

I think courts see the permit as a privelege here. I also think they are wrong.

Rabbi, you are correct. First see, TN AG Opinions 03-165, and 02-003.

http://www.tennesseefirearms.com/law_regs/ag_opinions.asp

The AG says HCP's are recreational licenses. Also, that the 2A does not prohibit legislation. The AG relies on United States v. Bournes http://216.239.51.104/search?q=cache:WBn7sUDLFhcJ:caselaw.findlaw.com/data2/michiganstatecases/appeals/071103/19870.doc+United+States+v.+Bournes&hl=en&ct=clnk&cd=3&gl=us&client=firefox-a

as well as United States v. Warin and United States v. Napier. (These decisions from the 6th Circuit, therefore binding on TN.)

Additionally, we do have Andrews v. State http://www.guncite.com/court/state/50tn165.html in our favor. However, the very text of our State Constitution is a problem.

From Article I, Sec. 26

That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.