Authority to Stop and Question

[Oldgrunt]

I have read many threads on USA Carry concerning a LEO stopping and asking questions of someone carrying a gun, particularly open carry. Since I am in Alabama, I have tried to find a definitive answer as to when one may be questioned and forced to give his/her name and address. Today, I found a section that answers this question yet brings up other questions. The article I found was, "2006 Alabama Clode - Section 115-5-30" which states, " A sheriff or other officer acting as sheriff, his deputy or any constable, acting within their respective counties, any marshal, deputy marshal or policeman of any incorporated city or town within the limits of the county or any highway patrolman or state trooper may stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or other public offense and may demand of him his name, address and an explanation of his actions."

I would think that, if one were open carrying and with no criminal intent, ran upon a LEO who was not conversant with the law, that person might be in a position to be questioned and otherwise harrassed. The LEO could always fall back on this particular law in an attempt to cover himself by stating that he felt the individual was in the process of committing a crime. I know a lot of people on here have said they have given LEOs a hard time about being questioned about carrying but, considering the above, what do we do if we run into some hard- nosed LEO who thinks his is the only version of the law? All bluster aside, it can happen and, if one has a short temper, there is always the possiblity of joining "The Big Key Club." I am just curious to know how someone else looks at this problem and what their possible solution might be.:wacko:

 

[DannyBear71]

I have read many threads on USA Carry concerning a LEO stopping and asking questions of someone carrying a gun, particularly open carry. Since I am in Alabama, I have tried to find a definitive answer as to when one may be questioned and forced to give his/her name and address. Today, I found a section that answers this question yet brings up other questions. The article I found was, "2006 Alabama Clode - Section 115-5-30" which states, " A sheriff or other officer acting as sheriff, his deputy or any constable, acting within their respective counties, any marshal, deputy marshal or policeman of any incorporated city or town within the limits of the county or any highway patrolman or state trooper may stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or other public offense and may demand of him his name, address and an explanation of his actions."

I would think that, if one were open carrying and with no criminal intent, ran upon a LEO who was not conversant with the law, that person might be in a position to be questioned and otherwise harrassed. The LEO could always fall back on this particular law in an attempt to cover himself by stating that he felt the individual was in the process of committing a crime. I know a lot of people on here have said they have given LEOs a hard time about being questioned about carrying but, considering the above, what do we do if we run into some hard- nosed LEO who thinks his is the only version of the law? All bluster aside, it can happen and, if one has a short temper, there is always the possiblity of joining "The Big Key Club." I am just curious to know how someone else looks at this problem and what their possible solution might be.:wacko:

2006 Alabama Clode - Section 115-5-30 is describing what law enforcement calls a "Terry stop". It's based on the US Supreme Court case Terry v Ohio. If you want more info just look up the case. But the short version is any law enforcement officer can: stop, 'pat-down' (for weapons), and question any individual if he/she has 'reasonable suspicion' to believe a crime has been or is about to be committed. "Terry stops" are a common policing tool in all fifty states.

Do you want the law or reality? The law -- says an officer can't stop, 'pat-down' or question you without 'reasonable suspicion' of criminal activity.

The reality -- he/she can stop you for any reason they want. All they need to do is convince a judge the stop was ligitimate, but keep in mind that when an officer doesn't follow the law he/she puts themselves and their department at risk of being sued for violations of a persons 4th Amendment rights. These suits can be very expensive for a department especially in todays climate of shrinking budgets.

If you're stopped what should you do? Well, it's really a personal call. My personal advice would be to comply with the officer. Don't argue. Present your identification and address as required by law. Where I see a problem with the law is this 'demand an explanation of his actions' part. The officer can demand all they want, but you do have a 5th amendment right against self incrimination. Obviously, if you're being stopped and questioned 'a resonable person' would believe the officer thinks you've committed some crime. So, you'd perfectly within your rights to refuse to answer any further questions. Or you can choose to answer, but remember anything you say can be used by the officer against you in court.

After the stop if you believe the officer violated your 4th Amendment rights by conducting an unlawful search I'd seek the advice of an attorney. From there if he/she feels your rights were violated you can: file a complaint with the officers department, contact the state Attorney General's office, or file suit against the officer/department in state court.

 

[Treo]

If you’re just walking down the street and a cop stops you, you should immediately ascertain weather or not you’re free to leave. The easiest way to do this is simply ask the cop “Officer am I free to go?” If he says you are do it.

Cops don’t just stop random people on the street to make conversation, if he stopped you there’s a reason and the worst thing you can do is engage him in conversation because the longer you talk the more likely you are to say something he can use against you. So, it goes like this

Cop: excuse me Buck can I ask you a couple of questions?
Buck: Sorry Officer I really don’t have time right now. Am I free to go?
Cop: It’s really just a couple of quick questions, I would really help me out if you cooperate.
Buck: Officer, as I stated I do not have time to speak with you. Am I free to go?
Cop: Yes you can leave, but it would really help me…
Buck: Thank you Officer good day.

If a cop ever tells you you’re not free to go that means he has a reasonable articulable suspicion that you have, in fact, committed a crime and is looking for probable cause to arrest you. (If he had PC you’d all ready be in handcuffs)
This is absolutely the time to calmly and firmly assert your rights and shut up!

Cop: No buck you are not free to go I’m detaining you because….
Buck: Officer I don’t wish to answer any questions or make any statement w/out my lawyer present.
Cop: Buck right now is the time for you to be cooperating with me, it’ll go much easier for you if you do.
Buck: Officer I don’t wish to answer any questions or make any statement w/out my lawyer present.
Cop: Yada Yada Yada
Buck: Officer I don’t wish to answer any questions or make any statement w/out my lawyer present.

Get the picture?
You and the Police
Kenneth W. Royce (Writing as Boston T. Party)
Javelin Press 2006

 

[Felix]

Couple good responses there.

When I read those "should I/should I not" debates, I'm always drawn back to the Rich Banks arrest at the open carry dinner in Dickson City, PA in May 2008. When the cops arrived after the asst manager called to complain about seven OCs and their families eating dinner in the (un-posted) restaurant, six of the OCs presented IDs when asked and had no issues. Banks, OTH, decided to follow the letter of the law, refused to do anything but give his name orally and got arrested for his troubles right in front of his kids.

Banks eventually filed a civil suit against the PD and the arresting officer. He's spent thousands and has gotten several adverse court rulings and very little traction on his lawsuit. It seems unlikely that he'll ever prevail and for sure will never recover what it's already cost him.

If I'm asked by an LEO to provide some ID, I intend to do so without any theatrics. If I haven't done anything wrong, I don't see any reason to make it difficult for the cops to ascertain exactly who I am, no matter what the state law says about what info I'm obligated to provide.

 

[santa]

2006 Alabama Clode - Section 115-5-30 is describing what law enforcement calls a "Terry stop". It's based on the US Supreme Court case Terry v Ohio. If you want more info just look up the case. But the short version is any law enforcement officer can: stop, 'pat-down' (for weapons), and question any individual if he/she has 'reasonable suspicion' to believe a crime has been or is about to be committed. "Terry stops" are a common policing tool in all fifty states.

Do you want the law or reality? The law -- says an officer can't stop, 'pat-down' or question you without 'reasonable suspicion' of criminal activity.

The reality -- he/she can stop you for any reason they want. All they need to do is convince a judge the stop was ligitimate, but keep in mind that when an officer doesn't follow the law he/she puts themselves and their department at risk of being sued for violations of a persons 4th Amendment rights. These suits can be very expensive for a department especially in todays climate of shrinking budgets.

If you're stopped what should you do? Well, it's really a personal call. My personal advice would be to comply with the officer. Don't argue. Present your identification and address as required by law. Where I see a problem with the law is this 'demand an explanation of his actions' part. The officer can demand all they want, but you do have a 5th amendment right against self incrimination. Obviously, if you're being stopped and questioned 'a resonable person' would believe the officer thinks you've committed some crime. So, you'd perfectly within your rights to refuse to answer any further questions. Or you can choose to answer, but remember anything you say can be used by the officer against you in court.

After the stop if you believe the officer violated your 4th Amendment rights by conducting an unlawful search I'd seek the advice of an attorney. From there if he/she feels your rights were violated you can: file a complaint with the officers department, contact the state Attorney General's office, or file suit against the officer/department in state court.

I agree with Danny Bear. The part 'demand an explaination of his actions' seems to me to violate the 5th amendment and require me to talk to the leo. I will not give to any leo more than is legally required. Here in the small town in eastern Washington the leo keep track of everything you say even in idle conversation and have used it against citizens later. I am not advocating an 'in your face attitude' but a calm yet firm asertation of your rights. An honest leo will respect and understand. Remember the 4th and 5th amendments were put in place to protect the every citizen not just criminals against the awsome power of the government. Your rights. Use them or lose them.

 

[NavyLCDR]

If you’re just walking down the street and a cop stops you, you should immediately ascertain weather or not you’re free to leave. The easiest way to do this is simply ask the cop “Officer am I free to go?” If he says you are do it.

^^^^ This is probably most important of all. The reason is this:

If the officer stops you and questions you and you comply, and you choose to go to court later over it, it is now up to you to prove that you were actually detained and not free to leave. The officer can simply say that the encounter was completely voluntary, you were free to leave at any time and you consented to the encounter. Giving consent means there is no rights violation.

If you take Treo's advice, and the first statement you make is the question, "Am I free to leave?", that establishes right up front whether or not the encounter was consented to, and then it becomes the officer's requirement to prove that the detention, which was not consented to, was for a lawful reason.

 

[FTG-05]

Couple good responses there.

When I read those "should I/should I not" debates, I'm always drawn back to the Rich Banks arrest at the open carry dinner in Dickson City, PA in May 2008. When the cops arrived after the asst manager called to complain about seven OCs and their families eating dinner in the (un-posted) restaurant, six of the OCs presented IDs when asked and had no issues. Banks, OTH, decided to follow the letter of the law, refused to do anything but give his name orally and got arrested for his troubles right in front of his kids.

Banks eventually filed a civil suit against the PD and the arresting officer. He's spent thousands and has gotten several adverse court rulings and very little traction on his lawsuit. It seems unlikely that he'll ever prevail and for sure will never recover what it's already cost him.

If I'm asked by an LEO to provide some ID, I intend to do so without any theatrics. If I haven't done anything wrong, I don't see any reason to make it difficult for the cops to ascertain exactly who I am, no matter what the state law says about what info I'm obligated to provide.

God bless the Banks of the world! IMO, they're the Rosa Parks of our generation.

At this time in my life (working for a very small defense contractor Huntsville) I can't run the risk of potentially losing my job over what could turn from a small OC issue to a huge one, depending entirely on the officers "whim" at the time of the encounter.

However, once I retire, I plan to OC when I feel it's prudent and probably, as time goes on, I feel more comfortable with it.

I'm glad we have these people out plowing the trail for us; it takes a lot of guts - especially given some of the outright animosity from some of the gun-owning community.

Thanks,