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.
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.
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.
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