If I lawfully open carry can the police...?

[DannyBear71]

While I support lawful open carry it seems that the police in some jurisdictions do not. I personally prefer CCW, but if you choose to Open Carry here is some information and case law you should know.


Does lawfully carrying a gun constitute 'reasonable suspicion'?

No, lawfully carrying a firearm alone does not constitute 'reasonable suspicion'.

"Where simply carrying a handgun is not in itself illegal and does not constitute probable cause to arrest, it follows that carrying a handgun, in and of itself, does not furnish reasonable suspicion justifying a Terry stop."
-- John M. Collins, Esq, General Counsel Massachusetts Chiefs of Police Association (The Police Chief Magazine, Feb 2011 ref Florida v J. L.)


Can a police officer stop someone and demand ID?
No, a police officer must have 'probable cause' to demand ID.

"a person who is stopped on less than probable cause cannot be punished for failing to identify himself."
-- Lawson v. Kolender, Court of Appeals, Ninth Circuit
(later affirmed by the U. S. Supreme Court)


Can the police sieze your firearm to check its serial number?

"Warrants only issue upon a showing of probable cause; thus, probable cause to believe an item in plain view is contraband or evidence of criminal activity must be required,"
--Arizona v Hicks, U. S. Supreme Court

If you are lawfully exercising your 2nd Amendment right to keep and bare arms doing so does not grant the police the right to stop, detain, arrest, demand ID, or seize your property without probable cause or your consent. To do so is unlawful and a violation of your civil rights.

 

[johnsteele]

Just remember if you are stopped, behave with absolute decorum. Be polite not snarky, and ask the salient question "am I free to go or am I being detained.?" If the answer is you are free to go --- go. Say goodbye politely and leave. If the answer is no you are being detained think carefully about saying anything else.

But above all be polite, not humble but polite.

 

[Fallguy]

Remember laws vary from state to state.

In many states the carry of a handgun is illegal, even if openly, unless you have a carry permit. I would say in those states that there is 'reasonable suspicion' you are violating the law until it is checked whether you have a permit to carry or not.

Several states have varying degrees of "Stop and Identify" laws Stop and Identify statutes - Wikipedia, the free encyclopedia which apparently are constitutional Hiibel v. Sixth Judicial District Court of Nevada - Wikipedia, the free encyclopedia

As far as seizing your firearm again I think that might vary from state to state as well.

 

[santa]

I never give any leo anything more than is required. Remember the 4th and 5th amendments are for our protection. I am not saying we should have a chip on our shoulder but if I am not required to do anything I will not. By the way that advice comes not only from my lawyer but from personal friends who are leo.

 

[DannyBear71]

Just remember if you are stopped, behave with absolute decorum. Be polite not snarky, and ask the salient question "am I free to go or am I being detained.?" If the answer is you are free to go --- go. Say goodbye politely and leave. If the answer is no you are being detained think carefully about saying anything else.

But above all be polite, not humble but polite.

I couldn't agree more. Be polite. DO NOT argue with the officer. That just turns the encounter confrontational. DO NOT talk anymore than necessary. If you are suspected of a crime those statements can be used against you. After the encounter if you believe the officers acted improperly make a complaint with the department and/or consider legal action.

 

[DannyBear71]

Remember laws vary from state to state.

In many states the carry of a handgun is illegal, even if openly, unless you have a carry permit. I would say in those states that there is 'reasonable suspicion' you are violating the law until it is checked whether you have a permit to carry or not.

Several states have varying degrees of "Stop and Identify" laws Stop and Identify statutes - Wikipedia, the free encyclopedia which apparently are constitutional Hiibel v. Sixth Judicial District Court of Nevada - Wikipedia, the free encyclopedia

As far as seizing your firearm again I think that might vary from state to state as well.

My original post was only in reference to LAWFUL Open Carry. If you carry in a jurisdiction where carrying is unlawful you do open yourself to detention or arrest since in those cases carry will provide the officer with 'reasonable suspicion'.

For example in my home state of Missouri the premption law does not cover open carry. Cities are free to restrict open carry as they choose.

[U}STOP AND IDENTIFY[/U]

Thanks for the case. I wasn't aware of this one.

From my reading the US Supreme Court essentially reaffirmed their previous ruling in Terry v Ohio. As well as finding the Nevada law was constitutional due to its narrow scope.

TERRY STOPS

The result of Terry v Ohio the US Supreme Court found officers could do the following with 'reasonable suspicion' that a crime was being committed or was about to be committed: stop, pat-down, identify, disarm, and question a suspect.

PAT-DOWN

A pat-down is a cursory search for weapons alone. It is not a full search. An officer may 'pat' or 'move' his hands along the outer clothing to identify weapons. He may not 'grope' or remove items which he can not articulate to a court that he believed to be weapons but were not.

SEARCH

A search can only be performed when:

'Probable cause' exists and it can demonstrate to the court that it was not pratical to obtain a warrant.

With a warrant issued by a judge after demonstrating 'probable cause'.

A search can be conducted of an individual and his immediate surroundings 'incident to arrest'. In the case of a vehicle this only includes the passenger compartment unless the vehicle is being impounded in which case an 'inventory search' may be conducted.

An officer may conduct a search with conscent of the individual to be searched, or in the case of property with the conscent of the individual in obvious control of said property, i.e. owner or tenant.


One of the things I was taught in the law enforcement academy was NEVER conscent to a search. I often hear people say that 'I'd conscent, because I have nothing to hide." That maybe true, but are you absolutely SURE?! Did you put that hunting knife away last time you had it in the car? Is it legal in the jurisdiction you're in now? Did your teenager or one of their friends have something in the car you didn't know about? I myself found a 'joint' hidden in a used car I bought while doing repairs and after having it for years.

It's this simple... If the officer intends to conduct a search he will do so regardless of whether you conscent, but your conscent automatically makes the search LAWFUL in the eyes of the court.

 

[Fallguy]

Understood about "lawful" Open Carry in the OP.

Pretty much agree with all that has been said...

 

[NavyLCDR]

Unfortunately, there are many lawful gun carriers who believe, or at least act like their firearm is cause for reasonable suspicion or probable cause to justify police officer's actions, especially if the officer says he/she is responding to a 911 call. Remember, a 911 call does NOT establish reasonable suspicion or probable cause, the subject's actions as observed by the LEO do.

A proper response to a 911 MWAG call IF an officer is even dispatched is for the officer to arrive at the scene, observe the subject and if he/she sees nothing indicative of criminal activity, sign it off as nothing suspicious observed and leave. There is NO legal basis to require the officer to investigate the status or identity of the person carrying the gun to determine if they are prohibited or not simply because someone called 911 and said they saw the subject lawfully carrying a gun.

IF the police officer sees nothing indicative of criminal activity, they may choose to approach the MWAG. If they do so, keep in mind that the officer has no legal right to disarm the subject at this point, because there is no legal basis established for a Terry Stop...the encounter, to be lawful, must be consented to by the subject. If the officer chooses to disarm the subject and detain them for identification based only upon a 911 call that reported legal activity, they are violating the 4th amendment.

I like to look at it this way... treat your lawfully carried gun as your child. Let's say you took your child to McDonald's and the lady at the next table called 911 because you had a child with you and you might be a kidnapper. There is no difference.

 

[polack]

open carry

what states are open carry?

 

[billv]

what states are open carry?

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[NavyLCDR]

what states are open carry?

The answer to your question is more easily answered by which states are not open carry:

TX, OK, AR, FL, SC, NY, IL, and D.C are not. The rest are.

 

[JJFlash]

The answer to your question is more easily answered by which states are not open carry:

TX, OK, AR, FL, SC, NY, IL, and D.C are not. The rest are.

Just to reiterate: remember that some "open carry" states do require a permit. Mine (ND) for example; you can only open carry if you have a CCW permit. Hmmm...that suggests to me that they can stop me to check to see if I have a permit. Interesting, because an LEO friend said recently that the watch commander told the shift that they could not stop someone simply because they are open-carrying.

How do you read this, NavyLT?

 

[Fallguy]

Just to reiterate: remember that some "open carry" states do require a permit. Mine (ND) for example; you can only open carry if you have a CCW permit. Hmmm...that suggests to me that they can stop me to check to see if I have a permit. Interesting, because an LEO friend said recently that the watch commander told the shift that they could not stop someone simply because they are open-carrying.

How do you read this, NavyLT?

As does my state of TN as far as having to have a permit goes, the reason for my first post in this thread.

 

[JJFlash]

As does my state of TN as far as having to have a permit goes, the reason for my first post in this thread.

Apologies. Must have had a brain seizure. Then, I do think they can stop us to check for a permit. I'm wondering now what the watch commander was alluding to.

 

[Fallguy]

Apologies. Must have had a brain seizure. Then, I do think they can stop us to check for a permit. I'm wondering now what the watch commander was alluding to.

I know in TN they can and do ask to see permits of those OCing, but not always.

Hard to believe in any state where a permit is required that they couldn't.

 

[JJFlash]

I know in TN they can and do ask to see permits of those OCing, but not always.

Hard to believe in any state where a permit is required that they couldn't.

I'd have to agree. I open carry only a small percentage of the time but have met up with LEO more than once. Never been asked. Small town living, I guess.

 

[NavyLCDR]

Apologies. Must have had a brain seizure. Then, I do think they can stop us to check for a permit. I'm wondering now what the watch commander was alluding to.

Kidnapping is a crime. Do you think the cops could stop you any time they wanted to in order to prove the children that are with you are actually yours and you are not a kidnapper?

Also, here is your North Dakota Statute. Notice that you must produce a concealed weapon license in North Dakota if you are carrying a CONCEALED firearm. The law does NOT require you to produce the license if you are open carrying. Therefore, absent any evidence of a crime being committed, a LEO in North Dakota has no statutory basis to ask you to produce a license if you are open carrying...

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62.1-04-04. Producing license on demand. Every person while carrying a concealed
firearm or dangerous weapon, for which a license to carry concealed is required, shall have on
one's person the license issued by this or another state and shall give it to any law enforcement
officer for an inspection upon demand by the officer. The failure of any person to give the license
to the officer is prima facie evidence that the person is illegally carrying a firearm or dangerous
weapon concealed.

 

[NavyLCDR]

I know in TN they can and do ask to see permits of those OCing, but not always.

Hard to believe in any state where a permit is required that they couldn't.

Here is the Tennessee statute:

(t) Any law enforcement officer of this state or of any county or municipality may, within the realm of the officer's lawful jurisdiction and when the officer is acting in the lawful discharge of the officer's official duties, disarm a permit holder at any time when the officer reasonably believes it is necessary for the protection of the permit holder, officer or other individual or individuals. The officer shall return the handgun to the permit holder before discharging the permit holder from the scene when the officer has determined that the permit holder is not a threat to the officer, to the permit holder, or other individual or individuals provided that the permit holder has not violated any provision of this section and provided the permit holder has not committed any other violation that results in the arrest of the permit holder.

That seems to indicate that in Tennessee the officer can stop and disarm an open carrier for "reasonable belief" it is necessary for the protection of anybody at all.... and they can hold on to that gun until you provide them a permit and thus fulfill the "provided the permit holder has not violated any provision of this section" requirement.

 

[Fallguy]

My point is that TN law 39-17-1307 make it illegal to carry a handgun/weapon period. Regardless of open or concealed. Having a permit issued per 39-17-1351 is only a defense against 39-17-1307 as listed in 39-17-1308.

So if an officer sees you armed...as far as he knows you are violating 39-17-1307 until you produce a permit to defend yourself.

There are also other states where you can "lawfully" carry openly, but only with a permit.

Now in those states that issue "concealed" carry permits but open carry is legal without a permit, a LEO just seeing you Openly Carrying wouldn't have any reason to believe you are committing a crime sans any other evidence.

I was only going by what JJFlash said himself "Mine (ND) for example; you can only open carry if you have a CCW permit."

 

[NavyLCDR]

My point is that TN law 39-17-1307 make it illegal to carry a handgun/weapon period. Regardless of open or concealed. Having a permit issued per 39-17-1351 is only a defense against 39-17-1307 as listed in 39-17-1308.

So if an officer sees you armed...as far as he knows you are violating 39-17-1307 until you produce a permit to defend yourself.

There are also other states where you can "lawfully" carry openly, but only with a permit.

Now in those states that issue "concealed" carry permits but open carry is legal without a permit, a LEO just seeing you Openly Carrying wouldn't have any reason to believe you are committing a crime sans any other evidence.

I was only going by what JJFlash said himself "Mine (ND) for example; you can only open carry if you have a CCW permit."

It's illegal in all 50 states to drive a car on public highways without a driver's license. Is driving a car on a public highway reasonable suspicion of a crime being committed because the driver may or not be license? Yet the Supreme Court has ruled that it is against the 4th amendment for a police officer to stop an individual for the sole purpose of checking to see if they have a driver's license or not. So what's the difference in a license being required to carry a gun?

If a police officer legally detains you while you are carrying a gun, they certainly can require you to show the required license for that gun. But there has to be a legal reason to detain you to begin with. Simply performing an action that is legal, with a license, is no indication of a crime being committed, and; therefore, no basis for a lawful detention - just as the simple act of driving a car on a public highway is no basis for a lawful detention.