Home Forums Hunting & Shooting Hunter's Campfire Policeman: "You have every right to bear arms, unless you actually do so."

EE,

Yes the guy made some mistakes for what he was trying to accomplish, IMO. He records himself walking around with a gun, seeing if the cops will react. (I think he expected to be stopped, and probably hoped he would so his day wouldn't be wasted and he'd have something interesting to post.).

But once he caught a cop doing something wrong, he really didn't know what to do. He seems to have a better grasp on the law than the cop, but hadn't thought through how to actually present his case, or just got stage fright, or maybe (likely) just isn't all that intelligent to begin with. Kinda like trying to catch a coon by the tail...Good for ya if you can, but you better have a good plan for after the catch or you're gonna sure look silly.

If the guy's main concern is 2A stuff, don't let the conversation be distracted by anything else (like the whole identification issue). Focus on the issue at hand. Say, "Hello officer, my name is Bob. I'm just legally walking down the street. Can I continue on my walk? If not, why not?" If he'd've stuck with the "why not" he'd have a video worth watching.

Maybe you're saying it's too much to go into here, and if it is, that's cool. I wouldn't mind be educated a bit. My take on it is, if it's a traffic stop, then you are definitely detained. That is, if you're arrested, you're headed to jail and a routine traffic stop doesn't result in that unless there are complications. But you're not just being questioned because if you were, you could walk/drive off unless the cop told you not to go, at which point, you're detained. In a traffic stop, you're detained because you can't drive off until the cops lets you go.

In the stop of a pedestrian like this, he could walk off unless they detained him. So the first mode is questioning unless he calls their hand and they want more interaction so they tell him he's detained or they shine him on, which is what they do here, at least until about midway through, which is where I couldn't take any more of the illiterate (cop) trying to school the semi-literate (citizen). Arrest would occur if they found something to do it for or unless he tried to go away after being told not to or that he was detained. Right? Wrong?

Exactly. And probably have a silly story to tell the ER docs that give you stitches and rabies shots.

Gimme me a bit and I'll put together some links for you, either here or in a PM if this has died by then. Gonna be driving a lot the next few days. And I'd rather take the time to give links to where I got my information and where you can read more than just give you my opinion....which is bound to be at least partially wrong one of these days.

An old man I knew, gave me my first steel traps, told me you've gotta swing em real quick like by the tail in a circle to keep em of your arm. Then just keep swinging as you walk on over to a tree and swing their noggin into it.

I've never had the opportunity to try it, but have no doubt he did.

I was at my Uncle's farm when I was a kid and there was a coon there. The night before, his dogs, a couple of rat terriers and a mid-sized mongrel, had treed it and he'd shot it, with a .22 or a 12 ga, I forget. The thing looked dead. The next day his idiot daughter had went out and petted it and it awoke and bit her. She had to go through the whole series of Rabies shots back then, when it was more painful and substantive. He went out and shot it again and the dogs worried the hell out of it. We were going to get wood, so somebody threw it in the truck to haul it off. We took the thing up to the timber with us and it was still alive. I remember my Grandpa finally finishing it off with a piece of wood kinda in between a stick and a log.

The lesson I took from it was that coons are feisty.

If you get busy it ain't no big deal. More accurate info is always good though. Many thanks one way or the other.

Take a look at the links MacLorry posted a couple of pages back. They're pretty good.

OK, here goes....

I'll try to present this in as logical a method as I can �in print. It's so much easier to get it to all make sense in person.�

The 4th amendment to the US Constitution states:
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.

If I pull you over on a traffic stop, take you to jail, or kill you I have "seized your person" to a lesser or greater extent. Over time, courts have ruled in cases and more narrowly defined what an "unreasonable" seizure of your person is.�

Before talking about seizure, you have to understand the difference between any kind of seizure and a consensual contact.�A consensual contact is when an officer walks up and just starts talking to you. The officer may be looking for evidence of a crime (if he thinks you are out of place or has a "hunch" that something's not right) or he may just like the old truck in your driveway and want to compliment you on it (I do this all the time, it's nice to get out and stretch your legs). Regardless of the officer's motives, he is allowed start a conversation with anyone he wants. BUT the citizen is also allowed to not participate in the conversation.�

Link
Second, law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. See Dunaway v. New York, supra, at 442 U. S. 210, n. 12; Terry v. Ohio, 392 U.S. at 392 U. S. 31, 392 U. S. 32-33 (Harlan, J., concurring); id. at 392 U. S. 34 (WHITE, J., concurring). Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. United States v. Mendenhall, 446 U. S. 544, 446 U. S. 555 (1980) (opinion of Stewart, J.). The person�Page 460 U. S. 498�approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all, and may go on his way. Terry v. Ohio, 392 U.S. at 392 U. S. 32-33 (Harlan, J., concurring); id. at 392 U. S. 34 (WHITE, J., concurring). He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. United States v. Mendenhall, supra, at 446 U. S. 556 (opinion of Stewart, J.). If there is no detention -- no seizure within the meaning of the Fourth Amendment -- then no constitutional rights have been infringed.

But let's say that I look around and observe specific things that lead me to suspect a crime has been committed. I now have "reasonable suspicion".� Link to definition If I have reasonable suspicion I can seize you long enough to investigate my suspicions. It important to note that RS is based on specific articulable facts, not just a hunch.�

Click HERE and read Terry v. Ohio. Short story is the cop saw Terry casing a store and was able to describe exactly what led him to that belief. He didn't have a reason to arrest Terry, but was justified in stopping him for further investigation. In fact, the SCOTUS said it would have been "poor police work" if the officer had not investigated Terry.�

Here's an excerpt from the SCOTUS ruling...
Applying these principles to this case, we consider first the nature and extent of the governmental interests involved. One general interest is, of course, that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. It was this legitimate investigative function Officer McFadden was discharging when he decided to approach petitioner and his companions. He had observed Terry, Chilton, and Katz go through a series of acts, each of them perhaps innocent in itself, but which, taken together, warranted further investigation. There is nothing unusual in two men standing together on a street corner, perhaps waiting for someone. Nor is there anything suspicious about people�Page 392 U. S. 23�in such circumstances strolling up and down the street, singly or in pairs. Store windows, moreover, are made to be looked in. But the story is quite different where, as here, two men hover about a street corner for an extended period of time, at the end of which it becomes apparent that they are not waiting for anyone or anything; where these men pace alternately along an identical route, pausing to stare in the same store window roughly 24 times; where each completion of this route is followed immediately by a conference between the two men on the corner; where they are joined in one of these conferences by a third man who leaves swiftly, and where the two men finally follow the third and rejoin him a couple of blocks away. It would have been poor police work indeed for an officer of 30 years' experience in the detection of thievery from stores in this same neighborhood to have failed to investigate this behavior further.

After I have investigated my reasonable suspicion and realize I was wrong, I have to immediately let you go. the temporary detention is over.�

But if after my investigation I believe (not just suspect) that it is more likely than not that a crime has been committed I have probable cause.� Link to definition With probable cause I can impose an actual arrest and take you to jail. If you'll stop here and re-read the 4A, you'll see that probable cause is what keeps a seizure from being unreasonable.�

But as I said in an earlier post, don't take my word for any of this. I'd recommend that you go� HERE and start reading. Click the links, then click the links for footnotes and read the cases those notes reference. It's not that difficult once you get used to the format it's written in.�

I hope this helps. I'm sure that there are others here who could explain this better than me or who can (most certainly will) correct me in something. But if somebody tells you something different, ask for a source. Make sure they're citing actual law or case law and not opinion or department policy. And make sure the cases they cite are all applicable to where you live. The cases I've used here are SCOTUS cases and work for everywhere.�

Thanks. That especially explains more about the "Terry stop". In applying it to this case, the cops had reasonable suspicion since just the presence of a gun under the circumstances, could be viewed as that. The guy wasn't detained unless he refused to talk to them by just shouldering on by and saying nothing. At that point, they could have detained him and questioned him about the circumstances of his open carry. The reasonable suspicion would have evaporated rather quickly though and if he was schooled at all on how to behave, could have been on his way legally, by merely pausing and answering a couple of questions. He could have almost shouldered on by...legally.

If he'd have said the things I noted he could have just gone on unless there had been a specific crime committed with a gun in the vicinity he was observed coming from or where he'd been observed by the people who called it in.

About right?

Good explanation backed by links. I think many of us have learned more about the difference between levels of detention and the different standards needed for each level.

One question I still have is how a constitional right is impacted by public safety. The classic example is the 1st amendment not protecting someone from yelling "fire" in a crowded theater, unless of course, there is a fire.

What if a good looking woman not known to be a prostitute is wearing the least clothing permitted by law and is properly walking on the left side of a busy street such as seen in the OP's video. Certainly it's reasonable to assume some drivers would be distracted, and thus, increase the likelihood of an accident. Assuming her activity was generating 911 calls, does public safety trump her right to walk along that street in that manner? Does it matter why she's walking there? What if she is putting on a show as she walks (exaggerated hip movement, bouncing, etc)? If there is an accident on that street at that time, does the woman have any liability?

Apart from male cops wanting to get a closer look, and perhaps her phone number, what would be the proper response from law enforcement?

We're here, we're carrying guns legally, get over it.

Good for him. It has to be done to 'normalize' Open Carry. You know, how Hollywood helped 'normalize' their deviancies.

Hawk,

I have to ask were you frightened by the police as a child? You sure seem to have a hard-on for them.


tom

Yep. If he could've held it all together for just a few minutes he'd of been doing great.

Something that few people have mentioned is the fact that the guys dad just happened to be standing there with the cops when it all went down. It's really not pertinent to the 2A discussion, but sure throws up some flags about the guy's crazy level. I just don't think he's playing at the YouTube level yet.

I thought I mentioned it. It could be just speculation but I read it thusly: They probably both bittch about the government and circumstances all the time. The kid is probably a bigger gun lover. The kid is younger, has more testosterone and is more able and willing to do something than the old man. The old man sees the kid getting worked up, hears his plan and fears for his boy's safety. He's cooperative with the cops because that's what he's been taught, he's from a different era. He can't imagine not talking. He's "helpful". Etc.

Kinda like what you said.

Except that courts have ruled that carrying a firearm, where it is legal to do so, is NOT grounds for reasonable suspicion.

Exactly. That's the whole point that most are missing. Open carry is no different than than walking around carrying both your arms with you. It's not illegal to carry your arms, totally normal. We all do it, everyday. Yet one could argue that a persons physical arms are " dangerous". Trained individuals can kill or severely maim another person, just buy using their arms/fists, with only one strike.

Open carry should be done all day, every day until it's accepted and "normal".

That's good to know. So what does that do to the scenario? On the cop side, it's pretty safe to assume if your info is accurate, that they shouldn't have rolled on it in the first place, because even fibbing, you could hardly justify four units "shooting the shixt" with the guy. Also, if he refused to talk, they had no grounds on which to detain him, right? What could he have done? Could he legally have ignored them and kept walking? What if they draw guns and command him to halt? I'm not for starting a gunfight over this, but still, as I've said several times, this is enough of a hot-button issue right now that the cops should know and that being the case, it is clear harassment...or am I missing something?

That is correct, and the core issue that many have missed.

Legally carrying a firearm, by itself, is not even basis for a Terry stop.

Which is why I posted that the cop was wrong back on page 1. The cop was wrong. My diatribe was for educational purposes as a favor to EE, not as a defense of what the cop did.