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Old 03-20-2013, 01:23   #1
HerrGlock
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Carrying a Firearm in an Open-Carry State Does Not Create Reasonable Suspic

http://www.fedagent.com/columns/case...ard-of-seizure

Fourth Circuit Finds That Carrying a Firearm in an Open-Carry State Does Not Create Reasonable Suspicion and Provides Thorough Analysis of the "Free to Leave" Standard of Seizure
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Old 03-20-2013, 03:30   #2
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Extremely interesting reading. This case is classic Terry stop discussion, and really brings out some fine lines.
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Old 03-20-2013, 04:14   #3
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If the case stands for not stopping people of OC where it is legal, it only stands for it weakly. For one thing , the appellant in this case was carrying concealed and the OC guy was not a party to the case.
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Old 03-20-2013, 07:00   #4
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Quote:
Originally Posted by Bren View Post
If the case stands for not stopping people of OC where it is legal, it only stands for it weakly. For one thing , the appellant in this case was carrying concealed and the OC guy was not a party to the case.
Well, it is within the case in Seattle where a guy was Terry stopped because he was carrying rifles and someone called in man with gun. Court said just because he was walking with them is not cause to stop and talk.
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Old 03-20-2013, 08:15   #5
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This is a good ruling.
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Old 03-20-2013, 10:23   #6
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I find it strange they use a convicted felon for the case? Oh thats right everyone else they stopped for this didn't have ANY CONVICTIONS and were not charged with a crime!
Courts just reaffirmed what has been said by us OCers in the many threads on this subject. If legal to do OC is not a reason for stopping, detaining nor disarming by police! Now maybe 911 operators will be trained to ask the right questions before wasting resources on legal OC carriers! Thankfully our police here in my state are well informed and don't waste there time harassing legal OCers!
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Old 03-20-2013, 10:39   #7
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I find it strange they use a convicted felon for the case? Oh thats right everyone else the stopped for this didn't have ANY CONVICTIONS and were not charged with a crime!
Courts just reaffirmed what has been said by us OCers in the many threads on this subject. If legal to do OC is not a reason for stopping, detaining nor disarming by police! Now maybe 911 operators will be trained to ask the right questions before wasting resources on legal OC carriers! Thankfully our police here in my state are well informed and don't waste there time harassing legal OCers!
So what state are you in? I may be moving there.
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Old 03-20-2013, 14:01   #8
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Originally Posted by HerrGlock View Post
Well, it is within the case in Seattle where a guy was Terry stopped because he was carrying rifles and someone called in man with gun. Court said just because he was walking with them is not cause to stop and talk.

I've litigated the same case in much more gun friendly Kentucky and the police (I represented) won. The report was even anonymous. The only conduct the police observed was the man walking by the road in a rural area with a shotgun, which is not uncommon there.

The difference in my case was that the anonymous caller also said the guy pointed the gun at passing cars (which was almost certainly not true - just some chicken*&^% yankee tourist passing by). In this case, it seemed like they had a lot of other evidence that would justify a Terry stop, pretty much on par with the evidence against the original Terry. The court also seems to have disregarded or dismissed a lot of it.
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Old 03-21-2013, 18:07   #9
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Well, it is within the case in Seattle where a guy was Terry stopped because he was carrying rifles and someone called in man with gun. Court said just because he was walking with them is not cause to stop and talk.
I OC into neighboring NH weekly. I have yet to be hassled.
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Old 03-21-2013, 18:26   #10
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Quote:
Originally Posted by Bren View Post
The difference in my case was that the anonymous caller also said the guy pointed the gun at passing cars (which was almost certainly not true - just some chicken*&^% yankee tourist passing by). In this case, it seemed like they had a lot of other evidence that would justify a Terry stop, pretty much on par with the evidence against the original Terry. The court also seems to have disregarded or dismissed a lot of it.
Then as you well know, that's a completely different set of circumstances. Yeah, the "he was pointing it at each car as it passed" was (my guess too) BS but that even I wouldn't grump about a stop and talk.

The ones I'm talking about are like the VA case and, apparently this one. Just standing there, walking, or in a restaurant with a holstered handgun. Not motioning towards it, nothing but going about one's business. Not cause for anything.
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Old 03-21-2013, 19:01   #11
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Originally Posted by HerrGlock View Post
Then as you well know, that's a completely different set of circumstances. Yeah, the "he was pointing it at each car as it passed" was (my guess too) BS but that even I wouldn't grump about a stop and talk.

The ones I'm talking about are like the VA case and, apparently this one. Just standing there, walking, or in a restaurant with a holstered handgun. Not motioning towards it, nothing but going about one's business. Not cause for anything.
Anti-gun people don't believe in the Second Amendment. They don't believe in the carrying of guns by civilians. These people would gladly lie about the actions of gun carriers.
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Old 03-22-2013, 06:28   #12
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Originally Posted by HerrGlock View Post
Well, it is within the case in Seattle where a guy was Terry stopped because he was carrying rifles and someone called in man with gun. Court said just because he was walking with them is not cause to stop and talk.
Can you post some details on this case, my Google-fu is weak. I'm down in Lacey and periodically OC to Starbucks w/ a group of guys but I prefer to CC. That being said, with the way politics are going now I might star OCing more as a statement.

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Old 03-22-2013, 06:43   #13
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Quote:
Originally Posted by 98LS-WON View Post
Can you post some details on this case, my Google-fu is weak. I'm down in Lacey and periodically OC to Starbucks w/ a group of guys but I prefer to CC. That being said, with the way politics are going now I might star OCing more as a statement.
I'm looking. It was a while ago and some minor finding so I'll poke around for a bit.

In the meantime, here are a couple more on the same subject, one case that mentions another as well. Both went a bit beyond Terry but both say just carrying is not reasonable suspicion a crime has taken place or is about to:

Quote:
Moreover, Mr. St. John's lawful possession of a loaded firearm in a crowded place could not, by itself, create a reasonable suspicion sufficient to justify an investigatory detention. For example, in United States v. Ubiles, 224 F.3d 213 (3rd Cir. 2000), the Third Circuit found that an individual's lawful possession of a firearm in a crowded place did not justify a search or seizure.

In Ubiles, officers seized Ubiles during a crowded celebration after they received a tip that he was carrying a gun. Id. at 214. Officers did so even though no applicable law prohibited Ubiles from carrying a firearm during the celebration.
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Old 03-22-2013, 07:00   #14
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Quote:
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II

STATE OF WASHINGTON,
Appellant,
v.
GREGORY ELIJAH CASAD,
Respondent.

The State appeals the trial court’s order suppressing
evidence against Gregory E. Casad. Casad walked down the street in Port Angeles on a Saturday
afternoon carrying two rifles partially wrapped in a towel. A woman called 911. Police
responded, detained Casad, frisked him, and asked why he carried the weapons. Casad admitted
that he was a felon, an admission that lead to his arrest and charges for unlawfully possessing the
weapons. The trial court held that the police had no authority to detain Casad for a Terry1 stop
and suppressed the evidence as the fruit of an unlawful seizure. We affirm.
http://www.impsec.org/~jhardin/gunst...published).pdf
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Old 03-22-2013, 07:03   #15
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and a Florida one from SCOTUS:

http://caselaw.lp.findlaw.com/script...&invol=98-1993
Quote:
FLORIDA v. J. L.
certiorari to the supreme court of florida
No. 98-1993. Argued February 29, 2000--Decided March 28, 2000

After an anonymous caller reported to the Miami-Dade Police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun, officers went to the bus stop and saw three black males, one of whom, respondent J. L., was wearing a plaid shirt. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not see a firearm or observe any unusual movements. One of the officers frisked J. L. and seized a gun from his pocket. J. L., who was then almost 16, was charged under state law with carrying a concealed firearm without a license and possessing a firearm while under the age of 18. The trial court granted his motion to suppress the gun as the fruit of an unlawful search. The intermediate appellate court reversed, but the Supreme Court of Florida quashed that decision and held the search invalid under the Fourth Amendment.


Held : An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer's stop and frisk of that person. An officer, for the protection of himself and others, may conduct a carefully limited search for weapons in the outer clothing of persons engaged in unusual conduct where, inter alia, the officer reasonably concludes in light of his experience that criminal activity may be afoot and that the persons in question may be armed and presently dangerous. Terry v. Ohio, 392 U. S. 1, 30 . Here, the officers' suspicion that J. L. was carrying a weapon arose not from their own observations but solely from a call made from an unknown location by an unknown caller. The tip lacked sufficient indicia of reliability to provide reasonable suspicion to make a Terry stop: It provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility. See Alabama v. White , 496 U. S. 325, 327 . The contentions of Florida and the United States as amicus that the tip was reliable because it accurately described J. L.'s visible attributes misapprehend the reliability needed for a tip to justify a Terry stop. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. This Court also declines to adopt the argument that the standard Terry analysis should be modified to license a "firearm exception," under which a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing. The facts of this case do not require the Court to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great-- e.g., a report of a person carrying a bomb--as to justify a search even without a showing of reliability.


727 So. 2d 204, affirmed.
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Old 03-22-2013, 08:38   #16
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That would be the Free state of Idaho ny friend!
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Old 03-22-2013, 09:57   #17
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39-17-1351
(n) (1)
Except as provided in subdivision (n)(2), a permit issued pursuant to this section shall be good for four (4) years and shall entitle the permit holder to carry any handgun or handguns that the permit holder legally owns or possesses. The permit holder shall have the permit in the holder's immediate possession at all times when carrying a handgun and shall display the permit on demand of a law enforcement officer.

State to state is different. In TN an OC'r can be stopped at ANY time to to provide proper documentation. Just having the weapon visible is probable cause to be stopped.
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Old 03-22-2013, 10:01   #18
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In TN its also illegal to open carry any rifle in public. However a rifle can be carried in a vehicle without a permit as long as its carried "cruiser ready" . Mag can be inserted but no round can be in the chamber.
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Old 03-22-2013, 10:17   #19
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Quote:
Originally Posted by BleedNOrange View Post
State to state is different.
Absolutely correct. I was working on the in states that do not have a specific requirement basis.

Then again, if you're wearing anything with Smokey on it, I would not be surprised if that's not probable cause all on its own.

Roll Tide
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Old 03-22-2013, 10:29   #20
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Absolutely correct. I was working on the in states that do not have a specific requirement basis.

Then again, if you're wearing anything with Smokey on it, I would not be surprised if that's not probable cause all on its own.

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