Detained for Open Carry

Discussion in 'In the News' started by Malum Prohibitum, Jul 2, 2007.

  1. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    This happened in Virginia, where no license is required to carry openly (just like in 27 stated, but not in Georgia).
     
  2. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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  3. Macktee

    Macktee New Member

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    It sounds as though he handled things as well as he could have... I hope I would have do as well.

    I agree with those who encouraged him to file a FOI request and a complaint against the officer who, obviously, didn't know the law. If enough people make enough of an outcry against such actions, the various PDs will learn how to respond properly and legally. And the, we'll all live happily ever after... :)

    Interesting. Thanks for posting it.
     
  4. wsweeks2

    wsweeks2 New Member

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    So if I call the police and tell them that I see someone with drugs, and the police show up and find out that they are in possession of legal prescription drugs, would they be detained?
     
  5. budder

    budder Moderator Staff Member

    Yes, until they drugs were ascertained to be theirs or they die from not being able to take their heart/blood/seizure medication.

    In all fairness, who needs civil liberties when you can live in a police state? I mean, it even has "police" in the name! It's gotta be good. But "civil"? I've heard of "civil" suits in court and I don't want any of that! Clearly, the police state is better.
     
  6. Gunstar1

    Gunstar1 Administrator

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    Don't forget "civil" wars.
     
  7. Mobster989

    Mobster989 New Member

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    If you're detained unlawfully you can resist with necessary force. There is a case that went all the way to the supreme court about this, it is dated though. JOHN BAD ELK v. U S, 177 U.S. 529 (1900) In that case the suspect was to be taken into custody for a misdemeanor, the officers approached the suspect and one attempted to take his firearm, he shot the officer and killed him. The court ruled that he was within his rights to resist the unlawful arrest.

    If the officer does not have reasonable articulated suspicion that you are involved in criminal activity he cannot detain you and you may resist if he tries to detain you. It can be tricky though because you might fit the description of a man who just robbed a bank, so you have to be careful. If the guy wanted to he could have definitely made a case of this. If he had decided he was done talking and started walking away he would be within his rights since he wasn't detained for any criminal activity. I don't see how 'public fear' could be used to justify the detainment. In some parts of America they are afraid of black people or arabs, does that mean that when they walk around the cops are allowed to detain them?
     
  8. ptsmith24

    ptsmith24 New Member

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    Crazy isn't it?
     
  9. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    This is no longer good federal law. This is not recognized in federal court today. It is also not recognized in the majority of states. Be careful what you post and be careful what you read on the internet.

    Georgia is within the minority rule and has a right to resist unlawful arrest, but are you sure that in Georgia, detaining you for an openly carried firearm and asking for your firearms license is an unlawful arrest?

    If you use "force," to resist, and the officer increases his force, so that you must increas what the amount of force necessary to escape the arrest, until somebody gets hurt, are you absolutely certain that your judge is going to agree that the arrest was unlawful?
     
  10. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    The situation may be different in Viriginia, where an openly carried pistol without a license is a right, whereas that is illegal here.
     
  11. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    For the record, I think (personal opinion, not legal opinion) that the detention is unlawful. No court would put up with an officer stopping a car in the absence of reasonable suspicion of a crime just to see if you have a drivers license, even though it is illegal to drive without one.

    BUT are you likely to get me for a judge or somebody who just donated time to some gun buyback campaign?

    All judges drive, and they do not want to be arbitrarily stopped, but not all judges openly carry a pistol in public. All judges see guns kept out of their workplace everyday, except for LEOs.

    They may see nothing unreasonable at all about stopping you for a few minutes, disarming you, and ensuring you have a Georgia firearms license, issued by your friendly neighborhood probate judge.
     
  12. wsweeks2

    wsweeks2 New Member

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    Who cares about rights? That's what we have laws for - to tell you what your rights are.

    :wink:
     
  13. Sharky

    Sharky New Member

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    And hopefully the ones enforcing the laws understand the rights of law abiding citizens!
     
  14. wsweeks2

    wsweeks2 New Member

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    That's the problem with a lot of LEO's - they don't. The badge is the universal excuse when they screw up. It is their job to know the laws they are charged with enforcing.
     
  15. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    My Two Cents

    Criminals don't open carry in holsters. Lawfully-armed civilians and LEO's do. So if a cop sees somebody on the street walking around with a holstered gun, I don't think he has probable cause. The most he can do is a first-tier encounter, where he just approaches the guy and asks if he can talk to him for a minute. The citizen is free to keep on walking.

    If the civilian is carrying the gun in a manner and under circumstances that are consistent with how a criminal would do it (say, simply tucked into one's pants or pocket. Maybe there's an IWB holster or pocket holster being used, so Georgia law is not actually being violated, but the cop can't tell that from a distance at a quick glance. Or maybe the gun is being carried openly, in the hand. As a guy walks from the convenience store to a parked car nearby. Is he a robber making a getaway? Or is he an assistant manager who is making his normal trip to the bank to deposit the store's receipts, and packing for protection?

    Then, when the gun is carried in a way that makes it look suspicious and worthy of more inquiry, I think the cop can stop the person and demand some ID and answers.

    But if the citizen produces ID, has a valid license, and especially if he has a reasonable explanation for his being so armed, the encounter should end QUICKLY. No 15-minute delay while back-up is called. No delay to run the gun's serial number through a federal stolen weapons database. No calling the probate court to "verify" the license is genuine, unless there is affirmative visible evidence that it has been altered or forged.
     
  16. Sharky

    Sharky New Member

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    I wouldnt mind, now that I OC"ed finally, if approached by an officer and asked to show my license I would. I do not feel I should have to provide him any reason as to why I carry, its an obvious answer and really none of his business. I really dont think I should be stopped at all, but hopefully them stopping people, and seeing we arent a threat, will help change any anit-citizen carry LEO's opinions.

    Please do not take offense gunsmoker, I was just offering an opinion.

    But I do agree with everything else you mentioned. It should end right there with the GFL.
    Me: here it is sir
    officer: thanks have a great day!

    If he feels like talking about my choice of firearm or casual conversation, why not. If they feel comfortable that we are law abiding citizens and can have a conversation great. I have run into the same police here in Suwanee all the time. Better to have friends than be rude to a police officer, even if they arent aware of the law.
     
  17. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Re: My Two Cents

    Your GUN gives me all the "probable cause" I need.
     
  18. wsweeks2

    wsweeks2 New Member

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    Re: My Two Cents

    Why would simply carrying a gun look suspicious? I don't understand where the PC is that simply carrying a gun allows a LEO to confront someone. What crime has been committed? In a state like MD where carry is strictly banned I could see the argument, but in GA I don't understand.
     
  19. budder

    budder Moderator Staff Member

    Re: My Two Cents

    Well, this looks pretty suspicious to me...
    [​IMG]