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Discussion Starter · #1 ·
So I stop these Gwinnett officers to inquire into what is their policy on open carry. Keep in mind that I was not trying to argue with them, as I wanted to hear their justifications and opinions without putting them on the defensive.

I was in the Gwinnett courthouse, and I saw a younger officer and an older one, with gold bars, so I thought, great, I will get the street officer and the supervisor opinion in one shot.

For those not inclined to read the whole post, the short answer is: Prepare to be detained, disarmed, and treated like you are possibly the VT shooter.

So I approach and politely ask them if they have a couple of minutes to speak with me, and I ask whether they have a policy or practice regarding openly carried pistols, and I make it very clear that I am talking about carrying in a place where one is legal to carry. I also set it up as - no call, they just see a guy with a pistol in a holster.

Stop, disarm, question, checkout.

"Disarm?" I ask, alarmed. "Sir, just so I am clear, I stated that you see someone in a place that is legal to carry, and you have not received a complaint."

"Yes, I will take your weapon. I will check you out. If eveything is fine, I will let you go." He mentioned the license.

"But what is your probable cause or reasonable suspicion?"

"Your gun."

He made it sound like this is department wide practice.

I asked whether he stops cars just to check and see whether the driver has a driver's license. He said he did.

"Without witnessing a traffic offense?" I asked like this ---> :shock:

"No, I have probable cause when I see a traffic offense."

"So what is your probable cause when you see an openly carried holster?"

"Your gun," he responded, and assurred me he would stop me if he saw me carrying openly a pistol in a holster, but tried to mitigate his statement by affirming that he would let me go on my way after checking the license.

I then turned to the older gentlemen with the gold bars, and inquired, "So what does the supervisor say?"

His face grew into a very suspicious expression, and he said, "Why are you asking all of these questions?"
:sly:

He asked, "Did you get arrested and charged with this?"

He never did say what "this" would have been.

:roll:
So I decided to throw in the ex-LEO card to keep them talking, as I sensed otherwise he was too suspicious to speak freely to an "outsider" like me, and I told him I spent twelve years as a police officer and I would never have stopped somebody for simply openly carrying a pistol in a holster, because there is no reasonable suspicion of a crime. It is legal.

"How often do you see people carrying?" he asked.

"Pretty frequently," I answered, realizing now that we probably ran in different crowds. I informed him I carry every day now.

"Openly!?!" he interjected.

"Yes, at least three or four times a week, sometimes in front of police officers, and I have never been stopped, but I heard from this guy in Savannah, who was stopped and threatened with arrest by an officer who erroneously thought open carry was illegal."

He then took on an authoritative tone and said, "Your gun gives me all the probable cause I need. Yes, we are going to stop you and check you out. What if you were the VT shooter running around campus. Should nobody check that out?"

"Well, sir, as I understand it, the law in Virginia allows them to eject people with firearms from the University, as does the law in Georgia, so I would think then you have your reasonable suspicion or probable cause in that circumstance, but please keep in mind that I am speaking about you seeing an openly carried pistol in a place that is not off limits, like out on the sidewalk."

"Your gun gives me all the reasonable suspicion I need. Rest assured we would check you out."

I thanked them for their time.

So, I ask, what is the reasonable suspicion standard about? I thought it was reasonable suspicion that a crime was being committed or about to be committed. What is the crime?

If it is the crime of carrying a pistol without a license, what is the reasonable suspicion that you do not have a license, and how is this the same/different from the car license example?
 

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Since so many places are off limits, my guess is that his "reasonable suspision" is that you will wander into or just come from an off limits place.

But then again it could be like being Black while driving. Guilty until proven innocent.
 

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Crap, M_P, you make me think it would be a good idea to take criminal procedure.
 

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Discussion Starter · #5 ·
The trial court's declaration that “[t]here can't be articulable suspicion on conduct that's not a crime†is an incomplete statement of the law. While it is true that the officer must reasonably suspect wrongdoing, and that this suspicion cannot be based on a mere hunch that the individual is “up to something,†we have rejected the notion that the police officer must know with certainty that each element of a particular crime could be established: “If the officer acting in good faith believes that an unlawful act has been committed, his actions are not rendered improper by a later legal determination that the defendant's actions were not a crime according to a technical legal definition or distinction determined to exist in the penal statute. It is not the officer's function to determine on the spot such matters as, e.g., jurisdiction or the legal niceties in definition of a certain crime, for these are matters for the courts. The question to be decided is whether the officer's motives and actions at the time and under all the circumstances, including the nature of the officer's mistake, if any, were reasonable and not arbitrary or harassing.†(Citations and punctuation omitted.) State v. Webb, 193 Ga.App. 2, 3-4, 386 S.E.2d 891 (1989).
State v. Armstrong, 223 Ga. App. 350 (1996)
 

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Gunstar1 said:
But then again it could be like being Black while driving. Guilty until proven innocent.
Sounds like it to me.
 

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So if police are only allowed to disarm people when they are detaining them and the police officer believes he is detaining you would you be incorrect in asserting your right to not be disarmed EVEN IF he believes he is right but is wrong?

Basically what I am getting at is...when the time comes that a police officer comes up to me while I am in a legal place and tell me to give him my gun and I tell him no and just give him my permit and he persists in wanting my gun and I tell him to leave me alone then try to walk away (but not resist arrest)....after I am tazers/maced then handcuffed then brought to jail.... what are the chances that the charges are not going to stick and that I can sue the pants off of the officer/department/county?
 

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One of the problems are that if you had gotten officer C & D, instead of A & B then their answers could have been friendly and this thread would be a lot different with no discussion about PC or reasonable suspicion.

Officer C & D:

"No biggie as long as you're in a legal area and not acting suspicious (about to, or committing a crime)."

MP:

"Cool, good day gentlemen."
 

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Oh, and I suppose that since I open carry so much it would be a wise investment to buy a micro-recorder. No he said/she said in court.
 

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Discussion Starter · #10 ·
Rammstein said:
So if police are only allowed to disarm people when they are detaining them and the police officer believes he is detaining you would you be incorrect in asserting your right to not be disarmed EVEN IF he believes he is right but is wrong?

Basically what I am getting at is...when the time comes that a police officer comes up to me while I am in a legal place and tell me to give him my gun and I tell him no and just give him my permit and he persists in wanting my gun and I tell him to leave me alone then try to walk away (but not resist arrest)....after I am tazers/maced then handcuffed then brought to jail.... what are the chances that the charges are not going to stick and that I can sue the pants off of the officer/department/county?
I have said previously, and I think it was to you, that I will not provide answers here that will get people shot, tasered, or jailed.
So my advice would be to comply, even if under protest.
 

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Discussion Starter · #11 ·
Does your attempt to walk away constitute reasonable suspicion?
 

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Discussion Starter · #12 ·
The mere fact that during this first-tier encounter Rodney sought to "be let alone" by avoiding contact with police when he went into the store and out its back door, by quickly walking away from the officer, and by refusing to answer questions, did not create an objective articulable suspicion. See In re J.M. ("citizens have a fundamental constitutional right to 'be let alone,' provided they are not interfering with the rights of other individuals or of the public"). As previously stated, "a citizen's ability to walk away from or otherwise avoid a police officer is the touchstone of a first-tier encounter." Harris, supra, 261 Ga.App. at 122, 581 S.E.2d 736. Such conduct may not provide the basis for elevating the encounter to a second-tier Terry stop. Id. The totality of the circumstances of Rodney's detention, arrest, and subsequent search does not provide a basis to disregard constitutional protections.
Black v. State, 281 Ga. App. 40 (2006)
 

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Do you HAVE to ask if you are free to go instead of assuming so, especially if you aren't told that you are being detained?
 

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Malum Prohibitum said:
The question to be decided is whether the officer's motives and actions at the time and under all the circumstances, including the nature of the officer's mistake, if any, were reasonable and not arbitrary or harassing.†(Citations and punctuation omitted.) State v. Webb, 193 Ga.App. 2, 3-4, 386 S.E.2d 891 (1989).
State v. Armstrong, 223 Ga. App. 350 (1996)[/quote]

Well considering that there is a subset of the pupulation licensed to perform such activity isn't there at least a colorable argument that the actions aren't reasonable. Of course, statist reason and libertarina reason are two different... universes.

Of course, "let me see your license" is in a lot different catagory than what you described above.

Seems to me that open carrying is at least prima facie evidence of being law abiding.
 

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Discussion Starter · #15 ·
The only evidence in the record is [Officer] Taylor's testimony. There was no evidence that Taylor "engaged his siren and emergency equipment, drew his firearm, or made any other show of force. Nor is there any evidence that the officer threatened, coerced, or physically restrained appellant." Officers, having no basis whatsoever to suspect a particular individual, may generally ask questions of that individual and ask to examine his or her identification as long as they do not convey a message that compliance with their requests is required. Taylor testified that he did nothing to make Lucas feel as though he was not free to leave, and the record contains no evidence to the contrary. Therefore, we agree with the trial court's conclusion that Taylor's encounter with Lucas was a first tier police-citizen encounter.
Lucas v. State (2007)
 

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Discussion Starter · #17 ·
AV8R said:
Do you HAVE to ask if you are free to go instead of assuming so, especially if you aren't told that you are being detained?
No, but it sure is an easier way to clarify whether the encounter is consensual than being tackled or tasered. :wink:
 

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If I was a criminal, I sure as hell wouldnt be open carrying.

Additionally, I would have a HUGE problem with a police officer asking me to hand over my weapon if I KNOW I am not breaking the law....Of course if you dont you would be accused of resisting and probably thrown in the back of the squad car...
 

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Discussion Starter · #19 ·
viper32cm said:
Crap, M_P, you make me think it would be a good idea to take criminal procedure.
Couldn't hurt.
 

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Discussion Starter · #20 ·
AV8R said:
One of the problems are that if you had gotten officer C & D, instead of A & B then their answers could have been friendly and this thread would be a lot different with no discussion about PC or reasonable suspicion.

Officer C & D:

"No biggie as long as you're in a legal area and not acting suspicious (about to, or committing a crime)."

MP:

"Cool, good day gentlemen."
Yeah, maybe so, but it would just suck to get stopped by these people.
 
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