open carry? how will it work leo?

[txfireguy2003]

Yep, both sides were right, except the part about him being stopped in the first place. After that, everything seemed to go appropriately by my way of thinking. Had someone not called him in the officer would (hopefully) not have stopped him, since in that state, it's legal to open carry. The officer disarmed him, and asked for ID. The guy refused to give ID, also within his rights, and the officer continued to push for it, but eventually gave up. It's not illegal to ask for ID, nor is it illegal to refuse to give ID (unless you're in custody). I think that encounter went as well as it could have gone, after the point of contact. My opinion, which we all know is worth pretty much what you're paying for it, is that he should not have been stopped in the first place. Honestly, I think if the dispatcher got enough information, such as what this person with a gun was doing with it, he/she could have relayed to the officer that there was a man simply walking down the street with a gun in his holster. The officer could then have gone through the area, verified that the person with the gun was not threatening anyone, and continued on without making contact. Sometimes we feel the need to solve problems that don't exist. In this case, the caller had the problem, not the person that they called about. And before anyone says that the officer has to investigate the complaint....fine, you can do that by getting sufficient information from the caller, like asking exactly what laws were being broken. In this case, none were, and there was no reason to stop this person. It could have gone really bad if the guy had refused to disarm, when in reality, there was no reason to even contact him, and therefore no reason to disarm him. Our nation has become so accustomed to calling the police anytime they see something that they don't agree with, or anything that makes them nervous, and the police, in an honest effort to solve the problem, end up confronting people who don't need confronting as they have not and are not committing any crimes.

The officer's justification that he needed to see ID so he could verify if the guy was a felon....understood, but why did you stop the guy in the first place? To say "Because somebody complained about a man carrying a gun, so I had to investigate." would be the same as a citizen complaining about a "reckless driver" who is going the speed limit, not tailgating, not weaving, just driving faster than the complainant. Had he been a felon in possession of a firearm, I'm betting he could get that thrown out, at least in appeals, because the officer had no probable cause.

[konahoss]

Right on. I think that young man needs a round of applause as well as the Portland PD Officer. I need to educate myself more on the Law like he has done. Glad he stood his ground. Even though I have nothing to hide, I will never consent to a search of my vehicle or home unless there is a warrant. Just the way I was raised and taught.

[tvc184]

I don't feel like watching it again and am trying to go off of my lame memory of the video but....

The "law student" says that Brown v. Texas denies the police the need to ask for an ID. That is not correct. In Brown the police stopped him for being in a "high crime area". They had no other reasonable suspicion and therefore the then Texas law that said you had to identify yourself to the police was not valid as a criminal charge. The cops in Brown did not have reasonable suspicion for a stop and only had a hunch so the request for an ID was not a valid criminal charge for refusal.

The student says that for a Terry v. Ohio lawful stop, the officer has to tell him what he is being investigated for. I will disagree with that statement that you have to tell the person what he is being detained for and that the officer has to suspect a specific crime. In fact in Illinois v. Wardlow the US Supreme Court said that fleeing from the police alone is reasonable suspicion for a detention and the cops don't have to know why the person is fleeing. That contradicts the claim by the law student who asks to know the charge he is being detained for.

The student then cites US v. DeBerry and that an officer cannot stop a person merely for carrying a weapon. That is not what Deberry says. In fact, in DeBerry, his weapon was concealed and the officers had no reasonable suspicion for the detention. Therefore the detention was a violation of the Fourth Amendment and any subsequent evidence found was not admissible in court. The point is, it was not a weapons ruling but a seizure ruling. Also, DeBerry was in the 7th Circuit and has no jurisdiction on the 1st Circuit where Portland is located.

Txfireguy notes that it is not illegal to refuse to give your name unless you are in custody. I am not familiar with the Maine Criminal Code however the police can demand identification for a reasonable suspicion (Terry) stop. In Hiibel v. Nevada (2004), the US Supreme Court ruled the police could demand a person to identify himself if lawfully detained. Texas does not have such a law but some states (including Nevada in the Hiibel case) have that law and the police can demand a name if the state law allows it.

We also do not know if the officer had another lawful reason to stop the guy such as seeing him jaywalking or some other pedestrian crime which would invalidate the entire premise that the officer cannot stop him. In Atwater v. Lago Vista (TX) the US Supreme Court ruled that the police could go as far as arresting a person for a minor crime even if the punishment does not allow for jail as a sentence. Since we do not know that the officer saw beforehand, no one knows by that video if there was a lawful reason for the stop outside of a firearm, assuming the firearm itself was not enough.

I don't know if the officer was correct or saw any of the situation like I noted however the law student seems to have misapplied several laws including one that has no jurisdiction in the place he was stopped and by merely looking at the video, I don't know how anyone can determine that the officer was wrong. The student sure sounded impressive (to some people) but saying the names of court cases does not make him correct.

[tvc184]

Right on. I think that young man needs a round of applause as well as the Portland PD Officer. I need to educate myself more on the Law like he has done. Glad he stood his ground. Even though I have nothing to hide, I will never consent to a search of my vehicle or home unless there is a warrant. Just the way I was raised and taught.

I understand and agree with not consenting but there generally is no such thing as a warrant requirement for a vehicle that is being driven. That goes back as far as Carroll v. US in 1925.

Refusing consent will put the burden of proof on the officer to justify any search under probable cause. Trying to stop him from searching a vehicle on a traffic stop is a crime, even if the search was later found to be unlawful.

[konahoss]

I understand and agree with not consenting but there generally is no such thing as a warrant requirement for a vehicle that is being driven. That goes back as far as Carroll v. US in 1925.

Refusing consent will put the burden of proof on the officer to justify any search under probable cause. Trying to stop him from searching a vehicle on a traffic stop is a crime, even if the search was later found to be unlawful.

I agree, I didn't say I would attempt to stop a search, I said I will not consent. I know they can search with probable cause with a vehicle during a stop, but they couldn't show up to my home and search my vehicle without consent or a warrant. If I am wrong, please tell me. I'm not trying to debate Law, just learning more and more everyday. Thank you.

[tvc184]

I agree, I didn't say I would attempt to stop a search, I said I will not consent. I know they can search with probable cause with a vehicle during a stop, but they couldn't show up to my home and search my vehicle without consent or a warrant. If I am wrong, please tell me. I'm not trying to debate Law, just learning more and more everyday. Thank you.

That is correct..... mostly.

There is always the "exigent circumstances" exception to a warrant but that is rare. Examples are hearing an assault in progress, having a potential victim down in the house or seeing bloody footprints leading into a house. Sometimes there simply is no time for a warrant. The OJ Simpson was a good example of a search of a home without a warrant that was upheld by the courts.

I have made such entries into a home maybe 10 times in my career and have never had one overturned.

About 99.9% of the time, you are correct.

[konahoss]

That is correct..... mostly.

There is always the "exigent circumstances" exception to a warrant but that is rare. Examples are hearing an assault in progress, having a potential victim down in the house or seeing bloody footprints leading into a house. Sometimes there simply is no time for a warrant. The OJ Simpson was a good example of a search of a home without a warrant that was upheld by the courts.

I have made such entries into a home maybe 10 times in my career and have never had one overturned.

About 99.9% of the time, you are correct.

Good deal. Like I said, I don't have anything to hide, I am not going to just give up my rights that a lot of us have served our country to protect. Come to think about it, it's a slap in the face of any LEO if we do let them bypass our rights that they preserve on a daily basis. I have no problem with a LEO being persistent and trying to catch the bad guy. I think they should do whatever they can in order to catch the criminal. That said, i really don't fore see any issues. But I am tired and need sleep. Sorry for the ramblings

[DJM]

http://www.kcentv.com/story/21860185/local-soldier-says-police-violated-his-guns-rights

Something similar happened locally with a different outcome.

DJ

[Kodiakk]

I applaud the guy for knowing the applicable laws and standing up for his rights.

To often people give up their rights just to make it easier.

X2 I know most here disagree, but it's important for citizens to exercise their rights otherwise they will be lost. I do commend this officer, as he was very professional and nice as he should be.

Maybe I'm more sensitive on these issues compared to most due to the fact I had family that lived in Germany under Hitlers rule. Then more relatives that lived under Stalins rule. It can happen here if Americans allow it. Just look how far we have fallen under Obama.

I do see more citizens exercising their rights which gives me hope we might turn this thing around as more citizens become aware.

[JW]

X2 I know most here disagree, but it's important for citizens to exercise their rights otherwise they will be lost. I do commend this officer, as he was very professional and nice as he should be.

Maybe I'm more sensitive on these issues compared to most due to the fact I had family that lived in Germany under Hitlers rule. Then more relatives that lived under Stalins rule. It can happen here if Americans allow it. Just look how far we have fallen under Obama.

I do see more citizens exercising their rights which gives me hope we might turn this thing around as more citizens become aware.

I agree. And we have a couple Cop Nazi's on here that love to tell eveyone what is right, wrong and what "Constitutional Rights" they have the right to infringe on. Shhhhhh....

Just the **** truth.

[Kodiakk]

http://www.kcentv.com/story/21860185...is-guns-rights

Something similar happened locally with a different outcome.

DJ

Hopefully Grisham wins. Think about hurricane Katrina and how their citizens were disarmed. It's a slippery slope.

[ame="http://www.youtube.com/watch?v=-taU9d26wT4"]NRA: The Untold Story of Gun Confiscation After Katrina - YouTube[/ame]

[Chad C]

Very interesting. I really don't know who's side to be on. Officer just trying to do his job and student trying to exercise his right. It ended well so no real issue either way.

The law student!

[Chad C]

Every time I see one of these videos it makes me sad. All the guy has to do is show his ID and everyone can be on their way, but the student wants to be a smart *** and show off his "knowledge" of the law. The kid is a ******, and he makes everyone who carries a firearm look bad by doing things like this. As a law abiding citizen, LEO's should generally be seem as beneficial, especially when the officer is very polite about the situation. I know it is the kids right, but he takes it to a level he doesn't need to.

Negative! He knows his right... They would have documented his name!

[Chad C]

How do you know?

It all depends on how the law is written. Currently Texas law allows a peace officer the authority to disarm anyone with a CHL if "the officer" reasonably believes it necessary.

From reading the current submitted legislation on open carry in Texas (HB 700), it does not change the language on disarming and only adds "unconcealed" to the law.

That would mean that if an officer reasonably believes that it is necessary to disarm you, it is within his authority under the proposed change in the carry law.

You have to read laws as they are written in each state, not as you want them to be or what you were told at the corner bar while discussing it with a guy that has an uncle who has a friend that is a cop and he knows blah blah blah.

What does the open carry law say in those states? That is what dictates the officer's actions as to whether they are legal. We can spout constitutional beliefs all day but they aren't necessarily the law. For example a lot of people in Texas believe that the Second Amendment is enough to justify open carry. Great but get arrested for that and see how that works out for you in front of the judge.

With that in mind, what is the law in the states where these videos are taken? Are they like Texas law that says an officer can disarm someone? If so, saying phrases about not consenting to seizures or searches will not change that. It may look great for a video but has no legal bearing unless someone challenges it in court and gets it overturned on appeal.

Are the officers wrong? Are the citizens making the videos?

Better read the laws on those states before making a determination.

They did disarm him! He wasn't breaking any laws and they should have given it back.

The man with rank shows up and immediately sends the law abiding citizen on his way with his firearm.

[txarcher]

I think the law student was being a jerk. It seems to me he was just walking around hoping he would get stopped so he could try to show someone how smart he is. I'm not a Leo and don't even have one in the family, but I have the utmost respect for them and what they do and I try to do everything I can to be cooperative when dealing with them. They're out there to protect the public and if they think there is any chance someone is up to no good, they ought to be able to check it out without somebody being a butt.