NH: Vid of my latest open carry incident

[ATW525]

BTW, it's a pet peeve, but words mean things. It's a Pistol and Revolver License, not a permit. No one is asking for nor granting permission for anything.

Could be, but the Manchester PD calls it a permit, which is good enough for me.

 

[AntiqueCollector]

One of the points behind open carrying in a state like NH would be...no permit needed! Therefore, it's unreasonable to be asked for a license for something that doesn't require it. You can be asked to present a driver's license if you're pulled over/stopped while driving but someone walking around is entirely different.

If he didn't have a CCW and it's needed to have the gun loaded in the car, that's also not reason to stop him. He was already out of the car when he was stopped. He could very easily have had the gun unloaded and then loaded it when he got out. And people are presumed innocent until proven guilty, not the other way around. So, again, the police had no legitimate reasons for harrassing anyone open carrying like this.

 

[ScottS]

Could be, but the Manchester PD calls it a permit, which is good enough for me.

The Manchester PD can call it a library card if they want, but that doesn't make it one. It clearly says "Pistol/Revolver License" across the top of the form, as well in the enabling Statute.

And thanks for pointing that website out. The MPD has evidently been requiring people come to the station to pick up their license. ("...you would have to return to the Station to pick up your permit.") NH RSA Section 159:6 clearly says "The original shall be delivered to the licensee and the duplicate shall be preserved by the people issuing the same for 4 years." (Emphasis added.) Accordingly, mine has always been delivered to my door by an APD officer. I think I need to bring this to the attention of GO-NH and NHFC.

 

[ATW525]

And people are presumed innocent until proven guilty, not the other way around.

Totally irrelevent and nonsensical. If the police weren't allowed to investigate until people are proven guilty, nobody would ever be proven guilty. To be proven guilty you have to have to trial and to have a trial the police have to investigate. To say that the police can't investigate until after somebody is convicted is ridiculous.

 

[brerrabbit]

ATW

As posted before, The OP was in the legal clear. So should a black man eating at predominantly white eatery also be under suspicion because it is out of the norm? Or a black woman who dares to sit at the front of a bus? A person displaying an anti-war sign?

They are exercising their rights but as it is out of the norm, Under your standards they should expect to be scrutinized and held under a dubious street interrogation where they are not detained or under arrest but cannot leave until they clear themselves in the opinion of a LEO with dubious grasp on the law in the state.

At what point do you say that a person exercising the rights that they enjoy should not be under scrutiny?

I lived in the Kittery Maine/Portsmouth New Hampshire are back in the 80's/ early 90's during an overhaul of my boat. Back then, many of them did believe in the "Live Free or Die" motto.

 

[ATW525]

So should a black man eating at predominantly white eatery also be under suspicion because it is out of the norm?

Absolutely not as far as law enforcement goes. There's no legimate public safety interest in the color of his skin. In fact I'm reasonably sure that there's no danger he's going to kill anybody by looking black at them.

Or a black woman who dares to sit at the front of a bus?

I have no idea where you live, but black women can sit pretty much anywhere they want on the buses around here. If it's not the case in your neck of the woods, I suggest moving out of the 1950's.

A person displaying an anti-war sign?

Again, I'm not sure how this is abnormal?? I don't even notice these thing anymore because anti-war signs and stickers are a dime a dozen. Why would this be suspicious?

 

[brerrabbit]

My neck of the woods, thirty something years ago all of them would have ended up in jail for something we consider normal today.

All are exercising what are considered rights. ALL LEO in the state know or reasonably should know that it is legal. Harrassment by LEO for performing a legal action does not serve the cause of LEO very well either.

As per your post, any unusual activity by a citizen should involve scrutiny by LEO, even if the citizen is acting within within his or her rights. I believed you even clarified it as a matter where they may be breaking the law. Now you clarify that they may harrassed on not breaking the law but posing a threat to safety

So based on your belief system, anyone that may be breaking the law, even with no proof, as long as they look scary or have the possibility of causing harm, should be expect harrassment by LEO.

Sounds good for the driving while black crowd, Or for that matter any of fifty occupations that I could name offhand that routinely carry enough reactive chemicals that can cause a hundred times more death and destruction than a man with a gun could.

 

[brerrabbit]

Double post

 

[joab]

ATW525
But what two things do all those actions have in common with the OPs?

They are offensive to those that choose to be offended by them and they are perfectly legal

 

[ATW525]

As per your post, any unusual activity by a citizen should involve scrutiny by LEO, even if the citizen is acting within within his or her rights. I believed you even clarified it as a matter where they may be breaking the law. Now you clarify that they may harrassed on not breaking the law but posing a threat to safety

Reasonable suspicion is the standard that needs to be met to initiate an investigative stop. It's judged on the whole picture from the perspective of the officer which takes into account any abnormal behavior on the part of the subject (including his reaction upon seeing the officer), the likelyhood that a crime may have occured/is in progress/or is about about to occur, and the threat to public safety. It is also based on the previous experiences of the officer in question and the information he had on hand at the time.

With a few exceptions (such as the subject fleeing at the sight of the officer) there are no hard and fast black and white rules to determine reasonable suspicion. However, unlike probably cause, it requires only a minimal level of objective justification.

In Terry v. Ohio, which set the standard for investigative stops, the subjects were stopped after a detective had observed them walking back and forth, looking in a store window and conversing among each other. None of which are illegal acts. Yet the court found that the detective had reasonable suspicion that they might have been casing the place for a robbery based on the totality of the circumstances.

 

[ATW525]

But what two things do all those actions have in common with the OPs?

What don't they have in common with the OPs? Race isn't a valid criterion for reasonable suspicion (unless it's simply one facate of a more detailed description).

I'm also not aware of any incident where anti-war signs have been used as justification for a Terry stop either. Though it's true there are people who are offended by them, the stretch of imagination required to come up with a criminal use for an anti-war sign is probably beyond what reasonable people would call reasonable, or so I reasonably choose to believe.

However, knowledge that a subject is armed has successfully been used in the past as a component of reasonable suspicion.

 

[absolut_beethoven]

"If a man neglects to enforce his rights, he cannot complain if, after a while, the law follows his example."

Oliver Wendell Holmes


Thanks for that quote AnyC.

As an ex-South African who was fortunate enough NOT to be subjected to that country's pass laws due to my being born white, I cannot believe how many of you people on this board are only too happy and willing to give up our hard earned rights. That is, the few that we have left.

jaholder1971

Kansas state law requires you present your driver's license or any state ID to any law enforcement officer or driver's license examiner whenever asked.

Very top of page 8. Must have it on person while driving and present to LEO, judge or DL examiner upon request. Don't like it, turn in your DL, I didn't make the rules.

jaholder1971 - You have misinterpreted the law. You only have to carry your DL and are obligated to show it to LEO's while driving. If you are not driving, then you are neither required to carry it or show it. Yes, Kansas is one of the 21 states that you have to verbally ID yourself if requested by a LEO, but you are still NOT required to show them an ID. PERIOD. That is the law.

I have posted this link before, and IA_farmboy posted it again earlier in this thread. The United States Supreme Court has already ruled that all states that have such laws on the books are unconstitutional, thanks to Edward C. Lawson. Meaning...

a) You are NOT obligated to carry your DL with you when you aren't driving.

b) You are NOT obligated to show your DL to LEO's just because they ask for it, unless, as stated above, you are driving a car, or a bicycle etc.

http://en.wikipedia.org/wiki/Edward_C._Lawson

 

[jeepmor]

any unusual activity by a citizen should involve scrutiny by LEO, even if the citizen is acting within within his or her rights.

This attitude is giving your rights away folks, please don't do that.

This has been one of the best threads at causing people to show their true colors. I am 100% in support of the OP on this. I thought you dealt with the officers in quite a respectful manner. Striped shirt guy wasn't helping though, and in a place like Stumptown, he would have been carted off, I have little doubt.

Some of you who think you should just succumb to authority will be very easy to herd onto the trains. Just comply and we'll work it out after the fact. 6 million dead jews would disagree with your method, if they were around to discuss it.

 

[jaholder1971]

a_b,

Kansas has a "stop and identify" law. The Hiibel decision upheld it.

http://www.globalpolicy.org/empire/terrorwar/liberties/2004/0621identification.htm
http://en.wikipedia.org/wiki/Hiibel

The driver's license book is very clear: you will present it to an LEO upon demand, says nothing about presenting it upon demand while driving. Besides, I don't think too many judges do traffic stops.

We have a number of cities in Kansas who allow open carry, but will arrest you for disorderly conduct if you do so. The DC statutes are very liberal in their interpretation.

 

[joab]

Race isn't a valid criterion for reasonable suspicion

Neither is committing a lawful act

However, knowledge that a subject is armed has successfully been used in the past as a component of reasonable suspicion.

Knowledge that the subject was legally armed in accordance with federal, state and local laws while breaking no other laws ?
Can you provide an example?

 

[ATW525]

Neither is committing a lawful act

Wrong. As I already mentioned, the suspects in Terry v. Ohio were committing lawful acts.

In Sokolow the suspects paid cash for two airline tickets from a large roll of $20 bills and the tickets were from Honolulu to Miami to stay for a 48 duration in July. Again perfectly legal acts, but taken as a whole they helped form the grounds of reasonable suspicion.

Reasonable suspicion is pretty much always based on the observation of lawful acts. If an officer observed an unlawful act, said officer would have probable cause to arrest (or a write citation depending on the degree of the crime), and not simply reasonable suspicion to investigate.

Knowledge that the subject was legally armed in accordance with federal, state and local laws while breaking no other laws ?
Can you provide an example?

How did the trooper in this case have that knowledge? He knew the OP was armed, but is unlikely to know from simply looking at him whether he was legally armed in accordance with federal, state and local laws while breaking no other laws. If our police officers were psychic we wouldn't need a reasonable suspicion standard... heck, we wouldn't even need trials.

 

[Sistema1927]

There's no legimate (sic) public safety interest in the color of his skin.

And neither should there be any legitimate public safety interest in the exercise of open carry. The fact that there are those who illegitimately believe that open carry is an invitation to LEO scrutiny is a sad commentary, sad indeed.

 

[joab]

How did the trooper in this case have that knowledge?

He witnessed a man walking down the street openly carrying a gun in a lawful manner
His knowledge that no crime was being committed should have come from observation and applying that to a knowledge of the laws that he is tasked with enforcing

Would you think that e has the same right to stop a man walking down the street, bothering no one, if his hand was in his pocket or if he was wearing a back pack
Why is it that the state legislature would pass a law allowing open carry if they meant for the citizens practicing that lawful activity to be stopped and questioned for it?
I think the tiniest amount of common sense would tell us that that was not their intent

Your Terry analogy does not hold up because as I said there was no reason to believe that any crime was being or about to be committed by the lawful actions that the officer observed, which was the determining factor in the Terry decision

 

[absolut_beethoven]

And in Kolender v. Lawson, 461 U.S. 352 (1983), the Court struck down a California stop-and-identify law that required a suspect to provide "credible and reliable identification" upon request.[3] The words "credible and reliable" were vague because they "provided no standard for determining what a suspect must do to comply with [the law], resulting in virtually unrestrained power to arrest and charge persons with a violation."

jaholder1971

Did you actually read the link to Lawson? How about the link to Hiibel that you provided from which I took the quote shown above? Do you understand how decisions of the United States Supreme Court work?

So yes, Hiibel, et al ARE required to verbally ID themselves when asked in those states that require it. But no, he is NOT required to show ANY form of ID as per the USSC decision in Kolender vs Lawson. Regardless of what any state says or laws that they pass, they MUST comply with the US Constistution and the USSC's interpretation of it. If not, those laws are automatically null and void. As hopefully we'll see in the DC Parker case.

 

[ATW525]

Why is it that the state legislature would pass a law allowing open carry if they meant for the citizens practicing that lawful activity to be stopped and questioned for it?
I think the tiniest amount of common sense would tell us that that was not their intent

Common sense tells me I can't judge the intention behind a law that doesn't exist.

Your Terry analogy does not hold up because as I said there was no reason to believe that any crime was being or about to be committed by the lawful actions that the officer observed, which was the determining factor in the Terry decision

Obviously the Trooper, who is trained and trusted to make such judgement calls for a living, felt otherwise. Your opinion to the contrary would only matter if you set on a court of law with jurisdiction over the incident.

 

[AntiqueCollector]

However, knowledge that a subject is armed has successfully been used in the past as a component of reasonable suspicion.

Thompson v. United States: There is Nothing Wrong with Carrying a Rifle for Protection

The Gourko decision was announced in April of 1894, [FN98] and the Starr case in May of that same year. [FN99] Seven months later, in Thompson v. United States, [FN100] the Supreme Court again emphasized its determination not to let Judge Parker draw adverse inferences about an individual because of his exercising the right to bear arms.

Thomas Thompson was a seventeen-year-old farmboy. [FN101] Half a mile away lived Charles Hermes, who made threats to kill Thompson if he came near the Hermes farm. [FN102] One afternoon, Thompson was sent to deliver a bundle to a woman who lived a few miles away. [FN103] The only road to the woman's house went by the Hermes farm. [FN104] Passing by the farm, Thompson got into a heated argument with Hermes, who repeated his threats to kill Thompson. [FN105] After delivering the bundle, Thompson, realizing that the only road home was the road that ran by the Hermes property, borrowed a Winchester rifle. [FN106]

*304 As Thompson rode home, Hermes's sons called out to Thompson. [FN107] One of the sons, Charles Hermes, started towards a gun that was propped on a fence. [FN108] Thompson, believing that Hermes intended to kill him, shot Hermes first, and then fled on horseback. [FN109] Charged with murder, Thompson pleaded self-defense. [FN110]

In the Thompson trial, Judge Parker instructed the jury that they were free to conclude that Thompson had provoked the trouble, and therefore lost his right to self-defense. [FN111] According to Judge Parker, Thompson could be viewed as the instigator of the confrontation because he had armed himself and returned to a place where he knew Hermes would be. [FN112] Similarly, the judge instructed the jurors to the effect that they should not convict Thompson of manslaughter, rather than murder. [FN113] By arming himself, Thompson had shown the kind of deliberation and premeditation which amounts to murder. [FN114]

Quoting at length from the Gourko case, the Supreme Court unanimously reversed Thompson's conviction because of the defective jury instructions. [FN115] Merely being armed and traveling by the only road available could not possibly be considered evidence that Thompson wanted to provoke trouble or that he intended to kill Hermes. [FN116]

The Court concluded that the trial court's error "is in the assumption that the act of the defendant in arming himself showed a purpose to kill formed before the actual affray." [FN117] That same error was found in the instructions regarding the right of self-defense in Gourko. [FN118] Thompson was freed, and was not retried. [FN119]

The Court's unanimous opinion was written by Justice George Shiras, Jr. [FN120] The next year, Justice Shiras joined a dissent which highlighted his concerns about the abusive power of judges - concerns which had perhaps been exacerbated by the cases coming from Arkansas. In Sparf v. United States, [FN121] the Court considered another set of abusive jury instructions. The majority of the Court held that juries do not need to be told that they have a legal right to vote their conscience in order to acquit a defendant who is technically guilty. [FN122] Justice Horace Gray dissented with Justice Shiras *305 joining. [FN123] The Gray dissent observed: " ut, as the experience of history shows, it cannot be assumed that judges will always be just and impartial...." [FN124] In a comment certainly reflective of the Court's view of Judge Parker, Gray and Shiras noted that many judges "occupied in the administration of criminal justice are apt, not only to grow severe in their sentences, but to decide questions of law too unfavorably to the accused." [FN125]

In support of juries being told about their right to vote their conscience, Gray and Shiras affirmed the right of armed resistance to abusive government and extolled the jury as an institution that could prevent the need for armed resistance. [FN126] Gray and Shiras quoted Theophilus Parsons, whom they described as "a leading supporter of the constitution of the United States in the convention of 1788, by which Massachusetts ratified the constitution, appointed by President Adams, in 1801, attorney general of the United States, but declining that office, and becoming chief justice of Massachusetts in 1806." [FN127] Arguing in favor of the proposed federal Constitution, Parsons had explained that jury rights would prevent the people from having to use force against a potentially oppressive federal government:

'The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government; yet only his fellow-citizens can convict him. They are his jury, and, if they pronounce him innocent, not all the powers of congress can hurt him; and innocent they certainly will pronounce him if the supposed law he resisted was an act of usurpation.' [FN128]

As Justice Shiras understood, restraints on trial judges - whether the restraints are imposed by appellate courts or by juries - are not contrary to law and order. Indeed, such restrictions help assure the peaceful continuation of constitutional government by protecting the fairness of criminal trials.

http://www.davidkopel.org/2A/LawRev/Self-Defense-Cases.htm


One can reasonably conclude from this decision that no, being armed is not justification for police harrassment.

 

[AntiqueCollector]

Obviously the Trooper, who is trained and trusted to make such judgement calls for a living, felt otherwise. Your opinion to the contrary would only matter if you set on a court of law with jurisdiction over the incident.

Actually the officer who harrassed the OP seemed quite ignorant of the law.

 

[ATW525]

One can reasonably conclude from this decision that no, being armed is not justification for police harrassment

It's a great self defense related case, but I'm not seeing where it has anything to do with Terry stops at all.

 

[AntiqueCollector]

"Quoting at length from the Gourko case, the Supreme Court unanimously reversed Thompson's conviction because of the defective jury instructions. [FN115] Merely being armed and traveling by the only road available could not possibly be considered evidence that Thompson wanted to provoke trouble or that he intended to kill Hermes. [FN116]"


Simply being armed can not be considered evidence of being up to trouble/etc. And that is all the OP had done to be harrassed, he was legally armed.

 

[insidious_calm]

ATW,


You are missing the most important thing in your insistence that "terry" gave the officer the authority to seize the OP. "There is no gun exception to the requirements of Terry.." see Florida v. J.L.http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=98-1993 In other words the mere presence of a firearm is not justification for a stop unless the presence or manner of possession of said firearm is itself a crime. There is no getting around that requirement.


Jaholder,


You either do not know what the kansas statute says on the matter, or you are intentionally misleading the readers. The acutual statute is KSA 22-2402 to wit:

Stopping of suspect. (1) Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such suspect and an explanation of such suspect's actions.

(2) When a law enforcement officer has stopped a person for questioning pursuant to this section and reasonably suspects that such officer's personal safety requires it, such officer may frisk such person for firearms or other dangerous weapons. If the law enforcement officer finds a firearm or weapon, or other thing, the possession of which may be a crime or evidence of crime, such officer may take and keep it until the completion of the questioning, at which time such officer shall either return it, if lawfully possessed, or arrest such person.

History: L. 1970, ch. 129, § 22-2402; L. 1990, ch. 106, § 1; July 1

As per kansas law you are NOT required to produce ID. The OP was not driving at the time of the seizure, so those laws do not apply. In kansas he would have been required to state his name and address ONLY. That assumes of course that the other requirements set forth in the kansas staute for the seizure are met, which essentially mimic those in Terry. As stated above, there is no firearm excepton to the requirements of Terry. Period.

As for whether or not the stop constitutes a seizure as defined by law, the rule is whether or not the person being seized felt like he/she was free to leave. While he did not ask if he could leave it is generally understood that an officer asking you to produce ID has engaged you in an official capacity and you have in fact been 'seized' and are not free to go. This is true in kansas because the officer has no statutory authority to ask your name unless he has already met the requirements of Terry. A terry stop is a seizure as defined by the 4th amendment.

As far as open carrying in Kansas goes, it is not legal in any incorporated city here that I'm aware of. While there are no state laws against such, every incorporated city I'm aware of has a local ordinance or home rule resolution against it, making open carrying in the city clear evidence of a crime and thus justification to stop you.

I.C.