cleve land
Member
- Joined
- Dec 30, 2002
- Messages
- 39
I think that the varied and well articulated positions demonstrate the problems,issues and viewpoints that make this particular set of facts a nightmare for a jury trial. 
Seized by the Manchester, New Hampshire PD for Open Carry
- Thread starter mvpel
- Start date
- Status
mvpel
member
Gone over it before, I'll go over it again
Somewhere back in these 400 posts I've admitted a few times that it was a mistake on my part to take off my sweater and my coat and forget to tuck my shirt in over my holster.
It was also a mistake to be in condition white while carrying in that manner without being seated or leaning against a bookshelf.
I was fortunate that when the officer grabbed me by my right shoulder, I looked over my right shoulder to see another uniformed officer standing there on my flank and was able to process this information quickly enough to avoid delivering an elbow or the like, instead rolling my eyes and muttering "oh give me a f---ing break."
My position, however, is that my mistakes, as grievous as they may have been, don't excuse or justify my seizure and detention.
Somewhere back in these 400 posts I've admitted a few times that it was a mistake on my part to take off my sweater and my coat and forget to tuck my shirt in over my holster.
It was also a mistake to be in condition white while carrying in that manner without being seated or leaning against a bookshelf.
I was fortunate that when the officer grabbed me by my right shoulder, I looked over my right shoulder to see another uniformed officer standing there on my flank and was able to process this information quickly enough to avoid delivering an elbow or the like, instead rolling my eyes and muttering "oh give me a f---ing break."
My position, however, is that my mistakes, as grievous as they may have been, don't excuse or justify my seizure and detention.
Henry Bowman
Senior Member
mvpel: You are right.
And we know that you didn't ask to be a "poster boy" or a test case. Sometimes greatness, or at least notoriety, is thrust upon you (while you're in condition white). Hang in there. You do not stand alone. Please keep us posted.
And we know that you didn't ask to be a "poster boy" or a test case. Sometimes greatness, or at least notoriety, is thrust upon you (while you're in condition white). Hang in there. You do not stand alone. Please keep us posted.
ScottS
Member
Arc Angel: Nice rant, but a closer reading of those pesky facts would have shown he was wearing an IWB holster, albeit slid around to the SOB position. He was wearing a Mitch Rosen Workman. You can find a decription of it here: http://www.mitchrosen.com/product_line/product_line.html Click on the button that says...get this..."Inside-the-Waistband." All your arguments about Kramer holsters and "looking right past" an IWB holstered gun kind of fall away now, huh?
I guess the point of you poorly-worded rant is he should have been carrying his IWB somewhere forward of the small of his back. For what it's worth, that's certainly where I carry, but that wouldn't have changed this story. The weapon was IWB. Somebody saw it despite being IWB, and called he cops. Had he been carrying it farther forward on his right side (as God had intended it to be
), the story would not have hand any different outcome. Put your hand on the back of someone and push them against a bookshelf, and his IWB more traditional over-the-right-kidney carry becomes vulnerable, too.Yeah, his SA should have been better, but he's already been beaten up enough about that, hasn't he? God knows he's the only one who's been caught in White. I know I never have.
(1911Tuner wants me to put these on now.)Scott
Yeah...it's so unfair to ask for remedy against an illegal assault. What could mvpel have been thinking?! It's also unfair to believe that the officer is accountable for his actions and ill-considered to demand that he is. It's just unthinkable! Why, this pesky mvpel did, after all, provoke such drastic action by unthinkably exercising a lawful and guaranteed right! Jeeze, WHAT WERE YOU THINKING MVPEL?
I feel the same way.
Of course open carry will draw attention to anyone who does it. So will wearing a very fine hat. However, where open carry is legal, barring a clearly definable threat it should not invite forceable disarmament by someone whose job is to enforce the law.
I know you've stated repeatedly that the officers could have handled this better, but then you seem to dismiss their part in it and try put the blame squarely on Mvpel's shoulders for carrying openly. Yes, he carried in a way that you and I don't consider to be ideal (and he admits that it wasn't the best choice he could have made), but that in no way ameliorates the actions of these police.
Something tells me that these cops would have jumped him regardless of his carry method.
mvpel
member
Actually, Scott, I was wearing a Dave Workman "Workman" - his widely-imitated, handcrafted "Undershirt" holster design:
Click on the image for Dave's website.
I spoke with him yesterday at his office at the Second Amendment Foundation, he's planning on making some phone calls and doing an article.
Click on the image for Dave's website.
I spoke with him yesterday at his office at the Second Amendment Foundation, he's planning on making some phone calls and doing an article.
labgrade
Member In Memoriam
"Should he sue; well, in my opinion, that’s about as unfair and ill-considered as the situation the author’s actions provoked."
The Author's actions provoked nothing.
He, by all accounts & I have no reason to doubt mvpel, was perusing a series of books in a book store while legally exercizing a right ("shall not be infringed," yada, etc.) - no untoward actions on his part - other than (his admittedly) non-concealment, which is again, perfectly legal.
Regards mvpel's SA, I can relate. But personally, I carry concealed just to preclude such a sheep scaring event - not to mention a posible "run-in" with stores I patronize - just as soon the issue is never brought up with all the ramifications that may entail. My SA is actionable to what I would expect in certain circumstances/venues/
places of interest," & the like. I "drive defensively" as well.
The LEOs over-reacted for a perfectly legal act. They need to get over themselves regards "handling every situation as they did."
Even though a 911 call was apprently issued, it is up to the responders to evaluate according to the law, not to what they heard on the radio.
I could easily see that the responding officers "covered" each other while making initial contact, perhaps ascertaining the "intent" of mvpel, all-the-while upholding their oath to "protect & serve."
From all accounts, there was no need to "protect" anything, while the "serve" part was sadly lacking in its execution.
Having some personal experience recently & although not in the best of financial positions, mvpel, if you need some scoots to help your activities along, do me a PM with a place I can send a contribution.
The Author's actions provoked nothing.
He, by all accounts & I have no reason to doubt mvpel, was perusing a series of books in a book store while legally exercizing a right ("shall not be infringed," yada, etc.) - no untoward actions on his part - other than (his admittedly) non-concealment, which is again, perfectly legal.
Regards mvpel's SA, I can relate. But personally, I carry concealed just to preclude such a sheep scaring event - not to mention a posible "run-in" with stores I patronize - just as soon the issue is never brought up with all the ramifications that may entail. My SA is actionable to what I would expect in certain circumstances/venues/
places of interest," & the like. I "drive defensively" as well.
The LEOs over-reacted for a perfectly legal act. They need to get over themselves regards "handling every situation as they did."
Even though a 911 call was apprently issued, it is up to the responders to evaluate according to the law, not to what they heard on the radio.
I could easily see that the responding officers "covered" each other while making initial contact, perhaps ascertaining the "intent" of mvpel, all-the-while upholding their oath to "protect & serve."
From all accounts, there was no need to "protect" anything, while the "serve" part was sadly lacking in its execution.
Having some personal experience recently & although not in the best of financial positions, mvpel, if you need some scoots to help your activities along, do me a PM with a place I can send a contribution.
buckmeisterq
Member
- Joined
- Apr 19, 2004
- Messages
- 3
12-34hom, you demonstrate your abject naivete by that false statement. Regardless of the legality, most people don't notice someone open carrying. You obviously have never open carried outside of work.
As a general rule, no one notices. Especially in an IWB holster, with a gun smaller than a 92FS or Desert Eagle. People are selfish by nature, and are mostly situationally unaware. It is a rarity indeed that someone actually noticed mvpel was carrying.
You should re-evaluate your overall situation on open carry issues. I suggest you try it out while out of uniform. You're clearly out of touch with the reality of open carry.
ScottS
Member
mpvel,
Thanks for correcting me. Actually, it's the same holster, as you can see from the picture at Rosen's site, and he even credits it in his ad: "(Original design concept for the Workman is credited to Dave Workman.)"
Here's the Rosen:
As you can see, same holster.
Bottom line is, you were wearing an IWB, not an outside-the-waistband SOB holster, so all comments about IWB being more discrete, or your holster choice making you more likely for a gun grab, are hooey. Your gear choices are not to blame here.
Scott
Thanks for correcting me. Actually, it's the same holster, as you can see from the picture at Rosen's site, and he even credits it in his ad: "(Original design concept for the Workman is credited to Dave Workman.)"
Here's the Rosen:
Bottom line is, you were wearing an IWB, not an outside-the-waistband SOB holster, so all comments about IWB being more discrete, or your holster choice making you more likely for a gun grab, are hooey. Your gear choices are not to blame here.
Scott
sturmruger
Member
mvpel I really don't think you need to keep defending yourself. You were obviously in the right, and have admitted the mistakes that you made. 99% of the people here on THR agree that you were well within your rigths to carry openly, and I think we all agree the cops overeacted. Keep us posted, but don't wast your time sticking up for yourself when people want to play arm chair quarterback. I am sure you have better things to do then to have to keep stating the obvious.
d-mac
Member
Just registered after reading on packing.org.
I see a lot of people that are posting in relation to the choice of "Open carry".
I just wish that peoples opinions on method of carry would be removed from such an important post thread and just deal with the facts.
Was this action of the police legal or illegal. When you speak of this and give your opinions, and everyone has an opinion, stop the banter of his method of carry.
The issue of was it smart to open or not when it is legal is moot.
The only mention of his choice should be if it played a factor in the assult. As in since the police saw the gun and they chose to do X. Would the police have done X if the person who called said "that's the man but his shirt is over the gun" and the polce couldn't actually see it.
Do you think they would have done the "Hello sir, are you carrying a gun" or would thay have done the same. Then lets look at the legal actions when police see a gun. Is it open? Yes. Well it's legal. Is he giving us any reason to believe he is dangerous? No. Why are we here? A man said he saw a non uniform man with a gun. Did the 911 operator ask the correct questions? Did the failure of the 911 operator to identify the situation provoke this illegal or forced behavior?
In the end, from the reading of the incident, there were procedures that failed to identify the situation correctly. People did not do their job as they were trained or they were not trained correctly to do their job. Someone, some department, some organization failed to complete QA on their process of training to inforce the law in the correct manner.
There was not one fail point but many. There was poor communication, poor research of the situation. It started with the answering of the 911 call and carried on through the returning of the gun to the owner.
People need some sort of closure. People need to be repremanded, punishment must be put in place, some community service to educate people on legal gun ownership, and taxpayers money should be spared in every account.
I see a lot of people that are posting in relation to the choice of "Open carry".
I just wish that peoples opinions on method of carry would be removed from such an important post thread and just deal with the facts.
Was this action of the police legal or illegal. When you speak of this and give your opinions, and everyone has an opinion, stop the banter of his method of carry.
The issue of was it smart to open or not when it is legal is moot.
The only mention of his choice should be if it played a factor in the assult. As in since the police saw the gun and they chose to do X. Would the police have done X if the person who called said "that's the man but his shirt is over the gun" and the polce couldn't actually see it.
Do you think they would have done the "Hello sir, are you carrying a gun" or would thay have done the same. Then lets look at the legal actions when police see a gun. Is it open? Yes. Well it's legal. Is he giving us any reason to believe he is dangerous? No. Why are we here? A man said he saw a non uniform man with a gun. Did the 911 operator ask the correct questions? Did the failure of the 911 operator to identify the situation provoke this illegal or forced behavior?
In the end, from the reading of the incident, there were procedures that failed to identify the situation correctly. People did not do their job as they were trained or they were not trained correctly to do their job. Someone, some department, some organization failed to complete QA on their process of training to inforce the law in the correct manner.
There was not one fail point but many. There was poor communication, poor research of the situation. It started with the answering of the 911 call and carried on through the returning of the gun to the owner.
People need some sort of closure. People need to be repremanded, punishment must be put in place, some community service to educate people on legal gun ownership, and taxpayers money should be spared in every account.
7.62FullMetalJacket
Member
I would really appreciate a new thread just for UPDATES. Somebody post that dead horse smiley PLEASE. In fact, I will start a new thread and ask for a float.
P95Carry
Moderator Emeritus
7.62FMJ ........ your wish is my command!
R
Riffraff
Guest
I agree with several other folks here that a new thread needs to be floated for updates by Mpvel only.
That out of the way I'll be sending to the legal defense fund myself.
Finally, To those who keep arguing officer safety the exact phrase is: life liberty and the pursuit of happiness. Nothing there about safety. I'm looking at the first 10 articles of the constitution, nothing there about police officer safety, malitia safety, or military safety. All are enherently dangerous jobs. As a matter of fact the closest word to safe in the Bill of Rights is: secure
The word secure is used in the forth amendment. It states:
The right of the people to be secure in their persons , houses, papers, and effects , against all unreasonable searches and seizures, shall not be violated, and warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Now from what Mpvel has stated he and his firearm were illegally siezed. He was siezed unreasonably when the officers essentially took in him to custody by physically restraining him. His weapon was then illegally siezed when they officers disarmed him with no reason to do so thus violating the second amendment.
I don't tend to think of any LEO as a JBT, It is a sucky job that I would not do for several reasons, safety being one of them. I am not here to slam LEOs or anyone else. The simple fact of the matter is, at face value, Mpvel's rights were violated. He has legal recourse and he should take it, and everyone of us should support him. After all it is the way to take the Highroad.
That out of the way I'll be sending to the legal defense fund myself.
Finally, To those who keep arguing officer safety the exact phrase is: life liberty and the pursuit of happiness. Nothing there about safety. I'm looking at the first 10 articles of the constitution, nothing there about police officer safety, malitia safety, or military safety. All are enherently dangerous jobs. As a matter of fact the closest word to safe in the Bill of Rights is: secure
The word secure is used in the forth amendment. It states:
The right of the people to be secure in their persons , houses, papers, and effects , against all unreasonable searches and seizures, shall not be violated, and warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Now from what Mpvel has stated he and his firearm were illegally siezed. He was siezed unreasonably when the officers essentially took in him to custody by physically restraining him. His weapon was then illegally siezed when they officers disarmed him with no reason to do so thus violating the second amendment.
I don't tend to think of any LEO as a JBT, It is a sucky job that I would not do for several reasons, safety being one of them. I am not here to slam LEOs or anyone else. The simple fact of the matter is, at face value, Mpvel's rights were violated. He has legal recourse and he should take it, and everyone of us should support him. After all it is the way to take the Highroad.
labgrade
Member In Memoriam
"I see a lot of people that are posting in relation to the choice of "Open carry".
I just wish that peoples' opinions on method of carry would be removed from such an important post thread and just deal with the facts.
Was this action of the police legal or illegal. When you speak of this and give your opinions, and everyone has an opinion, stop the banter of his method of carry.
The issue of was it smart to open or not when it is legal is moot.
The only mention of his choice should be if it played a factor in "the assault." As in since the police saw the gun and they chose to do X. Would the police have done X if the person who called said "that's the man but his shirt is over the gun" and the polce couldn't actually see it."
In my own experience, I also carried perfectly legal - the handgun was never presented in an overt manner, nor was I threatening in any fashion.
I carried in a completely legal manner.
I was drawn upon by 3X Deputies, their handguns pointed at my chest - with intent to shoot center-of-mass/shoot to incapcite/to kill .... me.
& for what!?
I presented no danger to them, nor their business at hand - I presented zero threat to them/never reaching for my firearm - I merely had possession of a handgun, well within the legalities of my state's laws.
Nonetheless, I was was almost shot to death (by later admission of those confiscating my CCW permit & by description of "the events" as presented by LEOs on-scene) ... "I reacted adversely to their law-ful activities."
Total BS! I was well within my lawful actions, the LEOs on-scene over-reacted, arrested me/confiscated my firearm & it cost me ~$2K+ to plead "guilty" to an "obstruction charge" - & that for checking on a neiighbor." I spent over 8 hours in jail/custody for a perfectly legal action.
I still await the re-instatement of my CCW after a notorized letter requesting same, a personl meeting with The UnderSheriff, at least a two-week wait on a "decission" after a conference with The Sheriff, & all that may entail.
I have never violated The Law, nor did I ever threaten anyone involved with the situation - I merely responded with a handgun in the event that things "could have gone south." It didn't, I never did, nor would I have , unless it truley went south. Too, I am a trained & certified anti-terrorist/hostage rescue-type. & too, I have never, EVER, threatened the llegal authority of a public-announced entity! Ever!
Likely, I am most astute to the traning of those who responded - & of course, they couldn't have known, but when a "legal authortiy" "respond" in a manner to "preserve the public trust," they rarely do.
I am in pure disgust for those that do.
.
I just wish that peoples' opinions on method of carry would be removed from such an important post thread and just deal with the facts.
Was this action of the police legal or illegal. When you speak of this and give your opinions, and everyone has an opinion, stop the banter of his method of carry.
The issue of was it smart to open or not when it is legal is moot.
The only mention of his choice should be if it played a factor in "the assault." As in since the police saw the gun and they chose to do X. Would the police have done X if the person who called said "that's the man but his shirt is over the gun" and the polce couldn't actually see it."
In my own experience, I also carried perfectly legal - the handgun was never presented in an overt manner, nor was I threatening in any fashion.
I carried in a completely legal manner.
I was drawn upon by 3X Deputies, their handguns pointed at my chest - with intent to shoot center-of-mass/shoot to incapcite/to kill .... me.
& for what!?
I presented no danger to them, nor their business at hand - I presented zero threat to them/never reaching for my firearm - I merely had possession of a handgun, well within the legalities of my state's laws.
Nonetheless, I was was almost shot to death (by later admission of those confiscating my CCW permit & by description of "the events" as presented by LEOs on-scene) ... "I reacted adversely to their law-ful activities."
Total BS! I was well within my lawful actions, the LEOs on-scene over-reacted, arrested me/confiscated my firearm & it cost me ~$2K+ to plead "guilty" to an "obstruction charge" - & that for checking on a neiighbor." I spent over 8 hours in jail/custody for a perfectly legal action.
I still await the re-instatement of my CCW after a notorized letter requesting same, a personl meeting with The UnderSheriff, at least a two-week wait on a "decission" after a conference with The Sheriff, & all that may entail.
I have never violated The Law, nor did I ever threaten anyone involved with the situation - I merely responded with a handgun in the event that things "could have gone south." It didn't, I never did, nor would I have , unless it truley went south. Too, I am a trained & certified anti-terrorist/hostage rescue-type. & too, I have never, EVER, threatened the llegal authority of a public-announced entity! Ever!
Likely, I am most astute to the traning of those who responded - & of course, they couldn't have known, but when a "legal authortiy" "respond" in a manner to "preserve the public trust," they rarely do.
I am in pure disgust for those that do.
.
12-34hom
Member
Buck, I ccw alot & do so with an IWB holster. i'm very careful not to "print" or anything else that would be a "tell". As i stated on an earlier post, it's legal here in Iowa to do so.
But i don't for the the reasons - what Mvpel is going thru right now and my personal beliefs. Discretion is up to me, and as i also stated, it's nobody's business but mine when I'm in the public venue and armed.
If you are anyone else chooses to carry in an open fashion - that's your right & own business, but be prepared to deal with others who don't share or know the particulars in the state that you reside in.
12-34hom.
But i don't for the the reasons - what Mvpel is going thru right now and my personal beliefs. Discretion is up to me, and as i also stated, it's nobody's business but mine when I'm in the public venue and armed.
If you are anyone else chooses to carry in an open fashion - that's your right & own business, but be prepared to deal with others who don't share or know the particulars in the state that you reside in.
12-34hom.
I can’t speak to the application of the law in New Hampshire, but a lot of posts here deal with the U.S. Constitution, and a lot of what I am going to say is text book type material. The test for making an investigative detention does not turn on proof beyond a reasonable doubt or even probable cause to believe that a crime has been committed. It is only reasonable suspicion that a crime is, has been, or is about to be committed. You couldn’t possibly prove that a crime is “about to be committed.†The threshold for the investigative detention is very low. The U.S. Supreme Court recognized this principle in Terry during a period of some of the most liberal interpretations of the 4th Amendment in history. A person may be doing something completely legal yet subject to a legal, non-consensual investigative detention. The detention is a “seizure†under the 4th amendment but it is not an “arrest†implicating the probable cause standard. That is not a new concept. The criteria for the stop will be based upon the officer’s knowledge, training and experience. Knowledge, training and experience comes from life experience, the academy, prior calls handled, seminars, interactions with other officers who share their experiences, etc.
A second part of Terry is that an officer can pat down a person’s outer clothing to determine if a weapon is present if there is a possibility that a weapon is present. The officer may disarm the suspect during the questioning and return the firearm when it’s over if everything is legal. You don’t get to that part unless you get through the first part, the legality of the stop. If the first part was met, then the second surely follows in this case.
The methods employed in making the detention also must be reasonable under the circumstances. “Reasonable†is a range, not a 20/20 hindsight single option. That also will depend upon knowledge, training and experience of the officer.
Terry was designed to allow a brief detention to determine if circumstances warrant a finding of probable cause and a custodial arrest. If nothing turns up fast, the police have to let the person go. It sounds like that happened, as the person resumed shopping. (This does not mean that the stop was justified, or that reasonable methods were employed in this particular case.)
I won’t comment on the specifics of the incident because I have seen only one side. BTW, in my view the 911 tapes are totally irrelevant as to the responding officers, unless they were played for the officers before they went to the call, because they don’t go to the officer’s knowledge. (They would be relevant if the case is against the department.) Dispatch tapes would be relevant. Car to car tapes would be relevant, although there’s usually not much chatter on a man with a gun call. All the other stuff, like video camera tapes, identifying witnesses, would be relevant. Knowing the federal, state or local law that the officers thought was being violated or was about to be violated would be relevant. (A lot of places have laws or ordinances that address “placing someone in fear of receiving an assault or battery.†There’s also the armed robbery statute. We simply cannot speculate on this because we don’t know the facts from the police perspective.)
The practical side to consider is the judge and jury. Are they going to be people of the type posting on this thread or people of the type who called the police in the first place.
YMMV and, as I noted earlier, New Hampshire law, or the law of any other state for that matter, may be totally different. The states are free to grant more rights than the minimal requirements of the 4th amendment, and they are free to make sure that there are no substantive laws on the books that could be construed to legally justify detaining someone carrying a firearm openly.
A second part of Terry is that an officer can pat down a person’s outer clothing to determine if a weapon is present if there is a possibility that a weapon is present. The officer may disarm the suspect during the questioning and return the firearm when it’s over if everything is legal. You don’t get to that part unless you get through the first part, the legality of the stop. If the first part was met, then the second surely follows in this case.
The methods employed in making the detention also must be reasonable under the circumstances. “Reasonable†is a range, not a 20/20 hindsight single option. That also will depend upon knowledge, training and experience of the officer.
Terry was designed to allow a brief detention to determine if circumstances warrant a finding of probable cause and a custodial arrest. If nothing turns up fast, the police have to let the person go. It sounds like that happened, as the person resumed shopping. (This does not mean that the stop was justified, or that reasonable methods were employed in this particular case.)
I won’t comment on the specifics of the incident because I have seen only one side. BTW, in my view the 911 tapes are totally irrelevant as to the responding officers, unless they were played for the officers before they went to the call, because they don’t go to the officer’s knowledge. (They would be relevant if the case is against the department.) Dispatch tapes would be relevant. Car to car tapes would be relevant, although there’s usually not much chatter on a man with a gun call. All the other stuff, like video camera tapes, identifying witnesses, would be relevant. Knowing the federal, state or local law that the officers thought was being violated or was about to be violated would be relevant. (A lot of places have laws or ordinances that address “placing someone in fear of receiving an assault or battery.†There’s also the armed robbery statute. We simply cannot speculate on this because we don’t know the facts from the police perspective.)
The practical side to consider is the judge and jury. Are they going to be people of the type posting on this thread or people of the type who called the police in the first place.
YMMV and, as I noted earlier, New Hampshire law, or the law of any other state for that matter, may be totally different. The states are free to grant more rights than the minimal requirements of the 4th amendment, and they are free to make sure that there are no substantive laws on the books that could be construed to legally justify detaining someone carrying a firearm openly.
R
Riffraff
Guest
WYO excellent points on Terry. Well thought and expressed. I do agree that Terry provides an officer a tool in which to prevent a crime. Based on what MVPel stated, Terry does not apply here. Terry covered certain behavior such as obvious casing of an establishment not reading a book. While it allows certain latitude to LEOs I don't think in this case it would stand a litmus test.
B&N's video footage would help in determining if Terry did apply here. The 911 tapes may not help but the radio traffic is esential. The officers should have radioed in their arrival time and radioed in MVPel's ID. There might even be other conversations in there, I do not know as I am not an LEO. Either way the radio conversations can reveal if the officers observed MVPel for a "reasonable" time.
So what's a reasonable time? I don't know maybe it is a few seconds, maybe a few minutes. With video and radio traffic that picture would become clear. Another thing that would become clear is MVPels behavior. That would be the ulitmate test on Terry.
Two final things to remember:
Innocent until proven guilty applies to both MVPel and the LEOs.
Ulitmately it should be a jury of MVPel's peers that should make the initial decision. (subject to appeal)
B&N's video footage would help in determining if Terry did apply here. The 911 tapes may not help but the radio traffic is esential. The officers should have radioed in their arrival time and radioed in MVPel's ID. There might even be other conversations in there, I do not know as I am not an LEO. Either way the radio conversations can reveal if the officers observed MVPel for a "reasonable" time.
So what's a reasonable time? I don't know maybe it is a few seconds, maybe a few minutes. With video and radio traffic that picture would become clear. Another thing that would become clear is MVPels behavior. That would be the ulitmate test on Terry.
Two final things to remember:
Innocent until proven guilty applies to both MVPel and the LEOs.
Ulitmately it should be a jury of MVPel's peers that should make the initial decision. (subject to appeal)
WYO, and plenty of cases have been thrown out due to inadmissibility of evidence when officers have claimed to, but didn't, have reasonable suspicion for a Terry stop.
If reading a book at a bookstore and carrying a firearm in a perfectly legal manner are grounds for a Terry stop, this country is a lot closer to Hell than I thought.
I think I understand your premise, though. If lurking around storefronts at 2am might be grounds for a Terry stop despite it's being legal, so might open carry of a firearm in a bookstore be grounds for a Terry stop even though that's legal. Despite just having proposed it, I think the analogy is wrong because one is a behavior and the other is mere possession of a constitutionally protected item. (It's not constitutionally protected everywhere, but it is in NH because the legislature hasn't outlawed open carry.)
If reading a book at a bookstore and carrying a firearm in a perfectly legal manner are grounds for a Terry stop, this country is a lot closer to Hell than I thought.
I think I understand your premise, though. If lurking around storefronts at 2am might be grounds for a Terry stop despite it's being legal, so might open carry of a firearm in a bookstore be grounds for a Terry stop even though that's legal. Despite just having proposed it, I think the analogy is wrong because one is a behavior and the other is mere possession of a constitutionally protected item. (It's not constitutionally protected everywhere, but it is in NH because the legislature hasn't outlawed open carry.)
mvpel
member
My mom, an attorney, is doing some reasearch on Terry v. Ohio and qualified immunity for me. I'll let folks know what she turns up.
Rifraff, tyme (and others), yes, you get the concept and have refined the issue. Unfortunately, we only have a small part of the story. The innocent guy who is walking down the street and gets stopped because he fit the description of the bank robbery suspect from 5 minutes ago can just as easily say “well, if someone walking down the street minding one’s own business can get subjected to this harassment, the country has gone down the tubes.†I realize that’s not the same situation here, but that’s an example that came to mind.
Now, in the current situation, there is too much that we don’t know. What are the laws of the jurisdiction? We’re not just talking state law, but silly little ordinances that could be relevant?. What information got relayed to the responding officers? Were there facts that could justify a belief that something bad was happening or was about to happen? Were words exchanged by anyone? Were movements made either unintentionally or in a communicative fashion that were perceived as threatening? Did someone relay that they were scared? Did the cops know or see something from their distinct point of view that started something clicking in their memory banks from their knowledge, training or experience? Did something fit a pattern of anything else that was happening or had happened in the community? On the issue of reasonableness of methods, the police also are going to be concerned about what ifs, such as “based upon the placement of the people in this place, what if we don’t secure the firearm and somebody really gets hurt as a result?†I don’t like to play the hypothetical game because a little detail that might be irrelevant to some could be crucial to the outcome, and so much of it turns on information that other people held in their minds at the time.
There’s no doubt about it, tyme, cases can be won or lost because the cops didn’t have probable cause or reasonable suspicion. In 2000, the U.S. Supreme Court overturned the conviction of a juvenile carrying a gun because an anonymous tip coupled with the complete lack of investigation did not support a finding of reasonable suspicion. (It’s OT but there is some stuff in there that can be interpreted very broadly post 9/11.) Although I can’t quote you figures, I would bet, though, that most Terry stop cases don’t involve the justification for the stop so much as the justification for the pat down, in an attempt to suppress evidence found as a result of the pat down. Of course, this all could vary by jurisdiction, depending upon the training of the police, the laws of the jurisdiction, and the attitude of the courts of the jurisdiction.
I look forward to seeing the updates.
Now, in the current situation, there is too much that we don’t know. What are the laws of the jurisdiction? We’re not just talking state law, but silly little ordinances that could be relevant?. What information got relayed to the responding officers? Were there facts that could justify a belief that something bad was happening or was about to happen? Were words exchanged by anyone? Were movements made either unintentionally or in a communicative fashion that were perceived as threatening? Did someone relay that they were scared? Did the cops know or see something from their distinct point of view that started something clicking in their memory banks from their knowledge, training or experience? Did something fit a pattern of anything else that was happening or had happened in the community? On the issue of reasonableness of methods, the police also are going to be concerned about what ifs, such as “based upon the placement of the people in this place, what if we don’t secure the firearm and somebody really gets hurt as a result?†I don’t like to play the hypothetical game because a little detail that might be irrelevant to some could be crucial to the outcome, and so much of it turns on information that other people held in their minds at the time.
There’s no doubt about it, tyme, cases can be won or lost because the cops didn’t have probable cause or reasonable suspicion. In 2000, the U.S. Supreme Court overturned the conviction of a juvenile carrying a gun because an anonymous tip coupled with the complete lack of investigation did not support a finding of reasonable suspicion. (It’s OT but there is some stuff in there that can be interpreted very broadly post 9/11.) Although I can’t quote you figures, I would bet, though, that most Terry stop cases don’t involve the justification for the stop so much as the justification for the pat down, in an attempt to suppress evidence found as a result of the pat down. Of course, this all could vary by jurisdiction, depending upon the training of the police, the laws of the jurisdiction, and the attitude of the courts of the jurisdiction.
I look forward to seeing the updates.
mvpel,
If your mom's got Lexis access have her look up Filion v. Bellows Falls Foods, Inc., 1995 U.S. Dist. Lexis 7714. It's an order granting summary judgment in a US District court case from New Hampshire that's got a bunch of good stuff: 4th amendment, Terry, 42 USC 1983, excessive force, qualified immunity, etc. The result isn't helpful (the court tossed out an excessive force claim) but the discussion is on point.
*edited to note that you can read the order on the court's webpage, http://www.nhd.uscourts.gov/oo/oo_index.asp. Just click on search and type in "Filion" and you'll see it.
If your mom's got Lexis access have her look up Filion v. Bellows Falls Foods, Inc., 1995 U.S. Dist. Lexis 7714. It's an order granting summary judgment in a US District court case from New Hampshire that's got a bunch of good stuff: 4th amendment, Terry, 42 USC 1983, excessive force, qualified immunity, etc. The result isn't helpful (the court tossed out an excessive force claim) but the discussion is on point.
*edited to note that you can read the order on the court's webpage, http://www.nhd.uscourts.gov/oo/oo_index.asp. Just click on search and type in "Filion" and you'll see it.
P95Carry
Moderator Emeritus
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