jimpeel
Member
Save a few clicks and go direct. Filion v. Bellows Falls Foods CV-93-641-SD 06/01/95
Seized by the Manchester, New Hampshire PD for Open Carry
- Thread starter mvpel
- Start date
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labgrade
Member In Memoriam
WYO, ecxellent observations/critique in your:
"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."
But, & except, mvpel never demonstrated any illegalities whatsoever. He merely had possesion of a legaly open-carried handgun, and "violaed no laws" moreso than driving 40 MPH in a 45 MPH zone' = ergo = he violated nothing illegal, & was perfectly within his his rghts to do so.
He was stopped merely because a sheep called in a report of "a Bad thing! The LEOs responded as required, over-reacted & we have another "us versus them" theme.
So sad - again."
"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."
But, & except, mvpel never demonstrated any illegalities whatsoever. He merely had possesion of a legaly open-carried handgun, and "violaed no laws" moreso than driving 40 MPH in a 45 MPH zone' = ergo = he violated nothing illegal, & was perfectly within his his rghts to do so.
He was stopped merely because a sheep called in a report of "a Bad thing! The LEOs responded as required, over-reacted & we have another "us versus them" theme.
So sad - again."
mvpel
member
Sibron v. New York headnote
As I mentioned in the floating thread, here's a head headnote from Sibron v. New York in the THR library:
[26] A police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries, and before he places a hand on the person in search of anything, he must have constitutionally adequate reasonable grounds for doing so; in the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.
"Armed" is a given, of course, but "dangerous?"
Someone walking down the street who happened to fit the description of an armed bank robber wouldn't have a cause of action under the Fourth Amendment when stopped by the police, because of the "particular facts" of the nearby bank robbery five minutes previously, and the description of the suspect that the police received. These articulable facts would justify the stop and investigation of the bank-robber-lookalike.
Concluding that someone who looks like a bank robber might actually be that bank robber, is an "objectively reasonable" conclusion that can be drawn from the facts at hand.
On the other hand, merely carrying a gun in a peaceable manner in accordance with state law (which preempts local ordinance), without any indication that I posed any threat to anyone, just standing there reading a book a hundred feet or so from the nearest cash register, occasionally nodding politely to people I passed in the stacks...
What particular fact could they point to that I was "dangerous?" Open carry doesn't count in New Hampshire, so they're left with diddly-squat except their own paranoia, and paranoia doesn't cut it in court.
As I mentioned in the floating thread, here's a head headnote from Sibron v. New York in the THR library:
[26] A police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries, and before he places a hand on the person in search of anything, he must have constitutionally adequate reasonable grounds for doing so; in the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.
"Armed" is a given, of course, but "dangerous?"
Someone walking down the street who happened to fit the description of an armed bank robber wouldn't have a cause of action under the Fourth Amendment when stopped by the police, because of the "particular facts" of the nearby bank robbery five minutes previously, and the description of the suspect that the police received. These articulable facts would justify the stop and investigation of the bank-robber-lookalike.
Concluding that someone who looks like a bank robber might actually be that bank robber, is an "objectively reasonable" conclusion that can be drawn from the facts at hand.
On the other hand, merely carrying a gun in a peaceable manner in accordance with state law (which preempts local ordinance), without any indication that I posed any threat to anyone, just standing there reading a book a hundred feet or so from the nearest cash register, occasionally nodding politely to people I passed in the stacks...
What particular fact could they point to that I was "dangerous?" Open carry doesn't count in New Hampshire, so they're left with diddly-squat except their own paranoia, and paranoia doesn't cut it in court.
P95Carry
Moderator Emeritus
The ''paranoia'' is almost directly attributable to the original 911 call and its content .. then possibly further amplified by the despatcher. Still wondering about proceedural screw-ups.
If only it was possible to hear or read transcripts of these communications ..... it might clear things up quite a bit .. tho still not excusing the actual afront on your person. That is an entity in itself.
If only it was possible to hear or read transcripts of these communications ..... it might clear things up quite a bit .. tho still not excusing the actual afront on your person. That is an entity in itself.
PATH
Member
Is this thread impossibly long?
PATH
Member
Is this thread impossibly long?
Guys, I have resisted jumping into this thread because frankly, I didn't want to get pelted with all the JBT crap that I see coming from the mouths of the biased and uninformed...but I am starting to wonder if we are even reading the same story so I am going to try and post what I believe to be a simple explanation that I am hoping will help to merge to non LEOs with us LEOs that are on here.
First, let me say that I am an ardent supporter of CCW. I carry off duty and have run into a number of people carrying concealed, so I am familiar with the applicable statutes and what we can and can not do.
First, when the police receive a 911 call, we are duty bound to investigate fully. We can not just ignore the call because we think CCW is great or because the guy "Looks" like a good guy. How he is dressed, the type of car he drives...etc is not relevant in the eyes of the law. Everyone is hopefully treated equal whether they are in a pinto or a jag. This is why the officers in question were DUTY BOUND to question him.
Second, as LEOs, it would be just plain stupid to question a suspect, any suspect, while he is armed. It would jus be plain bad tactics. Again, we do not know that he is a good guy and for his safety, as well as the general public (us included), it is wise to disarm him for the duration of the questioning. The USSC has ruled that this is NOT a seizure and that it is perfectly legal.
And finally, nobody was assaulted. Assaulted is a very technical term that many non LEOs do not fully understand and to explain it would take pages...but needless to say, nobody was assaulted. LEOs are required to use a force continuum. We are told to always go one level higher than the suspect IE, if he fights with his hands, we use batons...if he uses a knife, we use a gun. The LEOs used no weapons and only used the force needed to remove the weapon and search the person for more weapons. To ask someone to take out their own gun and hand it to you would be like asking to be shot...
The scenario looks roughly like this:
911 call comes in as OMG, man with a gun (This gives the LEOs a right to be on scene and to secure that person for questioning)
The LEOs arrive and make the scene safe by removing a potential threat (This is why he was disarmed and it is legal based upon the ability of the suspect to kill people with the weapon)
Investigative detention, not an arrest takes place and either the suspect is arrested or he is released with his property...
All of the above is perfectly legal and well within dept regs at every dept I know of. All in all, the LEOs sound fairly restrained. I would say that they could have had their weapons drawn...but that is at the discretion of the guys on the scene and their perception of the threat.
What I see here is saddening. There seems to be a lot of LE hatred and a strong desire to call us JBTs and Nazis. I take that kind of personally since My grandfather just happened to fight against a bunch of those guys...not to mention the fact that they were murdering butchers that killed millions of Jews...***?
First, let me say that I am an ardent supporter of CCW. I carry off duty and have run into a number of people carrying concealed, so I am familiar with the applicable statutes and what we can and can not do.
First, when the police receive a 911 call, we are duty bound to investigate fully. We can not just ignore the call because we think CCW is great or because the guy "Looks" like a good guy. How he is dressed, the type of car he drives...etc is not relevant in the eyes of the law. Everyone is hopefully treated equal whether they are in a pinto or a jag. This is why the officers in question were DUTY BOUND to question him.
Second, as LEOs, it would be just plain stupid to question a suspect, any suspect, while he is armed. It would jus be plain bad tactics. Again, we do not know that he is a good guy and for his safety, as well as the general public (us included), it is wise to disarm him for the duration of the questioning. The USSC has ruled that this is NOT a seizure and that it is perfectly legal.
And finally, nobody was assaulted. Assaulted is a very technical term that many non LEOs do not fully understand and to explain it would take pages...but needless to say, nobody was assaulted. LEOs are required to use a force continuum. We are told to always go one level higher than the suspect IE, if he fights with his hands, we use batons...if he uses a knife, we use a gun. The LEOs used no weapons and only used the force needed to remove the weapon and search the person for more weapons. To ask someone to take out their own gun and hand it to you would be like asking to be shot...
The scenario looks roughly like this:
911 call comes in as OMG, man with a gun (This gives the LEOs a right to be on scene and to secure that person for questioning)
The LEOs arrive and make the scene safe by removing a potential threat (This is why he was disarmed and it is legal based upon the ability of the suspect to kill people with the weapon)
Investigative detention, not an arrest takes place and either the suspect is arrested or he is released with his property...
All of the above is perfectly legal and well within dept regs at every dept I know of. All in all, the LEOs sound fairly restrained. I would say that they could have had their weapons drawn...but that is at the discretion of the guys on the scene and their perception of the threat.
What I see here is saddening. There seems to be a lot of LE hatred and a strong desire to call us JBTs and Nazis. I take that kind of personally since My grandfather just happened to fight against a bunch of those guys...not to mention the fact that they were murdering butchers that killed millions of Jews...***?
deanf
Member
Well I think you've got that wrong. What we take exception to are the rules that you operate under that seem to fly so obviously in the face of liberty.
Exactly, because there are no restrictions on the brand of car one can drive, therefore that is no pretext for any sort of questioning, detainment, or arrest. Same goes with the gun. There is apperently no restriction on carrying openly in the jurisdiction where the incident occured, therefore that is no pretext for any sort of questioning, detainment, or arrest.
Some nervous busy-body's call to 9-1-1 is no pretext for what happened. Of course a call about a "man with a gun" will be responded to - "DUTY BOUND" as you mentioned - but aren't the officers also duty bound to determine if a crime is in fact being committed before they act to seize someone? Aren't they duty bound to protect the rights of the individual being investigated if, by simple glance, they can determine that there is no crime (as was apperent in this case)? Such determination being made, why can't they simply leave him alone?
only1asterisk
member
- Joined
- Jun 13, 2003
- Messages
- 2,412
FedDC,
No name calling, just some questions:
If I place my hands on someone, is that not a use of force?
Why would you question a person that is standing flipping through a book in a book store?
What crime would he have been "suspect" in?
Just because something is legal, is it right?
If I have broken no law, what right have you to accost me?
There are many people here that think "officer safety" has been used to erode our rights. Kind of like "It's for the children!" If it will save just one officer.... I know lots of great cops, but if they can't see how to apply their authority in a given situation maybe their authority needs to be examined.
david
No name calling, just some questions:
If I place my hands on someone, is that not a use of force?
Why would you question a person that is standing flipping through a book in a book store?
What crime would he have been "suspect" in?
Just because something is legal, is it right?
If I have broken no law, what right have you to accost me?
There are many people here that think "officer safety" has been used to erode our rights. Kind of like "It's for the children!" If it will save just one officer.... I know lots of great cops, but if they can't see how to apply their authority in a given situation maybe their authority needs to be examined.
david
feddc,
[blockquote]911 call comes in as OMG, man with a gun (This gives the LEOs a right to be on scene and to secure that person for questioning)[/blockquote]
No, it doesn't. If open carry is legal, the 911 operator should tell the caller to quit whining and stay in a cloister ifhe can't handle the real world.
AFAIK, mvpel doesn't have the 911 tapes yet. If the 911 tapes have the caller complaining about a man threatening others with a gun, the caller needs a few months in jail to get a better perspective on the consequences of telling lies to police. Otherwise, the police were totally wrong, and they ought to all be fired and sued.
Based on what mvpel has said, the situation seems to be that a mere "man with a gun" call got past the operator, got past the dispatcher, and got past multiple officers. I haven't seen anything suggesting that the cops were investigating something other than mvpel's open carry of a handgun. Have you?
[blockquote]911 call comes in as OMG, man with a gun (This gives the LEOs a right to be on scene and to secure that person for questioning)[/blockquote]
No, it doesn't. If open carry is legal, the 911 operator should tell the caller to quit whining and stay in a cloister if
AFAIK, mvpel doesn't have the 911 tapes yet. If the 911 tapes have the caller complaining about a man threatening others with a gun, the caller needs a few months in jail to get a better perspective on the consequences of telling lies to police. Otherwise, the police were totally wrong, and they ought to all be fired and sued.
Based on what mvpel has said, the situation seems to be that a mere "man with a gun" call got past the operator, got past the dispatcher, and got past multiple officers. I haven't seen anything suggesting that the cops were investigating something other than mvpel's open carry of a handgun. Have you?
jimpeel
Member
FedDC
Things like this: http://www.thehighroad.org/showthread.php?s=&threadid=48700
or this http://ny.yahoo.com/external/wcbs_radio/stories/8790267421.html
which resulted in this http://www.mapinc.org/drugnews/v98.n164.a11.html :banghead:
Somewhere along the line, the police have forgotten the Nine Principles of Sir Robert Peel. You may have noticed that I am a Peel as well. You may read the Nine Principles at: http://www.newwestpolice.org/peel.html but I have reproduced them here for your edification.
Pay particular attention to principles #2, 3, 4, and especially #7. When those are gone -- AND THAT TIME IS IN THE MAKING -- the police will find themselves faced with an entire populace that has abandoned them. At that time, there will be no safety in numbers.
In "The Development of the American Police: An Historical Overview", Craig Uchida notes that "If there is a common theme that can be used to characterize the police in the 19th Century, it is the large-scale corruption that occurred in most police departments across the United States" (Uchida, 1993).
In "Forces of Deviance: Understanding the Dark Side of Policing", Kappeler, Sluder, and Alpert point out that corruption among police is not new or peculiar to the late 20th century. "To study the history of police is to study police deviance, corruption and misconduct." (Kappeler et al., 1994.)
More and more, the American public believes the police are corrupt.
More and more, they are becoming distrustful of the police.
More and more, they are losing confidence in the police.
More and more, they are questioning police conduct.
More and more they are resenting the militarization of their police.
Coming here and decrying a bit of name calling is the least of your worries. When you lose the trust and confidence of the type of people who congegrate here, most of whom are pro-police, myself included, whose trust will you have?
What you have here is the loss of the confidence of the American public in their police. They don't hate you. They just don't trust you anymore. You have set up the "them and us" barrier. You have chosen to call us "civilians". You have chosen to militarize your forces. You have chosen to change the blue line into the black line. Black uniforms are for one purpose and one purpose only -- intimidation. You have done this to yourselves.
Things like this: http://www.thehighroad.org/showthread.php?s=&threadid=48700
or this http://ny.yahoo.com/external/wcbs_radio/stories/8790267421.html
which resulted in this http://www.mapinc.org/drugnews/v98.n164.a11.html :banghead:
Somewhere along the line, the police have forgotten the Nine Principles of Sir Robert Peel. You may have noticed that I am a Peel as well. You may read the Nine Principles at: http://www.newwestpolice.org/peel.html but I have reproduced them here for your edification.
Pay particular attention to principles #2, 3, 4, and especially #7. When those are gone -- AND THAT TIME IS IN THE MAKING -- the police will find themselves faced with an entire populace that has abandoned them. At that time, there will be no safety in numbers.
In "The Development of the American Police: An Historical Overview", Craig Uchida notes that "If there is a common theme that can be used to characterize the police in the 19th Century, it is the large-scale corruption that occurred in most police departments across the United States" (Uchida, 1993).
In "Forces of Deviance: Understanding the Dark Side of Policing", Kappeler, Sluder, and Alpert point out that corruption among police is not new or peculiar to the late 20th century. "To study the history of police is to study police deviance, corruption and misconduct." (Kappeler et al., 1994.)
More and more, the American public believes the police are corrupt.
More and more, they are becoming distrustful of the police.
More and more, they are losing confidence in the police.
More and more, they are questioning police conduct.
More and more they are resenting the militarization of their police.
Coming here and decrying a bit of name calling is the least of your worries. When you lose the trust and confidence of the type of people who congegrate here, most of whom are pro-police, myself included, whose trust will you have?
Dispatchers cannot ( at least in our agency ) unilaterally make that type of decision. They are required to dispatch an officer to investigate each complaint. This is because they cannot determine the exact facts surrounding every call simply by whats said over the phone, especially a call involving a man with a gun.
spartacus2002
Member
Every LEO needs to print out jimpeel's post above and tape it to the mirror they look into first thing in the morning.
There is a day fast approaching when the people will turn against the police, based on behavior like this. Just wait til a DEA/ATF team storms a house, comes out, and finds a perimeter of local neighborhood folks with guns pointed at them.
There is a day fast approaching when the people will turn against the police, based on behavior like this. Just wait til a DEA/ATF team storms a house, comes out, and finds a perimeter of local neighborhood folks with guns pointed at them.
1911Tuner
Moderator Emeritus
Open Carry
My state has a legal open carry law, and has had for as long as I can remember. Sadly, there was also a legislation that was quietly enacted
some years ago that allows restricting that...and probably eliminating it.
I can't believe that it was anything other that it was orchestrated to do
just that: Make it nearly impossible to exercise the right to carry openly
in compliance with the law.
The law is the one that states that it shall be unlawful for any private
citizen to "Go Armed to the Terror of the Public"...In other words, you
are in compliance until somebody gets nervous and starts screamin'
for a cop. At that point, you are subject to be detained, searched, interrogated, scolded, or cuffed and taken for a ride to the police station,
whether you're dressed to the nines or in jeans and sweatshirt.
Officer's discretion.
Wotta world...
Better to just pull your shirt or jacket over the gun and go about your business..
Luck!
Tuner
My state has a legal open carry law, and has had for as long as I can remember. Sadly, there was also a legislation that was quietly enacted
some years ago that allows restricting that...and probably eliminating it.
I can't believe that it was anything other that it was orchestrated to do
just that: Make it nearly impossible to exercise the right to carry openly
in compliance with the law.
The law is the one that states that it shall be unlawful for any private
citizen to "Go Armed to the Terror of the Public"...In other words, you
are in compliance until somebody gets nervous and starts screamin'
for a cop. At that point, you are subject to be detained, searched, interrogated, scolded, or cuffed and taken for a ride to the police station,
whether you're dressed to the nines or in jeans and sweatshirt.
Officer's discretion.
Wotta world...
Better to just pull your shirt or jacket over the gun and go about your business..
Luck!
Tuner
mvpel
member
FedDC wrote: The LEOs arrive and make the scene safe by removing a potential threat (This is why he was disarmed and it is legal based upon the ability of the suspect to kill people with the weapon)
Okay, so can you mention any conceivable articulable, particular facts that might have led them to the "reasonable suspicion" that I was planning to kill people with the weapon, or even threaten them with it?
Okay, so can you mention any conceivable articulable, particular facts that might have led them to the "reasonable suspicion" that I was planning to kill people with the weapon, or even threaten them with it?
Posted by Spartacus:
"Every LEO needs to print out jimpeel's post above and tape it to the mirror they look into first thing in the morning."
OK, lets look at his claims.
Lets start out with Peels Principles as he posts them. I don't see where we as LEOs have strayed from those rules one iota. You are always going to have people in society who disagree with any aspect of how their government operates. We are never going to make everyone happy, regardless of what we do.Just because the internet has made it easier for people to complain does not in fact mean that there is some growing groundswell of public opinion against LEOs
We are not the ones who have set up the "us against them" barrier. That being said, non-LEOs make it quite clear in their criticisms that they simply do not understand how LE operates, why LEOs do what we do on calls, what is raesonable precautions that LEos take in the performance of our duties, etc. They criticize from positions of ignorance and then wonder why their attitude fosters the us against them divide.
"Every LEO needs to print out jimpeel's post above and tape it to the mirror they look into first thing in the morning."
OK, lets look at his claims.
Lets start out with Peels Principles as he posts them. I don't see where we as LEOs have strayed from those rules one iota. You are always going to have people in society who disagree with any aspect of how their government operates. We are never going to make everyone happy, regardless of what we do.Just because the internet has made it easier for people to complain does not in fact mean that there is some growing groundswell of public opinion against LEOs
We are not the ones who have set up the "us against them" barrier. That being said, non-LEOs make it quite clear in their criticisms that they simply do not understand how LE operates, why LEOs do what we do on calls, what is raesonable precautions that LEos take in the performance of our duties, etc. They criticize from positions of ignorance and then wonder why their attitude fosters the us against them divide.
12-34hom
Member
open carry
1911 stated:
Words to live by.
12-34hom.
1911 stated:
Words to live by.
12-34hom.
Ok, I have been away for a day or so and the responses have added up, but I will try to address the posts as best I can.
First, for deanf: Nobody was "Seized" in the eyes of the law. The term for what happened is "Investigative Detention" and it is not a seizure under the law as the USSC decided it. Investigative Detention is a temporary detention that is used while the police determine if a crime has been committed. It is not an arrest and it is not a seizure. It can move into an arrest, or as in this case it can move into releasing the suspect and returning his property.
Next for only1asterisk: Those are all good questions and I believe that the basic answer lies in the fact that the police are required to investigate a 911 call. They can not ignore it and they must go to the man with the gun and talk to him. They have no way of knowing if he is a little league coach, or a homicidal maniac. For that reason, we disarm the people we are interviewing. It is the same principal whereby if I think someone has a weapon in their car, I may ask them to step out so that we can talk...I need to separate them from their ability to kill me, not only for my safety, but for the safety of the people in the vicinity and the safety of the suspect who would be killed if he shot me. When someone calls 911 and reports a POSSIBLE crime, we are required to investigate it. It is not at the discretion of the dispatcher or the officer. In this case, the obvious crime may have been Unlawful Possession of a Weapon which could be related to a previous domestic violence or felony conviction...all of which must be determined after the ofc. talks with the suspect.
tyme- See above.
jimpeel- I agree with many of your points. I will not go off topic into a Militarization of LE topic, but I will say that everything I wear and use has a vital purpose which is enforcing the law and bringing me home safely. I wish we were allowed to carry more potent weapons and equipment than the ones we have now bc currently many decisions are based upon the public's perception of how a certain type of weapon "Looks" not how it functions. A prime example would be my agency removing all of our suppressed weapons bc someone thought those were the weapons of assassins and terrorists... Ever try firing about 12 SMGs in close proximity and trying to communicate at the same time...
mvpel- Good question. Here is how it can be articulated. The use of deadly force is controlled by three things, Ability, Opportunity, and Intent. If an Ofc can prove two of the three, he can disarm that person and if needed, use force to do it. In this case, you had the ability (A gun), the opportunity (Within range) and in order to prevent possible escalation of the incident, the officers disarmed you thereby diffusing a potentially life and death situation. In court that is exactly how it will play out, cautious officers trying to keep everyone (You included) safe. Honestly, they could have used a lot more force than they did and still been ok in the eyes of the law. They could have drawn weapons and applied cuffs. I am actually surprised that no cuffs came out, but it sounds like they were trying to be polite. Think about the incident from the standpoint of the officers involved and what they knew at the time. They did not know you were a good guy. They had no way of knowing what was going on until they did some investigating and before they could do that, they had to make the overall scene safe by removing the potential for gunfire. I mean this respectfully, but in a court of law, you will lose and lose badly. Many of us in LE are very very tired of being sued by folks that do not grasp the needs of officer safety and we have begun a campaign to counter-sue based upon lost wages, promotions, public slander...etc and almost every time the public sides with the officer. Just food for thought.
First, for deanf: Nobody was "Seized" in the eyes of the law. The term for what happened is "Investigative Detention" and it is not a seizure under the law as the USSC decided it. Investigative Detention is a temporary detention that is used while the police determine if a crime has been committed. It is not an arrest and it is not a seizure. It can move into an arrest, or as in this case it can move into releasing the suspect and returning his property.
Next for only1asterisk: Those are all good questions and I believe that the basic answer lies in the fact that the police are required to investigate a 911 call. They can not ignore it and they must go to the man with the gun and talk to him. They have no way of knowing if he is a little league coach, or a homicidal maniac. For that reason, we disarm the people we are interviewing. It is the same principal whereby if I think someone has a weapon in their car, I may ask them to step out so that we can talk...I need to separate them from their ability to kill me, not only for my safety, but for the safety of the people in the vicinity and the safety of the suspect who would be killed if he shot me. When someone calls 911 and reports a POSSIBLE crime, we are required to investigate it. It is not at the discretion of the dispatcher or the officer. In this case, the obvious crime may have been Unlawful Possession of a Weapon which could be related to a previous domestic violence or felony conviction...all of which must be determined after the ofc. talks with the suspect.
tyme- See above.
jimpeel- I agree with many of your points. I will not go off topic into a Militarization of LE topic, but I will say that everything I wear and use has a vital purpose which is enforcing the law and bringing me home safely. I wish we were allowed to carry more potent weapons and equipment than the ones we have now bc currently many decisions are based upon the public's perception of how a certain type of weapon "Looks" not how it functions. A prime example would be my agency removing all of our suppressed weapons bc someone thought those were the weapons of assassins and terrorists... Ever try firing about 12 SMGs in close proximity and trying to communicate at the same time...
mvpel- Good question. Here is how it can be articulated. The use of deadly force is controlled by three things, Ability, Opportunity, and Intent. If an Ofc can prove two of the three, he can disarm that person and if needed, use force to do it. In this case, you had the ability (A gun), the opportunity (Within range) and in order to prevent possible escalation of the incident, the officers disarmed you thereby diffusing a potentially life and death situation. In court that is exactly how it will play out, cautious officers trying to keep everyone (You included) safe. Honestly, they could have used a lot more force than they did and still been ok in the eyes of the law. They could have drawn weapons and applied cuffs. I am actually surprised that no cuffs came out, but it sounds like they were trying to be polite. Think about the incident from the standpoint of the officers involved and what they knew at the time. They did not know you were a good guy. They had no way of knowing what was going on until they did some investigating and before they could do that, they had to make the overall scene safe by removing the potential for gunfire. I mean this respectfully, but in a court of law, you will lose and lose badly. Many of us in LE are very very tired of being sued by folks that do not grasp the needs of officer safety and we have begun a campaign to counter-sue based upon lost wages, promotions, public slander...etc and almost every time the public sides with the officer. Just food for thought.
Larryect
Member
There has been MUCH well thought out discussion in this thread.
But, I have just got to say: It is a mighty sad day in this country when police are allowed to physically accost a person who is peaceably and LAWFULLY minding his own business. I can understand investigating the circumstances, approching said person, talking to them, even disarming them. But, for first contact to be a physical altercation is just downright WRONG.
Would the response have been the same if someone is dressed in athlectic clothing walking down the street with a baseball bat? Would first contact to be sneak up behind him, grab the bat and disarm him. Just IN CASE he decided to swing it at somebody?
But, I have just got to say: It is a mighty sad day in this country when police are allowed to physically accost a person who is peaceably and LAWFULLY minding his own business. I can understand investigating the circumstances, approching said person, talking to them, even disarming them. But, for first contact to be a physical altercation is just downright WRONG.
Would the response have been the same if someone is dressed in athlectic clothing walking down the street with a baseball bat? Would first contact to be sneak up behind him, grab the bat and disarm him. Just IN CASE he decided to swing it at somebody?
ScottS
Member
See a lot of bad guys in "accountant-wear," with a holstered handgun, browsing books at a B&N? Really? Is that the "bad guy" MO in your neck of the woods?
So, you're a lawyer, too, now, in addition to being an LEO? As an LEO, and "I mean this respectfully," your opinon is hardly objective. mvpel is represented by a gun-rights savvy lawyer, recommended by gun-rights organizations. I guess he'll have to let her advise him as to how to proceed.
Scott
I'm curious ... if I call 911 and tell the operator that I just saw someone drive by in a Pontiac LeSabre, are you DUTY BOUND to pull that person over, throw them out of their vehicle and question them?
After all, the obvious crime(s) might include driving under the influence, speeding, possession of a stolen vehicle, driving without a license, driving on expired tags, reckless driving, etc. etc. etc.
And you'd be required to "disarm" them with force ecause they might run the responding officers down (ability, opportunity).
If I just call in an otherwise lawful activity, do you really respond in a consistant manner?
So ... if a police officer entered a shooting range, they would be legally allowed (and deserving of commendation for avoiding a life-and-death situation) to forceably disarm every patron at the establishment (and the employees at that)? What about other officers? After all, it just takes Ability and Opportunity ...
mvpel
member
FedDC:
The Terry court also demanded that the facts available to the officer at the moment of the seizure ... should 'warrant a man of reasonable caution in the belief' that the action taken was appropriate. Anything less than such a standard, wrote the court,
If you can't deal with the fact that occasionally your job might be less safe as a result of leaving a peaceable law-abiding citizen alone in observance of the Constitution that you swore an oath to uphold, then you ought to find another line of work.
I grant that I might have made a mistake by forgetting to tuck in my shirt when I took off my coat and thereby spooking the horses, but what if I hadn't forgotten but printed through my shirt while leaning over to look at sweater patterns with my wife, and someone called? Would I have gotten the same treatment, or worse?
The US Supreme Court says otherwise, in Terry v. Ohio:
The physical force used was to lay hands on my holster and my right shoulder and push me forward slightly to put me off balance, and the show of authority was the identification of themselves as Manchester Police and the instruction to put my hands on my head while they disarmed me, and the five sets of uniforms and/or badges and openly carried or concealed firearms that escorted me outside and detained me while my identification was run. The restraint of my liberty was the initial grab by the first police officer, along with the clear understanding that I was not free to go, with or without my firearm, until dismissed by the officers.
The Terry court also demanded that the facts available to the officer at the moment of the seizure ... should 'warrant a man of reasonable caution in the belief' that the action taken was appropriate. Anything less than such a standard, wrote the court,
FedDC, you wrote, "They did not know you were a good guy." In fact, all they had was an "inarticulate hunch" that I might be a bad guy, based solely on the fact that I was carrying a partially concealed firearm in a state where doing so is legal, and they thus, without invitation, intruded upon my constitutionally guaranteed right "to keep and bear arms in defense of myself, my family, and the state," as well as my right to be free from unreasonable seizure.
Many of us not in LE are very very tired of having our peacably exercised civil rights trampled by police officers who do not grasp the meaning of the Second Amendment and its state constitutional equivalents. We are very very tired of LE who do not recognize the fundamental human right to self-defense, and the right of those who exercise it to be free of harassment and irrational suspicion. We are very very tired of LE who think of themselves as a special brand of super-citizen who are not bound by the laws they are charged with upholding.
If you can't deal with the fact that occasionally your job might be less safe as a result of leaving a peaceable law-abiding citizen alone in observance of the Constitution that you swore an oath to uphold, then you ought to find another line of work.
I grant that I might have made a mistake by forgetting to tuck in my shirt when I took off my coat and thereby spooking the horses, but what if I hadn't forgotten but printed through my shirt while leaning over to look at sweater patterns with my wife, and someone called? Would I have gotten the same treatment, or worse?
What makes you think "bad guys" only dress a certain way? Sounds like some profiling on your part.
The more I read pels posts the more I am convinced that he carries as he did that day just looking for an incident he could be involved in to push his agenda.
7.62FullMetalJacket
Member
What agenda would that be? To be left alone? mvpel
member
It's certainly your right to suspect anything you want to suspect about my motivations, but just because I'm an articulate individual with an interest firearms and self-defense rights doesn't mean I went looking to get entangled in a potentially dangerous situation with the police. It also doesn't entitle you to imply that I'm lying when I say that I simply neglected to tuck my shirt into my holster after taking off my coat and my sweater.
Besides, it was my 11th anniversary, for heaven's sake! Can you imagine how pissed my wife would have been if I'd been hauled downtown by a crowd of officers with the keys to the Pilot in my pocket?
And as for what you've read of my posts, check out my occasional hobby at http://www.aidoann.com/ with respect to the traffic ticket court wins I've had. I don't ask for it, but I get into it when they bring it.
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