Lets say....


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Jimmy Dean
April 21, 2008, 11:43 AM
OK, lets say that carrying a firearm is illegal in this certain state.

Now, would carrying a holster (a clearly visible empty hoslter) give reasonable suspicion for the police to stop you and frisk you while walking down the street?

This is more applicable to the school grounds, and some recent communication with the police chief, who said that they intend to basically harrass everyone participating in the empty holster protest

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Mr_Rogers
April 21, 2008, 11:54 AM
Carry your cell phones in the holster. I don't think there is any restricted holder for a cell phone !!!

csmkersh
April 21, 2008, 12:03 PM
Perhaps a lawyer needs to be retained and lots of camcorders out and about to document the harassment.

REB
April 21, 2008, 12:08 PM
Almost anything could be used as an excuse of reasonable suspicion. Whether that excuse holds up in court is a different matter. I think the camcorder idea is a great idea, just be sure to be very polite while being harassed.

Jimmy Dean
April 21, 2008, 12:10 PM
We are not carrying ANYTHING in side the holsters. The point is to display an empty holster.

I guess I will pack along my digi cam.

NavyLCDR
April 21, 2008, 12:21 PM
My personal opinion, and if I was on a jury, this is how I would think.

1. Yes it would be probable cause if the holster was specifically made to carry a firearm:

2. I would think it would perfectly acceptable for a police officer to stop you and question: Do you have a concealed weapons permit, and if yes to present that permit. If it is presented, then done deal, you're free to go.

3. No, I do not have a permit, or permit not presented: I would find it perfectly acceptable for the officer to perform a frisk to determine if weapons are present and to take whatever actions are required to perform that frisk, IE: arrest or official detainment. If no weapons are found, done deal, you're free to go.

Personally, if I saw an empty holster being worn it would cause me to ask myself where the weapon is that belongs in it. I understand your point, and I applaud your efforts to make that point, but I think that reasonable affects from that action should be expected. Do I think your "protest" is cause for "causing alarm and panic", "inciting violence", etc... no, of course not.

Any other "harrassment" beyond the frisk and no weapons found, in my opinion, would be unfounded.

NavyLCDR
April 21, 2008, 12:23 PM
Let's carry it one step further - we have bright pink/orange training dummy guns in the military. Let's say you were carrying one of those around. Would the be probable cause? Or what if you were carrying a toy that was more similar in appearance to the real thing? You are only carrying a toy....

Jimmy Dean
April 21, 2008, 12:29 PM
Seeinga s how those realistic toys are also not allowd on campus....

Navy, lets look at this, the police have recieved official notification, from me as the Chapter Leader for the SCCC, that we would be performing the empty holster protest.

On top of that, as for them searching me, these ARE the same police oficers who tried an illegal search of my truck 4 days ago, knowing that I was not doing anything illegal and was in possession of nothing illegal.

Schleprok62
April 21, 2008, 12:43 PM
Wouldn't being stopped and "harrassed" be a form of profiling?

Kinda like the police used to mark cars in parking lots at bars to pull them over later???

NavyLCDR
April 21, 2008, 12:43 PM
Sorry, but my opinion is that the officer's have no way of identifying who is participating in the protest and who is not. Even given the prior notice of the protest, I would still, if I were on a jury, maintain that an officer would be within their legal constraints to perfom the minimum actions required to ensure a weapon was not being carried concealed illegally. The empty holster, in my opinion, would be grounds for that.

I can't comment on the truck search - that is a different topic. However, if that came up at trial, and I hear that on the jury, and I felt that the truck search was unfounded, I would still not apply that to the current situation, assuming that only minimal action was taken to verify the above circumstances. If the police went beyond what was reasonable, IE: took you "downtown" and booked you, then I would find that the previous truck incident would be admissable to establish a pattern of mis-behavior by the police.

Tribal
April 21, 2008, 01:48 PM
Maybe I'm crazy, but I have to think that an empty holster isn't probable grounds for assuming that you're concealing a weapon any more than an empty garage is probable grounds for assuming that your car is parked inside your living room.

Mr_Rogers
April 21, 2008, 05:12 PM
Quite true,
Wearing a holster is no more an indication of carrying a concealed weapon than wearing a jacket.

Just look at clothing that is considered "fashion" - even as far as wearing a belt of cartridges (hopefully blank). Does a biker wearing a Nazi helmet get frisked?
No way.

csmkersh
April 21, 2008, 05:41 PM
Just look at clothing that is considered "fashion" - even as far as wearing a belt of cartridges (hopefully blank). Does a biker wearing a Nazi helmet get frisked?
No way.
Sometimes. A friend of mine was transporting a custom Harley from up North back to Texas a few years back. He was stopped and the bike disassembled 4 different times.

You sometimes are forced to educate cops as was done in Manassas VA in 2006-07. Open carry is legal in VA, but the cops arrested one man. Charges were dropped but the gunnies, even those licensed to carry concealed, started making a point of open carry. The cops quickly realized they weren't going to win that one.

NavyLCDR
April 21, 2008, 05:54 PM
In most states an empty beer can/bottle in the car is grounds for suspicion of DUI...

Tribal
April 21, 2008, 06:29 PM
In most states an empty beer can/bottle in the car is grounds for suspicion of DUI...

True, but I think that's different from an open holster (it would be more like finding empty casings at the scene of a shooting). The purpose of the holster is to hold a gun; a clearly visible holster is meant for the gun to be carried openly. While the person with the empty holster may well have a concealed weapon, the empty holster runs counter to the main intention of CCing (concealment) and would only be probable cause in assuming that the person owns a gun that could reasonably fit inside the holster (for example, they wouldn't be justified in a specific search for a long gun based on your Fobus paddle holster).

That said, they could easily see your holster, "see a suspicious bulge" around your waist, and demand to see your CC license; if you don't have one then they might be able to frisk you. That would be unethical, but it doesn't mean it couldn't happen.

NavyLCDR
April 21, 2008, 06:49 PM
The purpose of the holster is to hold a gun; a clearly visible holster is meant for the gun to be carried openly.

Very interesting argument!

That said, they could easily see your holster, "see a suspicious bulge" around your waist, and demand to see your CC license; if you don't have one then they might be able to frisk you.

I can see it now..... frisk, frisk, frisk....and they find......

a colostomy bag! :eek:

RoadkingLarry
April 21, 2008, 06:50 PM
Put a bunch of plastic/silk lillies in it like you see in old time funeral depictions.

Mainsail
April 21, 2008, 07:26 PM
Under the rules of Terry, a police officer may only detain you if he or she has a reasonable articuable suspicion that you are, have just, or are about to commit a crime. Suspicion is not enough. Wear ten empty holsters on your belt if you want. Unless the officer can articulate (verbalize) how what you are doing is related to a particular illegality, he cannot prevent you from going about your business. He cannot say, “I saw an empty holster so I was suspicious that he had a gun in his sock.” The information he has, that you’re wearing an empty holster, does not equate to a reasonable articuable suspicion that a crime is afoot because wearing an empty holster is perfectly legal.

The US Supreme Court refused to allow a firearms exception to the rules of Terry. If the officer sees a ‘bulge’ in your waistband, detains, and searches you, any evidence he obtained would not be allowed. A bulge is not a reasonable suspicion that you are committing a crime, there are any number of perfectly legal things it could be.

I find it a bit disturbing that there are so many people so unaware of their 4th Amendment rights!

t3rmin
April 21, 2008, 07:42 PM
I think the main thing is, if they want to harass you, they will find an excuse. And even if you manage some kind of recourse later, it will not be to your satisfaction. I'd want to record/document/lawyer-up/whatever in preparation, anyway.

With a protest like this, I'd say plan for the worst and be prepared to accept it as a cost of your activism. Bear it with pride. If the cops do the right thing and leave you alone, good on them. If they don't, good on you for going out there anyway. You've got more courage than most and you're helping to work toward a better future for all of us.

ConstitutionCowboy
April 21, 2008, 07:55 PM
In any case, you've got a great defense:

"But judge, the holster was obviously empty!"

Woody

NavyLCDR
April 21, 2008, 07:58 PM
Put a photo of a gun in the holster with the caption: "If I didn't live in the communist state of ______ this would be a real gun" :D

Oana
April 21, 2008, 07:58 PM
With nothing in the holster, I'd say that it would be a more obvious sign that one is *not* carrying a concealed weapon.

If your police chief has essentially threatened to harass you for exercising 1st amendment rights, I'd say carry a recorder. Carry TWO recorders - one video, one audio. Carefully check your federal and state laws to see how/if you have to inform any parties being recorded, then be certain to carry them somewhere easily accessible that won't look like you're reaching for a weapon - e.g. shirt pocket.

Sucks that you have to worry about all that just for participating in a protest. :(

TexasRifleman
April 21, 2008, 08:51 PM
I find it a bit disturbing that there are so many people so unaware of their 4th Amendment rights!

Well unfortunately there are not many places that still teach it.
Posting stuff like you did is about the only way many people will hear of such things.

It isn't really in the govs interest for you to know too much about that stuff is it ;)

mekender
April 21, 2008, 10:09 PM
"officer am I being detained?"

if the answer is no, then "have a good day"

if yes, "what crime am i being detained on suspicion of?"

$10 says he cant come up with a valid answer...

xjchief
April 21, 2008, 10:25 PM
An empty holster is certainly no reason to search anyone. No reasonable person would think that an wearing an empty holster meant you had a concealed firearm.

jrfoxx
April 22, 2008, 02:03 AM
just be sure to be very polite while being harassed.
I certainly agree that is wise advice, but how sad is it to have to make and/or even read a statement like that in this country in regards to interaction with LEO's when doing nothing illegal? Sad....just sad.:(

mrokern
April 22, 2008, 02:31 AM
NavyLT said:

3. No, I do not have a permit, or permit not presented: I would find it perfectly acceptable for the officer to perform a frisk to determine if weapons are present and to take whatever actions are required to perform that frisk, IE: arrest or official detainment. If no weapons are found, done deal, you're free to go.

:what: Arrest would NOT be a perfectly acceptable action! Arrest has legal definitions, and arresting someone without any suspicion of a crime being committed could equal a nice lawsuit with any intelligent attorney.

-Mark

Sir Aardvark
April 22, 2008, 02:42 AM
If I saw someone with an empty holster, walking around all nonchalantly-like, my immediate thought would be, "Where's his gun?".

I might even be so inclined to go over to him and ask, "Hey buddy, do you know your gun is missing out of your holster?", because he might not even know that it's not there - maybe it fell out while he was in the potty going doo-doo or something like that.

So in this regard I do not think it would be unreasonable for an officer to stop you to ask why you have an empty holster, because, I myself, reasonably, would be wondering the same thing.

As to the frisking part, the Cop is going to do whatever he feels is necessary at the time, and if you don't agree with it, then good luck doing anything about it, because what are you doing drawing attention to yourself to begin with? - just being realistic here, this is not cop-bashing.

Powderman
April 22, 2008, 02:45 AM
And here we go again.....

Referring to the original post--if you are wearing an empty holster, and this is a State where carrying the firearm is illegal, then you have met the standard for "reasonable suspicion". What is the empty holster for? To carry a firearm.

Is carrying a firearm legal in the jurisdiction being considered? Apparently not.

Thus, this would warrant a "community contact"...

"Hi. How's it going?"
"Doing OK."
"Cool. Hey, I noticed that you have a holster on."
"Yes, I do. I am wearing this as part of an organized protest. (Insert description here)"
"I understand that. Good luck. By the way, do you have a firearm on your person right now?"

"No."

"OK. Mind if I pat you down, just to make sure, for your safety and mine?"

If the answer is, "OK", then a quick pat down, following the standards of Terry v. OH. No weapons found? Have a good protest.

If the answer is no....

"OK, then. Be careful out there."
"Bye."

Then I radio in a description of the person to Dispatch, and the other officers on duty as an officer safety message. If you are spotted from that moment on, and you act like you are attempting to conceal something, then there will be a Terry stop, and you WILL be detained and frisked.

Our Constitutional rights are not carte blance to ignore and or break the law. Sorry if you feel that it does, but it does NOT.

Of course, I've opened up a can of worms with this response. Flame away! Let the games begin. I'll just duck back into the donut shop and let you folks have at it.

Rmeju
April 22, 2008, 06:26 AM
Wow Powderman...just... wow. I shall take your bait, sir!

What is the empty holster for? To carry a firearm.

Not to pick nits here, but the purpose of an empty holster cannot be known without further detective work (for example, "hey buddy, what's that thar empty holster fer?"), but it can be known that the one purpose it is not for, is carrying any guns.

Even assuming our theoretical neurosurgeon-turned-cop was somehow able able to infer that an empty holster is used for the purpose of carrying guns (and boy is he gonna look silly in court trying to defend that one), somewhere in the middle of that argument, our hero went on to switch positions. At first he was saying that carrying a firearm in a jurisdiction that it is not legal to do so is illegal, but then changes to say that constitutional rights do not extend to doing things that are illegal...of course this last part is true (actually so is the first part), but the reference was made in the context of carrying an empty holster around, which is not illegal, and thus that argument cannot be supported.

Furthermore, you tacitly encourage people protesting in such a way (like the OP) to just submit to a search so they can avoid facing the "consequences" of our beloved community outreach officer to call his buddies, who may later detain him and do the exact same thing you encouraged our protester to submit to in the first place. The utter facial absurdity of your advice aside, the logical extension of your argument for compliance is, actually, no better than the consequences of not following your advice.

In other words, if any cops feel like searching the protester, and he complies with their request, isn't it just as likely that every other cop he walks by is just going to do the exact same thing? Isn't that just as bad, or worse, than just saying no?

Do you actually listen to yourself or just sort of tune in and out? :banghead:

209
April 22, 2008, 07:26 AM
From one book-

A "Terry Stop" is a stop of a person by law enforcement officers based upon "reasonable suspicion" that a person may have been engaged in criminal activity, whereas an arrest requires "probable cause" that a suspect committed a criminal offense. The name comes from the standards established in a 1968 case, Terry v. Ohio.

The issue in the case was whether police should be able to detain a person and subject him to a limited search for weapons without probable cause for arrest. The court held that police may conduct a limited search of a person for weapons that could endanger the officer or those nearby, even in the absence of probable cause for arrest and any weapons seized may be introduced in evidence.

When a police officer observes unusual conduct which leads him or her to reasonably suspect criminal activity may be occurring and that the persons with whom he is dealing may be armed and presently dangerous, the officer might approach and briefly detain the subjects for the purpose of conducting a limited investigation. The officer must identify himself or herself as a police officer and may make reasonable inquiries. If after initial investigation the officer still has a reasonable fear for the safety of himself and others, the officer may conduct a carefully limited search of the outer clothing in an attempt to discover weapons that might be used to assault him or her.

If the officer has articulable suspicion, a Terry Stop is legal.

Mainsail
April 22, 2008, 12:10 PM
Wow, with so many people so seemingly willing to bend over and spread ‘em it’s surprising there isn’t more accusations of police rape.

Yes, an officer can pat you down for weapons if you are being detained. They may not, however, detain you for acting in a lawful manner. The officer must have a reasonable articuable suspicion that there is a crime afoot. Since it is legal to wear an empty holster there is nothing for him to suspect you of. Even in a state that doesn’t honor your firearms rights, you can carry a firearm on your own property, leave the firearm there, and walk about with the empty holster.

The officer may not pat you down during a simple community contact, you have to be ‘seized’ first.

"Hi. How's it going?"
"Doing OK."
"Cool. Hey, I noticed that you have a holster on."
"Yes, I do. I am wearing this as part of an organized protest. (Insert description here)"
"I understand that. Good luck. By the way, do you have a firearm on your person right now?"

"No."

"OK. Mind if I pat you down, just to make sure, for your safety and mine?"

If the answer is “OK” then you have just forfeited your privacy rights. The correct response is:

“Am I being detained, and if so, for suspicion of what crime are you detaining me?

That this came from someone in Washington, and someone who claims to be a police officer, is very disturbing. The WA courts have found that the police did not have reasonable articuable suspicion to detain a man who was carrying two rifles down the street in broad daylight in a metropolitan city, frisking someone during a “community contact” would get any evidence you may find thrown out of court. Do that to the wrong person, and they may well sue you out of a job.

Tribal
April 22, 2008, 05:15 PM
I have to go back to this, though: an empty holster is a tough sell as "reasonable suspicion" that you have a firearm on your person that the cop can't see. If you walk around without a belt on, no one thinks you've got it tucked in your pocket. If you walk around with an empty prescription bottle no one thinks you're hiding them in cheek pouches. An empty holster is no more evidence that you're carrying (or even own) a gun than a "Come And Take It" shirt with a cannon or M-16 on it.

NavyLCDR
April 22, 2008, 05:21 PM
You guys are starting to sell me too. I might just change my previous opinion.

Robert Hairless
April 22, 2008, 05:43 PM
Our Constitutional rights are not carte blance to ignore and or break the law. Sorry if you feel that it does, but it does NOT.

Of course, I've opened up a can of worms with this response. Flame away! Let the games begin. I'll just duck back into the donut shop and let you folks have at it.

Since you're going to the donut shop anyway would you mind bringing half a dozen chocolate covered cake donuts for me?

What makes me sad about message threads like this is that they entirely miss the point of non-violent protests. People like Henry David Thoreau, Mohandas K. Gandhi, and Martin Luther King were adults who understood that there is no moral force behind a protest unless the participants understand and accept the penalties for it. Summer soldiers and sunshine patriots don't earn their own donuts.

Rmeju
April 22, 2008, 11:20 PM
Robert,

While certainly if you're a "real" protester, you have to be ready to actually sacrafice. I don't think too many (any?) people were saying they'd be scared off by the threat of harassment by the police.

It seems the argument now has focused more on what rights the police have when they're harassing you, with a smattering of advice what to do about it.

You do bring up a valid point though, that I think a lot of people forget.

Reid

Oana
April 22, 2008, 11:22 PM
So, JimmyDean, how did the first two days go?

ConstitutionCowboy
April 22, 2008, 11:27 PM
Our Constitutional rights are not carte blance to ignore and or break the law. Sorry if you feel that it does, but it does NOT.

How else does a person acquire standing to challenge an unconstitutional law if that person doesn't break that unconstitutional law in the first place?

Woody

Our government was designed by our Founding Fathers to fit within the framework of our rights and not vise versa. Any other "interpretation" of the Constitution is either through ignorance or is deliberately subversive. B.E. Wood

Dr. Tad Hussein Winslow
April 23, 2008, 01:48 PM
the police chief, who said that they intend to basically harrass everyone participating in the empty holster protest

Do you have this clown on RECORD saying that, like a recording? That's clearly a 1st amendment speech violation (not to mention 2nd) - he intends to HARASS a class of people for engaging in a PROTEST - an exercise of 1A rights? Where is this? He should lose his job and be run out of town on a rail.

No, of course an empty holster is not reasonable suspicion for detention. That's not to say that won't do it, and make you sue them and spend and extraordinary amount of time and money for your vindication, but no judge would rule that reasonable suspicion, at least not *in the context of the PD KNOWING that it's a speech exercise protest* when they see a lot of people doing this on the same day. If it was me, I'd say, if harassed: "I'm exercising my right to remain silent" and keep right on walking. Make THEM make the tough judgment call of actually forcibly restraining you. Just ignore them or ignore them with a little bit of lip service to remaining silent - something like "I'm going to ignore you because you have no right to question me; I'm doing nothing illegal." Remember, in most states, you have a RIGHT to resist an unlawful arrest. Just have your multi-thousand dollar rainy day lawyer fund ready to go.

XD_fan
April 23, 2008, 02:37 PM
The correct answer is that it should not be cause for alarm or concern by the police. The real answer is that the police will do whatever they feel like doing. We've all seen it happen time after time. Not a bash, just the facts of modern life.

Tribal
April 23, 2008, 03:33 PM
How else does a person acquire standing to challenge an unconstitutional law if that person doesn't break that unconstitutional law in the first place?


If it's a civil rights issue courts have generally held that citizens can have standing to challenge the matter without having to break the law first.

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