Officer Safety Exception

[Wynder]

This is something I'm still really unclear about, I'll provide a few examples below, but I'm looking for the point at which an officer can disarm you for 'his safety.'

1. Open carrying on the street in a good or bad neighborhood.

2. Open carrying in your vehicle.

In the encounters I've read where people have been disarmed, the weapon was field stripped and the officer instructed them not to make it ready until they'd left the scene... Is this enforceable by any methods by the police? How long can they force you to wait there, defenseless, before you're allowed to prepare yourself?

 

[SomeKid]

If a cop field stripped my gun I might detain HIM. While TN law gives them the legal authority to disarm, nothing says they can take the gun apart. I would likely file a complaint over that, if it happened.

If it was only unloaded, I would smile, nod understanding, and load it in front of the cop. In TN, you cannot be ordered to have an unloaded pistol, merely on a whim.

 

[ilbob]

I don't recall seeing an officer safety exception in the 2A. Maybe I was reading it wrong.

 

[Wynder]

Precedence was set forth in Terry v. Ohio -- while I appreciate people are bemused as to court rulings modifying the Bill of Rights, it does exist and I'm looking for somewhat solid thoughts on how they're applicable in open carry scenarios.

 

[divemedic]

Modifying rights makes sense. The old "Shouting fire in a crowded theater" example.

There are reasonable restrictions on all rights. If there weren't, the constitution would weigh a ton, and we wouldn't need a Congress or a Supreme Court.

 

[Wynder]

Modifying rights makes sense. The old "Shouting fire in a crowded theater" example.

Horrible example, because it's not being modified by anything. It's not illegal for you shout "FIRE" in a crowded theater -- in fact, if you do so and there IS a fire, you're a hero and will, mostly likely, be given the key to the city and have a ticker tape parade thrown in your honor. If you do it with the INTENT to incite panic, you then find yourself liable for the safety of those around you, but nothing in the First Amendment or any federal, state or local laws prevents you from doing the above.

 

[shield20]

Exactly. I LOVE when dumb-a$3 politicans use that "yell fire" example just so they can infringe on my inalienable rights. I DO NOT lose my 1st amendment right whenever I go into a theater; I just can not yell "fire" IF it is to cause panic (thanks Wynder), THAT ACT is a mis-use and so is illegal. I should be able to have my gun any where any time, but mis-using it, i.e. murdering someone with it, is rightly illegal.

Besides, what is so "reasonable" about disarming honest people at all - even at places like schools and such, or for that matter expecting 99.88% of we the people to have their right infringed in any manner (say AWB) because the other .12% may use a gun to commit a crime - THAT IS NOT REASONABLE.

I would however allow cops to temporarliy disarm people they are dealing with if appropriate.

 

[Mainsail]

Our privacy laws here in Washington are very strict, much stricter than those enumerated in the US Constitution. If you want to read some interesting recent Appellate Court decision on privacy, State v Day, which is very enlightening. Also, State v Casad is very interesting as it covers both privacy and open carry of firearms.

Officers may briefly, and without warrant, stop and detain a person they reasonably suspect is, or is about to be, engaged in criminal conduct. This exception to the warrant requirement is often referred to as a “Terry stop.” While Terry does not authorize a search for evidence of a crime, officers are allowed to make a brief, nonintrusive search for weapons if….“a reasonable safety concern exists to justify the protective frisk for weapons” so long as the search goes no further than necessary for protective purposes.

It is illegal for a police officer (at least here in WA) to detain you just for openly carrying a firearm, if your carry is legal and presumably safe. That doesn’t mean they won’t though.

 

[oobray]

The only way as a citizen to combat LEO's stopping people and "disarming" them would be to take them to court and challenge whatever "reasonable suspicion" that the officer had. Meaning, if you were stopped and the LEO saw your openly carried firearm, in a place which open carry was legal, and you believe you were unreasonably stopped you would have to take it to court and a jury/judge would decided if the stop was unreasonable. However, in today's climate I would surmise that most juries would say that an officer stopping someone openly carrying a firearm was reasonable. Like it or not, I think that is where this counrty is.

 

[Wynder]

I've studied the State v. Day and Terry cases in a Constitutional Law course I took this semester for fun, but I suppose my thoughts are coming down to can they initiate a Terry stop on you simply because you're openly carrying a firearm?

They need articulable reasonable suspicion that you have, are or will commit a crime -- I'd just love to know that, with lawful citizens exercising their right, there's reliable judgment in our favor when it would come to a section 1983 civil suit for remunerations.

 

[Trebor]

There's a difference between an officer "confiscating" your firearm and "temporarily disarming" you for "officer safety."

The U.S. Supreme Court has given officers very broad latitude as to what they can do for "officer safety."

An officer does not need "probable cause" to do a "Terry frisk." The Supreme Court has pretty much said that once an officer has "stopped" you, he can conduct a "Terry frisk" for officer safety without needing any further probable cause. (Now, he should have had probable cause or a reason to stop you in the first place, but that's a different issue).

As to whether or not "open carry" is enough "probable cause" that you may be committing a crime, I can't say. I'm pretty confident though that the courts would uphold an officer temporarily disarming you during the stop for "officer safety," even if they determine no crime was committed.

 

[Mainsail]

An officer does not need "probable cause" to do a "Terry frisk." The Supreme Court has pretty much said that once an officer has "stopped" you, he can conduct a "Terry frisk" for officer safety without needing any further probable cause. (Now, he should have had probable cause or a reason to stop you in the first place, but that's a different issue).

I think you’re confusing the terms. If an officer has probable cause, he’s going to arrest you for something.

A police officer may not stop you for being suspicious, looking suspicious, or smelling suspicious. He or she must have reasonable articuable suspicion that there is a crime is afoot. If he or she has a reasonable suspicion that you are about to commit a crime, already have committed a crime, or currently are committing a crime, he or she may detain you. This is called a Terry Stop and you may be frisked for weapons for officer safety.

In Washington, the mere open carry of a firearm (long gun or handgun) does not meet the threshold for ‘reasonable articuable suspicion’ all by itself. Thus, it is not enough for an officer to detain you. Yes, you may look suspicious walking around with a Desert Eagle in a cross-draw holster, but that is not reasonable suspicion because it is legal to do so.

In State v Casad, the court reasoned:

We note that, in connection with this case, several individuals have commented that they would find it strange, maybe shocking, to see a man carrying a gun down the street in broad daylight. Casad’s appellate counsel conceded that she would personally react with shock, but she emphasized that an individual’s lack of comfort with firearms does not equate to reasonable alarm. We agree. It is not unlawful for a person to responsibly walk down the street with a visible firearm, even if this action would shock some people.

And mentioned the State Constitution:

Nothing indicates that the manner in which the Defendant was carrying the weapons in any way would give reasonable cause for alarm unless the mere fact of carrying a weapon within the city limits in the open in daylight on a major thoroughfare in and of itself would cause such alarm. The statute does not and, under the Constitution, cannot prohibit the mere carrying of a firearm in public. Therefore the Court finds that the officers at the time of the initial contact had no reasonable articulable suspicion that any criminal activity was occurring.

 

[Trebor]

I think you’re confusing the terms. If an officer has probable cause, he’s going to arrest you for something.

It's entirely possible that I'm confusing or misusing the terms. I'm not an attorney and I only have a semi-informed layman's knowledge of the subject.

Like I said before, I can't say if mere "open carry" is enough for the police to stop and question you. I don't know enough either way to say for sure. I suspect it would really depend on the laws in the jurisdiction.

However, I'm pretty sure that once the officer decides to stop you his temporary seizure of your firearm for "officer safety" would be upheld by the courts as they have shown they'll give officers great latitude in that area.

Now, if the officer unjustly arrests someone for open carry in an area where it is legal, or outright confiscates the firearm that was legally carried, that's a different issue entirely. But, I think pretty much any court is going to allow them to temporarily disarm you for "Officer safety," even if the stop is questionable.

Note that I'm not an attorney, this is not legal advice, yada, yada, yada.

 

[Art Eatman]

Based on Wynder's examples, there are two things to consider:

First is state law. If either example is not legal, the officer logically assumes there is some possibility of danger to him or to the public.

Even if either example is legal, it could be unusual. Officers are hired to look into unusual events. That is exactly what their job is all about. This segues into the second point: The officer's perception, based on behavior, demeanor and the level of his experience in making such judgements.

So, a young rookie cop from some anti-gun background might get a serious case of the quivers, while an old hand cop in Virginia or Arizona might well just nod and walk on.

So, no "one size fits all". We're speculating on a cop's perception of the situation.

 

[ZeSpectre]

I'm going to inject the same reality check I always put in threads like this one.

Regardless of what we (here on THR) conclude, keep in mind that ON THE SPOT you do NOT argue with the cop. You will loose. Save your arguments and complaints for the report you file later.

I'm just trying to save y'all a lot of scrapes and bruises.

Ze

 

[VARifleman]

It is illegal for a police officer (at least here in WA) to detain you just for openly carrying a firearm, if your carry is legal and presumably safe. That doesn’t mean they won’t though.

Then anything they find is null and void.

 

[Mainsail]

Even if either example is legal, it could be unusual. Officers are hired to look into unusual events. That is exactly what their job is all about. This segues into the second point: The officer's perception, based on behavior, demeanor and the level of his experience in making such judgements.

So, no "one size fits all". We're speculating on a cop's perception of the situation.

If we’re speaking about Terry stops, then ‘perception’ has nothing whatsoever to do with it. To stop and frisk under Terry, the officer, regardless of experience or expertise, must have reasonable articuable (meaning it can be verbalized) suspicion that a crime is afoot. In State v Martinez, an officer working in a parking lot with a history of car break-ins observed someone walking in the shadows at 12:46 am.

At 12:46 a.m., [the officer] spotted Jeremiah Martinez walking in the shadows from an area where several cars were parked in front of one of the apartment buildings. Mr. Martinez was walking briskly and looked around nervously. [The officer] followed him. [The officer] called out from about 25 yards away, identified himself as a police officer, and asked Mr. Martinez whether he lived in the apartments. Mr. Martinez responded that he did not. [The officer] ordered him to sit down on a utility box while he radioed dispatch him to identify him.
[The officer] patted Mr. Martinez down for weapons. He felt a hard, rectangular object he thought was large enough to conceal a weapon. He removed the container. It held methamphetamine. [The officer] read Mr. Martinez his Miranda rights and then arrested Mr. Martinez for possession. He searched him incident to the arrest. He found methamphetamine and a glass methamphetamine pipe in Mr. Martinez's pocket.

Mr. Martinez argues that the officer here did not have the “particularized suspicion” necessary to stop him. He was stopped simply for walking in a public place after dark.
The State responds that the totality of the circumstances justified a brief investigative stop. It was late at night. The neighborhood was rated “high crime.”
10
Vehicle prowls had been reported. The parking area was dark. Mr. Martinez was on private property. He looked nervous and walked quickly away from the officer. Taken together with the officer's experience, these facts established a substantial possibility that Mr. Martinez was prowling vehicles.

Mr. Martinez challenges the trial court's conclusion that the stop and search were reasonable, and thus constitutional . . .
A stop and frisk is a seizure subject to the Fourth Amendment. Terry v. Ohio, 392 U.S. 1 (1968). [The officer] “seized” Mr. Martinez when he ordered him to sit on the utility box and wait. The issue is whether the officer acted under “authority of law” and specifically whether this investigatory stop satisfied some exception to the warrant generally required by article I, section 7.
Article I, section 7 permits police to conduct brief investigatory stops of limited scope and duration. To justify such a stop, the officer must be able to “ ‘point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ “ The facts must give rise to “ ‘a substantial possibility that criminal conduct has occurred or is about to occur.’ “
We evaluate the totality of the circumstances known to the officer at the time when passing on the propriety of this warrantless stop and search. Presence in a high crime area at night is not enough. The circumstances must suggest a substantial possibility that the particular person has committed a specific crime or is about to do so.
Innocuous facts do not justify a stop. The officer may, however, rely on experience in evaluating arguably innocuous facts. The question here is whether arguably innocuous facts plus the officer's experience amount to an articulable suspicion or merely an inchoate hunch.

Here, [the officer] was patrolling this parking lot because of past problems, not in response to a crime in progress report. He had no description or other information linking Mr. Martinez to any prowling that evening or, for that matter, at any time. The State argues that Mr. Martinez's reaction to the officer's presence aroused suspicion and the officer observed nothing to suggest any legitimate reason for Mr. Martinez's presence in the shadows late at night. But that is not the test.
A stop and frisk is a seizure subject to the Fourth Amendment. Accordingly, the officer must have articulable grounds for a stop at its inception. Mr. Martinez was not required to articulate a reason not to stop him. The police may not stop and question citizens on the street simply because they are unknown to the police or look suspicious, or because their “‘purpose for being abroad is not readily evident.’“
The problem here is not with the officer's suspicion; the problem is with the absence of a particularized suspicion. That is, there must be some suspicion of a particular crime or a particular person, and some connection between the two. General suspicions that Mr. Martinez may have been up to no good are not enough to warrant the stop here.
We reverse the conviction and dismiss the case.