regarding the fourth amendment

[BhmBill]

Reading up on 4a, if you're walkin down the street and OC'ing, a cop pulls up, gun drawn, and orders you on the ground, disarms you, arrests you, and puts you in the back of their cruiser. The cop says he's placing you under arrest for something related to the firearm.

Assuming you have no warrants, weren't beating up senior citizens down the street, intoxicated, or otherwise breaking the law in some fashion and was legally and non-threateningly OC'ing, wouldn't that be a violation of someones 4a rights at that point?

Does probable cause include the cops ignorance of the law (ie. the cop not being aware that OC is legal)? What could the cop argue was his reason for arresting you and seizing your weapon?

If found that you were falsely arrested and your 4a right, and most likely 14a rights, were violated, what kind of action could you take against that certain police officer? police station? court?

I'm trying to get a complete understanding of the 4a, 14a, miranda, etc since it seems alot of people here are victimized in Clark and Washoe county by the police and everyone seems to be arrested at one point or another by ignorant peace officers.

Any help would be appreciated. thank you

 

[Rockwell1]

My advice is to do exactly as the cop instructs you. Ask to speak to a lawyer immediately and shut your mouth as soon as you do. Let the Lawyer figure it out

 

[BhmBill]

thank you for your opinion, but i'm asking about probable cause and what action can be taken if your rights are in fact violated, not what you would do.

 

[Rockwell1]

but i'm asking about probable cause and what action can be taken if your rights are in fact violated

The best action you can take is to retain competent legal counsel and follow their advice. Perhaps I misunderstand your question, are you asking what you should do at the moment or if you would have a case

 

[209]

Just playing Devil's Advocate here.

What 4th amendment violation occurred in your scenario? Your post is a bit too nebulous to answer.

The cop says he's placing you under arrest for something related to the firearm.

What specific violation did the officer charge the person with?

Assuming you have no warrants, weren't beating up senior citizens down the street, intoxicated, or otherwise breaking the law in some fashion and was legally and non-threateningly OC'ing, wouldn't that be a violation of someones 4a rights at that point?

No violation if there was an offense occurring that the person can be arrested for.

Does probable cause include the cops ignorance of the law (ie. the cop not being aware that OC is legal)? What could the cop argue was his reason for arresting you and seizing your weapon?

We need to know what charge was used.

If found that you were falsely arrested and your 4a right, and most likely 14a rights, were violated, what kind of action could you take against that certain police officer? police station? court?

Yes, if a person is falsely arrested, they can sue [civil action] and maybe even press criminal charges. Of course, if you find the right lawyer, you can file a lawsuit for just about anything these days. The merits of the suit would depend on the charges used [or misused] by the officer to effect the arrest.

... and everyone seems to be arrested at one point or another by ignorant peace officers.

Gosh- that must be a busy PD... [Sorry- couldn't resist. ]

 

[BhmBill]

That's what I'm asking. What could justify the officers actions if you were minding your own business legally? What reason could an officer come up with to try and pin on you in that scenario?


Lets say they got a domestic call involving an armed black male in that area, and they took you down despite you being a white male.


And you'd be surprised 209, on other Open Carry forums, there are tons of stories from OC'ers in Nevada who'd been handcuffed and some arrested while walkin down the street minding their own business, it seems to happen alot here because the OC law is relatively new.

 

[209]

This doesn't really answer your question since here in CT, if you don't have a permit you can't carry so the officer would likely charge you with a felony- Carrying of Pistol or Revolver without a Permit.

We pretty much also have to carry concealed with a permit, so a person with a permit who was OC'ing could probably be charged with Disorderly Conduct in that a complaint by someone about the gun could be considered "with intent to cause alarm" and that the person was engaging in "threatening behavior". That's a misdemeanor and can be an "under arrest" charge.

I've seen that charge used for that reason and while the court may have dismissed or "nolled" the charges, to the best of my knowledge, the courts have never said it was an improper arrest.

That's why I was asking about the particular charges used when the officers arrested the people. It's hard to say what was legally right or wrong without knowing the alleged law used as a basis for the arrest.

 

[Sergeant Sabre]

The courts have long said that a mistake of law is not allowed. The courts have always ruled that the police are expected to know the law that they are to enforce.

 

[gmark340]

There are three levels of police-civilian contact:
1. Verbal - involving no coercion or contact, as in "hey, how's it going" and general chitchat. Either party is free to ignore the other or walk away at any time. No seizure has occurred. The 4th Amendment plays no role here;
2. Brief seizures, as in Terry stops, which do involve the 4th Amendment and also the reasonable conclusion on the part of the officer that there is "criminal activity afoot." The stop is just long enough to identify the person stopped and check out what gave rise to the initial suspicion (in the Terry case, three guys casing a store to rob); and
3. Arrest, which must be supported by probably cause, which is typically defined as "facts and circumstances that would make a reasonable or prudent person believe a crime is being or has been committed." The arresting officer would have to be able to articulate the "facts and circumstances" giving rise to the arrest. These are unclear from the OP.

There is plenty of case law out there that provides guidance, although individual states do vary in their interpretation and application and individual officers may vary in their ability to follow the guidelines or their department policies. There are excepetions for automoblie stops, due to the mobility of the automobile. I don't have the proper sites handy but the 1968 case of Terry v. Ohio is a good starting place. Hibel v. Nevada, a 2004 US Supreme Court case, further explains Terry. There are plenty of others which deal with improper searches arising out of improper seizures and the motion to supress hearings that follow.

 

[legaleagle_45]

What 4th amendment violation occurred in your scenario?

An arrest, done without probable cause, is a violation of the 4th amend... it's protections extend to the seizure of persons (an arrest) as well as searches and seizures of things.

The obvious answer to the question presented is dependant upon whether OC is allowed by law in the jurisdiction or whether there exists some other firearms violation. If the arrest is made purely because the LEO is unfamiliar with the law and made a bad arrest, we have a 4th amendment violation. If the LEO was arresting you for a violation of law, even if that law is latter found to be unconstitutional, then there is no 4th amend violation.

 

[Malum Prohibitum]

http://www.georgiacarry.com/county/richmond_carry/Doc 11 Consent Order.pdf

Therefore, as with the wallet holder, the authorities in this case had no reason to believe that Ubiles was engaged in or planning or preparing to engage in illegal activity due to his possession of a gun. Accordingly, in stopping him and subsequently searching him, the authorities infringed on Ubiles Fourth Amendment rights.

 

[BhmBill]

THANK YOU!

That's what I wanted to know.

So if I read that consent order corectly, the defendant was justified in terry stopping the plaintiff, but the subsequent seizure was unconstitutional?

 

[BhmBill]

Are the police immune to being victims of self defense?

 

[Mainsail]

So if I read that consent order corectly, the defendant was justified in terry stopping the plaintiff, but the subsequent seizure was unconstitutional?

A Terry stop is a seizure. I haven’t read the case but it sounds like the seizure (detaining) the defendant was illegal.

Gmark340 has it correct in his post, except I think he meant to type ‘probable cause’ not probably cause.

In the example in the OP, the officers violated your 4th amendment rights as well as whatever your state has to say about freedom from government intrusion.

There is no firearms exception to the rules of a Terry stop, so if the only reason they stop you is because you are openly carrying a firearm (and open carry is not unlawful), they are wrong. They cannot even detain you, much less actually arrest you. This is why I stress to anyone that carries openly to remember the two important questions:
“Officer, are you detaining me?” and if so, then “For suspicion of what crime are you detaining me?”

If an officer stops and harasses you for open carry and you complain to his supervisor, he will just say he never detained you and that it was a mutual conversation. That’s why you ask. If he knows he cannot detain you, he probably won’t answer, in which case you should just walk away.

For all the anti’s out there, I hope you all realize that you’re day will come too. The technology already exists that can tell if you are carrying a concealed firearm. When the police, immigration officer, or federal agent stops you and demands to know why you’re carrying a weapon, do you know your rights? Concealed carry is a state granted privilege, so you actually have fewer rights than someone carrying openly.

 

[BhmBill]

Thank you Mainsail!

This has been very informative.

The Metro around here just isn't OC (or firearm) friendly and it'd be nice to actually KNOW my rights instead of being one those drunks or druggies that says they do when they get busted.

Alot of people (especially in Clark and Washoe county) are unlawfully harassed or detained by police for carrying. It's sickening

 

[Mainsail]

Watch the TV show Cops sometime.

"You don't mind if I search your car for my safety do you?"

"Ah....well...um....go ahead."

"Hey look, drugs. Turn around you're under arrest."

 

[Phatty]

Watch the TV show Cops sometime.

"You don't mind if I search your car for my safety do you?"

At this point, I'm yelling at my TV, "Don't consent you idiot!!" I would say that upwards of 90% of the population has no idea that they are under no obligation to allow the police to search their car when asked. Even if you have nothing illegal in your trunk, and the police ask to take a look, still politely tell them no.

Most people probably think that by refusing to consent the police will think they are guilty of a crime and then go ahead and look anyways. They're half right. The police will think something bad is going on, but they'll most likely be forced to let them go.

Similarly, it bugs the crap out of me when watching TV shows like CSI:Miami where the bad guys instantly fold under questioning by the police at the station and spill their guts. I don't care if they wheel in a TV with a video of you murdering a guy, KEEP YOUR MOUTH SHUT!

 

[DeepSouth]

The sad truth is that the Constitution doesn't really mean anything anymore, except to us peasants. The majority of elected officials, judges, military leaders, and other law enforcement simply don't care what it says. Most lawyers will tell you in law school they don't even study the Constitution, they study "What it has been made to say."

 

[akodo]

devil is in the details of exactly what was done and said by each party.

yes, there have been cases when people were detained and then arrested for legal behavior, and law suits were brought and after a few years settlements were made. it happens, but it is not easy or fast.

for an example, look here
http://paopencarry.org/forum/another-oc-lawsuit-filed-member-truecrimson-files-against-t-130.html

 

[Phatty]

Most lawyers will tell you in law school they don't even study the Constitution, they study "What it has been made to say."

You'd probably be worse off if you actually read the text of the Constitution, because then you'd naively believe that the Constitution meant what it plainly said, rather than what some old dudes in dresses said it means.

 

[209]

legaleagle_45 said: An arrest, done without probable cause, is a violation of the 4th amend... it's protections extend to the seizure of persons (an arrest) as well as searches and seizures of things.

The obvious answer to the question presented is dependant upon whether OC is allowed by law in the jurisdiction or whether there exists some other firearms violation. If the arrest is made purely because the LEO is unfamiliar with the law and made a bad arrest, we have a 4th amendment violation. If the LEO was arresting you for a violation of law, even if that law is latter found to be unconstitutional, then there is no 4th amend violation.

Exactly. That’s why I was questioning what “arrestable” offense was used. We don't know if the officer arrested someone on the officer's faulty interpretation of a firearm law or arrested him on some other violation. Without that information, this is just an academic exercise where we can only make hypothetical statements as to the validity of the action.

And if someone arrested in connection with this subject decides to follow through on a lawsuit, it would likely be settled out-of-court with no admission of guilt as is usually the norm in many instances. So we still wouldn't have a good "case law" finding.

 

[thesecond]

I'll add to the thread, briefly, because I think you should keep in mind what kinds of things the fourth amendment protects, e.g., unreasonable searches and seizures, and what remedies are involved, civil suit for unlawful detainer/arrest, and the exclusionary rule (stuff seized pursuant to an unlawful arrest may be excluded upon pre-trial motion), and the things that are not (protection, in fact, from a stop/detention by a police officer).

To be stopped and questioned, and briefly detained, to ascertain your identity and lawful ability to open carry, in short, likely won't be the basis of a civil suit. There'd have to be more. Expect to have friendly conversations with police officers or security, particularly in certain locales (e.g. certain 'municipalities, casinos). For myself, I don't count on my knowledge of the fourth amendment prohibition against unreasonable searches and seizures as any protection, until long after the fact.

Carry your corresponding 'blue card' always, a copy of the relevant NRS 202 citations, and a copy of relevant municipal law (North Las Vegas, Boulder City, Henderson, etc.), and a copy of NV's pre-emption provision. I'll check my folder for some Metro publications on how they go about 'enforcement'. (PM me and I'll get the reference to you.) Lastly, have handy the number of a criminal defense attorney who specializes in firearms law (also, apparently the NV ACLU is the only chapter with a favorable pro-2a position, FYI).

 

[BhmBill]

I carry my blue cards with me at all times, and while I should print them out, I have what I believe to be the proper NRS's, municipal, and county codes saved in my phone.

CC, Possession, penalties, etc. - NRS 202.350
Preemption laws - NRS 268.418 & 244.364
Municipal Code 10.66.140, 10.68.010, & 10.70.010
County Code 12.04.180

Hopefully thats the only laws I need to keep on me.

 

[thesecond]

Looks like you're all set, BhmBill.

And though many are told it's a legal requirement to carry that card, it isn't. I've been told a few things legal regarding firearms by those enforcing the law, unfortunately, none of those things correct, but what do you expect, in a public setting?

The blue card goes a ways to proving, when stopped, that you lawfully may carry. And, I guess, get accustomed to the 'friendly conversations' when strappin' on the rig, be polite, dress smart, and we'll have a good ambassador for gun owners.

 

[Mainsail]

To be stopped and questioned, and briefly detained, to ascertain your identity and lawful ability to open carry, in short, likely won't be the basis of a civil suit.

It has been (successfully too BTW), and currently is being. There is no firearms exception to the rules of a Terry stop. The police cannot detain someone unless the officer can articulate a specific crime that the detainee has committed, is committing, or is about to commit. He cannot seize you to check whether or not you are allowed to carry a firearm (although some do anyway).