Thanks man, that's pretty interesting to read out. Glad you had a link to go with it too. You'd get hammered on here, told you made it up, and called curse words on here until you find the link if you didn't. :-)
Thanks man, that's pretty interesting to read out. Glad you had a link to go with it too. You'd get hammered on here, told you made it up, and called curse words on here until you find the link if you didn't. :-)
Well you were right!!
Ooh!Ooh! Mr. Kotter! I have a question for the teacher! The Oklahoma SDA that goes into effect in Nov. says it's perfectly legal to stop you and check for a permit simply because you're carrying a gun. That's the basis that MWCPD is using to make their policy. But the guy in the video we just saw mentioned that in U.S. vs. DeBerry that's NOT sufficient reason to initiate a Terry stop.
http://caselaw.findlaw.com/us-7th-circuit/1027378.html
So who's right?
Since Oklahoma is in the 10th circuit the appeals court ruling and reasoning behind it does not apply in OK. So technically until a demand to see license in OK based on nothing more than a guy is OC'ng is challenged in court the law is right and so are the police who exercise the authority given them by the legislature.
I liken asking for a carry permit just because a citizen is carrying to hassling a woman on the street just because she has the necessary equipment to be a hooker.
http://caselaw.findlaw.com/us-7th-circuit/1027378.html
So who's right?
DeBerry actually ruled that in a state that does not allow carry of concealed weapons, the carrying of a weapon was justification enough to make a stop...then court then went on to opine that in a state that did allow the carrying of weapons, it would not be.
I believe that part of the ruling doesn't have the weight of law, since it was just a clarifying element. It can't become case law or precedent until, like Werewolf said, someone challenges it and it becomes the central part of a case and a ruling.
Actually he is not right.
There are no plans for TPD to begin stopping everyone with a gun.
The law allows for it, but the link provides no source, just like the individual who posted such a rumor here.
Michael Brown
Actually he probably wouldn't, and hasn't, simply BECAUSE he posted a link and a credible case.
That said, state laws can be more restrictive than federal laws, unless a court finds that law unconstitutional, and if the legislature wants to make one they have that ability which they did in the case of Oklahoma's open carry law.
The other issue here is the need for seizure in order to obtain evidence. Since the gun is in plain view, not concealed as in the DeBerry case, such a seizure may or may not be deemed as unreasonable since they are not relying on the Terry standard as the officer in original video tried poorly to articulate but rather the statutory authority granted to them by the people of the state.
Either way, it's unlikely that it will be decided by a bunch of people on the internet with very little legal experience.
Michael Brown
I disagree with those of you who said the individual who made this video was an asshat or a jackhole or whatnot. I agree he was probably intending that this type of contact would happen with police. However, as was said in the video, illegal searches and seizures of the sort he was subjected to are unfortunately common. This being the case, folks who make videos like this are exactly what are needed to spread the word that carrying a gun is not illegal in the jurisdiction in question, which serves to educate all citizens, cops included, that purely carrying a gun is neither reasonable suspicion nor probable cause of a crime being committed, and legally, cannot by itself be the basis for a stop or the seizure of a gun (and that it is idiotic to call the cops every time you see a guy walking around with a gun on his hip). But as Michael Brown pointed out, it is also important to keep in mind that there are other factors that, either independently or in addition to the presence of a gun, could cause one or both of these legal standards to be met. The fact is that the armed individual may not always know all these reasons, and therefore may not have all the information available to him at the scene to tell whether the stop or the seizure is legal. That is one reason why it is generally not a good idea to refuse to surrender firearms when it is demanded by a cop (the guy in the video apparently complied). If you think it was done illegally, it is best addressed afterwards up the chain of command in the Department, or with a Section 1983 suit for violations of your civil rights.
I also do not believe that the fellow who made the video was being argumentative. He was being firm, but I believe he was actually polite in many instances, thanking the officer more than once. The cop was being rather firm in his manner as well, as they tend to do, and I do not believe it is rude or offensive to respond in the same manner.
Obviously it is true that videos are rarely posted when everything goes legally and correctly during police/citizen interaction, and that should certainly be taken into account when viewing videos, so as not to irrationally generalize all cops. However, the current situation is certainly preferable to the pre-pocket video days, when videos of police encounters were few and far between and neither the good NOR the bad encounters tended to be reported. That said, I think there were a lot of positives in this video as well. For one, the cop was actually fairly polite. And though there was an initial illegal stop and seizure, the fact is that the situation was quickly resolved AT THE SCENE, when the supervisor showed up. Kudos to the supervisor for knowing when to "choose his battles." In the end, nobody got hurt and everybody learned something (I hope). Not a bad deal at all.
I also do not believe that the fellow who made the video was being argumentative. He was being firm, but I believe he was actually polite in many instances, thanking the officer more than once. The cop was being rather firm in his manner as well, as they tend to do, and I do not believe it is rude or offensive to respond in the same manner.
Obviously it is true that videos are rarely posted when everything goes legally and correctly during police/citizen interaction, and that should certainly be taken into account when viewing videos, so as not to irrationally generalize all cops. However, the current situation is certainly preferable to the pre-pocket video days, when videos of police encounters were few and far between and neither the good NOR the bad encounters tended to be reported. That said, I think there were a lot of positives in this video as well. For one, the cop was actually fairly polite. And though there was an initial illegal stop and seizure, the fact is that the situation was quickly resolved AT THE SCENE, when the supervisor showed up. Kudos to the supervisor for knowing when to "choose his battles." In the end, nobody got hurt and everybody learned something (I hope). Not a bad deal at all.
F
fredkrueger
Guest
This guy was gold. How in the world could he have all those things memorized? Yes he was kind of arguing but I don't blame him for it. That cop was doing something illegal and the other guy new it. It was very funny as soon as the supervisor showed up he had to give the guy his gun back. And did you see how nervous the supervisor looked in the background?
Henschman is correct as far as I understand. Simply carrying a firearm in an open carry state isn't enough to cause reasonable suspicion. The other side of the coin is that you may not know all of the information that a police officer knows. He could very possibly have reasonable suspicion that you may have committed or are about to commit a crime.
The issue is that the police officer has to tell you what crime he suspects you of committing if he wishes to detain you and seize your firearm. Until you know what crime you are under suspicion for, it is not constitutional for a police officer to detain you or even require you to identify yourself (Reference Brown vs Texas). Like the guy in the video says, the encounter has to be mutual and he is free to go until he is "detained"
In my opinion, any Oklahoma statute that requires an Open Carrier to relinquish his permit or identification is unconstitutional unless the police officer suspects you of committing a crime. He/she cannot operate on a "hunch" and has to be able to verbally articulate the suspicion. That is the premise for any search or seizure.
The issue is that the police officer has to tell you what crime he suspects you of committing if he wishes to detain you and seize your firearm. Until you know what crime you are under suspicion for, it is not constitutional for a police officer to detain you or even require you to identify yourself (Reference Brown vs Texas). Like the guy in the video says, the encounter has to be mutual and he is free to go until he is "detained"
In my opinion, any Oklahoma statute that requires an Open Carrier to relinquish his permit or identification is unconstitutional unless the police officer suspects you of committing a crime. He/she cannot operate on a "hunch" and has to be able to verbally articulate the suspicion. That is the premise for any search or seizure.
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Stop and Identify caselaw has more recent decisions bythe Supreme Court than Brown vs. Texas such as Illinois vs. Wardlow and Hodari vs. California both of which offer no requirement for the police to advise you of the crime you are being detained for.
Also, take a look at Brown vs. Texas again. The issue is whether or not the police can compel you to identify yourself not whether or not they have to tell you the reason for your detainment. The issue was there was a Texas statute that required you to identify yourself to police when asked. THAT was the constitutional issue, not whether the police had reasonable suspicion or not or if they had to articulate that suspicion at the time of detainment.
Police officers are required to articulate the suspicion to the court, not to the suspect.
Be real careful using caselaw simply because it agrees with any given position. It may not be the most recent or it may no longer be considered good caselaw. Plus many folks without the training or experience to applyt caselaw do so incorrectly or take it completely out of context. Context gives caselaw its meaning. Even those trained to do so frequently mis-apply it.
Thus it can real risky to assert your "rights" based on caselaw that you may not understand properly.
YMMV.
Michael Brown
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