Are OPEN CARRY VS. POLICE street stops going to come to a head?

[Shamozzle]

On YouTube, there is an increasing number of videos depicting confrontations between open carriers and police in the USA.

In the most interesting videos, the conversation usually goes something like this:

Police: “Why are you carrying an AR-15 down the street?”

Open Carrier: “It’s within my legal right to do so.”

P: “Yea, but ‘why’? What is your name? Let me see some ID.”

OC: “I am not required to identify myself unless you have probable cause or reasonable articulable suspicion of a crime (having been/being/about to be) committed. Do you?”

P: “So you’re not going to identify yourself? Why? Are you hiding that you are a felon and thus barred from bearing arms? Here, let me relieve you of your weapon. Is this your wallet?”

OC: “Hey! I do not consent to a search of my person or seizure of my property. I am not a felon. Do you have reason to believe that I am a felon? I am breaking no laws.”

P: “I don’t know that you aren’t breaking any laws. I’m just checking to make sure you aren’t. We just got a call that a man was walking down the street with a rifle. Surely, you understand our predicament.”

OC: “It’s not my problem if people are uncomfortable with me exercising my rights.”

And so on…

Sometimes, the open carrier is left to go on him merry way. Other times, the open carrier is arrested, his weapons are seized, etc.

Legally, the open carrier is doing nothing wrong. However, the public has the expectation that police take a keen interest in civilians walking down the street with AR-15s on their back.

These open carry confrontations seems quite precarious to me, legally and practically.

Is this style of confrontation going to come to a head?

Sooner or later, is someone going to get shot? Are the powers-that-be going to pass sweeping, decisive laws that effectively end these confrontations? Are open carriers or police going to change their behavior? Or, are we going to keep seeing the same videos uploaded to YouTube for the next 20 years?

[CaptMurdock]

One nitpick: depending on state laws, while you do not have to consent to a personal search without a warrant, you are not legally able to withhold your identification.

IANAL, but I think this is correct in many states.

[filmstar-en]

Astonishing! Only in America.

There is something very wrong between the people and government when individuals feel the need to test their rights by contrTiving such confrontations with the police. Heavily armed people confronting each other on a public street is both absurd and dangerous. Sooner or later something bad is going to happen.

Do people not have a sense of responsibility for the damage they can do with such weapons? Or, indeed, the alarm they cause to others who might be fearful another terrible shooting incident is about to take place?

Provoking these situations seems to rest very heavily on video recordings and the patience of police officers and their ability to assess the situation correctly, That seems a very rash assumption.

Are these situations all contrived by political activists for the purposes of promoting their cause on social media?
:dubious:

[Bricker]

@CaptMurdock

One nitpick: depending on state laws, while you do not have to consent to a personal search without a warrant, you are not legally able to withhold your identification.

IANAL, but I think this is correct in many states.

That is not correct.

In a consensual encounter, with no reasonable, articulable suspicion of a crime, the police do not have the legal authority to demand identification.

Cross-posted:

@Bricker

OK.

It’s important to understand the different levels of suspicion that can exist and what kinds of citizen/police interaction they justify.

Even with no suspicion, police are permitted to approach anyone and ask them questions. This is known as a “consensual encounter.” It doesn’t implicate the Fourth Amendment at all, because it’s completely voluntary. As long as the citizen is free to disregard the police inquiries and go about his business, no seizure has occurred.

If the police have “reasonable, articulable suspicion” of a felony, or of certain misdemeanors involving public safety, they can briefly detain (“seize”) a person to investigate and either confirm or dispel their suspicion. Reasonable, articulable suspicion exists when there are specific, articulable facts that give rise to a belief that a crime might be in progress.

To arrest a person, the police must have “probable cause” to believe a felony was committed. Probable cause exists when the totality of facts known to the police supports the belief that a crime has likely occurred.

And of course to ultimately convict someone of a crime, there must be proof beyond a reasonable doubt as to each and every element of the crime.

The police exceeded their authority because the report they were given described a misdemeanor, not a felony, and when they arrived they did not see that misdemeanor in progress. So the rule is that a completed misdemeanor that doesn’t involve a risk to public safety cannot serve as the basis for reasonable suspicion.

For this reason, police were certainly free to ask the pair questions…as long as the pair were free to disregard those questions and go about their business. But the moment the police seized the young lady, they implicated the Fourth Amendment’s guarantee against “unreasonable searches and seizures.” The courts have decided that a seizure for a completed misdemeanor based only on reasonable, articulable suspicion is not reasonable.

[JesterX]

Funny thing, Ohio is an open carry state. The same state where John Crawford was shot and killed for carrying an air rifle inside a Walmart. So even if he had been carrying a REAL gun, it would’ve been legal. His only violation would’ve been carrying it inside a Walmart.

[steronz]

@JesterX

Funny thing, Ohio is an open carry state. The same state where John Crawford was shot and killed for carrying an air rifle inside a Walmart. So even if he had been carrying a REAL gun, it would’ve been legal. His only violation would’ve been carrying it inside a Walmart.

It’s not even a violation to open carry into a Wal-Mart here, AFAIK, although they do reserve the right to ask you to leave. The only thing they could conceivable say he did wrong was “brandishing,” but I think there has to be a threatening element to that, and he was sorta just minding his own business from what I saw on the video.

I guess this is a bit off topic, but are the open carry folks suitably outraged about his shooting?

[JesterX]

@steronz

I guess this is a bit off topic, but are the open carry folks suitably outraged about his shooting?

Not that I’ve heard but you’d think they would be.

Most “open carry” states give establishment owners the option of banning the practice inside their places. I believe Walmart has a national policy banning weapons from being openly carried in their stores.

[furt]

@Shamozzle

Is this style of confrontation going to come to a head?

Sooner or later, is someone going to get shot?

Given that the probability of an escalation, however small, is not zero, yes, if encounters happen an infinite number of times, it is mathematically certain it will eventually happen.

In the same way, if you take an infinite number of showers, it is mathematically certain that you will eventually slip and break your neck.

[steronz]

@JesterX

Most “open carry” states give establishment owners the option of banning the practice inside their places.

I’m not familiar with any such law in Ohio. Wal-Mart can post “No Gun” signs and prohibit both open and concealed carry, but I don’t believe they can ban one without the other. Story policy is only enforceable insofar as if they ask someone who’s open carrying to leave the store, it becomes a trespassing situation.

[Ambivalid]

@furt

In the same way, if you take an infinite number of showers, it is mathematically certain that you will eventually slip and break your neck.

Shower chair. Before you break your neck.

[Ranger_Jeff]

@steronz

I’m not familiar with any such law in Ohio. Wal-Mart can post “No Gun” signs and prohibit both open and concealed carry, but I don’t believe they can ban one without the other. Story policy is only enforceable insofar as if they ask someone who’s open carrying to leave the store, it becomes a trespassing situation.

How is one going to know someone else is carrying a concealed weapon? “No guns” means no guns, open carry or concealed. What’s the problem?

[chappachula]

@Shamozzle

Is this style of confrontation going to come to a head?

Sooner or later, is someone going to get shot? Are the powers-that-be going to pass sweeping, decisive laws that effectively end these confrontations? Are open carriers or police going to change their behavior? Or, are we going to keep seeing the same videos uploaded to YouTube for the next 20 years?

This all began because some people are scared that Obama* is going to cancel the 2nd ammendment and take away all of America’s freedoms. So, the logic says, obviously we all have to start carrying our guns openly, right now, or else we’ll lose all our rights forever and ever.

Obama will be out of office 26 months from now. He may be replaced by the dreaded Hillary, but she’s not quite as scary. ( and also not quite as black:) ).
So I predict that the whole thing will die down quietly in about 2 years.

And let’s hope that in the meantime nobody gets killed.
*(you know…that foreign guy who’s a secret Muslim with no birth certificate and is —gasp!- black!!!)

[Measure_for_Measure]

Here are some possibilities.

If somebody walks into a restaurant with an AK-47 and I am dining at that venue, I will take reasonable steps to protect myself: I’ll leave the area without paying my bill. I will make note of the time and return and pay the bill when management has secured the area. It’s best to stay away from maniacs and fanatics. Evasion is a first principle of self defense.

If the local Chamber of Commerce decides that howitzers are inappropriate in a downtown business district, constables may be encouraged to charge those who flaunt their semi-automatics with public endangerment, public nuisance or disturbing the peace. Whether those charges would stick is another matter.

Localities might pass laws to curb such behaviors, though they may require clever drafting in certain states.

Depending upon who wins the case, this could be a boon for armed criminals and trolls. Is it against the law to open carry while wearing a ski mask? Freedom!

[Accidental_Martyr]

@steronz

I guess this is a bit off topic, but are the open carry folks suitably outraged about his shooting?

@JesterX

Not that I’ve heard but you’d think they would be.

Consider the race of the vast majority of open carry advocates and the race of the man killed by police in the Walmart incident.

[bengangmo]

Just postulating on what would be good policy for a generic, run of the mill police dept in such cases, knowing as we know now that there are people that are trying to test these sorts of boundaries.

a) As quickly as possible give a 2-4 hour training to a few officers on each shift on exactly what the law is, what they can and can’t ask for in what circumstances. As much as possible, have these officers attend to such calls as quickly as they can get there (even as backup)
b) Is there a “go to” law that they can use in the meantime to try and at least “require” the person to show ID, and detain them till they have “investigated”?
c) Can they use something like “disturbing the peace” or “intention to intimidate” or similar if open carry is sufficiently unusual or out of place in the situation they are currently in, not to bring charges and have them stick in court - but more to complete investigations and satisfy themselves that no such crimes are being committed?

[ChickenLegs]

@bengangmo

c) Can they use something like “disturbing the peace” or “intention to intimidate” or similar if open carry is sufficiently unusual or out of place in the situation they are currently in, not to bring charges and have them stick in court - but more to complete investigations and satisfy themselves that no such crimes are being committed?

This is pretty much what drove these open carry confrontations to exist in the first place. Open carry, while strictly legal in many places, was effectively banned by police harassment tactics such as arrests for “disturbing the peace”. Gun owners had enough of being arrested and detained for a legal activity, and started this sort of thing to change the situation.

If it’s legal, it’s legal. Just because I might be afraid of dogs, doesn’t mean my neighbor can’t have one in his yard and take it for walks on the street. Just because I have a fear of guns, doesn’t mean you can walk down the street carrying one.

[Inigo_Montoya]

Couple things: Citizens described in the OP strike me as not any more patriotic or principled than anyone else, they’re just assholes and attention whores.

And, in case the above observation is unusually ignorant, can anyone explain the philosophy behind “open carry” to me? I have always been under the impression that if you are armed (and not at a range or hunting or doing some other obviously gun-focused thing), then the only time anyone should know that about you is just before they die.

@ChickenLegs

If it’s legal, it’s legal. Just because I might be afraid of dogs, doesn’t mean my neighbor can’t have one in his yard and take it for walks on the street. Just because I have a fear of guns, doesn’t mean you can walk down the street carrying one.

The obvious difference, of course, is that dogs are pets and not typically engineered to slay humans.

Just sayin’

[Ethilrist]

My concern is this step:

OC: “I am not required to identify myself unless you have probable cause or reasonable articulable suspicion of a crime (having been/being/about to be) committed. Do you?”

at this point in the narrative, somebody runs out of a nearby liquor store carrying a sack with a large dollar sign on it. He turns and fires a couple rounds into the store. OC turns to see what’s going on and reaches for his weapon as he does so. P proceeds to fill him with lead.

Obviously, not likely to happen, and not a good call for P (the guy who opened fire on somebody who reached into his car for his ID got fired immediately, but that didn’t keep the suspect from getting shot). I’m surprised there haven’t been any instances of OC people getting plugged because they twitched.

@The Great Sun Jester

And, in case the above observation is unusually ignorant, can anyone explain the philosophy behind “open carry” to me? I have always been under the impression that if you are armed (and not at a range or hunting or doing some other obviously gun-focused thing), then the only time anyone should know that about you is just before they die.

The most vocal OC movement seems to be in Texas, where it is rumored to get rather hot in the summertime. Being required to wear a long coat to cover your sidearm is a pain in the neck. They also seem to think that the sight of a gun is a visual deterrent to crime, i.e., nobody’s going to try to mug somebody who’s open-carrying.

[ChickenLegs]

@The Great Sun Jester

Couple things: Citizens described in the OP strike me as not any more patriotic or principled than anyone else, they’re just assholes and attention whores.

And, in case the above observation is unusually ignorant, can anyone explain the philosophy behind “open carry” to me? I have always been under the impression that if you are armed (and not at a range or hunting or doing some other obviously gun-focused thing), then the only time anyone should know that about you is just before they die.
The obvious difference, of course, is that dogs are pets and not typically engineered to slay humans.

Just sayin’

The philosophy, in the case of the intentional confrontations, I think is either:
a) People attempting to change the situation I previously described of a legal activity being effectively banned via police harassment…

or

b) They’re attention whores.

I open carry sometimes. It’s just easier and more comfortable for me, especially with larger guns.

Sometimes, when I partaking in outdoor activities, I go to one area for a while, then drive to another. If I stop at a gas station along the way, am I supposed remove my revolver to avoid scaring the tourists? That’s just silly.

One more thing: The obvious difference, of course, is that you leave a gun in your backyard, it’s not going to one day jump the fence, come into my yard, and kill me. But your dog might.

The whole anti-gunners’ “designed to kill” argument is so ridiculous and non-relevant, I’m sick of hearing it. Of course guns are designed to kill/damage living things. That’s usually why we have them. You want me to carry a Nerf gun?

[steronz]

@Accidental_Martyr

Consider the race of the vast majority of open carry advocates and the race of the man killed by police in the Walmart incident.

There was probably more snark in my post than I intended, but it was a legitimate question. I hadn’t considered that angle before, and I was curious about what was going on in the open carry community. I didn’t have time to do any research yesterday, so just now I poked around.

Lo and behold, this Facebook group called Ohio Open Carry held an event at the Beavercreek Wal-Mart last weekend which they titled “I am John Crawford.” The comments… well, they’re still FB comments, but they’re overwhelmingly in defense of John Crawford.

So I’d put that implicit racism card back in your deck on this hand.

Here’s a relevant Salon article from yesterday as well.