Now this has bad idea written ALLL over it. Of that I have no doubt. But I am somewhat interested in how this might shake out legally.
Lets say a cop does something really jerky, maybe even something that could end him/her in court themselves. Something just about everyone would at least say “jerk”. Lets also say all facts are proveable and there are plenty of witnesses/video cameras going for the following drama.
Jerky thing. Say your vehicle is poorly parked so that it obstructs some county right of way. Cop and his county work crew are obstructed by it, making their job harder. So cop gets pissed. Maybe he just does something jerky like leave a nasty note on your door. Maybe the note has a few curse words in it. A little worse, maybe it has un PC ethnic references in it. Or Even worse still, he NAILED it to your beautiful expensive wooden front door, causing significant damage. Not sure the range of “wrong” matters here, just covering the bases…
Now you get home and see the note. You are rightfully a bit miffed. You see the work crew down the street. So you storm on down there to have a chat with the note leaver.
You are open carrying your gun. Is that going to get you in trouble?
Would it matter if you had folks that testified that you always open carry? Or maybe they testify you NEVER open carry.
What if you go down there for a chat without the gun. Go back to get something, like perhaps proof that the vehicle ISNT yours or you ARE perfectly legally parked, and when you come back you are NOW open carrying.
Is how you talk to the jerk cop going to make a difference?
Now, I have little doubt you’d find yourself in cuffs pretty quick. But again, lets say this is all on tape. When the scenario hits the court room, hows it likely to shake out?
Anyone not wearing a badge or having similar authority who angrily storms into a group of people while wearing an exposed gun may be legally within their rights to do so, but had better expect that the police will come to the scene prepared to taser or kill the “crazy man with a gun” that someone will be calling them about very shortly.
The note, the nail, and the language used are all kind of beside the point in that scenario.
Anyone approaching a policeman for a verbal confrontation with an exposed weapon is an idiot and IMO deserves what they get. Unless there is very clear audio and video tape of you being polite as pie while doing this it’s going to be the policeman’s and the crowd’s word against yours. If the crowd already thinking you are a work obstructing asshole, now turned gun carrying asshole,and you start chewing them out while carrying heat I think you can guess who the judge is going to believe re descriptions about how much of a threat you should have been perceived as.
billfish: no matter how jerkish the cop was being, confronting an LEO, however politely, with a holstered firearm is opening the top on a can of nightmare. The individual variables, potential for misunderstanding, escalation, etc., aren’t worth it.
Legally, you might be totally within your rights; you’ll still look like a tool in court, especially if, as you describe in your OP, you leave and then come back with a firearm openly displayed. I don’t think the cop would be entirely unreasonable to assume you were intending to escalate the situation, even if the cop was a grade-A jack-off that deserved to be stripped of rank and badge for his actions towards you ("STOP! CALLING! ME! DUDE!!!)
I’d think this would be obvious to the scenario of interest, but just in case.
This happens in a place where open carry is allowed. The gun is in its holster (or whatever), the complainer is NOT waving a gun around in his hand. The complainer is not acting like some crazed madman. We can allow for some anger or lack there of in his language or tone of voice.
And again. I never said this was even a remotely good idea
The OP posits a hypothetical, and wants to know what legal ground he’s on. While there is a factual answer (depending on jurisdiction and circumstances, and, as always, IANAL), the whole thing seems more GD or IMHO to me.
I don’t live in an open carry state, but when I took the concealed carry class, I seem to recall them saying an officer has the right to ask you to unload and put it away (or maybe temporarily take it from you) while they’re talking to you. Or maybe they just said it would be a good idea to offer that to the cop (law or not, I’d hand it over temporarily).
Anyone know if that’s correct, or applicable in an open carry state?
In your first scenario, you’re probably not violating the law, depending on the jurisdiction where the event takes place and your exact behavior during the encounter (though I would still not expect it to end well). However I am pretty sure you’d be in a fair bit of trouble in the second case. Returning to a conflict with an exposed firearm is a pretty clear-cut act of intimidation. Here in Washington State you would likely be guilty of a misdemeanor violation of RCW 9.41.270:
While open carry is legal in Washington, deliberately intimidating behavior as you described would fall under 9.41.270. Your first scenario might fall under that as well, depending on exactly how you behave. IOW, if the manner, time, place, and circumstances would indicate to a reasonable person that you intend to intimidate someone, you would be in trouble. Certainly, if I had an urgent need to engage anybody in a discussion that might involve conflict while I was carrying openly, I would be extremely polite and circumspect, even more so than I usually am, and for quite obvious reasons besides wanting to avoid a misdemeanor violation.
I’m a level-headed person, and the presence of a firearm in a situation of disagreement is no danger on my account, but I cannot say the same for others, or for how others might react. In a situation of potential disagreement I would definitely conceal my firearm if it wasn’t concealed already.
That’s not the case here in Washington, at least in general: it depends on the nature of the encounter. If the encounter is voluntary, you have no obligation to do as the officer requests, and may leave at any time. If, however, the officer has some reason to detain you (for example specific, articulable suspicions as under Terry v. Ohio), then I would expect relieving you of your weapon to be standard procedure until those reasons were cleared up.
I’m not a lawyer, though (and I don’t even play one on TV), so don’t put too much faith in my assessment.
Anybody that would carry an open gun when approaching a cop would be crazy to do so. He is empowered to use lethal force if he feels his life or someone else’s life is in danger. The cop doesn’t know you or what you intend and an open gun is very intimidating in that most people in this country rarely, if ever, carry open.
On the other hand, dealing with the note thing and improper of rude behavior, there is a term “misfeasance” which means the following:
mis·fea·sance Listen to the pronunciation of misfeasance
Pronunciation:
\mis-ˈfē-zən(t)s\
Function:
noun
Etymology:
Middle French mesfaisance, from mesfaire to do wrong, from mes- mis- + faire to make, do, from Latin facere — more at do
Date:
1596
: trespass ; specifically : the performance of a lawful action in an illegal or improper manner
Cops are held to this standard along with the much more serious charge of malfeasance, which is committing and out and out crime. Usually, a cop would stand trial for the crime itself, just like a citizen but they also face charges on the malfeasance, ie: abusing the authority.
p.s. If you’re ever going to try to approach a cop with an open gun, please contact me so I can put some film in my camera and then post it on youtube.
Let’s look at a different scenario. It’s 3:00 am and you’re downtown in some big city. In a bad neighbourhood. You decide to visit an ATM and make a large withdrawal. Then you walk down the street counting your money out loud to make sure you got the right amount.
Is what you’re doing legal? Yes. Do you have a right to do what you’re doing? Yes.
Are you a fricking idiot who’s about to become a crime victim? Yes.
Just because you can do something doesn’t mean you should do it. Confronting an angry cop with a visible firearm in your possession is a prime example of that.
I can’t even begin to understand the mentality of someone who would walk around in public openly carrying a firearm. I mean, what the fuck? Is life here in our country so dangerous that one needs instant access to a gun at all times, in all places? What kind of overcompensating little twerp wants to be seen as the psycho displaying a gun? Who needs to proclaim to everyone in the vicinity his or her readiness to kill someone?
That said, taking a police officer to task while displaying a firearm seems like an unbelievably stupid thing to do, no matter what the law says. I would understand why a cop would be so freaked out that he’d at the very least try to disarm and handcuff the gun-toting loon.
Yes to all, but the question is how will it all shake down in court, after the fact.
Say you have a holstered gun on you while you are driving home. You normally wear your jacket over it to conceal it, but not in the car. Badcop pulls you over, once you stop, he bumps your car from behind, and again. Screams over the loudspeaker “Get out of the fucking car, you fucking [ethnic]”. You need to get out of the car with a visible weapon. (ETA: and let the cop know that WTF)
I have read personal accounts in GA of police officers not being all that familiar with open carry laws, and confiscating legally carried pistols “to make sure it isn’t stolen” or some such reason. Sometimes without property receipts. These are the asshole type cops, and that would not be an unexpected response if one were to act in the manner of the OP. He would probably ask you to give it to him to hold during the length of time you are together as well. In my opinion they generally do not like giving someone the opportunity to do them harm, since they don’t know you from a hole in the ground.
Assuming you’re in our country, then you should realize it’s a big place. We don’t all live like you do nor share your sense of what one’s mentality should be. :rolleyes:
If you weren’t carrying your gun when the confrontation started, then going home and “just happening” to decide to start carrying is the height of idiocy. At least in my state of Minnesota the standard for any incident involving a legally carried gun is that the permit holder must be a “reluctant participant”. Also, in Minnesota with a carry permit you can openly carry a holstered gun, but so much as putting your hand on the butt is considered “using force”, and if you do so without cause you can be charged with 2nd degree assault (“causing the fear of death or great bodily harm using a dangerous weapon”). In short, the laws here strongly prohibit any sort of Dirty Harry-wannabe behavior.
