Brandishing

[Darkshadow62988]

A friend/co-worker called me and left a message the other day. He said there was a man open carrying on his motorcycle in Davenport that got pulled over, disarmed and yelled at for brandishing at the Shell gas station on Brady St(near AW/Long John Silver's). I haven't heard anything about this from anyone pro-liberty I've spoken with and was wondering if there was anyone who had any more information on this.

Edit: Correction, it was on Brady St(one way north), not Harrison St(one way south). Not that it really matters because the only other Shell on those two streets is on Welcome Way, not Harrison, because it doesn't become Harrison St until much further south where Harrison and Welcome way merge near Lujack's.

 

[Fallschirjmäger]

Iowa Code 723A
(1) "Brandishing a dangerous weapon" means the display or exhibition of a dangerous weapon, with the intent to use, intimidate,
or threaten another person without justification, or the actual use of the dangerous weapon in a manner which is intended to or does cause serious injury or death without justification.

(2) "Dangerous weapon" means either of the following:
(a) An instrument or device designed primarily for use in inflicting death or injury upon a human being or animal, and that is
capable of inflicting death upon a human being when used in the manner for which it was designed.
(b) An instrument or device of any sort whatsoever that is actually used in a manner that indicates the defendant intends to
inflict death or serious injury upon another person without justification, and that, when so used, is capable of inflicting death or serious injury upon a human being.

Now, ask yourself it that fits the description you posted, or is someone reading more into the law than the law describes?
Brandishing is a crime, and people get arrested for crimes. If getting yelled at is all that happens when someone commits a ""crime"" then it's quite likely it wasn't a crime to begin with.

 

[amaixner]

Sounds like another Officer Know-It-All trying to impose his beliefs on people. It there was any real issue, there would be a citation or arrest.
File a FOIA/Sunshine demand?

 

[Citizen]

Iowa Code 723A
(1) "Brandishing a dangerous weapon" means the display or exhibition of a dangerous weapon, with the intent to use, intimidate,
or threaten another person without justification, or the actual use of the dangerous weapon in a manner which is intended to or does cause serious injury or death without justification.

(2) "Dangerous weapon" means either of the following:
(a) An instrument or device designed primarily for use in inflicting death or injury upon a human being or animal, and that is
capable of inflicting death upon a human being when used in the manner for which it was designed.
(b) An instrument or device of any sort whatsoever that is actually used in a manner that indicates the defendant intends to
inflict death or serious injury upon another person without justification, and that, when so used, is capable of inflicting death or serious injury upon a human being.

Now, ask yourself it that fits the description you posted, or is someone reading more into the law than the law describes?
Brandishing is a crime, and people get arrested for crimes. If getting yelled at is all that happens when someone commits a ""crime"" then it's quite likely it wasn't a crime to begin with.

Yep. What the cops don't do can be just as important as what they do. Learned that from Supermoderator Mike a long time ago.

 

[Darkshadow62988]

I'm asking if anyone here has any information on the events that actually occurred. Nothing more, nothing less.

 

[Not A Victim]

If your friend was driving around pointing his gun at random people, the cops would have arrested him without question. Instead they pull him over and yell at him? Something is not right about your buddy's story. Tell him to buy some sort of recording device so he can record any future incidents and then we can make better judgements about what actually happened.

 

[Kromwell]

knock on wood, had no issues with LEO, any of the countless times I've open carried in Dubuque, Waterloo, or any city I've stopped in along the HWY 20, HWY 52 or HWY 63 corridors.

 

[Not A Victim]

knock on wood, had no issues with LEO, any of the countless times I've open carried in Dubuque, Waterloo, or any city I've stopped in along the HWY 20, HWY 52 or HWY 63 corridors.

Same here. The cops just drive right on by me when I'm out walking around in different areas. The only time they stop me is if some sheep calls 911 and says they saw a man with a gun. And when the cops stop me they just ask to see my permit, they don't yell, or try to disarm me. So I show them my permit and then we part ways with no issues.

 

[Tucker6900]

A friend/co-worker called me and left a message the other day. He said there was a man open carrying on his motorcycle in Davenport that got pulled over, disarmed and yelled at for brandishing at the Shell gas station on Harrison St(near AW/Long John Silver's). I haven't heard anything about this from anyone pro-liberty I've spoken with and was wondering if there was anyone who had any more information on this.

Talk to your friend and get more info. PM me with time and date. Ill submit a FOIA request.

As has been stated, open carry is not considered brandishing. The law states the person must be seen intimidating, threatening, etc, before it becomes brandishing.

 

[MSG Laigaie]

And when the cops stop me they just ask to see my permit, they don't yell, or try to disarm me. So I show them my permit and then we part ways with no issues.

Are you required to "produce your papers" in your State? Are they required to investigate people obeying the law (OC)? Do you show to make it easy?

 

[Fallschirjmäger]

"...And when the cops stop me they just ask to see my permit, they don't yell, or try to disarm me. So I show them my permit and then we part ways with no issues..."

Are you required to "produce your papers" in your State? Are they required to investigate people obeying the law (OC)? Do you show to make it easy?

You must admit though, they are training him to obey quite well.

"Producing your papers" is an example of training you to be controlled, it doesn't prove or disprove that you did anything illegal. And it's very well known that giving physical possession of your papers to someone who wishes to control you is in No Way guaranteed to lessen the period that you have been seized.

 

[Tucker6900]

Are you required to "produce your papers" in your State? Are they required to investigate people obeying the law (OC)? Do you show to make it easy?

Iowa is not a Stop and ID state. And Iowa Code 724 makes no mention of allowing officers to stop you just to check a permit. The only thing it says is

i. A person who has in the person's possession and who
displays to a peace officer on demand a valid permit to carry weapons
which has been issued to the person...

So, on one hand, we have a law that says we must show a permit to carry. However, we also have Deberry v. US. Which, in conclusion, states that a legally carried firearm cannot be a reason for detainment.

http://caselaw.findlaw.com/us-7th-circuit/1027378.html

In the OP's post, the person had every right, in my opinion, to refuse identification, as it appears, through the story told, that the only reason for the stop was his lawfully carried firearm. Again, if the story holds true, this person committed no traffic infractions. Therefore the stop was illegal.

 

[Not A Victim]

Are you required to "produce your papers" in your State? Are they required to investigate people obeying the law (OC)? Do you show to make it easy?

Section 724.4(3)(i) provides "A person who has in the person’s possession and who displays to a peace officer on demand a valid permit to carry weapons which has been issued to the person, and whose conduct is within the limits of that permit. A person shall not be convicted of a violation of this section if the person produces at the person’s trial a permit to carry weapons which was valid at the time of the alleged offense and which would have brought the person’s conduct within this exception if the permit had been produced at the time of the alleged offense."

 

[Darkshadow62988]

Talk to your friend and get more info. PM me with time and date. Ill submit a FOIA request.

PM sent.

 

[TulsaDan]

OC Oklahoma

Are you required to "produce your papers" in your State? Are they required to investigate people obeying the law (OC)? Do you show to make it easy?

In Oklahoma we do not have the choice. We are required to show the Carry License upon request when openly carrying a firearm.

When the legislature adopted the amendments to the Concealed Carry Statute, they added the following language to the notification statute applicable to Permit holders who are carrying:

The person shall display the handgun license on demand of a law enforcement officer; provided, however, that in the absence of reasonable and articulable suspicion of other criminal activity, an individual carrying an unconcealed handgun shall not be disarmed or physically restrained unless the individual fails to display a valid handgun license in response to that demand.

In adopting Open Carry, the Legislature included language requiring individuals to produce their SDA licenses upon demand from a law enforcement officer. For individuals who are OPEN carrying only, the statute provides that the officer may not disarm the individual or physically restrain the person unless either
1) the individual fails to produce an SDA license upon demand from the officer, or
2) the officer has reasonable suspicion of other criminal activity. Simply put, if an officer happens upon an individual who is openly carrying a firearm, and the officer has no reasonable suspicion of criminal activity, then the officer may not disarm that individual if the person produces an SDA card for inspection.

http://okoca.org/wp-content/uploads/2012/10/Open-Carry-Paper-2012.pdf - Pages 11 and 12 of this paper. He is citing the actual law. This was the closest I could find to the actual Statute.

 

[Tucker6900]

In Oklahoma we do not have the choice. We are required to show the Carry License upon request when openly carrying a firearm.

When the legislature adopted the amendments to the Concealed Carry Statute, they added the following language to the notification statute applicable to Permit holders who are carrying:

The person shall display the handgun license on demand of a law enforcement officer; provided, however, that in the absence of reasonable and articulable suspicion of other criminal activity, an individual carrying an unconcealed handgun shall not be disarmed or physically restrained unless the individual fails to display a valid handgun license in response to that demand.

In adopting Open Carry, the Legislature included language requiring individuals to produce their SDA licenses upon demand from a law enforcement officer. For individuals who are OPEN carrying only, the statute provides that the officer may not disarm the individual or physically restrain the person unless either
1) the individual fails to produce an SDA license upon demand from the officer, or
2) the officer has reasonable suspicion of other criminal activity. Simply put, if an officer happens upon an individual who is openly carrying a firearm, and the officer has no reasonable suspicion of criminal activity, then the officer may not disarm that individual if the person produces an SDA card for inspection.

http://okoca.org/wp-content/uploads/2012/10/Open-Carry-Paper-2012.pdf - Pages 11 and 12 of this paper. He is citing the actual law. This was the closest I could find to the actual Statute.

Sounds like they put a law in place that supersedes your 4th amendment rights. I know some will say that its the way it is, but its the wrong way.

 

[Tucker6900]

Section 724.4(3)(i) provides "A person who has in the person’s possession and who displays to a peace officer on demand a valid permit to carry weapons which has been issued to the person, and whose conduct is within the limits of that permit. A person shall not be convicted of a violation of this section if the person produces at the person’s trial a permit to carry weapons which was valid at the time of the alleged offense and which would have brought the person’s conduct within this exception if the permit had been produced at the time of the alleged offense."

Again, there is nothing in that law that allows for a stop to check a permit. This falls dangerously close to Stop and ID. You need a drivers license to drive, but they cannot legally stop you just to check your license. And as the previously cited Deberry v US, they cannot legally stop you for the open carry of a firearm alone. Now, the problem lies with the lack of case law. The only way to enforce this on LE is to refuse, get arrested (or charged) take it to court and win on the "the law does not allow them to stop and check." Any volunteers?

 

[Aknazer]

Sounds like they put a law in place that supersedes your 4th amendment rights. I know some will say that its the way it is, but its the wrong way.

Indeed. And people here have stated as much along with the court cases showing how it has been ruled that cops can't simply pull over a car to only check the license and showing how the ruling wiuld also apply here.

 

[Darkshadow62988]

SNIP...as the previously cited Deberry v US, they cannot legally stop you for the open carry of a firearm alone...SNIP

I wouldn't go as far as to say that for a couple reasons.

But a number of cases hold[citations omitted] that if the tip, though only weakly corroborated in the sense just explained, is that a person is armed, the police are entitled to stop the person and search him for the gun. Armed persons are so dangerous to the peace of the community that the police should not be forbidden to follow up a tip that a person is armed, and as a realistic matter this will require a stop in all cases. For suppose DeBerry had made no threatening gesture but had simply denied in answer to the officer's question that he had a gun. Could the officer have left it at that? Or should he have asked for consent to frisk DeBerry and if DeBerry refused, insisted?   The answers implicitly given by the cases we have cited are “no” and “yes,” respectively. We think these answers strike the proper balance between the right of the people to be let alone and their right to be protected from armed predators.

That's pretty damning to our cause. In that, the court basically said you don't have a 4th amendment right if you possess a gun(their word not mine) and that once stopped and spoken to that LE should not take a person's word but rather detain and frisk the person. It then goes on to contradict itself:

The only fact that saves the officer's stop of DeBerry, in my opinion, is the fact that it is unlawful in Illinois to carry a concealed weapon. The tipster informed the police that DeBerry was armed, and it appears from the facts before us that the weapon was not in plain view. I do not agree that this case would necessarily come out the same way if Illinois law, like the law of many states, authorized the carrying of concealed weapons. At that point, the entire content of the anonymous tip would be a physical description of the individual, his location, and an allegation that he was carrying something lawful (a cellular telephone? a beeper? a firearm?).   This kind of non-incriminatory allegation, in my view, would not be enough to justify the kind of investigatory stop that took place here. It would mean, in states that permit carrying concealed weapons, that the police no longer need any reason to stop citizens on the street to search them. However, we do not have that situation. Because I therefore consider the Court's comments on lawful concealed weapons to be dicta, I concur in the result reached today.

The issue the courts have yet to rule on has to deal with whether or not there is a right to carry outside the home. United States v. DeBerry is a good start, but United States v. Black leans a little bit more to our side. Even with both of these cases we don't have a ruling in a state regarding open carry where a license is required to do so. There may be something interesting to see what comes out of Denver, but there hasn't been a ruling on this issue in our circuit for those decisions to be binding.

Either we get lucky enough to have fair and just magistrates in our circuit or this is going to have to go all the way to SCOTUS again. Even so, just within Florida there are conflicting cases on the issue because of state districts not agreeing with one another, so the battle for this will be long and hard.

 

[Tucker6900]

The uncertain part of Deberry is the fact that it is based in Illinois. The court did mention other states where the carrying is legal, but failed to rule on all states.

I just read Black, and you are right. That is a much stronger case for our cause. That case proved that our rights are still strongly applied in the higher courts. And while I disagree with Black being a felon in possession, the court upheld his right to be secure in his person, and that is what makes me think we still have a fighting chance.