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Case law update from your friendly prosecutor

Lammo

Regular Member
Joined
Oct 15, 2009
Messages
580
Location
Spokane, Washington, USA
Received this update info from one of my e-mail subscriptions:

Terry Stops. An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer's stop and frisk of that person. Here, there is no evidence that the 911 caller felt intimidated or alarmed when shown the gun, or that the person who was holding the gun discharged it or pointed the gun at anyone. State v. Cardenas-Muratalla, COA No. 68057-9-1 (Feb. 3, 2014). http://www.courts.wa.gov/opinions/pdf/680579.pdf

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Guns and Terry is a combination that is appearing more frequently in case law. The next edition of the WAPA search manual, written before today's case was released, summarizes the law as follows:

Lawful Display of a Firearm. Washington law permits its residents to openly carry firearms. See generally RCW 9.41.050 and 9.41.060. “[W]here a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.” United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013) (finding no reasonable suspicion to stop or frisk the defendant, who was in an area known for robberies and other violent crimes, was in the company of an individual who had oft been arrested for felony drug offenses and another man who was openly carrying a holstered handgun, as authorized by North Carolina). See also St. John v. McColley, 653 F. Supp. 2d 1155, 1161 (D.N.M. 2009) (finding no reasonable suspicion where the plaintiff arrived at a movie theater openly carrying a holstered handgun, an act which is legal in the State of New Mexico). The fact that other statutes prevent convicted felons from possessing guns does not allow an officer to detain an armed stranger in their midst until the officer performs a record check. “Being a felon in possession of a firearm is not the default status.” Id.

Washington law does restrict the carrying of a concealed firearm to individuals who have a concealed pistol license. See generally RCW 9.41.050. There is, however, no presumption that a person carrying a concealed firearm lacks the required permit. People v. Murrell, 56 V.I. 796 (2012) (no presumption that person carrying firearm lacks permit); United States v. Ubiles, 224 F.3d 213, 217-18 (3rd Cir. 2000) (improper to stop a suspect based solely upon a report that the suspect had a firearm, which could be lawfully possessed under the law, when the authorities had no reason to know that the gun was unregistered or that the serial number had been altered); Regalado v. State, 25 So. 3d 600, 601 (Fla. 4th DCA 2009) (“Because it is legal to carry a concealed weapon in Florida, if one has a permit to do so, and no information of suspicious criminal activity was provided to the officer other than appellant's possession of a gun, the mere possession of a weapon, without more, cannot justify a Terry stop.”).

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The full WAPA Search and Seizure Manual can be found here under the Manuals tab: http://www.waprosecutors.org/
 

arentol

New member
Joined
Apr 10, 2009
Messages
383
Location
Kent, Washington, USA
If I am reading this correctly (I just did a brief scan until later) this means we now have a PUBLISHED Appeals Court ruling that Open Carry is Legal!

Hoora!!

This case appears to say pretty much nothing more than Florida v. J.L. already did. It is nice, but doesn't seem to help much with OC.


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sudden valley gunner

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Dec 13, 2008
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Whatcom County
Thanks Lammo!

I have been pointing to the Regaldo case for a few years to those here and in other places who say needing a license is enough RS to exercise a stop/detention to verify you are licensed. (For those instances you would need a CPL whether you are concealing or not).
 
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EMNofSeattle

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Aug 7, 2012
Messages
3,670
Location
S. Kitsap, Washington state
If I am reading this correctly (I just did a brief scan until later) this means we now have a PUBLISHED Appeals Court ruling that Open Carry is Legal!

Hoora!!

I don't read it like that.....

it says

1) mere display is not illegal (good)

BUT

the said the report of display was not RAS because the caller did not mention feeling threatened.

this does not hurt or help OC, well it does help OC slightly. because they say display without report of a threat is not RAS....
 

sudden valley gunner

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Whatcom County
I don't read it like that.....

it says

1) mere display is not illegal (good)

BUT

the said the report of display was not RAS because the caller did not mention feeling threatened.

this does not hurt or help OC, well it does help OC slightly. because they say display without report of a threat is not RAS....

Just claiming threat isn't good enough. If I said I saw a young male with brown hair and eyes named EriK and I was feeling threatened by his presence is that a justification?
 

solus

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Joined
Aug 22, 2013
Messages
9,315
Location
here nc
Lammo, thanks for the link i do wish the tarheel state's prosecutors were as forthright in their manuals...but the good olde boy network is strong here.

ipse
 

Difdi

Regular Member
Joined
Mar 2, 2010
Messages
987
Location
Seattle, Washington, USA
Just claiming threat isn't good enough. If I said I saw a young male with brown hair and eyes named EriK and I was feeling threatened by his presence is that a justification?

This. There's a reason why reasonability is an important legal test. It's related to why people who are certified mentally ill can't have weapons -- their judgment isn't reasonable.

People have lots of minor mental issues including phobias. Simply feeling irrationally threatened doesn't mean there actually was a threat.
 

Geerolla

Regular Member
Joined
Mar 22, 2010
Messages
114
Location
WA, USA
Washington law does restrict the carrying of a concealed firearm to individuals who have a concealed pistol license. See generally RCW 9.41.050. There is, however, no presumption that a person carrying a concealed firearm lacks the required permit. People v. Murrell, 56 V.I. 796 (2012) (no presumption that person carrying firearm lacks permit); United States v. Ubiles, 224 F.3d 213, 217-18 (3rd Cir. 2000) (improper to stop a suspect based solely upon a report that the suspect had a firearm, which could be lawfully possessed under the law, when the authorities had no reason to know that the gun was unregistered or that the serial number had been altered); Regalado v. State, 25 So. 3d 600, 601 (Fla. 4th DCA 2009) (“Because it is legal to carry a concealed weapon in Florida, if one has a permit to do so, and no information of suspicious criminal activity was provided to the officer other than appellant's possession of a gun, the mere possession of a weapon, without more, cannot justify a Terry stop.”).

So let me make sure I'm reading this correctly in regards to concealed carry. If I'm walking down the street, bend over to pick up my dog's **** and accidentally print or show the bottom of my holster while a cop is driving by they cannot assume I'm unlicensed and initiate a stop to check my CPL? Is that correct or is this only in reference to MWAG calls?


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Grim_Night

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Aug 5, 2012
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Pierce County, Washington
So let me make sure I'm reading this correctly in regards to concealed carry. If I'm walking down the street, bend over to pick up my dog's **** and accidentally print or show the bottom of my holster while a cop is driving by they cannot assume I'm unlicensed and initiate a stop to check my CPL? Is that correct or is this only in reference to MWAG calls?


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Basically what it means is that if an activity is lawful to do with or without a license then it must be assumed that the person preforming such activity (baring any other evidence) is preforming said activity lawfully. Just like you cannot be stopped while driving your car just to make sure you are driving with a valid license. There has to be evidence that something else is going on besides the lawful activity.
 

sudden valley gunner

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So let me make sure I'm reading this correctly in regards to concealed carry. If I'm walking down the street, bend over to pick up my dog's **** and accidentally print or show the bottom of my holster while a cop is driving by they cannot assume I'm unlicensed and initiate a stop to check my CPL? Is that correct or is this only in reference to MWAG calls?


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Yes, they can't assume you don't have a license for an activity that is legal to do so with a license.
 

Right Wing Wacko

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Aug 11, 2007
Messages
645
Location
Marysville, Washington, USA
Yes, they can't assume you don't have a license for an activity that is legal to do so with a license.

However there is this poorly worded piece of law:


RCW 9.41.050

Carrying firearms.


(1)(a) Except in the person's place of abode or fixed place of business, a person shall not carry a pistol concealed on his or her person without a license to carry a concealed pistol.

(b) Every licensee shall have his or her concealed pistol license in his or her immediate possession at all times that he or she is required by this section to have a concealed pistol license and shall display the same upon demand to any police officer or to any other person when and if required by law to do so. Any violation of this subsection (1)(b) shall be a class 1 civil infraction under chapter 7.80 RCW and shall be punished accordingly pursuant to chapter 7.80 RCW and the infraction rules for courts of limited jurisdiction.
 

sudden valley gunner

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However there is this poorly worded piece of law:


RCW 9.41.050

Carrying firearms.


(1)(a) Except in the person's place of abode or fixed place of business, a person shall not carry a pistol concealed on his or her person without a license to carry a concealed pistol.

(b) Every licensee shall have his or her concealed pistol license in his or her immediate possession at all times that he or she is required by this section to have a concealed pistol license and shall display the same upon demand to any police officer or to any other person when and if required by law to do so. Any violation of this subsection (1)(b) shall be a class 1 civil infraction under chapter 7.80 RCW and shall be punished accordingly pursuant to chapter 7.80 RCW and the infraction rules for courts of limited jurisdiction.

Yes it is, like many laws some ambiguity and wiggle room for the persecutors and their agents.

I and others have argued that the "when and if required by law to do so" can only apply when it is legal for the officer to ask, and that without RS or PC which "assumptions" don't add up to, it is unlawful to demand to see it.
 

CT Barfly

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Jun 13, 2013
Messages
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Location
Ffld co.
However there is this poorly worded piece of law:


RCW 9.41.050

Carrying firearms.


(1)(a) Except in the person's place of abode or fixed place of business, a person shall not carry a pistol concealed on his or her person without a license to carry a concealed pistol.

(b) Every licensee shall have his or her concealed pistol license in his or her immediate possession at all times that he or she is required by this section to have a concealed pistol license and shall display the same upon demand to any police officer or to any other person when and if required by law to do so. Any violation of this subsection (1)(b) shall be a class 1 civil infraction under chapter 7.80 RCW and shall be punished accordingly pursuant to chapter 7.80 RCW and the infraction rules for courts of limited jurisdiction.

How is this ambiguous?

1. you must have your license on you
2. must display it to LEO/other persons on demand WHEN AND IF REQUIRED BY LAW TO DO SO

Assuming there's no stop/identify statute in WA:

If you're moseying along lawfully/peacefully minding your own business, you're not subject to arrest and you're not required to display your anything to anyone. If you're illegally detained/searched, I would guess there's no legal requirement. If you're unarmed, no requirement to display. The moment a "requirement" arises...then you have to display. I'm no expert on the RCW or WA case law. I bet if you're OC'ing in a prohibited place like a post office or a GFSZ, you might have to display on demand...but by then the horse is out of the barn and you're subject to arrest anyway.
 

CT Barfly

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Ffld co.
Yes it is, like many laws some ambiguity and wiggle room for the persecutors and their agents.

I and others have argued that the "when and if required by law to do so" can only apply when it is legal for the officer to ask, and that without RS or PC which "assumptions" don't add up to, it is unlawful to demand to see it.

well said. they can always ask, but they can't always DEMAND.
 

Right Wing Wacko

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645
Location
Marysville, Washington, USA
How is this ambiguous?

1. you must have your license on you
2. must display it to LEO/other persons on demand WHEN AND IF REQUIRED BY LAW TO DO SO

I've also seen it explained as:

1. You must have your license on you.
2. You must display it to any LEO on demand.
3. You must display it to other persons when and if required by law to do so.

I can see both versions in there depending on how you parse the sentence.
 
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Ajetpilot

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Jul 6, 2007
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Olalla, Kitsap County, Washington, USA
Not having your CPL with you when required is only a class 1 civil infraction, not even a misdemeanor. The nice LEO will only write you a ticket. The fine (if you are caught) is only $250. So, if for instance you are open carrying a loaded pistol while driving, and you suddenly remember that you have left your wallet at home, don't sweat it.

RCW 9.41.050

Carrying firearms.

1(b) Every licensee shall have his or her concealed pistol license in his or her immediate possession at all times that he or she is required by this section to have a concealed pistol license and shall display the same upon demand to any police officer or to any other person when and if required by law to do so. Any violation of this subsection (1)(b) shall be a class 1 civil infraction under chapter 7.80 RCW and shall be punished accordingly pursuant to chapter 7.80 RCW and the infraction rules for courts of limited jurisdiction.

RCW 7.80.120

Monetary penalties — Restitution.

(1) A person found to have committed a civil infraction shall be assessed a monetary penalty.

(a) The maximum penalty and the default amount for a class 1 civil infraction shall be two hundred fifty dollars
 
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