Open Carrier Arrested in Iowa for not showing Permit

[Johnquixote]

From what I understand of the law, you must produce your carry permit in Iowa when LEO asks for it. But before asking for it, doesn't he have to detain you? If you're not being detained you can ignore him and just keep walking. In order to detain he must have reasonable suspicion of a crime(Terry v Ohio). Carrying a gun, where legal, is not reasonable suspicion of a crime (Deberry v US).

 

[Darkshadow62988]

From what I understand of the law, you must produce your carry permit in Iowa when LEO asks for it. But before asking for it, doesn't he have to detain you? If you're not being detained you can ignore him and just keep walking. In order to detain he must have reasonable suspicion of a crime(Terry v Ohio). Carrying a gun, where legal, is not reasonable suspicion of a crime (Deberry v US).

724.4 Carryingweapons.
1. Except as otherwise provided in this section, a person who goes armed with a dangerous
weapon concealed on or about the person, or who, within the limits of any city, goes armed with
a pistol or revolver, or any loaded firearm of any kind, whether concealed or not, or who
knowingly carries or transports in a vehicle a pistol or revolver, commits an aggravated
misdemeanor.
2. A person who goes armed with a knife concealed on or about the person, if the person uses
the knife in the commission of a crime, commits an aggravated misdemeanor. 3. A person who goes armed with a knife concealed on or about the person, if the person does
not use the knife in the commission of a crime:
a. If the knife has a blade exceeding eight inches in length, commits an aggravated
misdemeanor.
b. If the knife has a blade exceeding five inches but not exceeding eight inches in length,
commits a serious misdemeanor.
4. Subsections 1 through 3 do not apply to any of the following:
...
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, 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.

724.5 Duty to carrypermitto carryweapons.
A person armed with a revolver, pistol, or pocket billy concealed upon the person shall have in
the person's immediate possession the permit provided for in section 724.4, subsection 4,
paragraph "i", and shall produce the permit for inspection at the request of a peace officer.
Failure to so produce a permit is a simple misdemeanor.

How many times am I going to use this copy pasta before people start accusing me of just doing it to get my post count up? :banghead:

The law makes carrying a weapon a crime unless you have a permit AND show it to a peace officer on demand. Whether you end up getting charged with an aggravated misdemeanor or a simple misdemeanor is what changes. That is unless the court rules that the law only applies to concealed weapons and to situations where the officer can demand(a request made with authority) to see the permit. In order for the LEO to have the authority to make the demand the person would need to be detained. If a person isn't detained they are free to move about freely and speak as they choose(this includes not speaking). It is all going to depend on how the law is interpreted. Commas and the 2nd amendment have never been friends. It seems isn't the exception here either. If the duty to carry the permit only applies to concealed weapons(as 724.5 reads) and the person carrying the firearm openly(not concealed) produces the permit at trial they would be free to go and fight the arrest as a violation of their 4th and 5th amendment rights. This could prove to be really interesting, but I don't see the courts being willing to do the right thing on this. They're going to interpret the law in such a way as to be an enemy of liberty and convict this guy of the simple misdemeanor. If I'm wrong, yay! If I'm right, I won't be surprised.

 

[2OLD2W8]

The law also makes driving a vehicle a crime unless you have a permit AND show it to a peace officer on demand.

/S Remember, GUNS are much more dangerous than vehicles! /S !!!!!!!!

 

[Tucker6900]

The law also makes driving a vehicle a crime unless you have a permit AND show it to a peace officer on demand.

/S Remember, GUNS are much more dangerous than vehicles! /S !!!!!!!!

Exactly. The law for a DL and the law for a PTC are practically the same. Where does it say they can stop you and check?

 

[Johnquixote]

"In this case, the LEO witnessed what he believed to be a crime,..."

What crime did he believe he witnessed? Deberry v US states that carrying a gun, where legal, is not reasonable suspicion of a crime and therefore, not sufficient reason to detain. If he believed the individual didn't have his permit, what led him to believe that? He must be able to articulate the reasonable suspicion. Without reasonable suspicion of a crime there was no authority to detain. If there was no authority to detain, there was no duty to answer any questions or produce any ID.

 

[notalawyer]

Delaware v. Prouse, 440 US 648 - Supreme Court 1979

The question is whether it is an unreasonable seizure under the Fourth and Fourteenth Amendments to stop an automobile, being driven on a public highway, for the purpose of checking the driving license of the operator and the registration of the car, where there is neither probable cause to believe nor reasonable suspicion that the car is being driven contrary to the laws governing the operation of motor vehicles or that either the car or any of its occupants is subject to seizure or detention in connection with the violation of any other applicable law.

Accordingly, we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment.

 

[Darkshadow62988]

What crime did he believe he witnessed? Deberry v US states that carrying a gun, where legal, is not reasonable suspicion of a crime and therefore, not sufficient reason to detain. If he believed the individual didn't have his permit, what led him to believe that? He must be able to articulate the reasonable suspicion. Without reasonable suspicion of a crime there was no authority to detain. If there was no authority to detain, there was no duty to answer any questions or produce any ID.

The LEO would argue the carrying of a concealed weapon. The law states that there is an exception for those with a PTC, but only when they present the permit upon demand. If they don't present the permit, then they are breaking the law.

I say that the detainment was unlawful from the get go, but I have a tendency to support liberty. I don't have much faith in saying the courts are going to be as supportive.

 

[notalawyer]

The LEO would argue the carrying of a concealed weapon. The law states that there is an exception for those with a PTC, but only when they present the permit upon demand. If they don't present the permit, then they are breaking the law.

I say that the detainment was unlawful from the get go, but I have a tendency to support liberty. I don't have much faith in saying the courts are going to be as supportive.

Except for the fact that the pistol was clearly visible...

A Des Moines police officer, working off-duty but in full uniform, saw Dennis Scott Estell, 23, walk into the Wal-Mart at 5101 S.E. 14th St. with a handgun in a holster on his belt about 6:30 p.m. Wednesday, according to a police report.

 

[amaixner]

What crime did he believe he witnessed? Deberry v US states that carrying a gun, where legal, is not reasonable suspicion of a crime and therefore, not sufficient reason to detain. If he believed the individual didn't have his permit, what led him to believe that? He must be able to articulate the reasonable suspicion. Without reasonable suspicion of a crime there was no authority to detain. If there was no authority to detain, there was no duty to answer any questions or produce any ID.

Yup, and in Iowa, as stated, carrying a gun is, by default, in an incorporated are (which this was), NOT LEGAL. When we eventually move to constitutional carry, then this will no longer be an issue.

 

[markm]

Supremacy Clause and pari materia

Hello All,

There seems to be two different philosophical arguments being discussed on this thread. The LEOs, et allia, seem to be arguing for the supremecy of state law, while the libertarians are arguing for the supremacy of creator granted and Constitutionally protected civil rights.

In Miranda v. Arizona, SCOTUS, the court stated that "where rights are secured by the constitution are involved, there can be no legislation or rule-making that would abrogate them."

In U.S. v. Bond, 2011, SCOTUS, the court ruled that "Anything in repugnance to the Constitution is invalid or unlawful."

The theory of pari materia has been used by SCOTUS to interpret the Constitution. Iowa cannot assume that the 10th amendment abrogates 2A or 4A. The Supremacy Clause makes 2A, 4A, and 10A supreme laws of the land; however, 10A can't be used to abrogate the 2A or 4A--pari materia theory (all together) must be used to interpret the entire Constitution.

In U.S. v. King, the 10th Circuit ruled that gutting one Amendment to abrogate another amendment, would make both amendments "functionally meaningless." (Court's opinion paraphrased by MM to make the intended point; RELAX)

In U.S. v. Ubilles, the court compared a legally carried wallet to a legally carried gun. The arrest and initial detention were ruled unlawful, and unconstitutional (parahrased by MM).

In Michigan v. Chesternutt, SCOTUS ruled that if a person "feels" detained by LEO, than they are detained; therefore, LEO must be able to articulate RAS for the detention.

A review of Lawson v. Kolender, Nevada v. Hibel, and Duran v. Douglas, should give a person a reasonable level of knowledge to know when a LEO can ask for ID. Iowa's carry card is nothing more than an ID.

Also, a LEO who is moonlighting for WalMart is not acting in his official duties as a cop; notwithstanding his Police Chief's permission. Had Wally-World contracted to the Police Chief for security services, then the LEO would be acting under his Chief's authority as a LEO (just my opinion--I don't know of case law for something like this situation). If he is getting a check from Wally-World, he is a guard. If he gets his paycheck from the Police Chief, he is a cop.

If I were Iowa LEO, I would uphold 200 plus years of SCOTUS juris prudence, and ignore the OCer in Iowa unless I had RAS of criminal activity in fear of being personally sued under 42 USC 1983 and 1989. We can make LEO uphold our creator granted civil liberties if we sue him for violating our rights. When LEO f-bombs-up, sue him!

IMHO and respectfully submitted,

markm

 

[markm]

Delaware v. Prouse, 440 US 648 - Supreme Court 1979

Hey notalawyer,

+1

Right on.

markm

 

[markm]

Yup, and in Iowa, as stated, carrying a gun is, by default, in an incorporated are (which this was), NOT LEGAL. When we eventually move to constitutional carry, then this will no longer be an issue.

Hey amaixner,

Yup, and in Iowa, as stated, operating a motor vehicle (without a driver's license) is, by default, NOT LEGAL.

The analogy used by notalawyer applies to your post. LEO cannot detain or ID check a person who is operating his vehicle legally, whether the driver is licensed or not (Delaware v. Prouse).

markm

 

[g21sfpistol]

Hello All,

There seems to be two different philosophical arguments being discussed on this thread. The LEOs, et allia, seem to be arguing for the supremecy of state law, while the libertarians are arguing for the supremacy of creator granted and Constitutionally protected civil rights.

In Miranda v. Arizona, SCOTUS, the court stated that "where rights are secured by the constitution are involved, there can be no legislation or rule-making that would abrogate them."

In U.S. v. Bond, 2011, SCOTUS, the court ruled that "Anything in repugnance to the Constitution is invalid or unlawful."

The theory of pari materia has been used by SCOTUS to interpret the Constitution. Iowa cannot assume that the 10th amendment abrogates 2A or 4A. The Supremacy Clause makes 2A, 4A, and 10A supreme laws of the land; however, 10A can't be used to abrogate the 2A or 4A--pari materia theory (all together) must be used to interpret the entire Constitution.

In U.S. v. King, the 10th Circuit ruled that gutting one Amendment to abrogate another amendment, would make both amendments "functionally meaningless." (Court's opinion paraphrased by MM to make the intended point; RELAX)

In U.S. v. Ubilles, the court compared a legally carried wallet to a legally carried gun. The arrest and initial detention were ruled unlawful, and unconstitutional (parahrased by MM).

In Michigan v. Chesternutt, SCOTUS ruled that if a person "feels" detained by LEO, than they are detained; therefore, LEO must be able to articulate RAS for the detention.

A review of Lawson v. Kolender, Nevada v. Hibel, and Duran v. Douglas, should give a person a reasonable level of knowledge to know when a LEO can ask for ID. Iowa's carry card is nothing more than an ID.

Also, a LEO who is moonlighting for WalMart is not acting in his official duties as a cop; notwithstanding his Police Chief's permission. Had Wally-World contracted to the Police Chief for security services, then the LEO would be acting under his Chief's authority as a LEO (just my opinion--I don't know of case law for something like this situation). If he is getting a check from Wally-World, he is a guard. If he gets his paycheck from the Police Chief, he is a cop.

If I were Iowa LEO, I would uphold 200 plus years of SCOTUS juris prudence, and ignore the OCer in Iowa unless I had RAS of criminal activity in fear of being personally sued under 42 USC 1983 and 1989. We can make LEO uphold our creator granted civil liberties if we sue him for violating our rights. When LEO f-bombs-up, sue him!

IMHO and respectfully submitted,

markm

thats a lot of case law. couldnt showing your ID incriminate yourself? someone who has a felony could have the same name as you and by giving up your name could lead to you being detained/arrest wrongfully.

 

[markm]

thats a lot of case law. couldnt showing your ID incriminate yourself? someone who has a felony could have the same name as you and by giving up your name could lead to you being detained/arrest wrongfully.

Hey g21sfpistol,

No, that's not a lot of case law. There is so much more, and it backs up the points I have made on this thread.

You have a point about not showing ID. My point about not showing ID, unless you are required by a Constitutionally legal law, is that there are many LEOs out there who are corrupt or unethical. They can take your ID and then run a background check, learn where you live and then start harrassing you. It has happened before. Also in Kali, some Sheriffs won't issue you a CCW even though you have a legit "good cause" statement, because "LEO has had too many interactions with you." No arrests, no warrants, no traffic tickets; however, because a person has been logged into the system as having been detained by LEO "too often", you lose your 2A rights.

No way, only show ID when you are legally required to.

markm

 

[Tucker6900]

Hey g21sfpistol,

No, that's not a lot of case law. There is so much more, and it backs up the points I have made on this thread.

You have a point about not showing ID. My point about not showing ID, unless you are required by a Constitutionally legal law, is that there are many LEOs out there who are corrupt or unethical. They can take your ID and then run a background check, learn where you live and then start harrassing you. It has happened before. Also in Kali, some Sheriffs won't issue you a CCW even though you have a legit "good cause" statement, because "LEO has had too many interactions with you." No arrests, no warrants, no traffic tickets; however, because a person has been logged into the system as having been detained by LEO "too often", you lose your 2A rights.

No way, only show ID when you are legally required to.

markm

+1
That goes along with my argument as well. Yes, Iowa law states that you must show your permit upon demand of a peace officer. Yes, Iowa law makes it a "crime" to carry a firearm without a permit. But...Nowhere does it give the officer the authority to ask, without RAS or PC, to see your permit. I know they dont happen in Iowa yet, but, one would refer to the many unconstitutional DUI/drivers license checkpoints. There is no law that requires a person to prove they have a drivers license unless they have truly broken a traffic, or otherwise victimless crime.

I hope the victim of this unlawful arrest is monetarily able to stand and fight. I would donate to the cause if there is one.

 

[Tucker6900]

Yup, and in Iowa, as stated, carrying a gun is, by default, in an incorporated are (which this was), NOT LEGAL. When we eventually move to constitutional carry, then this will no longer be an issue.

You know that I respect your opinion, and you have given me useful advice in the past. But I have to disagree with you to a point. Yes, all those things you mentioned are correct. But there MUST be RAS for a stop. An officer cannot, IMHO, legally assume that a person who is open carrying is doing so illegally.

 

[markm]

Florida v. J.L. SCOTUS

You know that I respect your opinion, and you have given me useful advice in the past. But I have to disagree with you to a point. Yes, all those things you mentioned are correct. But there MUST be RAS for a stop. An officer cannot, IMHO, legally assume that a person who is open carrying is doing so illegally.

Hey Tucker6900,

Florida v. J.L. is instructive. It is not a perfect fit for this case; however, there are points made by the Supremes that are instructive. Make sure you read the footnotes.

This case backs up what you and I are thinking.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=98-1993

thanks,

markm

 

[amaixner]

You know that I respect your opinion, and you have given me useful advice in the past. But I have to disagree with you to a point. Yes, all those things you mentioned are correct. But there MUST be RAS for a stop. An officer cannot, IMHO, legally assume that a person who is open carrying is doing so illegally.

I see what you are saying, and there's a pretty good chance that you are legally right. Hopefully a strong precedent can be set over a case like this - unfortunately I don't have much hope of that happening, however right it may be.

 

[Tucker6900]

I see what you are saying, and there's a pretty good chance that you are legally right. Hopefully a strong precedent can be set over a case like this - unfortunately I don't have much hope of that happening, however right it may be.

+1.

Does anyone know who this person is? I would like to get in touch with him or his attorney and see if he needs any assisstance...financially or otherwise.

 

[Tucker6900]

Estell was charged with carrying weapons and interference with official acts. He remains in the Polk County Jail on a $2,300 bond.

http://www.desmoinesregister.com/article/20130829/NEWS01/130829001/1001/

More like contempt of cop. This is just a BS add on charge for anyone who gives a cop any lip while being arrested.