Open Carry While Voting

[Bronson]

The fundamental difference between OCing in a PFZ and a felon OCing or a person in possession of an unregistered pistol is that in the latter two scenarios the LEO doesnt have enough evidence or facts to know that a crime is being committed. In the OCing in a PFZ the LEO already has enough evidence that a crime is occurring by the mere sight of a person in possession of a pistol. Now if that same person weren't in a PFZ and they were OCing then the burden shifts to the LEO to prove a crime is occuring, has occurred or is imminent.

But but but...what about driving and cars and stuff?!?! Stop trying ice, it won't do any good.

Bronson

 

[TheQ]

Only way to find out about RAS here is a test case. Until then, these conversations are all academic.


Therefore the best answer is, "we don't know..."

 

[Raggs]

Only way to find out about RAS here is a test case. Until then, these conversations are all academic.


Therefore the best answer is, "we don't know..."

And I for one do not have the means to be a test case for this.

 

[DanM]

The fundamental difference between OCing in a PFZ and a felon OCing or a person in possession of an unregistered pistol is that in the latter two scenarios the LEO doesnt have enough evidence or facts to know that a crime is being committed. In the OCing in a PFZ the LEO already has enough evidence that a crime is occurring by the mere sight of a person in possession of a pistol.

"Mere sight" is not enough evidence for RAS. Bear in mind RAS is not a hunch or a feeling, or a "Well, I think he probably might be guilty". Many people in Michigan may in fact OC in a PFZ legally. It's not like something that *always* is illegal. This means the officer must *articulate* a specific reason to believe that the specific person is not in the PFZ legally.

Now if that same person weren't in a PFZ and they were OCing then the burden shifts to the LEO to prove a crime is occuring, has occurred or is imminent.

Not by your logic. It is a fact that many, many people in Michigan are disqualified from possessing/carrying. Therefore, it is completely within the realm of your logic that an officer has "enough evidence" to "suspect" the person carrying is carrying illegally.

 

[DrTodd]

"Mere sight" is not enough evidence for RAS. Bear in mind RAS is not a hunch or a feeling, or a "Well, I think he probably might be guilty". Many people in Michigan may in fact OC in a PFZ legally. It's not like something that *always* is illegal. This means the officer must *articulate* a specific reason to believe that the specific person is not in the PFZ legally.



Not by your logic. It is a fact that many, many people in Michigan are disqualified from possessing/carrying. Therefore, it is completely within the realm of your logic that an officer has "enough evidence" to "suspect" the person carrying is carrying illegally.

"Mere sight" is not enough evidence for RAS. Bear in mind RAS is not a hunch or a feeling, or a "Well, I think he probably might be guilty".
Really.. care to cite? Let me help by citing the exact opposite... oh how quickly we forget... BTW, 6th circuit, which means this applies to Michigan....

http://www.kwikrnuarms.com/Embody v Ward/embody v ward sixth circuit opinion 8-30-12.pdf

 

[FreeInAZ]

"Mere sight" is not enough evidence for RAS. Bear in mind RAS is not a hunch or a feeling, or a "Well, I think he probably might be guilty".
Really.. care to cite? Let me help by citing the exact opposite... oh how quickly we forget... BTW, 6th circuit, which mean applies to Michigan....

http://www.kwikrnuarms.com/Embody v Ward/embody v ward sixth circuit opinion 8-30-12.pdf

Be kind to one another, one day (soon?) we may not have an internet and the practice we get here may save us in the real world.

Carry on (nicely I hope).

 

[Venator]

"Mere sight" is not enough evidence for RAS. Bear in mind RAS is not a hunch or a feeling, or a "Well, I think he probably might be guilty".
Really.. care to cite? Let me help by citing the exact opposite... oh how quickly we forget... BTW, 6th circuit, which mean applies to Michigan....

http://www.kwikrnuarms.com/Embody v Ward/embody v ward sixth circuit opinion 8-30-12.pdf

An extreme case wouldn't you agree? I don't know that a average person OCing a handgun in a Meijers or a bar would get the same scrutiny. But as we have said, we don't really know if they have the right to ask for a license in this circumstance.

 

[Bronson]

we don't really know if they have the right to ask for a license in this circumstance.

Sure they do. They can do it until somebody higher up the food chain tells them to stop. That's what happened with the ruling in Delaware vs. Prouse. The police were stopping people on the roads just to see if they were licensed and the SC told them to stop it....but it only applies to that one limited circumstance, not all licensed activity. We can use that example to argue for our case but until somebody above the cops tells them to stop detaining people that are OCing in an OC PFZ because they might be licensed to do so, they will continue to do it and they will be backed up by their superiors.

Bronson

 

[DrTodd]

Be kind to one another, one day (soon?) we may not have an internet and the practice we get here may save us in the real world.

Carry on (nicely I hope).

I was not trying to be mean. I am only concerned that there are comments made which, although they express an opinion that most of us would support on principle, the opinion they express is not backed up with legal citation and could therefore cause people undue hardship. Remember that many come here asking questions regarding OC. If we give an answer that expresses more of what we wish were the case than what actually is the most probable outcome, we have lessened the value of this website.

Btw, there is room for discussions regarding what we believe should be the law regarding certain situations, but such discussion is better when it is not in reply to a question that demands a question regarding the legality of something. Yes, anyone who takes this information for legal advice is courting disaster, but we are still responsible to frame things in such a way that we don't cause anyone undue grief.

 

[DrTodd]

An extreme case wouldn't you agree? I don't know that a average person OCing a handgun in a Meijers or a bar would get the same scrutiny. But as we have said, we don't really know if they have the right to ask for a license in this circumstance.

If it appears that the law is being violated, the courts have generally upheld that the police can investigate. The Constitution, specifically the 4th Amendment, guards against unreasonable searches and seizures, not against what has been determined to be reasonable. Remember that a "reasonable articulable suspicion" (RAS) is a very low threshold for an officer to meet. Probable Cause, the level needed for an actual arrest, is another case entirely.

 

[DanM]

"Mere sight" is not enough evidence for RAS. Bear in mind RAS is not a hunch or a feeling, or a "Well, I think he probably might be guilty".
Really.. care to cite?

To justify detention, the officer must be able to articulate more than an "inchoate and unparticularized suspicion or ‘hunch' of criminal activity." (Terry v. Ohio (1968) 392 U.S. 1, 27 [20 L.Ed.2nd 889, 909].)

An officer's decision to detain cannot be predicated upon a mere "hunch," but must be based upon articulable facts describing suspicious behavior which would distinguish the defendant from an ordinary, law-abiding citizen. (Terry v. Ohio, supra.)

"A hunch may provide the basis for solid police work; it may trigger an investigation that uncovers facts that establish reasonable suspicion, probable cause, or even grounds for a conviction. A hunch, however, is not a substitute for the necessary specific, articulable facts required to justify a Fourth Amendment intrusion." (People v. Pitts (2004) 117 Cal.App.4th 881, 889; quoting United States v. Thomas (9th Cir. 2000) 211 F.3rd 1186, 1192.)

A stop and detention with little if anything in the way of suspicious circumstances to connect the persons stopped to a perceived imminent criminal act, is illegal. The officer admittedly was acting on his "gut feeling" that defendant was involved. (People v. Durazo (2004) 124 Cal.App.4th 728.)

Detention of suspected illegal aliens is not justified unless accompanied by some particularlized conduct that corroborates the officer's suspicions. (United States v. Manzo-Jurado (9th Cir. 2006) 457 F.3rd 928.)

Observing defendant sitting in a parked motor vehicle late at night near the exit to a 7-Eleven store parking lot, with the engine running, despite prior knowledge of a string of recent robberies at 7-Elevens, held to be not sufficient to justify a detention and patdown. (People v. Perrusquia (2007) 150 Cal.App.4th 228.)

 

[DanM]

Be kind to one another . . . Carry on (nicely I hope).

I didn't take DrTodd as being mean or not nice. He civilly asked for something that can legitimately be demanded on these forums: citations.

 

[DanM]

If it appears that the law is being violated, the courts have generally upheld that the police can investigate.

And that's it, so in this discussion let's be careful not to blur the lines between "investigate", "detain", and "arrest".

Without RAS or PC, the police can investigate anything they want to their heart's content, but they cannot detain or arrest a specific person until such RAS or PC on that specific person is developed. For example, seeing a man OC'ing in a PFZ, they are free to observe the OC'er. They are free to ask other people questions about his behavior. They are free to walk up and talk to the OC'er, but they cannot imply (through verbal or body language cues) or overtly express that the OC'er is not free to go.

Only after having developed RAS through investigative methods short of detaining the subject, may they then lawfully detain the subject.