Concealed carrier disarmed by Coral Gables police

[chipbennett]

Being detained is not "under arrest."

Arrest vs. Detention: How to Tell Whether You?ve Been Arrested or Simply Detained | Nolo.com

If I may presume to speak for the person you're quoting: I believe he meant to say that being detained constitutes a seizure, under the scope of the fourth amendment.

 

[chipbennett]

BTW, I didn't see it stated, but dirtybird, the carry of a handgun in Indiana is a crime. The issuance of a license under IC 35-47-2 is an affirmative defense against prosecution of that crime. In other words, you walking down the road with a handgun (specifically) on your hip does give the authority for him to detain you and investigate, and the burden of proof is on you to show that you are, in fact, licensed. (black powder and pre-1899 (I think is the year) handguns exempted.)

What that means is that until you show that license, you are committing a crime to go armed with a modern handgun. Show the little pink card or give them some way to verify you have one, and it's no longer a crime.

Hope that helps.

Blessings,
Bill

Truth be told, I'd rather that unconstitutional abomination be fixed in the Indiana statutes before worrying about trying to pass constitutional carry. Indiana overall has great firearm-related laws, but it is completely absurd that underlying all of them is the presumption of criminality for the exercise of a natural, constitutionally protected right.

 

[dirtybird]

Doesn't the constitution state that any unconstitutional law can not be enforced? So how long until free speech becomes regulated and certain words are approved to speak freely in public places?

 

[BearFodder]

First, thanks to the guys/gals helping to educate, because, I am new to carry. The thread made me surf around looking at the 4th amendment argument. I see it is not new. Open and concealed carry folks are having the same issue. Open carry gets gun detained because the police officer can see it. Concealed carry gets gun detained because police office asks if you have any weapons on you. So how to fix it is a question to ask. Kentucky seems to passed a law to prevent this.

"KRS 237.104 Rights to acquire, carry, and use deadly weapons not to be impaired during disaster or emergency -- Seizure of deadly weapons during disaster or emergency prohibited -- Application of section.
(1) No person, unit of government, or governmental organization shall, during a period of disaster or emergency as specified in KRS Chapter 39A or at any other time, have the right to revoke, suspend, limit the use of, or otherwise impair the validity of the right of any person to purchase, transfer, loan, own, possess, carry, or use a firearm, firearm part, ammunition, ammunition component, or any deadly weapon or dangerous instrument.
(2) No person, unit of government, or governmental organization shall, during a period of disaster or emergency as specified in KRS Chapter 39A or at any other time, take, seize, confiscate, or impound a firearm, firearm part, ammunition, ammunition component, or any deadly weapon or dangerous instrument from any person. "


Chip threw out the word seizure and I had been wondering what the legal definition of seizure was. I was thinking maybe it meant permanently taking away a possession. Help on that one please.

Also, I looked at Arizona law because of its constitutional carry law. I find that it is not a must inform state. However, from their FAQ: I see this:
What are the permit holder requirements?
Please see below for permit holder requirements:

• A qualified person must have the permit in possession when carrying a concealed weapon and is required by any other law to carry the permit
• The permit must be presented to any law enforcement officer, upon request, along with a driver’s license, military ID, state ID card or passport
• A law enforcement officer may temporarily take possession of a firearm during traffic stops or other official contacts with the public

If there is no duty to inform is it an invasion of privacy for the officer to ask?

From NOLO: The search-and-seizure provisions of the Fourth Amendment are all about privacy
"When the Fourth Amendment Doesn't Protect You
The Fourth Amendment applies to a search only if a person has a "legitimate expectation of privacy" in the place or thing searched. If not, the amendment offers no protection because there are, by definition, no privacy issues.
Courts generally use a two-part test (fashioned by the U.S. Supreme Court) to determine whether, at the time of the search, a defendant had a legitimate expectation of privacy in the place or things searched:

• Did the person actually expect some degree of privacy?
• Is the person's expectation objectively reasonable—that is, one that society is willing to recognize?"

...if an officer stops a car and, when talking to the driver, happens to notice a weapon on the passenger seat, there's been no search under the Fourth Amendment. That's because, even if the driver somehow considered the passenger seat to be a private place, society isn't willing to extend privacy protections to that particular location. In other words, there's no objectively reasonable expectation of privacy with respect to the gun because it was in plain view."

When I carry concealed I do expect a certain amount of privacy. I don't want to HAVE to inform and I don't want my gun taken from me. However, does the rest of society see the gun as a mere possession that is protected under the 4th amendment or is it a dangerous weapon that should be allowed to be temporarily separated from me while a police officer does his official duties?
In a must inform state I might expect to be disarmed but not in a no duty to inform state under reasonable circumstances.

 

[dirtybird]

Really informative post, thanks. I think everybody should contact our elected officials and request a similar law be passed. Good for Kentucky and I hope more follow suit!

 

[Kutnupe14]

Really informative post, thanks. I think everybody should contact our elected officials and request a similar law be passed. Good for Kentucky and I hope more follow suit!

Good luck with that. I can't imagine the legislator, in this environment, willing to fall on his sword trying unsuccessfully to make that happen.

 

[BearFodder]

Really informative post, thanks. I think everybody should contact our elected officials and request a similar law be passed. Good for Kentucky and I hope more follow suit!

I read that this was in response to citizens being disarmed in New Orleans after the Katrina disaster/SHTF aftermath. Kentucky passed this law and added "or at any other time". Perhaps more states could be thinking ahead.?! One of those punctuation marks is right.

 

[dirtybird]

Ya I think Katrina opened a lot of people's eyes as to the reality of a situation like that actually happening. As I understood before a firearm was personal property and protected under 4th amendment from illegal seizures without due cause, but then again what in the constitution actually gets obeyed by our government anymore?

 

[Kutnupe14]

First, thanks to the guys/gals helping to educate, because, I am new to carry. The thread made me surf around looking at the 4th amendment argument. I see it is not new. Open and concealed carry folks are having the same issue. Open carry gets gun detained because the police officer can see it. Concealed carry gets gun detained because police office asks if you have any weapons on you. So how to fix it is a question to ask. Kentucky seems to passed a law to prevent this.

"KRS 237.104 Rights to acquire, carry, and use deadly weapons not to be impaired during disaster or emergency -- Seizure of deadly weapons during disaster or emergency prohibited -- Application of section.
(1) No person, unit of government, or governmental organization shall, during a period of disaster or emergency as specified in KRS Chapter 39A or at any other time, have the right to revoke, suspend, limit the use of, or otherwise impair the validity of the right of any person to purchase, transfer, loan, own, possess, carry, or use a firearm, firearm part, ammunition, ammunition component, or any deadly weapon or dangerous instrument.
(2) No person, unit of government, or governmental organization shall, during a period of disaster or emergency as specified in KRS Chapter 39A or at any other time, take, seize, confiscate, or impound a firearm, firearm part, ammunition, ammunition component, or any deadly weapon or dangerous instrument from any person. "


Chip threw out the word seizure and I had been wondering what the legal definition of seizure was. I was thinking maybe it meant permanently taking away a possession. Help on that one please.

Also, I looked at Arizona law because of its constitutional carry law. I find that it is not a must inform state. However, from their FAQ: I see this:
What are the permit holder requirements?
Please see below for permit holder requirements:

• A qualified person must have the permit in possession when carrying a concealed weapon and is required by any other law to carry the permit
• The permit must be presented to any law enforcement officer, upon request, along with a driver’s license, military ID, state ID card or passport
• A law enforcement officer may temporarily take possession of a firearm during traffic stops or other official contacts with the public

If there is no duty to inform is it an invasion of privacy for the officer to ask?

From NOLO: The search-and-seizure provisions of the Fourth Amendment are all about privacy
"When the Fourth Amendment Doesn't Protect You
The Fourth Amendment applies to a search only if a person has a "legitimate expectation of privacy" in the place or thing searched. If not, the amendment offers no protection because there are, by definition, no privacy issues.
Courts generally use a two-part test (fashioned by the U.S. Supreme Court) to determine whether, at the time of the search, a defendant had a legitimate expectation of privacy in the place or things searched:

• Did the person actually expect some degree of privacy?
• Is the person's expectation objectively reasonable—that is, one that society is willing to recognize?"

...if an officer stops a car and, when talking to the driver, happens to notice a weapon on the passenger seat, there's been no search under the Fourth Amendment. That's because, even if the driver somehow considered the passenger seat to be a private place, society isn't willing to extend privacy protections to that particular location. In other words, there's no objectively reasonable expectation of privacy with respect to the gun because it was in plain view."

When I carry concealed I do expect a certain amount of privacy. I don't want to HAVE to inform and I don't want my gun taken from me. However, does the rest of society see the gun as a mere possession that is protected under the 4th amendment or is it a dangerous weapon that should be allowed to be temporarily separated from me while a police officer does his official duties?
In a must inform state I might expect to be disarmed but not in a no duty to inform state under reasonable circumstances.

Surely there's more to the Kentucky law you mentioned. If not, it's very poorly worded, and doesn't help will the accepted stereotypes of member's of the state being considered slow.

 

[BearFodder]

Don't know anything more than what I posted and the reason I read it was enacted. Don't know if KY gun owners are disarmed during routine traffic stops either, but would like to know if that law prevents it.

Edit: Found dude on KYGO forum that had gun taken during traffic stop in 2008 - KRS 237.104 was passed in 2006.
so much for "or at any other time"

 

[dirtybird]

(2) No person, unit of government, or governmental organization shall, during a period of disaster or emergency as specified in KRS Chapter 39A or at any other time, take, seize, confiscate, or impound a firearm, firearm part, ammunition, ammunition component, or any deadly weapon or dangerous instrument from any person. "


I would imagine this means they cannot disarm during traffic stops, based on the way it's written.

 

[Kutnupe14]

(2) No person, unit of government, or governmental organization shall, during a period of disaster or emergency as specified in KRS Chapter 39A or at any other time, take, seize, confiscate, or impound a firearm, firearm part, ammunition, ammunition component, or any deadly weapon or dangerous instrument from any person. "


I would imagine this means they cannot disarm during traffic stops, based on the way it's written.

Hell, it means you can't do anything. Got into a shootout with you Mr neighbor, and police show up? Well according to this law, police don't have, the right to disarm you.

 

[Fargo]

Surely there's more to the Kentucky law you mentioned. If not, it's very poorly worded, and doesn't help will the accepted stereotypes of member's of the state being considered slow.

Here is the whole statute.

KY Rev Stat § 237.104 :: 237.104 Rights to acquire, carry, and use deadly weapons not to be impaired during disaster or emergency -- Seizure of deadly weapons during disaster or emergency prohibited -- Application of section. :: 2011 Kentucky Revised

Sub 3 addresses your concerns.

 

[dirtybird]

Hell, it means you can't do anything. Got into a shootout with you Mr neighbor, and police show up? Well according to this law, police don't have, the right to disarm you.

I'm sure that a criminal is still a criminal and therefor this doesn't apply to them. That'd be like saying you can't arrest a drunk driver if he's doing the speed limit, he's still breaking the law. But there's no reason to disarm a law abiding innocent person.

 

[Dirtebiker]

I've been civil, so I expect you to do the same. As far as reading, if you been keeping up on the thread, my contention is related to nationwide constitutional carry, and not how the law currently stands (as I am in agreement with not disarming LTCH carriers soley based on having a firearm).
So, moving on, are you "yes or no" agreeing that person who has not committed a crime or not suspected doing so can be disarmed, as stated in my drunk analogy?

And as far as the case you cited, the ruling was correct. Simply having a firearm is NOT a legitimate reason to be detained and disarmed by police. If you thought I implied that, you'd be incorrect. My premises is that if constitutional carry was adopted nationwide, then IMO during contact where police has a person legally detained, and is aware of a firearm, seizing the firearm IMO would be justified, as there is no reliable mechanism to determine upon initial contact that the carrier is a "proper person."

With "constitutional carry", aren't we (citizens) all "proper persons"?

 

[BearFodder]

With "constitutional carry", aren't we (citizens) all "proper persons"?

I don't know a lot about constitutional carry. I looked on the Arizona Department of Public safety's website and only found that they still issue permits.
From HandgunLaw.us I found this: Arizona has passed "Permitless Carry." That means anyone who can legally own/purchase a firearm and is 21 or older can carry it concealed without any type of permit/license.

The permit allows them to carry in some places off limits to non-permit holders including other states. So there are limits on who can carry and it makes sense that there would be. IMHO. I have a permit from Indiana therefore I can carry in Arizona. Since I have to pass a background check to buy a firearm anyway I am not all that opposed to having to do the same thing to carry a firearm. I would be more in favor of Constitutional Reciprocity than Constitutional Carry.

 

[Bill of Rights]

Not a chance. You remain civil in your disagreements, and I can appreciate being taken to task.

Anyways, I'm wondering if you're fully understanding my point as to under what circumstances, within society, that I would alter my opinion from going from not needing to disarm a person due to the existence of a LTCH vs disarming everybody due to the abolishment of the permit/license system (because would you still need a LTCH in a constitutional carry situation?).

Evidently I was not. There would be no more reciprocity, so likely ALL state-level permission slips would go away. I was speaking of an in-state-only Constitutional Carry (that is, each state implementing would do so individually, not by federal mandate.)

So far, it seems that your biggest complaint with the idea is the "bad cop" belief. It further appears your of the belief that these disarmings would be the result of a encounter of a voluntary police interaction. No, I have not implied that all. I am of the belief, that under the current system, officers should not random stop people solely for carrying a firearm, not should (for the most part) disarm a driver simply for possessing a firearm during a traffic stop. However, in a constitutional carry society where LE has made contact with an armed person, or discovered to be armed, due to that person being in a situation where a LE contact is required, it seems/is (IMO) appropriate to disarm the parties involved.

My biggest complaint is the willingness to which you've given voice despite claiming you don't practice it currently, to disregard individuals rights in favor of a comfort level or a safety concern. It's not only "bad cops" that do that; that group tends to on others' rights not for safety or comfort, but out of disdain for those they see as beneath them. (again, Harless, et. al. as the fortunately rare example of same)

I'm not one to use the catch-all of officer safety as a crutch, but in constitutional carry society, I would expect the numbers of improper persons with guns to explode. That's a big deal to any officer. And then lacking the immediate tools (such as the presentation of, what would be abolished, permit/ltch system), upon initial contact; and officer can no longer "play the odds" that theyre dealing with a "good guy" as many do upon being presented a permit/ltch.

As I asked before and someone else did in response to this, has that number exploded in those other states? Does Vermont have an enormous problem with improper persons carrying? Also, when you call in a driver or really, anyone, asking for licensee info/wants & warrants, is that not essentially verifying via immediate tools that the person is, in fact, a "good guy"? This, incidentally, also seems to fly in the face of innocence until guilt is proven, not to mention imposing prior restraint; It seems you're saying that it's right and good that I should have to prove myself a "good guy" before you're willing to treat me as such. Maybe I'm misreading you, Kut, but that's how you're coming across, at least to me. An imperfect comparison would be to you walking into a courtroom. The judge decides to treat you as he does everyone else, denying you the presumption of truth based on your employment, rather than accepting your word as truth unless you're proven to be lying by a preponderance of evidence. (would anyone have believed officers were beating arrestees who were not resisting had there been no video footage of it happening?)

Others have suggested that if the hypothetical officer is not willing to accept the risks he knew were inherent in the job, he should seek employment elsewhere (SuperChicken reference here: You knew the job was dangerous when you took it!) I'm not willing to go quite that far. There are ways to do a job more safely than others, and you're not there on the "front lines" solely to be cannon fodder. There has to be a happy medium in there, though, which actively promotes the freedom of the People while at the same time minimizing your risk. I think the "medium" in there is that if someone shows himself to be a danger, that's when you disarm him. I also think it works both ways: I disagree that "disarming an officer" should be chargeable (and again, I think it's a felony to do so) when no penalty at all exists for disarming anyone else. It almost (almost) violates the Constitutional provision against titles of nobility.

Low salaries notwithstanding.

Blessings,
Bill

PS: For those who have no clue as to my reference above....
[noparse]https://www.youtube.com/watch?v=jiZ Z0IJL2_w[/noparse] (Note that the INGO cuss filter has blocked this URL. You'll need to remove the space between the Z characters.)

 

[OutdoorDad]

I have had to interactions with LEO in the last 2 weeks. Both were traffic stops and both my own fault.
I was respectful, non-threatening and I received the same in return. I also got 2 really good breaks.
Just like in here......remain civil and 99% of the time it will be returned.

No, was not disarmed either time.

ahhh but here is what you are missing...

Originally Posted by Kutnupe14
Don't get involved in an interaction where law enforcement is required to appear, and odds are you won't be disarmed.... in a constitutional carry society, of course

Churchmouse...
I'm new here. But I'm not new to this issue.
"Required to appear" is a wonderful, non-committal phrase without meaning or consequence. Or it has great gravitas and importance.

LEOs should be "required to appear" at all incidences of evil. Right? We are all onboard with that. If "required" its "required'. Right????

So any incident of evil that "required" the appearance of an LEO is a personal and professional failure if that appearance didn't occur? Right?
Wow! Who wants to sign up for that liability???

The trouble begins when a LEO takes that "requirement" as a mandate to do as he/she pleases. And an assurance that "odds are" my rights won't be trampled is unacceptable to me.

Its not about "civility". If I can "politely" trample your rights, are you "ok" with that?

 

[TheSpark]

And some people say there is no reason not to inform. This is exactly why you should never inform (unless required to by law). If this happened to me in Indiana I would have told the officer I have nothing illegal and leave it at that. Had they took a gun and demanded I open my trunk I would have declined to do that. That is basically consenting to a search.

 

[dustinfz6r]

Believe me I don't agree with how this was handled but, would the fact that he was in a school zone have any bearing on how the LEO handled this situation?