Portland standoff: Open-carry law student and police.
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Police handled it fairly well, I thought.
I view "what's up, dude" as very different from an arrest, taking the firearm to the station, or detaining the subject for an extended period. Cops really oughta check, and really oughta not hassle. In between is that vast gray area. My clients do not have an easy job.
It'd be nice if the student was a bit less testy, but he's under no legal obligation to be nice. By the way, he's wrong on the law. Terry v. Ohio doesn't require "probable cause".
"Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous [p3] regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed. "
"One general interest is, of course, that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. "
Who videotaped this??
If it wasn't a car camera obviously not and or a reporter doesn't appear to be ,the answer to that question might say alot.
So how does all this square with the following? Seems to be in conflict to some degree with open carry.
Title 15 §292. Persons going armed without reasonable cause
Whoever goes armed with any dirk, pistol or other offensive and dangerous weapon, without just cause to fear an assault on himself, family or property may, on complaint of any person having cause to fear an injury or breach of the peace, be required to find sureties to keep the peace for a term of less than one year, and, in case of refusal, may be committed as provided in section 285.
Ttile 15
§285. Discharge on compliance; commitment
If the accused complies with such order, he shall be discharged. If he does not, he shall be committed to jail for the time for which he was required to find sureties or until he complies with such order. The judge shall state in the mittimus the cause of commitment and the time and sum for which security was required, and return a copy of the warrant to the next term of the Superior Court in said county, and such court shall have cognizance of the case, as if the accused had appealed thereto.
Sounds to me like one better have liability insurance!
Wow !! It forbids hunting with a firearm ! Bring an action against the next batch of hunters you see. Let us know how you do.
(I'm thinking "implied repeal", but that's always an interesting exercise.)
If you need a "reason": http://www.maine.gov/dps/cim/crime_in_maine/2010pdf/013%20rates.pdf
and
http://www.pressherald.com/news/drugs-drive-crime-rate-up-5-percent-in-m...
Whoever goes armed with any dirk
Dirk? What is this law, from the year 1750 or something?
Tom:
Kinda, it is. We still use it, though. It even appears in the current (and recently amended) concealed handgun permit law.
-- firearm, slungshot, knuckles, bowie knife, dirk, stiletto or other dangerous or deadly weapon usually employed in the attack on or defense --
I can't recall the last time I saw anyone attacked with a "slungshot".
TJC wouldn't they be attacked w/ a slingshot and wounded by a slungshot?
Simple solution, allow people to carry concealed without going through the hassle of the permitting process.
Dirk would make a good screen name for one of the drive-by posters. :)
tjc, Terry was about a stop based on suspicion of a crime. The kid was right. He repeatedly asked the cop what crime he suspected him of committing. The cop couldn't come up with one so the kid rightfully asked for his gun back so he could be on his way. Terry doesn't allow what this cop was doing.
"We merely hold today that, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him."
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
That's a quote. Walking down the street armed in the middle of Portland is ABSOLUTELY unusual, from one who lived there for 35 years and still works there. "Something seems like it might be wrong here" is a pretty good paraphrase of the standard. You don't need to believe that it is likely to be robbery vs. agg. assault vs. unlawful discharge of a firearm. Y' need more cases?
These guys thought it "might" be some kinda terrorist thingie because a van can hold a lot of explosives. Hmm, what does a gun USUALLY hold? What's the percentage of guns that hold frikkin' bullets, vs. vans that hold RDX?
There's a whole pile of cases that say that the officer doesn't have to know which crime, and he sure as hell doesn't have to be RIGHT.
By the way, whaddya' think was the basis for the "articulable suspicion" that the fellow just might be armed with a dangerous weapon? That's a poser, isn't it.
simpilar solution ,don't make an arse of yourself ,which is what subject was doing ,for whatever purpose ,in exercizing his rights!
F. Lee whoever should sue the cop if he was so wrong.
"By the way, whaddya' think was the basis for the "articulable suspicion" that the fellow just might be armed with a dangerous weapon? That's a poser, isn't it."
tjc,
(1) I will concede the officer had an articulable suspicion that the fellow was armed with a gun. Like the fellow said, being armed with a gun is not a crime. The cop needs to be able to articulate a reasonable suspicion that some violation of law is underway or has just been committed. The only possible crime was that this kid was prohibited fom possessing a firearm and the officer had no reason to suspect that may be the case.
(2) You said the kid was wrong because Terry doesn't require probable cause. You mistakenly fault the kid for something he didn't say. He didn't cite Terry for the proposition that the officer needed probable cause; he never said the officer needed probable cause. The kid was right.
In the begging of policing the night watchmen where considered keepers of the peace and in some places there is still language referring to the police as peace officers.
The calls from the citizens who expressed concerns about the man with the gun were made due to alarm in the minds of those reporting the gun. This would imply that a breach of the peace has been made in the minds of some, whereas others may not care. The peace officers then look into the reports and when they decide that the man with the gun was not a threat or something they moved on. The young man was not intoxicated, unstable, or otherwise a cause for alarm.
I noticed that when the Police supervisor appeared to roll onto the location he looked on, scratched his chin, and made an assessment of this young man. He then decided it was time to go about business as usual.
TJC wouldn't they be attacked w/ a slingshot and wounded by a slungshot?
A "slungshot" is a piece of rope with a "monkey fist" knot at the end, the knot sometimes surrounding a small cannonball, or metal shot. The weapon can be hurled (à la shotput) but is probably swung like a mace to inflict damage with the knotted end. (Unless you think you can strike a debilitating blow right away, or plan on a quick esacape, it doesn't make sense to throw your weapon at your advisary, who could then take it and use it against you.) Associated with sailors, it is an easy weapon to make, carry, conceal and use.
A sling shot is tradionally a piece of rope with a flatish leather pouch at about the midpoint. Each end of the rope has a loop on it. A rock is placed in the pouch, both loops are taken in one hand, such that one end can be released. The weapon is spun around until a high rate of speed is acheived, and then the end of the rope is let go, hurling the object. A modern slingshot uses a rubber band.
The slung shot is a close quarters weapon, as opposed to the sling shot, which is designed to attack targets at a middling or far distance.
An entertaining video and I like the comment admonishing the LEO in his gun safety technique. That is probably standard OP for LEOs and the military from what I've viewed.
As far as open carry, while I've done it in Bangor back in the early 70's and not had to talk to an LEO, this country today is unrecognizable to then, probably in Seattle today, the LEOs would have just shot him dead in the streets without even asking him a question.
The scariest thing about this video to me is that the sight of someone carrying a firearm legally causes people to immediately dial 911 in panic. Calling it a "public safety issue" doesn't make it any better.
Here are some links to look at:
Brown v. Texas
http://www.casebriefs.com/blog/law/criminal-procedure/criminal-procedure...
Terry v. Ohio
http://www.casebriefs.com/blog/law/criminal-procedure/criminal-procedure...
This is interesting:
http://www.casebriefs.com/blog/law/criminal-procedure/outline-criminal-p...
http://www.casebriefs.com/blog/law/criminal-procedure/outline-criminal-p...
This one deals specifically with firearms:
http://www.casebriefs.com/blog/law/criminal-procedure/outline-criminal-p...
Nothing to see here. It's just a citizen training LEOs about Maine laws. It's a public service.
http://www.examiner.com/article/federal-judge-rules-police-cannot-detain...
http://www.impsec.org/~jhardin/gunstuff/legal/State_v_Casad_%28unpublish...
I don't know how accurate it is, but here is a link to what was said buring the encounter:
http://lybio.net/j-mcdonald-detained-for-open-carry-portland-maine-26-ma...
Roger::
His insight would be considerably more valuable if the young man was correct. You don't need to identify any specific crime to have "articulable suspicion" that criminal activity "might be afoot". That is why it was kinda silly for the kid to keep asking "what crime do you suspect me of?" If the officer was interested in answering the kid's questions (instead of doing his job), he'd probably answer:
"I don't know yet -- might be none. Might be a murderer is chasing you. That's why I'm stopping to talk."
The case law is pretty clear. You don't have to wait tapping your foot until a crime occurs. You can talk to people and find stuff out needed to prevent a crime that hasn't happened yet. If you do your job well, the fella thinkin' about heaving the rock thru the pharmacy window to git the oxies might decide not to.
The case law even goes so far as to say if you stop a car for a traffic infraction, you can pat down the PASSENGER whom you think might be armed, despite the fact that you are only questioning the DRIVER. If inclined to answer PASSENGER's "what crime do you suspect me of", the answere would be: "Absolutely none. I just don't want to be shot while talking to the guy that just ran a red light."
Police: Why are you carrying a gun?
Citizen: Because I can't carry a cop!
John, the officer admitted the reason he was stopped was solely because he was carrying a gun, not because he suspected criminal activity was afoot, unless of course he thought carrying a gun in and of itself was criminal activity:
[J McDonald]
This is common practice. Ok.
[Gun Owner] Source: LYBIO.net
Umm, it’s illegal common practice.
[J McDonald]
It’s not illegal, we see a guy walking down the street carrying a gun
[Gun Owner]
Yup, is that the only reason why you stopped me?
[J McDonald]
Yes
[Gun Owner]
That I’m carrying a gun
[J McDonald]
Yes
Was the kid looking to make a video? Yeah, absolutely. Did the officer know this (how could he not?)? Pretty sure of it. Did the officer give the kid what he wanted? Yep, sure did, and he started the same old debate again by doing it, and at that point should have know there was no criminal activity afoot.
Frankly, I think the dispatch should have asked the caller(s) what the kid was doing other than carrying a gun that made them call. The public needs education as much as law enforcement on this issue.
"and at that point should have know there was no criminal activity afoot."
So you think he told the kid the truth? Do you think he was certain the kid told the truth to him? The kid was pretty "hinky", the action was unusual, and if his civilian observers thought there was "nothing to see here", they wouldn't have called the station. I've been questioned when launching model rockets with my son. The cops wanted to be sure they weren't fireworks. They got a report of "launching rockets", which might, or might not be criminal.
Note: it IS criminal for a relatively large number of people to have (possess) a firearm. At all. On hip, or in car, or at home. The only way to do the triage is to find out the person's identity.
Things are different at the Spurwink Rod and Gun Club, or the Yarmouth Boat Ramp. Openly possessing firearms there isn't notable.
The thing that would make a BIG difference to me would be if the prior stops had been under the same circumstances, by the same cop, in the same place. It'd also make a difference if the intel was pretty clear that there really was "nothing to see here".
PS: It is pretty common to tell someone that you stopped them for a reason other than the one you actually stopped them for. They may think they are talking themselves out of a manslaughter charge. In reality, they are admitting they were at the scene of the robbery down the street.
I always wonder why it is "Okay" for any Law Enforcement people to lie to the public when engaging them, but it is a crime for the public to lie to them.
Believe me I understand why they do at times, as TJC described.
--JoeH
"and if his civilian observers thought there was "nothing to see here", they wouldn't have called the station. "
And therein lies the problem - the only thing to see was a guy carrying a gun, legally. This shouldn't upset anyone in Maine enough to call the station, and the officers/dispatchers involved should be asking what other reason, other than the possession of a legally carried firearm, is prompting the caller in the first place.
Officers should also be getting some training on how not to become the next YouTube sensation for stopping someone who wants to be stopped. Granted, he did pretty well, but didn't he know he was being filmed? And if he was lying about the reason for stopping the kid, does that make a difference if the film was ever used as evidence? Wouldn't he be held to what he said?
Joe:
It isn't "generally" a crime to lie unsworn to the state LEOs, only the feds. There are a few exceptions, like giving a fake ID when summonsed, possession of fake ID and pretending to be a federal breast inspector (see subsection 2) so that you can . . you know . . .
I have joked with some acquaintainces that the Feds should expunge Scooter Libby's and Martha Stewart's convictions now.
Butch:
There are a whole lotta cops who have worked undercover, lying about their very names, who have obtained convictions. Of course any lie would be admissible. It depends on the circumstances as to its effect on the jury. Lying to the perp is WAAAAAAAAAY different from lying to dispatch, your supervisor, the DA or, of course, the jury while under oath .
"I have joked with some acquaintainces that the Feds should expunge Scooter Libby's and Martha Stewart's convictions now."
These are the two that came to mind as I was typing. Yes, unsworn is when I was talking about.
Thanks for the reply.
--JoeH
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The cop handled it very well in my opinion.
The person was IMHO trolling for something more when it was not necessary!
Yes, I know he was correct ,he has a right,etc. etc. but in reality the real world he was borderline provocative in a situation where he was correct
and it was unnecessary.
Whether right or wrong the fact that if one sees a person wearing a firearm it causes concern. Maybe it shouldn't maybe someday it won't but guess what if you walk by my house I do not know you and I see a gun I am going to call the police.A citizen has the same right to question what is seen and reporting it as the one carrying open !