Posted: 3/2/2003 5:53:54 AM EDT
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this is also posted in the legal forum, but the General Forum gets alot more traffic. Ok, I had a conversation with a Deputy in Lee County NC, which is where I live. He told me he was still a rookie and had been on the force for 6 months. I have a CCW and carry everywhere I am legally allowed. I told him to remember that people such as me with CCW are not the enemy, but a friend, and that not everyone with a gun is a criminal. He told me to remember that if I get pulled over to have my hands in plain sight, preferably out the window. I told him that this is standard procedure for me, and that if I get pulled my driver’s license and CCW permit are in my hand out the window. All this is fine. What surprised me was what he told me next. He told me that it is department policy that if someone with a CCW (or any gun for that matter) is encountered that he is to have them step out of the vehicle, handcuff them, put them in the back of the cruiser, take the weapon, unload it, run the serial number to make sure it isn’t stolen. Now my question is how this is even remotely legal. There is absolutely no probable cause that a crime has been / will be committed. There is absolutely no probable cause that the gun is stolen. I have noticed this a lot more here in NC recently. The claim I hear is it is for “Officer Safety” I thought the whole point of the CCW was so that the Officer knew immediately that someone was legit. Any help from those who know would be appreciated. It is driving me nuts being treated like a criminal simply because I choose to defend myself. |
| That's the way some like to play it. So just have all communication between you and the officer go through your attorney. If the officer wants to arrest you for being in full compliance with the law, it's always good to have an officer of the court on your side. Speak with an attorney before the problem occurs and see what the case is in your state. One attorney here gave a similar situation as an example and stated that no matter what the officer says, it's not a precaution for your safety - if you've been handcuffed, you've been arrested and should have an attorney. |
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Terry vs Ohio is not really on point. I am talking about legal concealed carry where no suspicious activity is present. Plus we are talking about inside a car, not walking down the street. Also, If it is for "Officer Safety" how is running a gun through a database going to make an officer safer, or is this just a way around the 4th to get a search? From Terry v Ohio: "FN16. We thus decide nothing today concerning the constitutional propriety of an investigative 'seizure' upon less than probable cause for purposes of 'detention' and/or interrogation. Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred. We cannot tell with any certainty upon this record whether any such 'seizure' took place here prior to Officer McFadden's initiation of physical contact for purposes of searching Terry for weapons, and we thus may assume that up to that point no intrusion upon constitutionally protected rights had occurred." It becomes a seizure when he cuffs me acording to my reading of this. Besides in Terry It was illegal for them to carry concealed, in this situation it is legal for me to conceal. Example, I smoke and carry a lighter. This is legal. If he searchs me (frisk) and finds a lighter it is not illegal to carry so no crime has been committed. Therefore he can not seize it. Similarly if I am carrying concealed (legally) and I tell him where I am carrying he frisks me and finds the gun. It is 100% legal for me to carry it. So where is the legal justification to seize it, and me? |
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Sounds like overreaction to me. I never handcuffed CHL holders or ran their weapons as a matter of routine. In fact, in all my years, I have only ever handcuffed one CHL holder, and that was because he was DWI and smoking dope, and that wasn't until after my field interview and field sobreity tasks. However, being handcuffed does not necessarily equate to arrest, although the courts have held that being detained, handcuffed and held in a car, together (or even separately at times) can equate to a custody arrest, especially for the purposes of consent to search and Miranda warnings. If an agency has a policy to do this with every licensed carrier, then the policy is likely a violation of civil rights, but the policy can stand until there is case law on this, and the general holding of courts is that the "damages" for an illegal detention are generally pretty nominal. |
| See, and now here's the catch 22 in that logic. Since he pulled you over, he probably had already witnessed an arrestable offense. Most traffic stops are arrestable under certain circumstances. It is simply common practice and much easier to issue someone who is cooperative and not likely to abscond a summons on a signature bond and promise to appear, than it is to physically arrest someone, tow their car, and make them post a monetary bond with the court. |
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Quoted: He told me that it is department policy that if someone with a CCW (or any gun for that matter) is encountered that he is to have them step out of the vehicle, handcuff them, put them in the back of the cruiser, take the weapon, unload it, run the serial number to make sure it isn’t stolen. Now my question is how this is even remotely legal. There is absolutely no probable cause that a crime has been / will be committed. There is absolutely no probable cause that the gun is stolen. I have noticed this a lot more here in NC recently. The claim I hear is it is for [red]“Officer Safety”[/red] I thought the whole point of the CCW was so that the Officer knew immediately that someone was legit. Any help from those who know would be appreciated. It is driving me nuts being treated like a criminal simply because I choose to defend myself. We don't have CCW's in WI. I have stopped people with hunting weapons, cased handguns, and the occasional compound bow. I have also contacted hunters during the gun/deer season who are by definition armed. I find the best thing to do is ask that the person with the weapon make no moves toward it. Most people are very receptive of that request, and seem to understand my point. I have also had hunters, verbalize, then unload their weapons before walking toward me when I talk with them. Usually they start that procedure without being asked, kninda thing. I recently had a vehicle go by me at well above the speed limit. When I turned to go after him, he took the first side road, and left 15' of skids. I found him at the end of the road, making like he was parking near some other cars. I start asking him about the speed, which he admits, and he also admits the black marks I saw were his. I ask him if he was trying to duck me, he says he is late for work, and lost. He also tells me he is a security guard, and armed security guard, and he has his weapon in a holster on his belt. Well, when I called out the original stop, due to the possible "attempt to ditch" type driving I asked for a second officer. I ran a check on speedy-clean, and gave hime directions to where his job site was. Ok, enough of my rambling. Here's my take. First there are SEVERAL issues in your little synopsis. Some of them may be clarified by your States CHL laws. If you are stopped for a traffic violation, it is legally speaking, as a non-costodial arrest. Meaning you were stopped, and cited, with the expectation that you will handle the summons properly. Police do have certain authority to do certain actions to handle that contact safley. (read carefully I dropped into legalese). I think though that a policy that all CHL's be handcuffed, searched, disarmed, and their weapons be run for stolen is a bit over the top. I have a problem with a warrantless search, lacking any evidence of a crime, of the weapon. Manipulating it in any way to obtain the serial number makes that a search. It would seem that that is the kind of thing the 4th Amendment was meant to protect against. Of course if your State has set up the CHL laws so that as a condition of the CHL you agree to allow to that search, I guess it doesn't apply. ADTECHARMS, having no criminal record or a CHL doesn't mean that a person is an upstanding citizen. There are certainly situations that I could envision that would require the whole handcuffing disarming. As a blanket policy I have problems with it. Also "Officer Safety" is an often misused term. By itself it doesn't justify any intrusion into a person's Rights. It may justify shutting down a street, or area to keep bystanders back etc. But it doesn't justify searches etc. Shotar, Terry v Ohio says the police can stop and question person(s) they have a reasonable articulable suspicion are, have been, or will be commiting a crime. Further it allows searches if the police have a reasonable articulable suspicion that a crime is being committed and the person is armed with ANY type of a weapon. Are traffic violations crimes? |
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I edited my post above in referance to Terry v Ohio. Oly, Whenever I am armed and approached I make sure that my hands are in plain view, and I do not move unless I tell them specificly what I am doing. The problem I have is the blanket policy (the same policy exists in at least one other department around here) I also take issue with there taking my gun with no reason if I am cooperating. This happened yesterday (Saturday) I am going to try and make an appointment with the Cheif Deputy next week to discuss this specific issue. As far as the CHL Law in NC it does not waive search it says that you must notify an officer when you are carrying (this is a little confusing also, but that is for another post) and that upon request the permit and state ID must be presented. Link: http://www.ncga.state.nc.us/Statutes/GeneralStatutes/HTML/ByArticle/Chapter_14/Article_54B.html |
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Quoted: Oly, Whenever I am armed and approached I make sure that my hands are in plain view, and I do not move unless I tell them specificly what I am doing. [url]ncga.state.nc.us/Statutes/GeneralStatutes/HTML/ByArticle/Chapter_14/Article_54B.html[/url] My point wasn't about you. But I wanted to address the point you made. Most of the time in LE you round up "the usual suspects". Because a relatively small number of people commit the majority of the criminal acts. However it is also true that people that don't have criminal records can be amoral or as depraved as a life time criminal. It is sometimes shocking when you run into those folks. So thinking of CHL's as automatic good guys isn't realistic either. Just like I'm sure you would say not all cops are good guys. Sometimes a bad egg sneaks into either group. |
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My local township police department also has a policy much like that, given to them by their union and announced to the public by their local president. It is an anti-CCW policy. Under it they punish all CCW holders by searching and handcuffing them, then they place the ccw licensee in the rear of the police car, this placement in the back of their car is also to prove their power and anger by forcing you to move while bound and then to be held in their offical car, a mini rolling gulag, even if for only an hour, with the added bonus of hoping some member of your class sees you in chains and you are shamed. They have also been ordered to take it one step further and toss your car as well, bringing disorder and hopefully damage to your property. I now carry every moment I am outside my house. If the police union is going to bust my balls for having one, I damn sure am going to have one when they do it. |
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Quoted: Quoted: He told me I had a great case and that we would win, but very little money. Cost to start $25,000 And that's why they do it. There is no possibility of a penalty, except for the victim. If they damage your property or yourself, and then grin about it, "You can't do nuttin' aboud it", there are penalties and then there are penalties. |
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I had a wonderful conversation with the Cheif Deputy today. Not only is it not policy, he is rather pissed at the deputy for his stupid conduct. The statement from the Cheif Deputy was "Guys with permits are our best friends, not our enemy" He was alos not pleased that the deputy in question also believed he could stop and search anyones car except for the trunk (with or without a valid traffic stop). It did not hurt that he knew me and voted for me in the last election specifically because I had said that I could not understand why people who did not work got paid well (for what they did) and police and fireman got paid so poorly for what they do. This had a pretty happy ending for me. |