Excellent open carry article

[wisco]

Wow... I've got a lot to answer here.

First off, no I'm not trying to teach anyone anything here or be condescending. I'm merely relaying what I have been lead to believe as a civilian.

As a civilian, I know that I cannot point a gun at someone other than for a defensive reason.

I understand the reasoning of "officer safety". Yet I don't think that trumps my right to safety either, when I'm not doing anything wrong of course. Let me say it another way... if I were to point a gun at you, absent of you comitting a crime or being in uniform, how would you feel? Would you not fear for your life? Would you not feel endangered? That being said, what right did I have to make you fear for your life?

I believe the Krause case had more substance to it than simply the disorderly charge. He stated: “There was no warrant issued, no exigent circumstances, no permission to enter the property, yet the police stormed in with guns drawn and put my life at risk. My wife was very worried that she would be a widow in short order because I was planting a tree.”

Now, you stated that pointing a firearm is a "use of force". I agree. However, how can you "use force" on someone who has not committed a crime? I guess that is really the main thing I am not understanding here.


I know some of you are going to think I have a chip on my shoulder and that I'm just trying to incite something here. I promise I am not. What I'm pointing out is that to a civilian, this just doesn't make sense.

At the same time, as Switch pointed out, I am certainly no lawyer. Issues such as this are just interesting to me. I'd never claim to know all/any of the ins and outs.

[wisco]

BTW Curt -

I do have to admit that you have a point with Terry Ratzmann. That guy honestly looks just like my old European History teacher.

The only argument I could give you on that is from what I read, he was carrying the gun in his hand - it wasn't holstered at his side. One would have to assume that having the weapon in your hand means you have the intention of using it - therefore, if I were a police officer, I would most certainly draw my weapon on someone in that situation.

[wisco]

To all of you -

FWIW I apologize if you feel I'm not listening or we're just going in circles, that's not my intention. You certainly know the job better than I do, and I appreciate your attempts at helping me understand.

I work in IT so believe me I know how frustrating it can get when you feel like your just spinning your wheels with someone

[Cat_Doc]

It looks like the thread has gone in the direction of whether or not it is proper and/or legal for a police officer to challenge by drawn firearm a citizen who is carrying a holstered handgun in the open. I give my overwhelming support to those officers who feel this is necessary to protect their life, dependent on the local laws, customs and most importantly; the circumstances that brought them to that point.

The laws and customs in my area of jurisdiction put us in fairly routine contact with open carry citizenry and we don’t consider it a big deal at all unless there is some type of conduct, behavior or situation that dictates an armed command response. While we (cops and citizens) may exchange pleasantries while both openly armed in a convenience store, rolling up on a domestic disturbance and seeing the homeowner openly carrying will entail some very strong command orders, with the highest probability of a drawn firearm.

I should also mention that our call takers often receive calls of a man with a gun and they know to ask certain questions. We do not send deputies on those calls unless there is an indication of other criminal activity. The dispatcher will advise supervisors, who acknowledge and instruct them to clear the call out.

Some jackass carrying a shotgun or rifle at port arms down the street would definitely get a response out of us, but we normally wouldn’t give a second thought to someone walking down the sidewalk with a holstered pistol. But, that is us and it is based upon the relaxed attitude toward the right to bear arms.

As mentioned earlier…when in Rome, do as the Romans. If I was riding with Curt, Switch, Samuel, et al and they jumped out with weapons drawn, I would be following suit. I'll worry about lawsuits after I am sure my life is safe.

[retdetsgt]

I'll worry about lawsuits after I am sure my life is safe.

Bingo. If I worried about lawsuits, I'd have never gotten out of my car.

Wisco, we use judgement based on experience and training. We don't go around willy nilly pointing guns at people. And if I am uncomfortable with a situation, I can always deescalate. But too many cops are killed standing flat footed with their guns in their holsters and I suspect that's because they got too concerned with what people like you think.

The basic problem is, when you see a cop in uniform, you have a fairly good idea of who he is and what kind of threat he poses to you. If I see a stranger with a gun on his hip, I don't have clue who he is or what his intentions are.

[Curt581]

I understand the reasoning of "officer safety". Yet I don't think that trumps my right to safety either, when I'm not doing anything wrong of course. Let me say it another way... if I were to point a gun at you, absent of you comitting a crime or being in uniform, how would you feel? Would you not fear for your life? Would you not feel endangered? That being said, what right did I have to make you fear for your life?

The point you're still missing is that police officers can do things civilians can not. Officer safety DOES trump your 'right' to not be offended.

Let me bold this important point that seems to be escaping you... We don't KNOW you're not doing anything wrong UNTIL we determine that... but first we are going to secure you, the weapon, and the scene, THEN make that determination.

I believe the Krause case had more substance to it than simply the disorderly charge. He stated: “There was no warrant issued, no exigent circumstances, no permission to enter the property, yet the police stormed in with guns drawn and put my life at risk. My wife was very worried that she would be a widow in short order because I was planting a tree.”

His wife's fears were irrelevant. His tree planting was irrelevant. His permission to enter the property was irrelevant, due the legal concept of "curtilage" and the fact that he was in full public view. Those were stated only to cloud the issue.

The only issue relevant to the lawsuit is his initial detention and subsequent arrest.

Now, you stated that pointing a firearm is a "use of force". I agree. However, how can you "use force" on someone who has not committed a crime? I guess that is really the main thing I am not understanding here.

THIS is what Norm was talking about when he advised you to get some training. Training is not just instruction on how to manipulate the controls of a certain piece of equipment. It's learning how to use it, when and when NOT to use it, how to become proficient in its use, how to maintain it, ie, how to carry, how not to carry, when and when not to carry, etc etc.

Unfortunately, we can't provide this training to you in this venue. We don't have the time or inclination beyond what you've already been given.

[Curt581]

As mentioned earlier…when in Rome, do as the Romans. If I was riding with Curt, Switch, Samuel, et al and they jumped out with weapons drawn, I would be following suit. I'll worry about lawsuits after I am sure my life is safe.

That makes all the difference. In my area, carrying concealed is illegal. The only exception is for sworn police officers. It's been that way for more than 100 years. Until recently, open carry was deemed to be illegal, covered under public disturbance laws and ordnances, like Disorderly Conduct, because people have a tendency to panic at the sight of someone carrying a gun. THAT stems directly from the concealed carry prohibition, along with media delight in playing up fears with juicy stories about gang shootings. While it may not be a big deal in Arizona or Georgia, here in Wisconsin it's a very big deal, especially in the major urban areas.

The recent confusion has come from the above mentioned legal opinions issued by top officials which came out with no definitive legal direction to law enforcement. We did get a supposedly 'official policy' from command, but it's about as muddy as a storm sewer in late April. Basically, we're feeling our way around in the dark, while the lawyers wait for a test case... and Krause isn't it.

[wisco]

Let me bold this important point that seems to be escaping you... We don't KNOW you're not doing anything wrong UNTIL we determine that... but first we are going to secure you, the weapon, and the scene, THEN make that determination.

Fair enough.

Unfortunately, we can't provide this training to you in this venue. We don't have the time or inclination beyond what you've already been given.

Either way, I appreciate your efforts.

[wisco]

The recent confusion has come from the above mentioned legal opinions issued by top officials which came out with no definitive legal direction to law enforcement. We did get a supposedly 'official policy' from command, but it's about as muddy as a storm sewer in late April. Basically, we're feeling our way around in the dark, while the lawyers wait for a test case... and Krause isn't it.

I'd like to add that I don't think it gave any real legal direction to civilians either, hence my confusion.

And no, Krause wasn't the test case. But what do you think of the federal lawsuit filed by Wisconsin Open Carry earlier this month - could it finally be the case to set some precedent?

Here's a link if you unfamiliar with it: http://www.wisconsincarry.org/pdf/GFSZ_Complaint.pdf

[Curt581]

I don't think there will be any one case that "sets a precedent"... they'll all be incremental. Just like the DC gun ban reversal. 'Cuz that's how The Law works.

[MikeG]

Ok... let's try this again.

If I were standing somewhere legally permissible with a sign that says "Obama is a dismal failure" and absent any extenuating circumstances (I'm not blocking traffic, being disorderly, etc.); and you pulled a gun on me for that, would I not have grounds to sue? I would think so as you were acting under color of law, yet I am protected by the first amendment.

Now on to the second amendment. If am walking in a legally permissible area with a holstered firearm, and again absent any other circumstances, and you came at me guns drawn I would again have grounds to sue.

Except if the Officer is investigating or reasonably suspects criminal activity. It is reasonable to suspect there might be criminal activity if a citizen calls in a "man with gun" to 911. Police aren't required to eliminate the lawful activity before having a reasonable suspicion that criminal activity may be afoot. This is settled case law. The Wisconsin memo clearly reinforces that and specifically states that investigating a disorderly conduct complaint (i.e. man with gun absent any other report) is reasonable suspicion and gun drawn/officer safety/Terry Stops procedures are all reasonable reactions. IF the only conduct the officer finds is Open Carry, they shouldn't arrest and the prosecutor shouldn't charge.

The scenarios, while on the surface wildly different because we're comparing a gun to a sign, have the same core principle - they are both constitutionally protected rights.

There are lots of rights. This is "Fire in the crowded movie house" argument and has again been settled case law. A gun and a sign are completely different objects. If you endanger the public by inciting panic whether it's yelling fire in a crowded movie house or carrying a gun in public, you can claim you have rights all you want but case law says otherwise. There is an overriding public interest in regulating where you can yell "fire" and where you can carry a weapon. And while I disagree that carrying a firearm in public should incite panic, I also don't think yelling fire should incite panc. But it does.

Now as far as to what you could be sued for, that's what attorneys are for. It would obviously start out as something along constitutional lines, but I'm sure you know that an attorney could delve much deeper than that - conduct unbecoming, mental duress, who knows?

A police officer, for his safety, can do a lot of things. Because some of these things go beyond what a citizen can do, there is not a "reasonable person" standard but a "reasonable police officer" standard. Think about that as the burden of proof for you to overcome. If you think you can find reasonable police officers that would never draw on an armed person after a callout for "man with gun" knock yourself out. Not gonna happen.

That's why I said I don't know specifically what the lawsuit would charge, that's what lawyers are for. All I would know is that somewhere along the line my rights were violated and that it cannot possibly be legal to draw a gun on someone who is exercising a constitutional right, therefore I turn to a lawyer (as did Brad Krause).

As I said, there a several open carry related lawsuits going on in Wisconsin right now, but each has different reasoning.

[/QUOTE]
I think it's been covered. A police officer can use the degree of force that a "reasonable police officer" thinks is necessary. If he is conducting a Terry stop, that may include drawing his weapon, searching (for his safety), and detaining a person all without probable cause that the person committed a crime. He only needs reasonable suspicion that criminal activity has taken place. Someone else can answer whether impeding a Terry stop is disorderly conduct or some other charge.

Case law is the most important aspect of the constitution. It stops virginal readings of it from making their way to the courts.

I am not a police officer. I think it's prudent for all people, though, to know what is and what is not "your rights" and how you can expect police to respond. Go find out what your local police departments use of force policy is. Learn what the statutes in your area say. Learn the basics of case law and how they apply.

This is the training you need before you carry or will find yourself in an ugly situation. It sucks to get shot by police thinking you're in the right only to find out your reading of the constitution is completely wrong and you now face an "aggravated assault charge on a police officer" for having your firearm in the wrong place at the wrong time.

[Norm357]

Actual call to the Fayette County 911 center in Fayetteville from a displaced yankee...

Caller: There is a man with a gun in walMart!
911 operator: What is he doing?
Caller: It looks like he is shopping.

[MikeG]

Doh. It seems Curt has covered in detal. I didn't see 3 pages of this. Sorry.

[Samuel]

Actual call to the Fayette County 911 center in Fayetteville from a displaced yankee...

Caller: There is a man with a gun in walMart!
911 operator: What is he doing?
Caller: It looks like he is shopping.

911: Well, what is he buying?
Caller: I can't tell from here but it looks like a case of chili.
911: Hot or Mild?
Caller: Hold on, lemme get a little closer.
Caller: Hot.
911: Ok, I'm going get the fire department on the line with us. Stand by.
Caller: Oh, now he's headed towards the front of the store. I'm gonna follow him.
911: Don't get too close.
Caller: Don't worry, I've done this before. I used to be an explorer.
911: Hey that's great! With which department?
Caller: Sorry, that's classified. I'd tell you but then I'd have to kill you.
911: Are you threatening me?
Caller: Hold on. Ok, he's moving to the check out lanes. He's going into the 10 items or less express lane but he's got a 15 pack of chili. He's got too many items! He's got too many items!
911: Ok, I've got units rolling your way. Hold on...
Caller: I can't wait for them, he's almost to the clerk now. I've got to do something!
911: Wait!
Caller (distant voice): Hey! You with the gun! Yeah you! You can't be in that line!
911: Hey, can you hear me? Hold on!
Caller (distant voice): Yeah, I'm talking to you! It IS my business - get your gun-toting redneck *** out of that line!
911: Sir! Don't confront him, Sir!
Caller (distant voice): What?! Oh you want a piece of me? Go ahead then, make your move! Make your move Billy Bob! You're nothing but a yellow-bellied...
911: Sir, that's not a good...
(gunshots heard, then a thump)
911: Sir!
911: Sir?
911 (to supervisor in the room): I think he said he was from San Francisco... Do we still have to send someone?

[Norm357]

^roflmao^