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Is OC within 1000 feet of a school RAS?

9K views 93 replies 17 participants last post by  divegeek 
#1 ·
I know merely carrying a gun does not qualify as RAS, but if you are doing o in a location that would require a permit per GFSZ are police able to perform a Terry stop?
 
#4 ·
Lund vs SLC says that mere possession is NOT RAS to stop a person.

They must have some kind of evidence that you did, are, or are about to commit a crime.
 
#5 ·
I'll just throw this up as a reference:

77-7-15. Authority of peace officer to stop and question suspect -- Grounds.
A peace officer may stop any person in a public place when he has a reasonable suspicion to believe he has committed or is in the act of committing or is attempting to commit a public offense and may demand his name, address and an explanation of his actions.
On a quick Google I found http://www.mml.org/insurance/shared/pub ... 009_04.pdf (pages 3-5)

Might also want to take a read over State vs Warren. While not directly related, courts usually come back to the 'totality of the circumstances'. I personally don't think so but IANAL and it's going to cost a lot of money to test it if someone doesn't have a CWP.

And, of course, as above....Lund vs SLC.
 
#8 ·
Only with a CFP are the 1000' zones gone. I'd say with or without a permit, being within the zone of a school with a visible firearm is reasonable suspicion due to the Federal Law. If nothing else the officer needs to verify if you have a CFP. If so he should just let you continue on as the RAS has just evaporated. But thanks to the Federal law, being within the zone is RAS, as until the officer can verify you are authorized by the state, (CFP) you are in all appearances violating the law.
 
#9 ·
DaKnife said:
Only with a CFP are the 1000' zones gone. I'd say with or without a permit, being within the zone of a school with a visible firearm is reasonable suspicion due to the Federal Law. If nothing else the officer needs to verify if you have a CFP. If so he should just let you continue on as the RAS has just evaporated. But thanks to the Federal law, being within the zone is RAS, as until the officer can verify you are authorized by the state, (CFP) you are in all appearances violating the law.
the officer needs to verify nothing! Same principle as pulling over drivers to see if they have a dl. Courts have ruled that this is unconstitutional. If they have ruled it unconstitutional for a licensed activity they would need ever more RASFor a constitutionally protected activity. Just saying
 
#12 ·
Joe Cool said:
Could we get a link to the relevant code supporting that there is no 1000' law for anyone?
This is the bill that changed it. ----> http://le.utah.gov/~2011/bills/hbillenr/hb0075.htm

Below is how the law reads now...

76-10-505.5. Possession of a dangerous weapon, firearm, or sawed-off shotgun on or about school premises -- Penalties.
(1) As used in this section, "on or about school premises" means:
(a) (i) in a public or private elementary or secondary school; or
(ii) on the grounds of any of those schools;
(b) (i) in a public or private institution of higher education; or
(ii) on the grounds of a public or private institution of higher education; and
(iii) (A) inside the building where a preschool or child care is being held, if the entire building is being used for the operation of the preschool or child care; or
(B) if only a portion of a building is being used to operate a preschool or child care, in that room or rooms where the preschool or child care operation is being held.

(2) A person may not possess any dangerous weapon, firearm, or sawed-off shotgun, as those terms are defined in Section 76-10-501, at a place that the person knows, or has reasonable cause to believe, is on or about school premises as defined in this section.
(3) (a) Possession of a dangerous weapon on or about school premises is a class B misdemeanor.
(b) Possession of a firearm or sawed-off shotgun on or about school premises is a class A misdemeanor.
(4) This section does not apply if:
(a) the person is authorized to possess a firearm as provided under Section 53-5-704, 53-5-705, 76-10-511, or 76-10-523, or as otherwise authorized by law;
(b) the possession is approved by the responsible school administrator;
(c) the item is present or to be used in connection with a lawful, approved activity and is in the possession or under the control of the person responsible for its possession or use; or
(d) the possession is:
(i) at the person's place of residence or on the person's property; or
(ii) in any vehicle lawfully under the person's control, other than a vehicle owned by the school or used by the school to transport students.
(5) This section does not prohibit prosecution of a more serious weapons offense that may occur on or about school premises.
...and this is what it used to say about 1000 feet.

76-10-505.5. Possession of a dangerous weapon, firearm, or sawed-off shotgun on or about school premises -- Penalties.
(1) A person may not possess any dangerous weapon, firearm, or sawed-off shotgun, as those terms are defined in Section 76-10-501, at a place that the person knows, or has reasonable cause to believe, is on or about school premises as defined in Subsection 76-3-203.2(1). <---- (this is the link to the "1000 foot rule")
(2) (a) Possession of a dangerous weapon on or about school premises is a class B misdemeanor.
(b) Possession of a firearm or sawed-off shotgun on or about school premises is a class A misdemeanor.
(3) This section does not apply if:
(a) the person is authorized to possess a firearm as provided under Section 53-5-704, 53-5-705, 76-10-511, or 76-10-523, or as otherwise authorized by law;
(b) the possession is approved by the responsible school administrator;
(c) the item is present or to be used in connection with a lawful, approved activity and is in the possession or under the control of the person responsible for its possession or use; or
(d) the possession is:
(i) at the person's place of residence or on the person's property;
(ii) in any vehicle lawfully under the person's control, other than a vehicle owned by the school or used by the school to transport students; or
(iii) at the person's place of business which is not located in the areas described in Subsection 76-3-203.2(1)(a)(i), (ii), or (iv).
(4) This section does not prohibit prosecution of a more serious weapons offense that may occur on or about school premises.
 
#13 ·
There's still the Federal GFSZ to think about, folks. It's still got the 1000' rule. A school zone is defined as any area within 1000 feet of the actual school building.
 
#14 ·
JoeSparky said:
DaKnife said:
Only with a CFP are the 1000' zones gone. I'd say with or without a permit, being within the zone of a school with a visible firearm is reasonable suspicion due to the Federal Law. If nothing else the officer needs to verify if you have a CFP. If so he should just let you continue on as the RAS has just evaporated. But thanks to the Federal law, being within the zone is RAS, as until the officer can verify you are authorized by the state, (CFP) you are in all appearances violating the law.
the officer needs to verify nothing! Same principle as pulling over drivers to see if they have a dl. Courts have ruled that this is unconstitutional. If they have ruled it unconstitutional for a licensed activity they would need ever more RASFor a constitutionally protected activity. Just saying
+1. this would be a "Papers please, must see your papers" sort of stop.
 
#15 ·
RustyShackleford said:
JoeSparky said:
DaKnife said:
Only with a CFP are the 1000' zones gone. I'd say with or without a permit, being within the zone of a school with a visible firearm is reasonable suspicion due to the Federal Law. If nothing else the officer needs to verify if you have a CFP. If so he should just let you continue on as the RAS has just evaporated. But thanks to the Federal law, being within the zone is RAS, as until the officer can verify you are authorized by the state, (CFP) you are in all appearances violating the law.
the officer needs to verify nothing! Same principle as pulling over drivers to see if they have a dl. Courts have ruled that this is unconstitutional. If they have ruled it unconstitutional for a licensed activity they would need ever more RASFor a constitutionally protected activity. Just saying
+1. this would be a "Papers please, must see your papers" sort of stop.
I think these three quotes take care of where my concern was. Thanks!
 
#17 ·
Joe Cool said:
UtahJarhead said:
There's still the Federal GFSZ to think about, folks. It's still got the 1000' rule. A school zone is defined as any area within 1000 feet of the actual school building.
Ahh, yes. Anyone else have thoughts on this?
I think that carrying a gun within 1000ft of a school building, even if technically legal now by utah state law, is still just asking for a whole lot of trouble, and potentially legal bills, to prove you were in the right. If you can afford to be the guinea pig for establishing legal precedence, by all means go for it. It will make things easier on the next guy who finds himself in the same situation.
 
#18 ·
It's NOT a gun-related argument at that point. The argument is did the police (city, county, or state) have both RAS to stop you *AND* jurisdiction to stop you for a federal crime?
 
#19 ·
JoeSparky said:
DaKnife said:
Only with a CFP are the 1000' zones gone. I'd say with or without a permit, being within the zone of a school with a visible firearm is reasonable suspicion due to the Federal Law. If nothing else the officer needs to verify if you have a CFP. If so he should just let you continue on as the RAS has just evaporated. But thanks to the Federal law, being within the zone is RAS, as until the officer can verify you are authorized by the state, (CFP) you are in all appearances violating the law.
the officer needs to verify nothing! Same principle as pulling over drivers to see if they have a dl. Courts have ruled that this is unconstitutional. If they have ruled it unconstitutional for a licensed activity they would need ever more RASFor a constitutionally protected activity. Just saying
+1

I think there's a really strong argument that since driving on a public road isn't RAS for checking possession of a DL, OCing near a public school isn't RAS for checking possession of a CFP.
 
#20 ·
UtahJarhead said:
It's NOT a gun-related argument at that point. The argument is did the police (city, county, or state) have both RAS to stop you *AND* jurisdiction to stop you for a federal crime?
Also a very good point. Local police do not have jurisdiction to enforce federal laws, as I understand it.
 
#21 ·
JoeSparky said:
DaKnife said:
Only with a CFP are the 1000' zones gone. I'd say with or without a permit, being within the zone of a school with a visible firearm is reasonable suspicion due to the Federal Law. If nothing else the officer needs to verify if you have a CFP. If so he should just let you continue on as the RAS has just evaporated. But thanks to the Federal law, being within the zone is RAS, as until the officer can verify you are authorized by the state, (CFP) you are in all appearances violating the law.
the officer needs to verify nothing! Same principle as pulling over drivers to see if they have a dl. Courts have ruled that this is unconstitutional. If they have ruled it unconstitutional for a licensed activity they would need ever more RASFor a constitutionally protected activity. Just saying
No it's not the same as asking to see a DL. If you are carrying a firearm within 1000 feet of a school building you are in violation of the law. The federal law has allowed the states to authorized certain individuals to enter the zone, but as that group is a small subset of the general population. The initial view of any officer is that anyone entering a school zone with a firearm is violating the federal law. The only way to disprove this reasonable assumption is to stop and ask to see if the individual has authorization i.e. a permit.

As to the false claims that local police are not authorized to enforce federal law. BS. They most certainly are and there is ample case law supporting this. A quick Google turned this site up http://www.cis.org/StateEnforcement-LocalEnforcement the article linked to is dealing with illegal immigration but it looks at the topic of local police having authority and jurisdiction to enforce federal laws and from it I quite like the portion about the case law supporting such actions. Also note in Utah all police officers are State officers with statewide authority and jurisdiction.
Abundant Case Law. There is abundant case law on this point. Even though Congress has never authorized state police officers to make arrest for federal offenses without an arrest warrant, such arrests occur routinely; and the Supreme Court has recognized that state law controls the validity of such an arrest. As the Court concluded in United States v. Di Re, "No act of Congress lays down a general federal rule for arrest without warrant for federal offenses. None purports to supersede state law. And none applies to this arrest which, while for a federal offense, was made by a state officer accompanied by federal officers who had no power of arrest. Therefore the New York statute provides the standard by which this arrest must stand or fall." 332 U.S. 581, 591 (1948). The Court's conclusion presupposes that state officers possess the inherent authority to make warrantless arrests for federal offenses. The same assumption guided the Court in Miller v. United States. 357 U.S. 301, 305 (1958). As the Seventh Circuit has explained, "[state] officers have implicit authority to make federal arrests." U.S. v. Janik, 723 F.2d 537, 548 (7th Cir. 1983). Accordingly, they may initiate an arrest on the basis of probable cause to think that an individual has committed a federal crime. Id.

The Ninth and Tenth Circuits have expressed this understanding in the immigration context specifically. In Gonzales v. City of Peoria, the Ninth Circuit opined in an immigration case that the "general rule is that local police are not precluded from enforcing federal statutes," 722 F.2d 468, 474 (9th Cir. 1983). The Tenth Circuit has reviewed this question on several occasions, concluding squarely that a "state trooper has general investigatory authority to inquire into possible immigration violations," United States v. Salinas-Calderon, 728 F.2d 1298, 1301 n.3 (10th Cir. 1984). As the Tenth Circuit has described it, there is a "preexisting general authority of state or local police officers to investigate and make arrests for violations of federal law, including immigration laws," United States v. Vasquez-Alvarez, 176 F.3d 1294, 1295 (10th Cir. 1999). And again in 2001, the Tenth Circuit reiterated that "state and local police officers [have] implicit authority within their respective jurisdictions 'to investigate and make arrests for violations of federal law, including immigration laws.'" United States v. Santana-Garcia, 264 F.3d 1188, 1194 (citing United States v. Vasquez-Alvarez, 176 F.3d 1294, 1295). None of these Tenth Circuit holdings drew any distinction between criminal violations of the INA and civil provisions that render an alien deportable. Rather, the inherent arrest authority extends generally to both categories of federal immigration law violations.
The site continues on at length and does note that there is no obligation for local police to enforce federal law, but that it IS NOT PROHIBITED.

Carry into a school zone and you are violating Federal Law and can expect to get stopped. Have your permit ready proving you are authorized to cross the magic no-gun wall and it should be "Thanks, and have a nice day." Fail to have a permit, (issued not necessarily on you though not carrying the permit will lengthen the delay,) and expect a trip down to the station and federal charges. Oh and they'll lock every school in a ten mile radius down and let the media hype your arrest.

So I stand by my position that it is RAS, and a legal stop. Only within a school zone is it legal, but within those magic zones it is a legal stop.
 
#22 ·
DaKnife said:
No it's not the same as asking to see a DL. If you are carrying a firearm within 1000 feet of a school building you are in violation of the law. The federal law has allowed the states to authorized certain individuals to enter the zone, but as that group is a small subset of the general population. The initial view of any officer is that anyone entering a school zone with a firearm is violating the federal law. The only way to disprove this reasonable assumption is to stop and ask to see if the individual has authorization i.e. a permit.
Bad analogy. It's illegal to be on the road without a registration and driver's license with no warrants. The only way to prove you're clean is for the cop to pull you over and check you out. A secure area is one thing. A school zone is not one of those.
 
#23 ·
But the common assumption is that the majority of drivers are have the necessary paperwork. The small subset is the group that doesn't have permission. The assumption is the other way around on school zones. The police cannot simply assume you have a CFP in you are violating the Federal Gun Free School Zone. It's a specific designated area where firearms are not generally permitted and only a small subset of the population has the authorization to ignore the designated boundaries.

A school zone may not be a "secure area" but it is an area specifically delineated in the federal law as getting special treatment. And based on news reporting, you get seen carrying a gun anywhere near a school and they are going to stop and talk to you.
 
#25 ·
UtahJarhead said:
DaKnife said:
No it's not the same as asking to see a DL. If you are carrying a firearm within 1000 feet of a school building you are in violation of the law. The federal law has allowed the states to authorized certain individuals to enter the zone, but as that group is a small subset of the general population. The initial view of any officer is that anyone entering a school zone with a firearm is violating the federal law. The only way to disprove this reasonable assumption is to stop and ask to see if the individual has authorization i.e. a permit.
Bad analogy. It's illegal to be on the road without a registration and driver's license with no warrants. The only way to prove you're clean is for the cop to pull you over and check you out. A secure area is one thing. A school zone is not one of those.
What percentage of the population of the state would you reasonably assume is legal to drive a car ?

What percentage of the population of the state would you reasonably assume is legal to carry a gun into a school zone?

Im guessing the answer to those 2 questions are not close together numerically. Whether we as a group like it or not, it is much more reasonable to conclude that someone in a school zone with a gun is in volation of the law than it is to conclude that someone behind the wheel of a car is in violation of the law. The drivers license thing is a bad analogy because of that.

But lets go ahead and use your analogy, but in a more correct way. Lets say youre a LEO and you see someone driving down the street in car, but they appear to be only 8 or 10 years old. I would argue that you have RAS to pull them over to check their license at that point. It would be reasonable to believe that the person was not legally elligible to be driving a car because of their appearance. Just like someone who looks to be 15 is more likely to get stopped for walking down the street carrying a 6 pack of beer than someone who looks 35. If I were a LEO, I would stop someone carrying a gun in a school zone to verify that they had their permit. The instant I verified that, I would wish them a good day and let them on their way, but I would check.
 
#26 ·
gravedancer said:
UtahJarhead said:
Bad analogy. It's illegal to be on the road without a registration and driver's license with no warrants. The only way to prove you're clean is for the cop to pull you over and check you out. A secure area is one thing. A school zone is not one of those.
What percentage of the population of the state would you reasonably assume is legal to drive a car ?

What percentage of the population of the state would you reasonably assume is legal to carry a gun into a school zone?
Let me ask you a third question: What percentage of the population of the state would you reasonably assume to have a CDL?
 
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