Is OC within 1000 feet of a school RAS?

Discuss issues regarding open carry.

Re: Is OC within 1000 feet of a school RAS?

Postby DiscoLives4ever » Tue 21 Feb 2012 5:34 pm

DaKnife wrote:Yes. CFP holders still make up the minority of legal weapon owners, printing or flashing a poorly concealed weapon is RAS to verify if you do in fact have a permit.


So then what percentage of the population needs to be a CFP holder for it to no longer be RAS? 51%?
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Re: Is OC within 1000 feet of a school RAS?

Postby gravedancer » Tue 21 Feb 2012 5:45 pm

UtahJarhead wrote:
DaKnife wrote:Enter a school zone and you've broken the federal law. You have a CFP which acts as a stay out of jail card. The officer has RAS.

Re-read Lund. I read it last night.

The officer does NOT have RAS if no other facts were brought in. If they stop you for a crime they witness or have reason to believe that you've broken a law, they can stop you and check the legality of other relevant issues. They cannot stop you to go on a fishing expedition.



The bolded portion of your own statement is where your argument breaks down. Since only a small percentage of the population of Utah could legally carry in a school zone, seeing someone with a gun in a school zone would give them reason to believe a law had been broken.
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Re: Is OC within 1000 feet of a school RAS?

Postby gravedancer » Tue 21 Feb 2012 5:49 pm

DiscoLives4ever wrote:Suppose I decide to put on a jacket while OCing in public, and an officer sees me do so. It's a long jacket, and I have now concealed which is a crime according to 76-10-504.

By your logic the LEO now has RAS for a Terry stop to determine whether or not I am licensed. In both cases the law requires that I have a CFP. In both cases it is laid out as illegal and later in the code allowed only with a CFP.

By claiming OC at a school is RAS you must also be saying that concealed carry is RAS.



Yep I'd agree 100% with that. If I got "made" while concealing, id have no problem whatsoever with an LEO asking me if I had a permit, so long as once I produced it (or my ID so he could run it and verify for himself) he let me on my way without any harassment.
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Re: Is OC within 1000 feet of a school RAS?

Postby UtahJarhead » Tue 21 Feb 2012 7:21 pm

gravedancer wrote:The bolded portion of your own statement is where your argument breaks down. Since only a small percentage of the population of Utah could legally carry in a school zone, seeing someone with a gun in a school zone would give them reason to believe a law had been broken.

Geez, dude. Are you SERIOUS? You know you're describing "Common Law" right? It's the law "Just because that's how we do it 'round these parts."

No no no no no! The majority does not rule in all situations.

http://www.examiner.com/gun-rights-in-w ... rying-guns

Judge Black's opinion is consistent with numerous high state and federal appellate courts, e.g., the United States Supreme Court in Florida v. J.L. (2000) (detaining man on mere report that he has a gun violates the Fourth Amendment) and the Washington Appeals Court in State v. Casad (2004) (detaining man observed by police as openly carrying rifles on a public street violates the Fourth Amendment).

Now, believe you or a Federal Judge with multiple cases as precedent?

First, open carry is not illegal nor is it RAS in and of itself. Second, detaining someone carrying a rifle on a public street is a violation of the 4th Amendment. If rifles fit that criteria, sure as heck handguns do.

A cop is REQUIRED to have some form of "reason to believe that a crime [is] afoot."

Not only that, but they even removed Qualified Immunity from protecting the police.

"[r]elying on well-defined Supreme Court precedent, the Tenth Circuit and its sister courts have consistently held that officers may not seize or search an individual without a specific, legitimate reason. . . . The applicable law was equally clear in this case. Nothing in New Mexico law prohibited Mr. St. John from openly carrying a firearm in the Theater. Accordingly, Mr. St. John's motion for summary judgment is granted with regard to his Fourth Amendment and New Mexico constitutional claims. Defendants' motion for summary judgment is denied with regard to the same and with regard to qualified immunity."
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Re: Is OC within 1000 feet of a school RAS?

Postby gravedancer » Tue 21 Feb 2012 7:42 pm

UtahJarhead wrote:
gravedancer wrote:The bolded portion of your own statement is where your argument breaks down. Since only a small percentage of the population of Utah could legally carry in a school zone, seeing someone with a gun in a school zone would give them reason to believe a law had been broken.

Geez, dude. Are you SERIOUS? You know you're describing "Common Law" right? It's the law "Just because that's how we do it 'round these parts."

No no no no no! The majority does not rule in all situations.

http://www.examiner.com/gun-rights-in-w ... rying-guns

Judge Black's opinion is consistent with numerous high state and federal appellate courts, e.g., the United States Supreme Court in Florida v. J.L. (2000) (detaining man on mere report that he has a gun violates the Fourth Amendment) and the Washington Appeals Court in State v. Casad (2004) (detaining man observed by police as openly carrying rifles on a public street violates the Fourth Amendment).

Now, believe you or a Federal Judge with multiple cases as precedent?

First, open carry is not illegal nor is it RAS in and of itself. Second, detaining someone carrying a rifle on a public street is a violation of the 4th Amendment. If rifles fit that criteria, sure as heck handguns do.

A cop is REQUIRED to have some form of "reason to believe that a crime [is] afoot."

Not only that, but they even removed Qualified Immunity from protecting the police.

"[r]elying on well-defined Supreme Court precedent, the Tenth Circuit and its sister courts have consistently held that officers may not seize or search an individual without a specific, legitimate reason. . . . The applicable law was equally clear in this case. Nothing in New Mexico law prohibited Mr. St. John from openly carrying a firearm in the Theater. Accordingly, Mr. St. John's motion for summary judgment is granted with regard to his Fourth Amendment and New Mexico constitutional claims. Defendants' motion for summary judgment is denied with regard to the same and with regard to qualified immunity."



Youre talking about on the street, or in a theater, depending on the example. Im talking about in a school zone. Just randomly out on the street, I would agree 100% that simply carrying a gun is not RAS for a stop. That is because the vast majority of the population of Utah is legally able to carry a gun openly (though I guess one could argue that a brief "friendly chat" to determine if the gun is utah unloaded or not would still be warranted). In a school zone, however, the opposite is true. The vast majority of the population is NOT legally allowed to do so. As a parent, if someone is walking towards the front door of my kids school carrying a weapon, I would rather someone err on the side of caution and see if the guy is legal, than ignore him and "hope" hes there legitimately. If he is there legally, no harm no foul, and the guy lost maybe a couple of minutes of his life (assuming he cooperates and the cop does as he should and lets him on his way once legality is established). And to be perfectly honest, anyone open carrying anywhere, but especially in a school zone, should be prepared for a certain amount on inconveniencing in todays climate. Im not saying thats right, im just saying thats how it is. Weve had this argument before though, so I already know how this story turns out. You will pound your chest and get on a soap box insisting that its your right to open carry at a school without anyone batting an eye, and I'll say that just because you CAN do something doesnt mean you SHOULD. Neither one of us is ever going to convince the other to change their opinion.
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Re: Is OC within 1000 feet of a school RAS?

Postby UtahJarhead » Tue 21 Feb 2012 8:11 pm

Show me precedent, a court case, SOMETHING, ANYTHING that shows that being in the minority is RAS to stop.
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Re: Is OC within 1000 feet of a school RAS?

Postby DiscoLives4ever » Tue 21 Feb 2012 10:02 pm

gravedancer wrote:If I got "made" while concealing, id have no problem whatsoever with an LEO asking me if I had a permit, so long as once I produced it (or my ID so he could run it and verify for himself) he let me on my way without any harassment.


gravedancer wrote:Youre talking about on the street, or in a theater, depending on the example. Im talking about in a school zone. Just randomly out on the street, I would agree 100% that simply carrying a gun is not RAS for a stop.


You seem to be contradicting yourself here. If OC on a school is RAS then by your own logic and admission it is RAS if a cop sees you conceal. UtahJarhead just gave specific precedents of the latter not being true, so the former must not be either.
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Re: Is OC within 1000 feet of a school RAS?

Postby gravedancer » Wed 22 Feb 2012 7:13 am

DiscoLives4ever wrote:
gravedancer wrote:If I got "made" while concealing, id have no problem whatsoever with an LEO asking me if I had a permit, so long as once I produced it (or my ID so he could run it and verify for himself) he let me on my way without any harassment.


gravedancer wrote:Youre talking about on the street, or in a theater, depending on the example. Im talking about in a school zone. Just randomly out on the street, I would agree 100% that simply carrying a gun is not RAS for a stop.


You seem to be contradicting yourself here. If OC on a school is RAS then by your own logic and admission it is RAS if a cop sees you conceal. UtahJarhead just gave specific precedents of the latter not being true, so the former must not be either.



No, youre just trying to twist words around to support your own argument. So let me spell it out for you:

Most of the population would be legally allowed to open carry (except in school zones or other restricted areas). So open carrying anywhere other than those restricted areas should not be RAS for a stop.

However, the vast majority of the population would NOT be legal to conceal a weapon anywhere, or open carry in a school zone. For that reason, I believe it would be RAS for a stop. Ultimately, it doesnt matter what you and I believe is RAS. It matters what a judge and/or jury would believe is RAS, if it came down to it. I just happen to believe that a judge or jury would be more likely to agree with me than with you.

The bottom line is, if someone wants to open carry to walmart, I agree 100% that that in and of itself is not RAS. Most people in Utah would be legal to do so, so any cop that believes they are carrying illegally is going against the odds. That removes the "reasonable" portion from RAS.

But if the same person carries in a school zone (open or concealed), then it would be "reasonable", simply because odds are the person is not legal to have a weapon there.

If the law were worded that the LEO has to KNOW that a law is being broken for a stop, then my position on this would change. But they just have to have a reasonable, articulable suspicion that a law is being broken.

The problem here, I think, is that "reasonable" is subjective. What I think is reasonable may not be what you think is reasonable. And what you think is reasonable may not be what the average cop on the street thinks is reasonable. Unfortunately, until some court or lawmaker somewhere spells out exactly what is reasonable and what isnt, were always going to have this debate, and there will always be cases of the law being enforced inconsistently, because even within the law enforcement community you with have varying opinions as to what is reasonable.
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Re: Is OC within 1000 feet of a school RAS?

Postby DaKnife » Wed 22 Feb 2012 7:38 am

:agree: Well stated Gravedancer.
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Re: Is OC within 1000 feet of a school RAS?

Postby UtahJarhead » Wed 22 Feb 2012 8:02 am

Show me precedent, a court case, SOMETHING, ANYTHING that shows that being in the minority is RAS to stop.
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Re: Is OC within 1000 feet of a school RAS?

Postby divegeek » Wed 22 Feb 2012 8:06 am

divegeek wrote:There are four possibilities:

  • The individual is knowingly committing a federal felony. Absent some indication that the individual would have reason to do that, it's pretty unlikely.
  • The individual is unwittingly committing a federal felony because he doesn't know it's a crime to carry near a school. This is remotely possible, but really not all that likely. Given all of the hullaballoo about guns near schools, the average man on the street believes this is a crime.
  • The individual is not committing a federal felony because he doesn't know he's near a school. This is highly likely, especially towards the edges of the 1000-foot radius.
  • The individual is not committing a federal felony because he is authorized by the state.
Looking at that list, items 2, 3 an 4 are collectively far more likely than 1. What the officer can do is approach and inform the individual that he is near a school, and that it's a crime. If cases 2 or 3 obtain, the person will apologize and offer to remove himself from the school zone. In case 2, the officer can technically make an arrest and the US Attorney can prosecute, but this is vanishingly unlikely. Among other things, it would be a perfect setup for another challenge to the constitutionality of the GFSZA.

But, what if the individual tells the officer that he has a permit, but isn't carrying it or doesn't want to show it? Now the officer has evidence that the person knows the law and believes himself to be in compliance with it. On the other side, there's no hint whatsoever of any wrongdoing.

Now, please articulate what the officer's reasonable suspicion is.

The notion that an apparently law-abiding person who clearly understands the law and has no apparent nefarious motives sufficient to justify risking federal prison is doing so anyway is not reasonable.

Still waiting for a response to this.
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Re: Is OC within 1000 feet of a school RAS?

Postby gravedancer » Wed 22 Feb 2012 8:23 am

divegeek wrote:Still waiting for a response to this.


I articulated it a couple pages ago.
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Re: Is OC within 1000 feet of a school RAS?

Postby UtahJarhead » Wed 22 Feb 2012 8:25 am

No, you said "because most people aren't legally able to carry here, therefore you should be able to be stopped."

That's not articulable suspicion.
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Re: Is OC within 1000 feet of a school RAS?

Postby gravedancer » Wed 22 Feb 2012 8:35 am

gravedancer wrote:
UtahJarhead wrote:That's a HUGE claim and one that I 100% disagree with. Driving on the road may not be a secure zone, but it's certainly an area that not EVERYBODY can drive on without a license. The possibility the person might be there illegally is *NOT* RAS to stop them. Public schools are still public. Merely being there with a handgun is still not RAS. I don't think you even realize what RAS is. "Reasonable Articulable Suspicion." You need to be able to say why you think the person is doing something illegal. Not what they could POSSIBLY be doing illegal, but you have to have something more.

There are other means by which you can stop a person. What we're talking about here is basically a Terry stop of sorts. Perhaps you mean you could stop the person because of probable cause? A school zone still does not meet probable cause requirements.



Reasonable:

Less than 9% of the population of Utah has a concealed weapons permit. (As of June 2010, courtesy of http://magicvalley.com/news/local/artic ... f4c4e.html & the US census bureau http://quickfacts.census.gov/qfd/states/49000.html)

Articulable Suspicion:

I observed a man with a gun at xxxx elementary school. Since over 90% of the population would be unable to lawfully carry a weapon in that location, I believed it highly possible that a crime was being committed. Because of the potential danger, I felt it would be wiser to verify that the person was legally allowed to carry a gun in a school zone, than to ignore what could potentially be a threat to the lives of children and teachers. For this reason, I stopped the individual in question to very that they did indeed have a concealed weapons permit. Once I established this, I told the individual that he was free to go about his business.

The suspicion seems pretty Reasonable and Articulable to me... and im betting a judge or jury would agree.
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Re: Is OC within 1000 feet of a school RAS?

Postby UtahJarhead » Wed 22 Feb 2012 9:22 am

That is not valid. That's the EXACT same thing as stopping a black guy solely for walking in a predominantly white neighborhood since the vast majority of black people in that neighborhood have been burglars.

I again state my phrase:

Show me precedent, a court case, SOMETHING, ANYTHING that shows that being in the minority is RAS to stop.
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