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?
Touche, good sir.Daeyel said:Shawn, is an officer capable of initiating a 'friendly chat'?
I don't think he is. In 1955, maybe, but those days ended with Charles Whitman.
Did you not see my referenced link. Case law states local police most certainly do have jurisdiction.The third question, and one very related to the other two, is whether or not a given police officer has jurisdictional authority to make an arrest, even if he has RAS or probable cause to believe that you are violating a federal law. I'm not sure about this one.
It shall be unlawful for Daknife to knowingly possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that Daknife knows, or has reasonable cause to believe, is a school zone.(2)
(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.
(B) A Subparagraph (a) does not apply to the possession of a firearm--(B) Subparagraph (A) does not apply to the possession of a firearm-
(i) on private property not part of school grounds;
(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;
Reasonable:UtahJarhead said: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.
Some are, some aren't.Daeyel said:Shawn, is an officer capable of initiating a 'friendly chat'?
Nope, I missed that. I haven't been on UCC much lately; been dealing with other things.DaKnife said:Did you not see my referenced link. Case law states local police most certainly do have jurisdiction.The third question, and one very related to the other two, is whether or not a given police officer has jurisdictional authority to make an arrest, even if he has RAS or probable cause to believe that you are violating a federal law. I'm not sure about this one.
Sure you are. While on private property, it's legal for anyone to drive it. It's only on the public roads that a CDL is required. My brother-in-law used to work at a job where he moved semis around a loading yard, but had no CDL.DaKnife said:The CDL example does not work. You are not legally driving a truck one moment and then illegally driving it the next.
This does not follow. The mere fact that only a minority of people are authorized to perform some act does not mean that anyone seen performing that act is automatically a suspect of a crime.DaKnife said:That subset is a minority, not a majority, thus the assumption is that the officer must verify the state authorization.
So you're argument then is this, if I understand it correctly: the law says action X is illegal unless you have a CFP, and since a minority of people have a CFP it is reasonable to assume that the person committing action X is doing so illegally. In the case above action X is "Open-carrying on school property".DaKnife said:The question asked was carrying a weapon in a GFSZ RAS for a stop. 1. The local police most certainly do have jurisdiction to enforce Federal laws, but no obligation to enforce them. 2. As per the Federal law, if you are carrying in a school zone you are breaking the federal law. 3. The federal law has allowed a method for each state to authorize individuals to carry within the zone. However unless the bill we were talking about earlier passes, that authorization is limited to a certain subset of individuals who own firearms. That subset is a minority, not a majority, thus the assumption is that the officer must verify the state authorization. And that is done via the Terry stop, whereupon the individual states I have a CFP the officer can accept that or can request to see the CFP or call in and verify and the RAS for any further detention ends.
To look at it legally you have to break the law down line by line and apply it to the scenario, line by line.
It shall be unlawful for Daknife to knowingly possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that Daknife knows, or has reasonable cause to believe, is a school zone.(2)
(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.
Pretty cut and dried. Only after defining the criminal act (carrying in a school zone). Do we get to the next paragraph.
(B) A Subparagraph (a) does not apply to the possession of a firearm--(B) Subparagraph (A) does not apply to the possession of a firearm-
(i) on private property not part of school grounds;
(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;
i isn't relevant to the discussion.
ii. If Daknife who possesses the firearm is licensed to do so by the state of Utah... the rest isn't really necessary.
The law isn't written: "Except for those authorized by their states you can't carry. It's written you can't carry. Unless authorized. The order is relevant and key to looking at how the law is applied. In determining if a crime has been committed you go line by line, so the CFP is a stay out of jail card, not a preemption from suspicion of wrong doing. By carrying in the school zone you are violating the federal law, and therefor Law enforcement have RAS to do a Terry stop and verify your authorization. Upon verifying that authorization the violation is absolved and you should be free to go on your way.
Lund does not apply because your being in the school zone gives cause to determine if you are authorized. And the Local PD most certainly does have jurisdiction and authorization to enforce federal law.
But I and Daeyel have stated and restated these points several times. The CDL analogy does not work, neither does general car driving either. I think my school speed zone comes close but even it falls short. Simply traffic laws are not = gun laws. Especially when there is such an over-reaching law in question. Eliminate the GFSZ and all RAS for a Terry stop is gone. Let the bill (I forget the number) that was written to pass that authorization to anyone who's gone through a BCI check to purchase a firearm get passed and signed into law and the question goes out the window as the assumption goes from it being a limited minority having the authorization to the majority of firearm owners having the authorization. Thus the assumption of legality changes to match the DL and CDL situations and then Lund comes into play and just having a firearm is no longer RAS for a Terry stop.
76-10-504. Carrying concealed dangerous weapon -- Penalties.
(1) Except as provided in Section 76-10-503 and in Subsections (2), (3), and (4), a person who carries a concealed dangerous weapon, as defined in Section 76-10-501, including an unloaded firearm on his or her person or one that is readily accessible for immediate use which is not securely encased, as defined in this part, in or on a place other than the person's residence, property, a vehicle in the person's lawful possession, or a vehicle, with the consent of the individual who is lawfully in possession of the vehicle, or business under the person's control is guilty of a class B misdemeanor.
(2) A person who carries a concealed dangerous weapon which is a loaded firearm in violation of Subsection (1) is guilty of a class A misdemeanor.
76-10-523. Persons exempt from weapons laws.
....
(2) The provisions of Subsections 76-10-504(1) and (2), and Section 76-10-505 do not apply to any person to whom a permit to carry a concealed firearm has been issued:
(a) pursuant to Section 53-5-704; or
(b) by another state or county.
On this whole 53 comes before 76 thing, I hope that's sarcasm... each section is read separately, just because 53 is before 76 doesn't mean it's more important. Same with 504 being before 523. It is, however, relevant on how other sections are referenced in the applicable code. 523 says 504 doesn't apply if you have a CFP, so an officer cannot stop you for a violation of 504 if you have a CFP. How does he know this? His assumption must be that you are carrying legally, regardless of how tainted his view of society may be.DaKnife said: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. Though if you follow the logical step by step in order, the CFP exemption to the prohibition on carrying is found in U.C.A. under Title 53, well before title 76.
So then what percentage of the population needs to be a CFP holder for it to no longer be RAS? 51%?DaKnife said: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.
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.UtahJarhead said: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.DaKnife said: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.
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.DiscoLives4ever said: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.
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."gravedancer said: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.
Now, believe you or a Federal Judge with multiple cases as precedent?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).
"[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.UtahJarhead said: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."gravedancer said: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.
No no no no no! The majority does not rule in all situations.
http://www.examiner.com/gun-rights-in-w ... rying-guns
Now, believe you or a Federal Judge with multiple cases as precedent?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).
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."
gravedancer said: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.
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.gravedancer said: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.
No, youre just trying to twist words around to support your own argument. So let me spell it out for you:DiscoLives4ever said:gravedancer said: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.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.gravedancer said: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.
Still waiting for a response to this.divegeek said:There are four possibilities:
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.
- 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.[/*]
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.
I articulated it a couple pages ago.divegeek said:Still waiting for a response to this.
gravedancer said:Reasonable:UtahJarhead said: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.
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.
:agree:UtahJarhead said: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.