Color of Law?

Discuss issues regarding open carry.

Color of Law?

Postby JoeSparky » Thu 31 Jul 2014 2:14 pm

Hello all.

I got involved with a local officer the other day and received a traffic citation for an infraction---- not arguing the cite and it doesn't matter what it specifically was.

My issue is:

I was Open Carrying while on my bright yellow Goldwing Trike. The LEO most likely did not see the sidearm due to the design of the trike. At the time he asked for my DL I informed him that I had a sidearm on my hip. Initially, he asked "for his safety to remove and make my weapon safe". I declined stating that I felt we were both safer if it were to stay holstered. This was all said with my hands gripping the handlebars and the bike ignition turned off.

We compromised by my standing up and he removed my wallet with ID from my hip pocket strongside. As he is doing this he asked if I have a permit for my firearm. I respond by stating, I didn't know one was required while in or on a vehicle. He then proceeds to admonish me about the hazards of OC --- being the first to get shot, not having body armor as LEOs do. ect. I say, "Isn't Utah great in that a permit ONLY allows concealment but does NOT require it." He ends by "I guess we will have to agree to disagree". He did not ask for any vehicle registration or insurance info and then retreats to his patrol vehicle.

He apparently calls for "back up" as a couple of minutes later I now have an another officer standing just behind my shoulder and about 10 feet away strongside. He makes small talk about the trike.

After a delay of a few minutes, the officer hands me back my DL which I replace in my wallet and then place the wallet on the front shelf against the speedometer display and above the key switch. I think for just a minute that I am only getting a warning.

I was wrong. I got the citation and secured it in the pocket where I keep the registration. Then I retrieve my wallet and reach right past my firearm to return it to my strongside hip pocket. After starting the bike I proceed to my destination.

I am wanting to write a letter to the city PD expressing frustration-- not about getting the citation but rather the officer's attempt during an official stop (not a concensual interaction) to tell me I must carry my lawfully carried firearm in a way other that I desire-- in some ways it would be just like me telling him how he must wear his socks or underwear, except---- I have a Constitutional Right "to keep and bear arms that shall not be infringed!"
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Re: Color of Law?

Postby Snurd » Thu 31 Jul 2014 3:08 pm

You should have admonished him on the hazards of OC, and asked why he does it.
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Re: Color of Law?

Postby bagpiper » Thu 31 Jul 2014 3:53 pm

Keep the letter as short as possible, partly to avoid discussing non-relevant items. Focus on the "unprofessional" conduct of the officer in not knowing State law regarding the lawful ability to carry a firearm on/in your vehicle without needing a permit (or maybe he did know and was just fishing), and then exceeding his statutory authority to lecture you on his personal beliefs.

Had he felt compelled to impart to you his beliefs about the evils of riding a motorcycle on the Sabbath (for example) or lectured you on what an ugly paint job your bike had that would certainly be recognized as unproffessional. I don't see that his personal opinions on various legal methods of carrying a gun are any different.

Cite and quote Utah Statute on car carry, our State Preemption, and the lack of any law requiring that a gun be concealed. You might also cite and quote the nice footnote out of the Lund ruling that the State of Utah has deliberately enacted a public policy encouraging the public possession of self-defense firearms.

If you want to cause a little grief, ask specifically for your complaint to be entered into his official file. Make clear your letter is a complaint. The point is not that his opinion about how to carry a gun is wrong. Don't argue how valid his opinion is. He is entitled to his opinion and for better or worse, a lot of people will give it a lot of credence because he carries a gun for work, or sees crime, or whatever. The point is only that it is unprofessional for him to use his position during a non-consensual encounter to lecture you on his personal opinion. You firearm was carried in full compliance with applicable laws. That is all that should matter to him during an official interaction. What he says to you as a neighbor, a brother-in-law, or a fellow church member in a private setting when you have full legal ability to tell him to shove it (or polite words to that effect), is another matter. But on the job, standing behind the badge, he is not his own person with his own opinions. He is an agent of the s/State, an embodiment and personification of s/State power. That power is strictly circumscribed for very good reason. And clearly, he wasn't terribly worried about his safety or else he would have required you to disarm regardless of your objections.

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Re: Color of Law?

Postby JoeSparky » Thu 31 Jul 2014 4:08 pm

Thanks, Charles! If I may I think I will re-work your last paragraph using your suggestions. I am not out to make it an "official " complaint but that may be the most effective method. My desire is, as you've said, to have the officer maintain the profession standards while wearing the badge and acting in an official capacity.
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Re: Color of Law?

Postby bagpiper » Thu 31 Jul 2014 4:22 pm

JoeSparky wrote:Thanks, Charles! If I may I think I will re-work your last paragraph using your suggestions. I am not out to make it an "official " complaint but that may be the most effective method. My desire is, as you've said, to have the officer maintain the profession standards while wearing the badge and acting in an official capacity.


Have a ball with whatever material might be of help. And good luck.

I hate to bust any balls needlessly. OTOH, how are we to know whether this is a first time or a habit on the cop's part of making life hard on those lawfully carrying guns?

Perhaps you phrase the letter as a request to meet to determine if an official complaint is warranted. Then you can decide whether you are satisfied that a generally decent cop has learned a needed lesson about professionalism and respecting constitutional and statutory rights without something in the file, or whether you figure a letter in the file may be the only thing to help the next poor gun owner who dares exercise his rights in a way different than is personally agreeable to this officer.

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Re: Color of Law?

Postby JoeSparky » Thu 31 Jul 2014 6:04 pm

Just had an idea spurred by your comment, Charles.

I am almost willing to pay the bill to ask our friend Mitch to write just a letter with the quotes, references to law and court rulings as an initial inquiry "asking if a complaint needs to be made!"

Ill have to contact Mitch and see if it can be done for an appropriately reasonable fee.
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Re: Color of Law?

Postby althor » Thu 31 Jul 2014 10:16 pm

I'm confused. Did he admonish you on the hazards of OC, or did he tell you that you must conceal? I don't have a problem with him sharing his opinion as long as it's clear that it is just an opinion, but I would have a problem with him telling you that you must do something that the law doesn't require.
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Re: Color of Law?

Postby gravedancer » Fri 01 Aug 2014 9:57 am

althor wrote:I'm confused. Did he admonish you on the hazards of OC, or did he tell you that you must conceal? I don't have a problem with him sharing his opinion as long as it's clear that it is just an opinion, but I would have a problem with him telling you that you must do something that the law doesn't require.


I think the OPs issue was that he essentially got "scolded" for deciding on OC vs CC. I didnt see anywhere that the officer said that legally he must conceal. It sounded like the officer was just telling him why he shouldnt OC.
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Re: Color of Law?

Postby JoeSparky » Fri 01 Aug 2014 4:17 pm

I was chastised and told of the "risks " I was taking by OC'ing.
A quote, " You should have that concealed"!
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Re: Color of Law?

Postby JoeSparky » Sat 16 Aug 2014 12:03 am

It has been a couple of weeks pondering on this. Here is draft 1.5.

Thoughts? It has NOT been sent as yet---

To whom it may concern,

On July 26, 2013 at approximately 0934 hours I was stopped by Officer 7J21 for a traffic infraction which I did commit and have since dealt with in the courts.
This writing is about the unprofessional manner in which officer 7J21 during this non-consensual encounter attempted to COERCE me under COLOR of LAW regarding how HE thought I SHOULD exercise a US and Utah State Constitutionally protected right.
I was LAWFULLY openly carrying a holstered firearm upon my hip. Due to the design of the vehicle I was operating he was most likely unaware of this. So upon his request of my DL I informed him of my firearm location and my need to reach past to my right rear pocket to retrieve my DL. At this point he asked if I had a Concealed Carry Permit. I responded, “I was not aware that I needed a permit of OPEN CARRY in or on a vehicle”, knowing full well that in Utah as long as I am lawfully in possession of the vehicle (it was registered to me) and being 18 years or older (I am) it was fully legal to carry a handgun openly, concealed, loaded, or unloaded within or on the vehicle regardless of IF I even HAD a permit to conceal.
After some limited negotiation where he initially asked if he could remove my firearm “for HIS safety” and I responded we were both SAFEST if the firearm where to remain just where it was--- holstered on my hip. He had me slide slightly to my left while griping the hand grips on the motorcycle and while standing slightly he removed my wallet from my right side rear pocket of my pants. At this point I returned to a seated position upon my motorcycle trike.
Then, without offering to hand me my wallet or asking me to remove the DL he removed my DL and then handed the wallet to me. As he was doing this he was expressing to me his belief and opinion of the high level of risk and danger I was putting myself into for openly carrying a firearm and strongly suggested that I conceal “for your safety”, referring to me.
I declined saying, “Isn’t Utah great in that a Concealed Firearms Permit ALLOWS concealment but doesn’t require it” or very nearly these words.
At this point he returned to his patrol vehicle with my DL and a few moments later a second officer took position to my right side and slightly behind about 6-8 feet away. He never identified himself to me. But did attempt to engage me in some small talk. At this point I had my arms across my chest and I was leaning back against my backrest.
Upon returning to my left side, Officer 7J21 continued to express his opinion upon how I SHOULD properly carry a firearm especially since I was not a Law Enforcement Officer and was not wearing any protective vest.
He then presented me with the citation and explained what I must do to take care of it and the options I had related to traffic school.
While I am slightly disturbed that 7J21 would remove my DL from my wallet without handing it to me to do, my biggest complaint is the attempt at OPINION ENFORCEMENT related to HIS opinion on how I should carry my already Lawfully carried and possessed handgun.
I would refer you to Lund vs Salt Lake City Corporation as found at http://www.hoffmang.com/firearms/carry/ ... -12-04.pdf
in which under footnote 9 From pgs 14 and 15
“9By itself, mere possession of a firearm in public is not unlawful and may well represent the exercise of a fundamental constitutional right guaranteed by the Second Amendment to the United States Constitution and Article I, §6 of the Utah Constitution (recognizing the “individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes,” subject to the power of the Legislature to define the “lawful use of arms.”). See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008) (“There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.”); see also Utah Code Ann. §§ 76-10-500 to 530 (2003 & Supp. 2008) (Utah Firearms Act). In Utah, the carrying of a concealed weapon on one’s person in public is a matter of State licensing and regulation, and is routinely permitted pursuant to the applicable State statute. See Utah Code Ann. §§ 53-5-701 to 711 (Supp. 2008). The legislature has explicitly denied local governmental entities such as Salt Lake City the power to limit or restrict possession of a firearm on public property: “Unless specifically authorized by the Legislature by statute, a local authority or state entity”
“9(...continued)
may not enact, establish, or enforce any ordinance, regulation, rule, or policy pertaining to firearms that in any way inhibits or restricts the possession or use of firearms on either public or private property.” Utah Code Ann. § 53-5a-102 (Supp. 2008); see University of Utah v. Shurtleff, 2006 UT 51, ¶ 11, 144 P.3d 1109, 1113 (observing that the enactment of § 53-5a-102 in 2004 “dramatically altered the legal landscape, rendering it clear that Utah’s firearms statutes are universally applicable”). The legislature has authorized municipalities only to “regulate and prevent the discharge of firearms, rockets, powder, fireworks or any other dangerous or combustible material.” Utah Code Ann. § 10-8-47 (2007).
As articulated by the Utah Legislature, public policy in this State may fairly be read to condone and even
encourage gun ownership and the lawful possession and carrying of firearms in public places. Salt Lake City’s asserted governmental interest in its police officers’ response to a report of a “man with a gun” in a public park cannot be weighed in isolation from this oft-emphasized public policy. In that context, there may well be more individual constitutional rights at stake than the Fourth Amendment freedom from unreasonable searches and seizures.”

Please note this particular case was heard and decided prior to the most recent US Supreme Court decision against Chicago that affirmed we each have a fundamental individual right to keep and bear arms that the STATES MUST ACCOMMODATE!

There is also the State Law Title76 Chapter 10 Section 500 as mentioned in the above quoted footnote--
‘76-10-500. Uniform law.
(1) The individual right to keep and bear arms being a constitutionally protected right, the Legislature finds the need to provide uniform laws throughout the state. Except as specifically provided by state law, a citizen of the United States or a lawfully admitted alien shall not be:
(a) prohibited from owning, possessing, purchasing, selling, transferring, transporting, or keeping any firearm at his place of residence, property, business, or in any vehicle lawfully in his possession or lawfully under his control; or
(b) required to have a permit or license to purchase, own, possess, transport, or keep a firearm.
(2) This part is uniformly applicable throughout this state and in all its political subdivisions and municipalities. All authority to regulate firearms shall be reserved to the state except where the Legislature specifically delegates responsibility to local authorities or state entities. Unless specifically authorized by the Legislature by statute, a local authority or state entity may not enact or enforce any ordinance, regulation, or rule pertaining to firearms.

Enacted by Chapter 5, 1999 General Session”
Particularly the last sentence of (2) “Unless specifically authorized by the Legislature by statute, a local authority or state entity may not enact or enforce any ordinance, regulation, or rule pertaining to firearms.”
Officer 7J21 had no right or authority under ANY law to support and justify HIS attempt under Color Of Law to impose HIS OPINION--- NOT LAW, upon me in the manner in which I choose to exercise a Constitutionally Protected Right. He was acting in an official capacity, NOT as a private citizen, Indeed as an agent of the Government and as a Pleasant Grove Police Officer during a traffic stop, a non-consensual encounter. This is NOT the place or time to IMPOSE HIS OPINION upon my choice of how or what manner in which I choose to exercise my Constitutionally PROTECTED rights. His actions in this regard WERE unprofessional, violated the legislative intent and spirit of State law (76-10-500), and attempted a violation of my rights.
I have no idea if this behavior in endemic within the Pleasant Grove Police Department. And as such I formally request that all PG Officers receive specific training in this regard.

Edited to include suggested changes:
Last edited by JoeSparky on Sat 16 Aug 2014 2:18 pm, edited 2 times in total.
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Re: Color of Law?

Postby Cinhil » Sat 16 Aug 2014 3:22 am

Sounds good. Change the following though; " His actions in this regard WHERE unprofessional, violated State law (76-10-500)," so that the hilighted word reads as, "were," and that will read better. Lot's of info included for edification and to back up your information. I hope that they do step up to the plate and educate their officers on proper etiquette when engaging others in a professional capacity.
What part of "Shall not be infringed" is not being abused today!

Even Knights had "Modern" weapons!

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Re: Color of Law?

Postby JoeSparky » Sat 16 Aug 2014 8:52 am

Change made.

And in re-reading 76-10-500, I decided to change the following clause to "violated the spirit of 76-10-500" since this was a single officer and not, as far as I know, the actions of the entire agency!
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Re: Color of Law?

Postby althor » Sat 16 Aug 2014 10:11 am

I think you're over playing 76-10-500 since he never required you to conceal. Also, you need to change a 'too' to a 'to'.
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Re: Color of Law?

Postby JoeSparky » Sat 16 Aug 2014 2:20 pm

althor wrote:I think you're over playing 76-10-500 since he never required you to conceal. Also, you need to change a 'too' to a 'to'.

Proposed leter revised and edited to reflect suggested changes and one or two other changes. see above post of letter.
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Re: Color of Law?

Postby brainoncapitalist » Mon 18 Aug 2014 12:20 pm

I was not aware that I needed a permit of OPEN CARRY


Text in red should probably should be a 'to'.
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