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View Full Version : Soldier falsely arrested in North Carolina after lawful Open Carry


Liberty1
11-16-2008, 6:35 PM
This is why I push for tape recorders and friendly witnesses; the power of the creative pen can be mightier then your constitutional rights.

http://opencarry.mywowbb.com/forum41/18525.html

Hello everyone. I am sorry to have to post this, as I recently had a chat with the watch commander of the Cumberland County Sheriffs Department in regards to this issue, and he assured me that the deputies under him were well aware of Open Carry being legal.

Heres the long story.

Time: 1130pm, Friday the 14th of November.
Place: Waffle House on McPherson Church Road, Fayetteville NC
Deputies involved: Deputy B. Johnson and Heard (don't know the first initial)
Gun: S&W M&P .45 ACP with Hornady TAP, 10 in the mag, one in the pipe in a Serpa Blackhawk retention level 2 holster. I was wearing a Plain White Tees band shirt with cargo jeans.
I am a soldier stationed at Fort Bragg, just FYI.

Around 2300 I was about to head to my friends house and drop off my pistol before I headed home (Fort Bragg) so I decided to stop in at Waffle House to grab a bite. I had been to waffle house several times while open carrying and had only been questioned once about it. They didn't serve alcohol and I love to eat breakfast food so it was an easy choice.

I walk in the store right behind the only other customer (he was not involved at all) and had a seat with the weapon facing the outside of the booth (my right side). As I am taking a seat the manager, who was sitting down smoking a ciggarrete said:
Manager: "Are you a cop?"
Me: "No, sir." (I didn't feel that being a soldier was relevant, so I occluded that)
MAN: "DO you have a permit for it?"
Me: "No sir, in North Carolina you don't have to have a permit to open carry. To carry concealed you do."

He seemed to drop the subject so I ordered my food and started using my cell phone. I was about halfway into my meal when Deputies B. Johnson, and Heard entered the restaurant. They approached me. Please note that I did not have a recorder on me, but I wish I had just used my cell phone to record the conversation or something. grrr. So this is as well as I can remember it.

Me: "Hows it going Deputy."
Johnson: "Its going alright. Mind telling me why you have a gun?"
Me: "Don't really have a reason for you deputy."
J: "Do you have a concealed weapons permit?"
Me: "No officer, you don't need one to open carry in North Carolina."
J: "alright, how about you give me some ID."
Me: "Deputy, what do I need to give you ID for? Have I commited a crime?"
J: "How bout you just give me some ID."
Me: "Deputy, am I being Detained?"
J: "Detained? No you're not being detained, just show me your ID."
Me: I think I'd rather not, deputy.
J: "Alrite, I'll be back."

He exits the store in a huff, and I hear him talking on his radio for backup...oh, this should be interesting.

I see the manager and ask him if he wouldn't mind answering a question for me. He walks over and I explain to him that what I'm doing is legal, and how its legal in NC. I then ask him in a very clear way.
Me: Sir, do you want me to leave?
He mumbled about well, I mean, uhh. No clear answer.
Me: Sir, if you want me to leave then I'll leave.
He didn't give me a clear answer.

The deputy re-enters the restaurant.
Johnson: "Backups on its way. Are you going to show me some ID?'
Me: Deputy, I'm not required to.
J: Oh you think you know the law, huh? You think you're a lawyer? You cannot carry a weapon in an establishment like that. Not unless you're LE or have a permit.
Me: I'm sorry, officer but thats wrong.

I then ask the manager again, with the deputy present
"sir, do you want me to leave?"
The deputy butts in and basically tells me to shut up. saying "we're not going to keep going back and forth"
Deputy to the manager: "Do you want him to go? Do you want him out of here?"
Manager: "well, I mean he hasn't caused no problems, he hasn't been disturbing or anything" (keep in mind theres ONE other customer in the place).
Dep: You sure?
Man: well, I mean, I'd just like to ask him if he could go put it in his car or something, thats all. (this is the first hes said about it)
The deputy goes on about something or other.

I then interject and ask the manager:
"Sir, these deputies obviously want to talk some more, so would you mind terribly if I paid for my meal and talked with these deputies outside?"
Manager: "no thats, no problem"
I pay for my meal and walk outside.

Backup arrives and deputy johnson is still doing most of the talking.
"How bout you show us some ID.
I ask again "Am I being detained deputy?"
J: "Yes, you're being detained, now show us some ID."
Me, as I reach for my wallet, slowly, : for suspicion of commiting what crime, sir?
J: *scoff* "suspicion? *i forget what else, he then takes my ID and asks for my drivers license, I had handed him my Military ID because I left my DL in my car. He then calls to see if he can get the MP's out there, they never showed.

They start saying something more about I can't carry and all that. The other deputy, Heard, then says
"Enough of this, put your hands on the hood of the car."
I do as I'm told, thinking their going to take my gun and keep talking. The officer reaches over and takes my weapon out of the holster, and takes it around to the cruiser to unload it.
I then am patted down (they missed my auto-opening knife clipped to my pants pocket, and didn't pull anything out of my pockets), then they tell me to put my hands on my head and they cuff me.

I wasn't about to say anything else, because I was obviously under arrest. I shut my mouth.
The Fayetteville PD arrives and as the other deputies are calling in this or that and just holding me there the FPD officer (j. Figeuroa) says:
"you've been drinking?"
I say nothing.
"Oh, playing the silent game, huh? yeah, you've had a few beers."
I remain silent except to ask for my wallet, which was on the hood of their car. they put it back in my pocket.
I am placed in the car, THEN they catch my knife and remove it, they then ask "you have anything else in your pockets?"
"i have a cell phone and keys, deputy"
They didn't even bother to search me again.

As Johnson gets back in the car I ask "deputy, what am I being charged with?"
he was looking through his code book and finds something I had to laugh at :
J: "Going armed to the terror of the public! thats what! think you can just walk in a restaurant with a gun on your hip. I laughed on the inside the whole way to the station.

I was then booked in and my unit was called. At no time was i informed of my rights, in case that matters. They write up the paperwork and look up the code for GATTTOTP.

They bring it before the magistrate (thank god, thought i was going to spend the night in lockup) and tell him the story...the magistrate basically throws it out.
Mag:"It was in a holster?"
Dep: yes sir
mag: he wasnt touching it or waving it around?
dep: no sir.
mag: thats totally legal.
dep: *stunned* uhhh, ok...ummm
mag: is that it?
dep: well he was being really irate and argumenative, and he didn't want to leave the waffle house.
mag; then charge him with trespassing, not GATTTOTP.
dep: yes sir.

I'm still laughing on the inside. So now I have a second degree trespassing charge and have a court date for next month. yay me. at no time did I raise my voice to the deputies and they never breathylized me (im 19, btw).

when my SGT (he was not happy) came to pick me up at 0230 they gave him the gun and released me on $200 unsecured bond (i dont pay anything if i show up, basically)

I'm going to work on getting it thrown out before the court date though. This should be fun. I'm also going to write a letter to the sheriff in regards to his untrained and rude deputies.

Oh, and then I had to pull 24 hour duty at 0900 on Saturday...this weekend was MESSED up.

Any questions?

-John V.

Matt C
11-16-2008, 6:47 PM
Open carry with no tape recorder is like letting someone post video of you bumpfiring on youtube with the label "automatic fire"... Bad idea.

Captain Evilstomper
11-16-2008, 6:48 PM
mag: thats totally legal.
dep: *stunned* uhhh, ok...ummm
mag: is that it?

i would have loved to see the deputy's face right then...

seephor
11-17-2008, 3:30 PM
In my opinion I think you did a few things right such as not raising your voice, being polite to the store manager etc but I would have just given the offer my ID and went along with it. If you knew you weren't breaking any laws (which you stated) then you should have cooperated fully. Maybe they would have just asked you to leave or just questioned you and took off. I'm not too good with the carry laws but I think you have to comply to the laws of the businesses so even if it's legal to open carry but the business had a no carry policy then you would have to comply.

Decoligny
11-17-2008, 3:42 PM
but I would have just given the offer my ID and went along with it. If you knew you weren't breaking any laws (which you stated) then you should have cooperated fully.

So if he wasn't breaking any laws then he should submit to a violation of his 4th Amendment Rights? As opposed to if he had violated the law he should have not sumbitted? He did the right thing. He stood his legal ground and didn't bend over when asked.

I'm not too good with the carry laws but I think you have to comply to the laws of the businesses so even if it's legal to open carry but the business had a no carry policy then you would have to comply.

Business don't have laws, they have policies. If the manager had asked him to leave, and he refused, he wouldn't be breaking any "business law", he would have been trespassing. But he was never asked to leave, he wasn't even asked to put his gun in the car, the manager told the LEO that he would be more comfortable if the OP just put the gun in his car.

If the manager asked "Would you please put your gun in your car?" and the OP refused, then the manager could have chosen to ask the OP to leave. He never asked anything.

Ironchef
11-17-2008, 3:58 PM
Wow, excellent display of proper OC (granted LOC is ok there) defense. THere really needs to be a serious smack down of that cop (within the law, that is). If at the very minimum, calling him and mocking him or telling him to study up because yes, citizens do know the law..ok, maybe just spamming the chief, watch commanders, and any other interested persons (the "commissioner") with a rendering of what happened and the lack of training present and subsequent unlawful detention and made up law from said deputy. Grrrrrrrr...

Anyway, good job "OC Soldier!"

xdimitrix
11-17-2008, 5:51 PM
I'm guessing they charged him with trespassing in hope of avoiding a false arrest charge.

JDoe
11-17-2008, 7:01 PM
So in 4 years when this law abiding citizen applies for a job as a janitor at the local community college what will his background check show as the reason for his arrest? Will it be weapons related?

Lets say this law abiding citizen goes to college, gets a nice degree and then applies for a job requiring a security clearance. Will an arrest record of this nature interfere with his chances of getting that job?

Theseus
11-17-2008, 11:01 PM
Well, they can't charge him with trespassing unless he was asked to leave, which he never was. The problem is if they get the waffle house manager to lie and say that he did ask him to leave.

But the bigger question is if the manager called the deputies simply expected them to handle it. . . That way avoiding having to face a man with a gun.

hoffmang
11-18-2008, 12:05 AM
I'm an NC native. Loaded open carry isn't just legal - its kinda common actually. I'm honestly surprised there was any of this sort of problem - especially in Fayetteville.

-Gene

Steve O
11-18-2008, 1:31 AM
J: "Detained? No you're not being detained, just show me your ID."
Me: I think I'd rather not, deputy.

^^ WTF?

Seem this guy was trying to test the system?

I know her in CA you are required to have ID with you at all times.
Cops wanted to make sure he wasn't a tweaker criminal, with the illegal scum around here I can understand that.

I agree with the way he handled it, except for not showing ID.

An officer friend of mine told me that in Sonoma/Marin County's open carry is treated as a 5150 case, and officers are to proceed whit menial detainment for a psychological 48 hour evaluation.
So I guess is you open carry in the bay area you are automatically a crazy...

code33
11-18-2008, 1:53 AM
Which code requires ID to be carried at all times?

If it's not an arrest or detention, then it's a consensual encounter. Showing ID is not required in a consensual encounter and the officer can be told to pound salt if he asks.


I know her in CA you are required to have ID with you at all times.
Cops wanted to make sure he wasn't a tweaker criminal, with the illegal scum around here I can understand that.

I agree with the way he handled it, except for not showing ID.

Steve O
11-18-2008, 1:57 AM
Which code requires ID to be carried at all times?

If it's not an arrest or detention, then it's a consensual encounter. Showing ID is not required in a consensual encounter and the officer can be told to pound salt if he asks.

wow. interesting.

So when asked, for ID, the proper response is "Am I being detained?"
Then the officer will say "Yes"

But they can detain you for "evaluation" saying they "believed" you to be under the influence?? can they not?

CrippledPidgeon
11-18-2008, 12:05 PM
I know her in CA you are required to have ID with you at all times.

First i've heard of that. I guess if I go swimming, I'm gonna have to stuff my ID in my trunks or something.




:inquis:

hoffmang
11-18-2008, 12:41 PM
Some states do have ID requirements and they usually read that if you have it and its requested you have to show it. California's was broader and thrown out by SCOTUS but I think it may actually still be in the Penal Code.

-Gene

trashman
11-18-2008, 1:03 PM
I'm an NC native. Loaded open carry isn't just legal - its kinda common actually. I'm honestly surprised there was any of this sort of problem - especially in Fayetteville.


I'm a NC native too, but I would disagree with you about its commonality --only because I have rarely seen it (and I've spent a lot of time in some even more rural areas like Harnett County). I can tell you from my experience folks do a fair amount of shooting in their backyards but the cops aren't real fond of it either...

In Texas (having spent time there for work) OC is so common that you might see $10,000 worth of hip-bound hardware just going to the grocery store. But it's never seemed that way to me in NC.

Given the crime problems in FayetteNam, it wouldn't surprise me much that the cops aren't fans of OC.

--Neill

NiteQwill
11-18-2008, 1:08 PM
OC, AFAIK, when I lived there, is ILLEGAL in Texas. So I'm confused by your post trashman.

:confused:

http://en.wikipedia.org/wiki/Open_carry

Liberty1
11-18-2008, 1:10 PM
Some states do have ID requirements and they usually read that if you have it and its requested you have to show it. California's was broader and thrown out by SCOTUS but I think it may actually still be in the Penal Code.

-Gene

The penal code "ID" section (can't find it now) was ruled unconstitutionally vague. I used it once when I didn't know:(.

However for vehicle code violations there is 40302 (this also applies to pedestrians in violation of a VC section) where an officer can detain for identification purposes and fingerprinting or delivering the detained to a magistrate when they refuse to sign a ticket.

trashman
11-18-2008, 1:10 PM
OC, AFAIK, when I lived there, is ILLEGAL in Texas. So I'm confused by your post trashman.

:confused:

http://en.wikipedia.org/wiki/Open_carry

I could certainly be wrong on that count. Maybe there are just a whole lotta Rangers around...

But my original point still stands - I saw more open carry (by plainclothes LE I guess) than I've ever seen in NC.

--Neill

Liberty1
11-18-2008, 1:12 PM
In Texas (having spent time there for work) OC is so common that you might see $10,000 worth of hip-bound hardware just going to the grocery store.
--Neill

http://opencarry.org/tx.html

http://opencarry.org/opencarry.html

where is the ballon going down in flames emoticon when needed? :p

trashman
11-18-2008, 1:19 PM
where is the ballon going down in flames emoticon when needed? :p

Sigh - how's this: <object width="425" height="344"><param name="movie" value="http://www.youtube.com/v/F54rqDh2mWA&hl=en&fs=1"></param><param name="allowFullScreen" value="true"></param><param name="allowscriptaccess" value="always"></param><embed src="http://www.youtube.com/v/F54rqDh2mWA&hl=en&fs=1" type="application/x-shockwave-flash" allowscriptaccess="always" allowfullscreen="true" width="425" height="344"></embed></object>

I stand corrected (twice) on the law. :)

But on the facts I stand firm -- I've seen a hell of a lot more guns in the open than I've ever laid eyes on in my home state...

--Neill

Steve O
11-18-2008, 1:38 PM
The penal code "ID" section (can't find it now) was ruled unconstitutionally vague. I used it once when I didn't know:(.

However for vehicle code violations there is 40302 (this also applies to pedestrians in violation of a VC section) where an officer can detain for identification purposes and fingerprinting or delivering the detained to a magistrate when they refuse to sign a ticket.

right. i remember it now, and old administration of justice friend form 5 or 8 years ago was saying that if you refuse to produce ID you can be detained, and fingerprinted until LEO can ID you. And this was used as as a scare tactic to force you to produce and ID, because thus not doing so would result in the officer saying "I can detain you for 48 hours"

I cant remember exactly how this came about, but I believe it be be state law in some form.

hoffmang
11-18-2008, 10:43 PM
I'm a NC native too, but I would disagree with you about its commonality

1. Well, that explains the natural affinity fellow Tarheel.

2. I saw an openly carried firearm about once a year in Charlotte until I left for Chapel Hill/University. I didn't see many firearms in Chapel Hill, but that's to be expected.

-Gene

Swirvin
11-19-2008, 10:37 AM
I basically spent my first 24 years as a Tarheel (kinda' hard to say that as I went to State), but lived in an unincorporated community; Read rural/sticks. I can't imagine anyone giving a second thought to OC where I grew up. I have no knowledge of the socio-economic issues in Fayetteville that would induce LEO's to be that alarmed and aggressive, but those issues have to be a contributing factor. As the story reads, I believe the individual conducted himself in an acceptable, lawful manner. And, as with many practices that encroach on individuals' rights, the whole, "show your ID/papers" issue can escalate if it's not challenged from time to time.

Theseus
11-19-2008, 11:29 AM
An officer friend of mine told me that in Sonoma/Marin County's open carry is treated as a 5150 case, and officers are to proceed whit menial detainment for a psychological 48 hour evaluation.
So I guess is you open carry in the bay area you are automatically a crazy...

I think we OC'ers should take a nice trip up there then. A group of 5150 would tax their budget pretty well.

professionalcoyotehunter
11-19-2008, 12:33 PM
I wish they would teach law enforcement officers the local laws more rather than harassing people who know the laws better than they do.

trashman
11-19-2008, 5:41 PM
1. Well, that explains the natural affinity fellow Tarheel.


Yes indeed -- and proof it's a small world after all..


2. I saw an openly carried firearm about once a year in Charlotte until I left for Chapel Hill/University. I didn't see many firearms in Chapel Hill, but that's to be expected.


At a wedding recently a older relative from Eastern NC and I were discussing politics and the subject of "Chapel Hill...you know we call it the Berkeley of the East" .. came up. I didn't really know what to say, except that the Franklin Street Halloween festivities are way better than anything in the East Bay.

She was not amused.

--Neill

Liberty1
11-19-2008, 7:40 PM
More real OC NC stories for you Tarheels

http://opencarry.mywowbb.com/forum41/18506.html

Pred Thumper
11-19-2008, 8:54 PM
So tell me have you or do you plan to go back for more waffels with your gun on your hip? Would be interesting to see and hear what the manager might say about the whole fubar