Finally Called on for OC

[Liberty1]

I will follow your advice. But as I allude to to in the "Should have known better" test of reasonableness.

"Should have known better" is not yet. But it is coming...

...As outlined by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800 (1982),[1] qualified immunity is designed to shield government officials from actions "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

2nd A. rights are "not yet" but 4th A. is a "clearly established statutory or constitutional right...".

[7x57]

California has no Stop and ID statute. Hopefully the ID records checks were consensual? or were you in a no shooting area?

Shooting was fine there--he didn't even tell us to stop, though he didn't really want to be called again. We elected to stop because it was getting late and moving further out would have run out our remaining shooting light. I also did not want to push the situation because he'd just have gotten another call and his supervisor might have been unhappy that he didn't resolve the situation the first time--as he was being very good about it I wanted to respond in kind. It's good for the next person he has to check out too.

Yes, the ID check was consensual. It didn't occur to me at the time that I could have refused, nor did I have a problem with him doing it. My little boy was there, two teenage nephews, and my father and mother-in-law. He only asked for ID on my FIL and myself. He also asked if the guns were registered to us--a stupid question, given how many ways there are that they wouldn't have to be, and I think theoretically the handgun stuff isn't registration even though it certainly seems to be in practice--but the only reasonable response seems to be "yes" if they are legally yours, and he took our word for it.

You might disagree with consenting to a non-compulsory check, but I don't think it was the time or place for activism. He was doing his job well and it was very non-confrontational; he responded to a call about shooting alone and was there with half a dozen people near a table full of handguns and ammo and couldn't really watch everyone all the time, so clearly he was not treating us as likely perps. He didn't really want my FIL to clear the guns while we had our initial conversation, because it mean someone fiddling with them out of his line of vision, but after a few minutes I don't even think he cared about that. That's an understandable worry for an ex-military (as it turned out) police officer, and I had no problem with yelling to my FIL not to clear the guns right then (actually I think he didn't hear me and probably finished clearing them anyway, and the deputy didn't make an issue of it). I had no reason to refuse the check, and if I'd done so it would have turned into a (probably mild) confrontation. If I'd thought about it and wanted to make an issue of it, I'd have consented anyway and waited until he was leaving and then very gently said that technically I didn't have to consent to the check, so it was clear I wasn't saying it to hide anything.

I was more concerned with making sure he didn't regret taking the approach he did--the next guy hopefully will benefit. I also had the family there. If I really wanted to make an issue of it, then I'd only do it when I didn't have the in-laws and most especially when I didn't have my four-year-old along.

7x57

[Fire in the Hole]

Ain't it grand that when citizens don't know the law it can put them in jail but when a cop on the beat with a HS education doesn't know the law they just get a slap on the wrist after violating a citizen's rights.

I can't justify it, or excuse it really. It's an imperfect world. We could fix it by requiring all cops to have a law degree, and compensating for it at say $100 grand a year plus benifits. But can cities, counties, states, and the fed system foot this bill? No. What would the prosepective hiring pool look like? I went with my son-in-law- to be, to a Firefighter Job Fair in Oakland a couple of months ago. The line stretched twice around the block. The Oakland P.D. had it's recruitment booth open as well. It might haved well been convered with cob webs accompanied by the sound of crickets chirpping. Not one young person in line to apply or seek info. for LE Career.

Ask them why? (And I always do) The answer is usually, "Because there's too much paperwork, the public distrusts you, and you can get sued for one litttle mistake. Who needs that hassle?"

[The SoCal Gunner]

I can't justify it, or excuse it really. It's an imperfect world. We could fix it by requiring all cops to have a law degree, and compensating for it at say $100 grand a year plus benifits. But can cities, counties, states, and the fed system foot this bill? No.

I was basically referring to the comment regarding spending the extra minute to do the NCIC check when there is no probable cause to believe the weapon is stolen. If the NCIC check is a search and is done without consent or probable cause, then it violates the 4th amendment.

Don't need a law degree for that.

[Liberty1]

I can't justify it, or excuse it really. It's an imperfect world. We could fix it by requiring all cops to have a law degree, and compensating for it at say $100 grand a year plus benifits. But can cities, counties, states, and the fed system foot this bill? No. What would the prosepective hiring pool look like? I went with my son-in-law- to be, to a Firefighter Job Fair in Oakland a couple of months ago. The line stretched twice around the block. The Oakland P.D. had it's recruitment booth open as well. It might haved well been convered with cob webs accompanied by the sound of crickets chirpping. Not one young person in line to apply or seek info. for LE Career.

Ask them why? (And I always do) The answer is usually, "Because there's too much paperwork, the public distrusts you, and you can get sued for one litttle mistake. Who needs that hassle?"

It is incumbent upon the state's agents to tread lightly and take their time showing deference to the citizenry when they are not sure of the legality of their actions.

This deference is not usually seen by officers who have the power to make "contempt of cop" arrests on unclear issues (to them) and just "let the judge sort it out".

The Unloaded Open Carry detentions and arrests for both 12025 and 12031 (established laws with establish case law), none of which has resulted in charges as it is NO crime, are an example of this attitude by LE. It's the "we must do something, anything attitude in case this person might, maybe, will do something in the future" that will get them in trouble constitutionally (4th A. for now), even when the information is presented to them at the time of the encounter.

Here is the latest: http://opencarry.mywowbb.com/view_to...325254#p325254

and past enounters

http://californiaopencarry.org/faq.html

Personal accounts of LEO encounters: Theseus 2, Theseus 1, pullnshoot, CA_Libertarian, Prophet, 4thSeal, Hellrazor, ConditionThree

Cases which resulted in false arrest, with no charges filed: mpmsc, Lin, bobbarker

[Fire in the Hole]

I was basically referring to the comment regarding spending the extra minute to do the NCIC check when there is no probable cause to believe the weapon is stolen. If the NCIC check is a search and is done without consent or probable cause, then it violates the 4th amendment.

Don't need a law degree for that.

[DDT]

I can't justify it, or excuse it really. It's an imperfect world. We could fix it by requiring all cops to have a law degree, and compensating for it at say $100 grand a year plus benifits.

Well, average citizens aren't granted 100K per year and a law degree but they are required to follow the law in their daily lives where ignorance is no excuse. How then do you justify letting violations by LEOs slide because of ignorance?

Ask them why? (And I always do) The answer is usually, "Because there's too much paperwork, the public distrusts you, and you can get sued for one litttle mistake. Who needs that hassle?"

That really surprises me that HS graduates and new college graduates are seriously concerned with a job in LE due to the possibility of being sued for "one little mistake." My dad worked patrol for 22 years as a trooper in another state. He did his job effectively and never once got sued for carrying out his duties. I have another friend out here in CA who is a detective for the civil enforcement group in the local SO and he is VERY concerned about it and spends considerable time keeping up to date on the laws concerning civil enforcement. He hasn't been sued because he's careful and takes his job seriously as a profession and follows the law, and doesn't take a just "Do what you have to do to get the bad guys or complete the job" attitude.

[DDT]

WOW...

[Fire in the Hole]

DDT Wrote:

"How then do you justify letting violations by LEOs slide because of ignorance?"

I think I already answered that question with my preamble to the previous post: "I can't justify it, or excuse it really."


I spent a lot of time taking liability seminars on my own time and on my own dime. And pursuing a college degree in AJ during my off hours. I got sued twice, started in state court, went onto federal court. It dragged on for 8 years. I had a really hard time getting a home loan due to the pending personal liabilitgy litigation. I was found not guilty eventually in both these civil trials. Took it's toll on me and my family.

Young people are very much aware of police lawsuits nowadays. It's all over the news and the internet. When was the last time you heard of a Firefighter being sued?

[Liberty1]

All of the 4th A. issues discussed generally stem from exceeding ones authority during an otherwise lawful criminal investigation by police; lawful traffic stop but the trunk is searched without a warrant or PC, etc...

UOC is unique and not analogous to other searches because PC 12031 (e) authorizes a detention and search based on mere possession absent normal RS/PC for a normal criminal investigation .

[hobard]

All of the 4th A. issues discussed generally stem from exceeding ones authority during an otherwise lawful criminal investigation by police.

UOC is unique and not analogous to other searches because PC 12031 (e) authorizes a detention and search based on mere possession absent normal RS/PC for a normal criminal investigation .

IANAL, but I would tend to agree. 12031(e) gives the officer the authority to inspect the weapon. While they are inspecting the weapon, the serial number is in plain view, and you have little expectation of privacy. At that point, I would imagine running the serial number would be analogous to running a license plate. While continuing the detention specifically to run the serial number would be a 4th amendment violation, I do not see what would prevent the officer from running the serial number once you are "free to go."

[Liberty1]

IANAL, but I would tend to agree. 12031(e) gives the officer the authority to inspect the weapon. While they are inspecting the weapon, the serial number is in plain view, and you have little expectation of privacy. At that point, I would imagine running the serial number would be analogous to running a license plate. While continuing the detention specifically to run the serial number would be a 4th amendment violation, I do not see what would prevent the officer from running the serial number once you are "free to go."

If the officer memorized the serial number and your detention was not delayed solely for that purpose only I would agree.

Now if the weapon's loaded status could be verified without handling the arm, lets say it's in a serpa holster no mag in the well, with the slide locked back and the chamber visible, then the officer would not see the serial number in the course of the "(e)" check.

Or one could do what some have suggested doing and place tape over the serial number making the number no longer in "plain view".

Having a tape recorder and specifically stating that you do not consent to any searches, but will comply with lawful orders demanding an "(e)" check, would also aid one's case IMO.

I think it's good, for now, to have a serial number and/or name DOB run in NCIS, thereby creating a record of the search, because that may be the UOCers only hard proof of the detention occurred to that specific individual.

And welcome to Calguns... oops, been here a while I see, congrats on the 1st post!!!

[Fire in the Hole]

Liberty1 aside from generic 4 amendment law, which I get. Do you know of any case where the 4th amendment was tested for a police officer runing a gun's serial # out of nothing more than a 12031(e) P.C. inspection?

BTW, when I was a rookie in 1980, I conducted my firswt 12031(e) inspection. I was not taught it in the academy, but ran across it while reading the PC on my own time. My Sgt. tore into me for it, saying absent any PC, I could not do it. I pointed out 12031(e) to him. His hat almost blew off. He never heard of it before. He took it to the other Sgts. 1 out of 8 knew about it. The Lt. and Capt. had not.

[hobard]

And welcome to Calguns... oops, been here a while I see, congrats on the 1st post!!!

Thanks! I am not what you would call a prolific poster

Clearly showing an empty action would probably put you in the clear. However, covering the serial number with tape would make you guilty of 537e PC -

537e. (a) Any person who knowingly buys, sells, receives, disposes
of, conceals, or has in his or her possession any personal property
from which the manufacturer's serial number, identification number,
electronic serial number, or any other distinguishing number or
identification mark has been removed, defaced, covered, altered, or
destroyed, is guilty of a public offense, punishable as follows:

[Liberty1]

Liberty1 aside from generic 4 amendment law, which I get. Do you know of any case where the 4th amendment was tested for a police officer runing a gun's serial # out of nothing more than a 12031(e) P.C. inspection?

Not that I know of - IANAL. Stops for 12031e only (no other PC for stop such as traffic/criminal investigation) really only occur due to Open Carrying and really have only been documented by our UOCers here and at opencarry.org.

I think it's past time to test those waters. Maybe next year with Nordyke and 2nd A incorporation behind us.