CA_Libertarian unlawfully detained by Turlock PD for open carry

[CA_Libertarian]

The report was "man with a gun"...

No, I actually read what the reporting party had said. The computer in the car i was in was left on displaying the call: "RP reports a man with a gun in a holster on his right side" (this is from memory, but it's pretty close to exact wording I read off the screen).

...It probably would have helped if you pointed out that 12025(f) specifically exempts guns carried openly on a belt holster.

I did, it was one of the first things I pointed out. I was held for at least 45 minutes after I mentioned this specific exemption.

[hoffmang]

Seems like he needs to sue whether he is looking for money or not just to have the arrest expunged from his record.

Legally, he wasn't arrested - just detained. He was certainly seized however.

-Gene

[CA_Libertarian]

so the real question is what now ?
are you going to continue to open carry ?

I made it clear to the officers that despite their intimidations, threats, and pleas for me to not do so in 'their town' I intend on continuing to exercise my rights within the letter of the law.

In fact, after i was told i was free to go the first thing I did was put my mags back in the holders on my belt and then walked back to ask Officer Rodriguez, "are you guys gonna be leaving soon so I can retrieve my gun from the trunk without making you guys uneasy?" His reply: "Can't you drive somewhere else before you take your gun out again?" I didn't feel like waiting them out, since it was apparent they had nothing better to do than hang around. So, I drove around the block, check to make sure they didn't inadvertantly load the weapon while they had my firearm, and then holstered my weapon.

I'll be back in Turlock again next weekend. I really was enjoying the peace and quiet over by the park; I think I might make it a weekly thing to go out and read a couple chapters of my book at that very spot.

[CA_Libertarian]

Legally, he wasn't arrested - just detained. He was certainly seized however.

-Gene

While I was told I was under arrest, I doubt any arrest will be shown on my record.

In any case I'm certain there will be red flags and sirens when anybody runs my license or car tag from here on out. I'm not too worried about this, though. I have a pristine driving record; the last time I was pulled over was in 2000, and that was for a missing front license plate.

[CA_Libertarian]

No. They have a right to detain you, not arrest you, unless they have reasonable suspicion that a law has been broken. And 12031(e) allows them to take your firearm to determin if it is loaded, but no other search is allowed unless they have cause. His sidearm was holstered - clearly not violating 12025. It was unloaded - clearly not violating 12031. This was a case of an overzelous undertrained cop.

Actually, they have the right to detain you only if they are investigating a crime or activity that indicates criminal intent. LE don't have a golden ticket to detain any person they want without cause.

12031(e) searches are, IMO unreasonable - and therefore unconstitutional. This subsection takes on the presumption of guilt. It's like those DUI checkpoints where they assume everybody is guilty until you prove otherwise. Except at least with driving it's part of the contract when you get your driving permission slip from the bureaucrats, so at least there they get coerced consent to the search.

[tombinghamthegreat]

I made it clear to the officers that despite their intimidations, threats, and pleas for me to not do so in 'their town' I intend on continuing to exercise my rights within the letter of the law.



I'll be back in Turlock again next weekend. I really was enjoying the peace and quiet over by the park; I think I might make it a weekly thing to go out and read a couple chapters of my book at that very spot.

That is what i like to hear. Maybe people can have a OC meetup there

[BillCA]

Originally Posted by MudCamper
No. They have a right to detain you, not arrest you, unless they have reasonable suspicion that a law has been broken. And 12031(e) allows them to take your firearm to determin if it is loaded, but no other search is allowed unless they have cause. His sidearm was holstered - clearly not violating 12025. It was unloaded - clearly not violating 12031. This was a case of an overzelous undertrained cop.

And CA_Lib was detained. You can call it overzealous to handcuff him and put him in the back of the squad if you want to - but officer safety is a high priority.

I'm sure one of the officers believed there was a P.C. section prohibiting carrying a gun and ammo at the same time (there is - 171c & 171d but it applies to gov't facilities). This may be one reason it took some time.

Since they searched your car, CA-Lib, I'd be interested in knowing if they found other flyers, similar to those handed out earlier and their reaction to them.

I'd also write a letter to the city attorney's office and ask for clarification on when the police can charge people for their services. IFAIK, for routine L.E. tasks, the PD cannot render a bill for services since those come from taxes. The PD can charge to cover parades and other events that require a permit, but not free speech or other constitutionally protected activities.

Opinion:
CA_Lib chose to exercise his right in a lawful way. I think we can all agree that carrying a firearm openly in California is an unusual act, especially in urban areas. At this point in time, mere days after the Heller decision, we should not expect an immediate attitude change on the part of the California L.E. community. We can expect that officers will react to O.C. sightings as if there is a great (potential) threat and some confusion over the legal status of O.C.

While you may disagree and claim the police should know every law on the books, it is just not practical in every circumstance. This is the time to educate L.E. using notices to CLEOs, District Attorneys and City Attorneys that the practice is legal. Since it is legal, it would be prudent to ask CLEOs to review procedures in dealing with calls as well as field procedures used by officers.

In a legal sense, I doubt CA_Lib has much of a case for unlawful detention, harrassment or other such claims. Physical injury is another matter. I think it would be much more effective to meet with the department's Internal Affairs to ask for the involved officers to be educated & trained with regard to Open Carry statutes and in turn educate fellow officers.


What we really, really need to do is win over the L.E. community, not become adversaries.


We can also expect CLEOs to resist. I expect some CLEOs will discourage the practice by saying procedures will not change and officers will protect themselves and the public first. I can also see some CLEOs raising the spectre of a deliberate "ambush" setup as a red herring. We have to be cognizant of the L.E. concerns and have ways to address them.

We should also recognize that some nimrod out there with a chip on his shoulder will attempt to O.C. and be either beligerent to other citizens or to the LEOs. Such nitwits can undo years of progress with L.E. folks. We cannot support those who O.C. so they can intimidate others.

[hoffmang]

While I was told I was under arrest, I doubt any arrest will be shown on my record.

In any case I'm certain there will be red flags and sirens when anybody runs my license or car tag from here on out. I'm not too worried about this, though. I have a pristine driving record; the last time I was pulled over was in 2000, and that was for a missing front license plate.

It's not an arrest unless they actually book you on a charge. That usually leads to the standard booking process. Since none of that occurred there is no way (beyond them making an intra LEA note) for them to "red flag" you.

-Gene

[leelaw]

12031(e) searches are, IMO unreasonable - and therefore unconstitutional.

And here is the important part - in your opinion it is unreasonable. Your opinion simply doesn't make the law cease to apply.

This subsection takes on the presumption of guilt. It's like those DUI checkpoints where they assume everybody is guilty until you prove otherwise.

How much experience do you have with running DUI checkpoints? This sounds more like opinion, again.

Except at least with driving it's part of the contract when you get your driving permission slip from the bureaucrats, so at least there they get coerced consent to the search.

I think the correct term is "implied consent".

I applaud you for your courage to open carry where legal; however, it isn't realistic to think that someone in a Californian urban area wouldn't react poorly to a man walking around with an exposed gun, and call the police. When that happens, the police will respond as expected - the person with the gun will be disarmed and investigated, which is in line with the policy of officer safety, and the safety of the public at large. Handcuffing is not unreasonable during the investigation.

[eaglemike]

Handcuffing is not unreasonable during the investigation.

May I respectfully suggest that this is your opinion?

As I posted earlier, if something similar happens to you, perhaps you match the description of a suspect at a time and place. You are handcuffed and detained until it's obvious it wasn't you. Or, you were engaged in another activity someone else misinterpreted as being illegal (see OP).

Perhaps it would not bother you. Perhaps you don't see it as being possible that this could happen to you. I would not appreciate being cuffed, etc - and my car being illegally searched - did I read that happened too?

all the best,

Mike

[leelaw]

May I respectfully suggest that this is your opinion?

You may; however, it's the opinion of the courts.

[tyrist]

May I respectfully suggest that this is your opinion?

As I posted earlier, if something similar happens to you, perhaps you match the description of a suspect at a time and place. You are handcuffed and detained until it's obvious it wasn't you. Or, you were engaged in another activity someone else misinterpreted as being illegal (see OP).

Perhaps it would not bother you. Perhaps you don't see it as being possible that this could happen to you. I would not appreciate being cuffed, etc - and my car being illegally searched - did I read that happened too?

all the best,

Mike

Legally you can be cuffed since technically it's an "armed" suspect. Officers are allowed to search all areas of the car which could reasonably conceal a weapon. A 2-inch snubnose fits in an awful lot of places. This is the opinion of the courts. The best thing CA libertarian could do is to ask Officers recieve training.

[PatriotnMore]

Legally you can be cuffed since technically it's an "armed" suspect. Officers are allowed to search all areas of the car which could reasonably conceal a weapon. A 2-inch snubnose fits in an awful lot of places. This is the opinion of the courts. The best thing CA libertarian could do is to ask Officers recieve training.

I am interested, we all agree he was armed, in open carry, which is legal. Of what is he a suspect of?

[FreedomIsNotFree]

The silver lining in the situation is that this shouldn't happen again in Turlock. I'd make sure the CLEO, City Attorney and DA all receive legal notice of the legalities of open carry. That way, if it does happen again, they are showing a willful disregard for your civil rights...thats a Federal 1983 lawsuit.

[mblat]

actually REAL silver lining is that there seem to be bunch of people organizing open carry events all over CA.
I am fairly certain that if such event will start occur regularly in Beverly Hills and such shall issue won't be too away.
Now good for you CA_Lib and good for the people organizing the event in San Diego.