LEO seizure of a handgun

[anygunanywhere]

If the state of Virginia has their way then you can expect to be subjected to pretty much anything during a traffic stop.

http://www.usatoday.com/news/washington ... ourt_N.htm

WASHINGTON — A Supreme Court case heard Monday that could broadly affect the rights of motorists began when two Virginia police detectives stopped David Lee Moore in 2003 for driving with a suspended license.
Instead of simply writing up a summons and letting him go, they arrested and searched him, finding crack cocaine in a jacket pocket. Moore was convicted of possession with intent to distribute. The Virginia Supreme Court voided the conviction, saying the search was unconstitutional because Virginia law does not give police the authority to arrest drivers for minor violations.

Hearing Virginia's appeal, Chief Justice John Roberts and several other justices appeared sympathetic to state arguments that the evidence could be used anyway.

Stephen McCullough, deputy Virginia solicitor general, emphasized that although Virginia and many other states set a higher standard for arresting drivers for small offenses, the U.S. Constitution allows police to arrest people they believe are engaged in wrongdoing, no matter how trivial. The Fourth Amendment, which protects against unreasonable searches and seizures, requires only that officers have "probable cause" to believe a crime is being committed before an arrest and search.

McCullough urged the justices to impose a uniform rule that the Fourth Amendment would have allowed Moore's arrest for a suspended license, so it does not require the cocaine evidence to be suppressed. McCullough said the nation should not have differing constitutional rules based on varying state laws.

Justice Anthony Kennedy, often a decisive vote, seemed to agree. "I think it is much easier to administer, to have a uniform federal standard, rather than whether or not an officer can arrest in one county for something and not in another county," he said.

Urging the court to rule for Moore, his lawyer Thomas Goldstein said when people engage in activities that do not normally subject them to arrest "they do not have a reduced expectation of privacy," as would people doing something more serious that could lead to an arrest and then search. Goldstein argued that the law restricting arrests for traffic offenses should factor into the Fourth Amendment analysis and said, "We don't want to encourage officers to conduct illegal arrests and search people."

Goldstein invoked the history of the constitutional protection against unreasonable searches and seizures, telling the court, "The notion that the proud men who framed the Constitution would believe it reasonable to go out and arrest someone for a non-arrestable offense and … to further search (him) is an extreme proposition and one that they would not accept."

"But you think they would accept arresting somebody for not wearing a seat belt?" Justice Antonin Scalia interjected. The court in 2001 ruled that people stopped for minor traffic offenses, such as not wearing a seat belt, could be subject to a full-scale arrest. There was no search in that case.

Justice Ruth Bader Ginsburg was among the justices most skeptical of the state's position, backed by the U.S. Justice Department. When McCullough said an arrest is constitutional if the officers have reason to believe any crime has occurred, Ginsburg countered, "Any crime at all? Jaywalking, for example?"

McCullough responded, "That's correct."

People are all caught up with the Heller case. There are other cases that are eroding our freedoms too.

Anygun

[seamusTX]

This battle has already been lost. Atwater v. Lago Vista, woman arrested (as in cuffs ride, prints, and mug shot) for not wearing a seat belt: http://www.law.cornell.edu/supct/html/99-1408.ZS.html

The article refers to Atwater obliquely.

- Jim

[flintknapper]

I dont understand why all of you are making comments about how bad it is for it to be a general policy to disarm ALL CHL's. Unless I have missed something no one is saying that, it is a good thing, just that they think if an LEO decides for WHATEVER reason that he needs to disarm them, then he should do so. So stop jumping everyones bones that disagrees with you. I have yet to see anyone that has brought forth anything saying that any department has a policy to disarm CHL's. How many of you have ever even been disarmed? I think that people are getting awfully upset where there doesnt even seem to be a problem.

The fact of the matter is this...as stated by pretty much everyone in this thread, an LEO has the authority to disarm an individual if he REASONABLY believes they present a threat to his safety. This threat is determined by the objective reasonableness of the officer on scene. You may never know why he disarmed you (should it ever happen in the first place) but I think it is safe to assume that most LEO's would not disarm you without good reason.

Of course, we all hope this is true.

Just to make things clear, what are a few things you would consider to be "good reasons" as concerns an officer disarming a CHL, please be specific.

Thanks,

Flint.

[Odin]

In Texas the police can arrest you for any minor traffic violation except speeding or violation of the open container law. That includes not wearing a seat belt, burned out tail light, etc...

[LedJedi]

Of course, we all hope this is true.

Just to make things clear, what are a few things you would consider to be "good reasons" as concerns an officer disarming a CHL, please be specific.

Thanks,

Flint.

pointing a gun at someone without justifiable cause to do so.
threats of violence toward an officer or others on the scene.
history of assault / aggression toward LEO.
obvious appearance that they are under the influence of some substance or in an altered state of mind by means of suspected chemical abuse or general mental instability.
they are the primary suspect in a felony or act of violence.

[anygunanywhere]

In Texas the police can arrest you for any minor traffic violation except speeding or violation of the open container law. That includes not wearing a seat belt, burned out tail light, etc...

Just because it is so does not make it right.

Anygun

[Odin]

In Texas the police can arrest you for any minor traffic violation except speeding or violation of the open container law. That includes not wearing a seat belt, burned out tail light, etc...

Just because it is so does not make it right.

Anygun

Very seldom is a person arrested for a class C misdemeanor or traffic offense, but it's a possibility. A traffic violation is a crime in Texas. People are subject to be taken before a magistrate when they commit crimes.

The police don't write legislation. If the citizens don't like the laws the citizens have the authority to change the laws through the established legislative process. I don't agree with many of our laws, but that doesn't mean I won't follow them.

[AFJailor]

Of course, we all hope this is true.

Just to make things clear, what are a few things you would consider to be "good reasons" as concerns an officer disarming a CHL, please be specific.

Thanks,

Flint.

Overly aggressive behavior
If the CHL appears to be under the influence of drugs/alchohol
Also, a lot of things that an LEO does are based off of personal experience and intuition, so if you start acting overly nervous, or your behavior is such that it gives the LEO reason to believe you could become aggresive, then I believe disarming would be justifiable.

Those are just off the top of my head, I am sure there are plenty more.

[flintknapper]

Of course, we all hope this is true.

Just to make things clear, what are a few things you would consider to be "good reasons" as concerns an officer disarming a CHL, please be specific.

Thanks,

Flint.

Overly aggressive behavior
If the CHL appears to be under the influence of drugs/alchohol
Also, a lot of things that an LEO does are based off of personal experience and intuition, so if you start acting overly nervous, or your behavior is such that it gives the LEO reason to believe you could become aggresive, then I believe disarming would be justifiable.

Those are just off the top of my head, I am sure there are plenty more.

Thats fine, these will do...although there probably are "plenty more".

AFJailor wrote:

1.Overly aggressive behavior

2.If the CHL appears to be under the influence of drugs/alchohol

3.Also, a lot of things that an LEO does are based off of personal experience and intuition, so if you start acting overly nervous, or your behavior is such that it gives the LEO reason to believe you could become aggresive, then I believe disarming would be justifiable.

Those are just off the top of my head, I am sure there are plenty more.

Number three is somewhat subjective, but I fully recognize the value of "street smarts".

So, taking the above into consideration, how may we apply them to the stops below (all traffic stops):


[

b]phddan [/b] Post subject:
Posted: Sun Aug 12, 2007 8:38 pm
joined: Thu Jul 27, 2006 8:21 pm
Posts: 517
Location: Briggs One time I told the officer after I handed him the CHL that I was armed, and was promptly disarmed, then given a warning.

jbirds1210 Post subject:
Posted: Mon Aug 13, 2007 7:59 am
Moderator

Joined: Sat Oct 22, 2005 5:36 pm
Posts: 2563
Location: Texas City, Texas
I have been disarmed once in Nacogdoches. What bothered me about this stop was that he had a cadet and instructed him to disarm folks with a CHL.

Humanphibian Post subject:
Posted: Mon Aug 20, 2007 3:20 pm
Member

Joined: Wed May 30, 2007 1:10 pm
Posts: 130
Location: N. Richland Hillz, Republic of Texas!

During our initial meeting I identified myself and was asked for ID to verify I was actually "me". I gave DL and CHL and was asked if I was armed. I responded in the affirmative that was, on my person along w/ back-up and long gun in my truck. He asked if I minded leaving my handgun in my vehicle, then told me I didn't "have" to, but he would be more comfortable. I responded that it was no problem whatsoever, and disarmed.

Zim Post subject: Disarmed and received a warning
Posted: Tue Sep 25, 2007 4:14 pm
Junior Member

Joined: Tue Sep 25, 2007 12:53 pm
Posts: 2 I was caught in a newly posted construction zone. When I saw him turning around, I pulled over and waited. I had the pistol in the car. After handing DL & CHL, I was asked to step to the rear of the vehicle while he unloaded and ran the pistol. I told him where to find the SN.
Received a ticket and asked not to load it until after he left.

AFJailor wrote:

I have yet to see anyone that has brought forth anything saying that any department has a policy to disarm CHL's. How many of you have ever even been disarmed? I think that people are getting awfully upset where there doesnt even seem to be a problem.

It took me about 3 minutes (right here) to find the above. If memory serves, I can find you at least 6 more from this site alone.

We do not have the luxury of being able to hear the officers side of the story, but we can certainly ask our members if they feel they were displaying any of the conditions you cited above.

And if they did not, then I would ask you to reconcile this.

[AFJailor]

In every part of our daily lives there will be things we do not deem fair, and I am not saying that the traffic stop sounds like a job well done or anything but without the officers perspective who know why the individual was disarmed. There are many reasons why he could of been disarmed, maybe the cop was new a newbie and did not know what the heck he was doing.

I was not trying to say that no one ever gets disarmed during a traffic stop, I am simply saying that so few people report being disarmed and yet such a HUGE stink is raised over it. There are almost 2500 member on this forum and you can come up with 7 examples of CHLs being disarmed? Whoopdeedo. The VAST majority of traffic stops seem to go off with out a hitch, I say good job Texas LEO's thanks for not infringing upon our 2a rights and keep up the good work.

It boils down to this...LEO's are generally good people who have taken up a life in a position of authority, a CHL holder is a generally good civilian who has chosen to take advantage of their 2a rights but is NOT in a position of authority. So you have a few choices; refuse to disarm and be arrested; disarm and accept your ticket and go about your merry way; file a complaint; or not break the law in the first place and never have to worry about it. The choice is yours to make, just be prepared to face the consequences.

I respect LEO the same as I respect every man, because they are in fact people pulled from the general populace, they are not perfect and many will make mistakes. The same could be said about EVERY single person on this forum, no one here can say that they have never made mistakes at their job. I understand that LEO's have great responsibility and with that comes a huge microscope on everything they do, but what you need to understand is that they are people just like you. I doubt during guard mount (or rollcall or whatever they call it) that the patrolman are wondering how many people they can disarm that day. Stop looking for monsters in the shadows just long enough to see that MOST Cops are very good, very responsible people who care about there fellow man.

[LedJedi]

It took me about 3 minutes (right here) to find the above. If memory serves, I can find you at least 6 more from this site alone.

We do not have the luxury of being able to hear the officers side of the story, but we can certainly ask our members if they feel they were displaying any of the conditions you cited above.

And if they did not, then I would ask you to reconcile this.

wow, outstanding post / argument there Flint.

I think what the whole topic boils down to his this. A CHL does not natively represent a threat to an officer. Disarming someone simply because they are armed and citing a "safety issue" is unfair, unconstitutional and paranoia. If there are TRULY concerns such as intoxication, aggressive behavior, history of violence, etc. then I don't think anyone here would have an issue with a LEO disarming a civilian for the duration of a "scene". It's when the "safety flag" is thrown and used as a general excuse to disarm folks who are otherwise behaving that is the real issue here.

I mentioned this to Flint in a PM, and i'll say it again here, I'm not sure where I read this but I recall that whole departments and certainly individual officers have policies to disarm chl folks "for safety reasons" as a matter of procedure. THAT is what I personally have issue with and I suspect what others who have voiced concern over this have issue with as well.

[AFJailor]

We are in agreement, I do not think that LEO's should have a policy to disarm CHLer's, BUT I also believe that if an LEO does disarm you he more than likely has a good reason to do so. I dont think that taking away an LEO's ability to disarm folks is a good idea, as there are many times when people decide to use weapons against them and a cop should be able to determine for himself when he may or may not be in danger.

I really dont know what else could be said on the matter.

[seamusTX]

Disarming someone simply because they are armed and citing a "safety issue" is unfair, unconstitutional and paranoia. If there are TRULY concerns such as intoxication, aggressive behavior, history of violence, etc. then I don't think anyone here would have an issue with a LEO disarming a civilian for the duration of a "scene".

I've seen this twice now and feel compelled to comment.

Someone who is intoxicated is going to be arrested and of course disarmed. Likewise overtly threatening the officer by word or gesture (making a fist, for example).

The heartburn territory is where the officer disarms because of gut feeling. There is the implication that the CHL holder, who has lived his entire life up to that point without committing a felony, and has no misdemeanor for at least five years, is going to shoot a cop over a traffic ticket.

- Jim

[WildBill]

The heartburn territory is where the officer disarms because of gut feeling. There is the implication that the CHL holder, who has lived his entire life up to that point without committing a felony, and has no misdemeanor for at least five years, is going to shoot a cop over a traffic ticket.
- Jim

I disagree with this statement. Having a "gut feeling" about one's safety isn't the same thing as arbitrarily or indiscriminately disarming CHL holders. I think that is what most people are objecting.

[flintknapper]

AFJailor wrote:

In every part of our daily lives there will be things we do not deem fair, and I am not saying that the traffic stop sounds like a job well done or anything but without the officers perspective who know why the individual was disarmed. There are many reasons why he could of been disarmed, maybe the cop was new a newbie and did not know what the heck he was doing.

Agreed, we do not have the officers perspective to draw from here (as I posted in my reply). However, we may get the “perspective� of those here who were disarmed, unless you think their thoughts are unimportant and that only the LEO’s position is of any consideration.

If the Cop was a rookie (prone to mistakes), then I believe we can all overlook certain things and offer a little more “wink� as he/she better learns his job. In this interest, don’t you think that open communication between the citizenry and the PD is a good idea, or would that somehow be “challenging� authority?


AFJailor wrote:

I was not trying to say that no one ever gets disarmed during a traffic stop, I am simply saying that so few people report being disarmed and yet such a HUGE stink is raised over it. There are almost 2500 member on this forum and you can come up with 7 examples of CHLs being disarmed? Whoopdeedo. The VAST majority of traffic stops seem to go off with out a hitch, I say good job Texas LEO's thanks for not infringing upon our 2a rights and keep up the good work.

And well you shouldn’t… try to say that no one gets disarmed. As far as numbers go…your reasoning is flawed at a basic level. 2500 members does not equate to 2500 “stops�. If you like, I can run a poll, but likely we would come up with about 10% of the participants being disarmed. If those 10% were disarmed because of “policy� rather than by legitimate reasons, are you not concerned with that? Does officer safety (by any means) now TRUMP the “rights� that tens of thousands of men have fought and died for? Does that put it in a little different light!


AFJailor wrote:

It boils down to this...LEO's are generally good people who have taken up a life in a position of authority, a CHL holder is a generally good civilian who has chosen to take advantage of their 2a rights but is NOT in a position of authority. So you have a few choices; refuse to disarm and be arrested; disarm and accept your ticket and go about your merry way; file a complaint; or not break the law in the first place and never have to worry about it. The choice is yours to make, just be prepared to face the consequences.

How very Draconian, and a good example why there continues to be a wedge driven between some LEO and the public. But, I’ll take you up on the “file a complaint�, and would encourage others to do the same.. until this matter is taken seriously at the dept level.


AFJailor wrote:

I respect LEO the same as I respect every man, because they are in fact people pulled from the general populace, they are not perfect and many will make mistakes. The same could be said about EVERY single person on this forum, no one here can say that they have never made mistakes at their job. I understand that LEO's have great responsibility and with that comes a huge microscope on everything they do, but what you need to understand is that they are people just like you. I doubt during guard mount (or rollcall or whatever they call it) that the patrolman are wondering how many people they can disarm that day. Stop looking for monsters in the shadows just long enough to see that MOST Cops are very good, very responsible people who care about there fellow man.

Please don’t school me about LEO. I have several good friends who are current officers, have known and appreciated LEO all of my life. Support them in every way that I can, and have the utmost respect for the job that they do. I am in no manner “looking for monsters�, but when I see what I feel is a growing “trend� to disarm CHL’s only because it makes the officer feel safer, then yes…I will challenge that… no matter how small the number of occurrences.

Yes, we all make mistakes...and I expect no less from LEO.

Likewise, I expect them to learn from and CORRECT those mistakes, just like the rest of us. Surely, you would not argue that (but maybe so).

Thank you for your thoughts concerning this touchy subject,


Flint.