Abilene Police do not Understand Lawful Detention or Failure to Identify

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This is a contact between officers of the Abilene Police Department and an individual who identifies himself as Bobby Ivester (at about 0:25).  Ivester is openly carrying a rifle, allows the officers to inspect the weapon, but declines to produce identification when the officer requests it at about 1:30 in the video.  The second officer explains to Ivester that he is being detained.

The reason for the detention?  “Because we got a call on you” (at 2:40).  Unfortunately, both Ivester and the officers do not understand Texas law.

Ivester is arguing that he is not being lawfully detained.  I disagree.  I believe that he is being lawfully detained (initially, at least).  The 911 call about a man with a gun, combined with the officers finding Ivester with an openly carried rifle, provides a reasonable suspicion that Ivester may be committing the offense of disorderly conduct.  See Tex. Pen. Code § 42.01(a)(8), displays a firearm in a public place in a manner calculated to alarm.  Please note that I did not state that Ivester was committing that violation, clearly he was not, but that doesn’t negate the fact that the officers had reasonable suspicion to make the contact and detain Ivester.

Both Ivester and the officers are under the impression that if the police detain someone, that individual has to identify themselves to the officer.  That is simply incorrect.  Tex. Pen. Code § 38.02 is very clear, an offense is only committed if the detained person lies about who he is (or his date of birth or residence).  Refusing to provide identifying information is not an offense.

At about 5:20 in the video, the second officer grabs the camera and handcuffs Ivester.  At 6:55 in the video, an officer says that they don’t know what Ivester’s intent with the gun is.  That’s true.  It also doesn’t matter.  The officers are not allowed to presume that Ivester is a felon or otherwise unable to carry a rifle.  United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013) (Being a felon in possession of a firearm is not the default status).  The officers try this argument anyway, assuming that it is their “duty” to determine if Ivester has the right to carry the rifle.   Uh, guys–his right to carry is called the Second Amendment.

At this point, Ivester is being unlawfully detained.  The officers have already determined that Ivester was not committing the offense of disorderly conduct and are now just fishing for his identification to try and charge him with something else.  They have improperly extended the contact, see Kothe v. State, 152 S.W.3d 54, 64 (Tex. Crim. App. 2004) (“once the original purpose for the stop is exhausted, police may not unnecessarily detain [individuals] solely in hopes of finding evidence of some other crime”).

If you disagreed with what the officer’s did, you can contact them at:

  • Chief Stan Standridge, stan.standridge@abilenetx.com, 325-676-6600
  • Assistant Chief Mike Perry, mike.perry@abilenetx.com, 325-676-6600 (over Uniformed Services)
  • Officer George Spindler, apdpio@abilenetx.com, 325-437-4529 (Public Information Officer)
  • Facebook; webpage

Related posts:

H/T:  Jim Morriss

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People v. Aguilar, Second Amendment Protects the Carrying of Arms

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This came out last week, but I wanted to wait and think about it before I began to bloviate about it.

The Illinois Supreme Court, in People v. Aguilar, 2013 IL 112116, ___ N.E.2d ___ (Ill. Sept. 12, 2013), ruled that the former version of the Aggravated Unlawful Use of a Weapon (AUUW), 720 ILCS 5/24-1.6, violated the Second Amendment of the U.S. Constitution.

Alberto Aguilar, then 17 years old, was arrested in the Little Village neighborhood of Chicago for AUUW and for Unlawful Possession of a Weapon (UPW), 720 ILCS 5/24-3.1.  Aguilar was convicted in a bench trial and sentenced to two years of probation.  He appealed and the appellate court affirmed the conviction.  He then took the case to the Illinois Supreme Court.

As noted, the Court held that AUUW was unconstitutional at the time of the arrest, as it prohibited all carry of a firearm outside of the home.  This is not surprising, given that the U.S. Seventh Circuit had made the same ruling in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012).  The Moore decision led to Illinois passing a concealed carry statute earlier this year, although it has not yet really taken effect yet (as no permits have been issued).  The Illinois Supreme Court noted that they were ruling on the former law, not the current law.  This means that the ruling will have a limited effect.

Of course, the gun rights people (at least those that are not lawyers) have put their own spin on this and I’m sure it won’t be long until some idiot decides that this means he can carry whenever and however he wants.

Some people will be getting their charges dropped, sure.  The AUUW statute barred all carry until it was amended July 9, 2013, so people who were charged before that date have a pretty clear-cut road to the charges being dismissed.  The problem arises with the skewed interpretation that some of the gun rights people are putting on this.  They believe that since the old AUUW law was unconstitutional, then it was void (technically correct) and any amendment to the law was pointless (totally incorrect).

When the AUUW law was amended, it cured the problems brought up by both the Seventh Circuit and the Illinois Supreme Court.  The AUUW law was unconstitutional because it had no provision for “bearing” arms outside of the home.  As of July 9th, it has that provision.  Ergo, it will be presumed to be a valid law again.

Someone is going to carry and become a new test case–and I wouldn’t want to be that guy, because he’ll lose.

 

Semi-Open Carry Arrest in Tennessee: What Happens When You Don’t Know the Law, Part II

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Well, Leonard Embody has given me further information for my blog.

His preliminary hearing was held recently.  A preliminary hearing is solely for a judge to make a determination if there was probable cause for the arrest.  That’s it.  A couple of other matters can be addressed, like a motion to suppress evidence or a motion to dismiss, but those are based on factors surrounding the stop and the arrest, not general law.

So Embody shows up, pro se and is representing himself, and makes a motion to suppress.  Of course, he has no clue about what he is doing, so when he is arguing his motion, he starts to offer testimony and the prosecutor objects.  Eventually the judge decides to hear the testimony of the officer, who states that as soon as he saw Embody, that he could see an AR-15 slung across his back.  As he got closer, he could tell that there was what appeared to be a silencer attached to the rifle, and the officer did not yet realize that the rifle was in a form-fitted kydex case.  At that point he had reasonable suspicion to stop based on Tennessee law, since the possession of a silencer is a felony.

That would pretty much do it for the motion to suppress and motion to dismiss.

Of course, Embody brings up all sorts of irrelevant issues during his cross of the officer, the prosecution objects, and the judge sustains the objections.  Embody then tries to introduce the ATF documents which would show that the silencer was legal, but has no idea how to lay the foundation nor how to authenticate the documents so he could get them admitted.  I was actually very impressed with the patience that the judge had with Embody.

So now the prosecution has a finding that there was probable cause for the arrest and it will go to a grand jury for indictment.  And if Embody does not get much better at the legal issues, he’s going to be convicted.  He really needs to hire an attorney.

And the best line from the video is from the judge, near the very end.  “I don’t think Mr. Embody is crazy, I think he’s stupid.”  I will defer to the judge’s wisdom and leave that determination to my readers.

Apparently Embody has a copy of the recording of the hearing and put it up on YouTube.  I’ve linked to it below.

 

Open Carrying While Black, Washoe County, Nevada

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Nevada is an open carry state, allowing the unconcealed carry of both handguns and longarms.

Unless, of course, one has a disqualifying factor, such as mental disease or defect, a felony conviction, etc.

Apparently, that also includes being black, at least in Washoe County.

 

Gabriel Nobles was carrying a rifle in Washoe County when he was confronted by the Sheriff’s Office, put on the ground at gun point, and held there.  His only offense was that he was a young black man carrying a rifle slung across his back.  We’ve seen plenty of videos of similar activity, but nothing like this.  I can see nothing in the video that justifies the deputies conduct.

Of course, at the end of the stop, Gabriel is given his rifle back and sent on his way.

 

Semi-Open Carry Arrest in Tennessee: What Happens When You Don’t Know the Law

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Leonard Embody is a registered nurse, a licensed federal firearms dealer, and a gun rights activist.  He also, in my opinion, is somewhat of a whackjob.

In 2009, Embody carried an AK-47 pistol into a state park.  For some reason he painted the tip of the pistol orange.  He also dressed up in camouflage gear before doing so, becoming known as the Radnor Park Rambo.  He sued over being detained in the incident and lost on summary judgment, the court holding that the detention and temporary seizure of the gun was reasonable.  Embody v. Ward, No. 3:10cv-00126, 2011 U.S. Dist. LEXIS 79153, 2011 WL 2971055 (M.D. Tenn. July 20, 2011).  He then appealed and lost that appeal when the Sixth Circuit affirmed.  Embody v. Ward, 695 F.3d 577 (6th Cir. 2012), cert. denied, 133 S. Ct. 770, 184 L. Ed. 499.  This was also covered by “The Volokh Conspiracy“, with Embody participating in the comment section (which has over 600 comments).  As Volokh noted, it is rare when the Brady anti-gun people and the Second Amendment Foundation are on the same side, and that was against Embody.

Embody has carried a loaded black-powder pistol in his hand (i.e., not in a holster) while in Belle Meade, TN in  2010.  Tennessee law preempts local regulation of guns, but grandfathers in existing local gun laws.  In Belle Meade, there was a provision of the law that stated “except the army or navy pistol which shall be carried openly in the hand.”  Belle Meade Mun. Code § 11-602 (1987), repealed Ord. #2010-7, Sept. 2010.  Obviously the city did not like the idea of individuals carrying revolvers around in their hands.  This also caused the Belle Meade police to request that the state revoke Embody’s concealed carry permit, alleging that he was a danger to the public.  The State Police did revoke his permit and his administrative appeal failed, launching a new lawsuit, this one challenging the constitutionality of the Tennessee firearm statutes.    The trial court granted the state a summary judgment, and the appellate court affirmedEmbody v. Cooper, No. M2012-01830-COA-R3-CV, 2013 Tenn. App. LEXIS 343, 2013 WL 2295671 (Tenn. Ct. App. May 22, 2013).

Now the whackjob has gotten arrestedar15caseHe was walking around downtown Nashville handing out flyers while wearing body armor.  Slung on his back, he had a rifle that was in a kydex case, which means that it was form fitted to the rifle and that it was obvious that it could contain a rifle.  And Tennessee does not allow a person to openly carry a loaded rifle.  So when police officers were called, saw the case, they immediately had reasonable suspicion to check if he was in fact carrying a rifle.  So when they opened the case, they found that it had a silencer on the end, which is a felony in Tennessee.  There is a defense, but since Embody was not talking to the officers, he couldn’t prove that he had a National Firearms Act license for the silencer.  It also was hilarious that Embody was screaming that they needed probable cause to detain and search him, which was not correct.  The arrest affidavit is here.

 

 

Sterling Heights Open Carry Confrontation

15 Comments

On July 18, 2013, James Baker and a friend were openly carrying in Sterling Heights, Michigan.

The officers contacted the open carriers with drawn weapons, immediately disarming and handcuffing the two.  According to the radio calls at the start of the video, there was no reasonable suspicion of criminal activity, just that two individuals were carrying rifles.  One officer then searches Baker, removing his wallet and ID from the wallet.

This is problematic in a couple of ways.  First, as was noted in an earlier post, open carry in Michigan is legal and is not reasonable suspicion for a stop. Second, even if we assume for the sake of argument that the officers had reasonable suspicion, Michigan law is clear that this does not provide an officer the authority to search for and seize an individuals wallet, then enter the wallet seeking an identification card or drivers license.  People v. Williams, 234 N.W.2d 531 (Mich. Ct. App. 1975) (“Assuming the officer’s initial stop and questioning was proper in the present case,it is clear that the seizure of the defendant’s wallet cannot be justified as a protective pre-arrest search since the purpose of the search was not to seize a weapon.”).

Further, the officer knew that he wasn’t arresting  Baker, as he told Baker just a few second later that he didn’t have a right to an attorney or to remain silent because he wasn’t under arrest (at 3:40).  Additionally, the officer states later, on the radio that this is an “open carry issue” (at 4:30).

Later, when it is back to video, a sergeant is trying to sell the story that it is a “public safety” issue–but the police don’t have the authority to detain someone unless they have reasonable suspicion of a crime.  The officers clearly have no grounds to detain the individuals for open carry where open carry is legal.  The intent seems to be to chill the individuals from exercising their rights, which is a violation of 42 U.S.C. § 1983.  See generally Ctr. for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807 (6th Cir. 2007).

In the second video, the officer clearly doesn’t understand the law, asking if the individual has a permit for the firearms, apparently not knowing that no permit is required in Michigan to open carry.

The Chief of Police is Michael Reese, e-mail mreese@sterling-heights.net, phone 586-446-2810.

 

Putnam County, FL Sheriff’s Office Needs to HonorYourOath

16 Comments

Or at least learn the laws that you are enforcing.

Jeff Gray, more popular as HonorYourOath on YouTube and PINAC, was fishing in Putnam County, Florida.  While fishing, he was openly carrying a pistol in a shoulder holster.  First, Florida law states that the prohibition on open carry of firearms do not apply to “A person engaged in fishing, camping, or lawful hunting or going to or returning from a fishing, camping, or lawful hunting expedition”.  Fla. Stat. Ann. § 790.25(3)(h) (West); Levin v. State, 449 So. 2d 288 (Fla. Dist. Ct. App. 1983) (no reasonable grounds for stop when subject was carrying fishing pole towards a public body of water).

Of course the Putnam County Sheriff’s deputy (Griffin) did not see it that way, immediately stopping Gray to determine if he were a “felon.”  Guys, this has been covered over and over again.  See generally United States v. Black, 707 F.3d 531 (4th Cir. 2013) (being a felon in possession of a firearm is not the default status); United States v. King, 990 F.2d 1552 (10th Cir. 1993) (where state law allows the carry of firearms, that alone does not create reasonable suspicion); United States v. Uribes, 224 F.3d 213 (3d Cir. 2000) (that a subject may possess a firearm, where legal, does not justify detention).

Here, both factors were in play.  Gray was clearly within the law allowing the possession of a firearm while fishing, and Griffin had no reasonable suspicion that Gray was a felon.

Second, Griffin stating he was arresting Gray for violation of the Florida wiretapping statute, even though Griffin was a public officer in public view, with no reasonable expectation of privacy.  Gray has a First Amendment right to film a police officer in public.  Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000);  Abella v. Simon, 13-10255, 2013 U.S. App. LEXIS 13638, 2013 WL 3368872 (11th Cir. July 5, 2013).

Obviously Griffin needs more training, as it violated Gray’s Fourth Amendment rights to be handcuffed and held for 45 minutes while the deputy figured all of this out.

Sheriff Jeff Hardy should hear about this (jhardy@putnamsheriff.org) as he has signed a pledge to support Second Amendment rights.  Of course, he may have other things on his mind, like deputies pulling guns while drinking at a bar or having sex in the bar’s restroom.

 

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