FOP complains about HB 203 removing OC as RAS for Terry stop

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Re: FOP complains about HB 203 removing OC as RAS for Terry

Post by Werz »

curmudgeon3 wrote:
Not a problem....Just have the means to follow through and not plead out...Standing your ground for what you believe in, is great provided you take it to end and achieve the desired result...Engaging in a battle without a plan or the tools to win achieves nothing on our end but bad publicity.
To be realistic, substitute the word "$$$money$$$", then brace yourself for a severe dent in your savings account.
You also need to find an attorney who is willing to do a "show trial." Say, "No matter how bad the evidence against me looks, I want a trial." You might be surprised at how many will not be interested when those are the terms.
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Re: FOP complains about HB 203 removing OC as RAS for Terry

Post by Splat!! »

I think most the problem is determining when you are stopped and detained for law enforcement purpose..........In the public domain, anyone can talk to you even an LEO. Just so happens while the LEO is interacting, admiring your gun....They notice a defaced serial number , smell alcohol or whatever then it may become a stop ........Up to that point it was just Chit-Chat...You only have a expectation of privacy of in your home and car, the public domain is fair game.
"Our government... teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."
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Re: FOP complains about HB 203 removing OC as RAS for Terry

Post by Splat!! »

Individuals receive no Fourth Amendment protection unless they can demonstrate that they have a reasonable expectation of privacy in the place that was searched or the property that was seized. The U.S. Supreme Court explained that what "a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection…. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1976). In general the Court has said that individuals enjoy a reasonable expectation of privacy in their own bodies, Personal Property, homes, and business offices. Individuals also enjoy a qualified expectation of privacy in their automobiles.

Individuals ordinarily possess no reasonable expectation of privacy in things like bank records, vehicle location and vehicle paint, garbage left at roadside for collection, handwriting, the smell of luggage, land visible from a public place, and other places and things visible in plain or open view. Houseguests typically do not possess a reasonable expectation of privacy in the homes they are visiting, especially when they do not stay overnight and their sole purpose for being inside the house is to participate in criminal activity such as a drug transaction. Minnesota v. Carter, 525 U.S. 83, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998). Similarly, a defendant showing only that he was a passenger in a searched car has not shown an expectation of privacy in the car or its contents. Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). Both the houseguest and the motor vehicle passenger must assert a property or possessory interest in the home or motor vehicle before a court will recognize any Fourth Amendment privacy interests such that would prevent a police officer from searching those places without first obtaining a warrant
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Re: FOP complains about HB 203 removing OC as RAS for Terry

Post by AndMetal »

Werz wrote:When it comes to reasonable articulable suspicion under the Fourth Amendment, the only opinions that really matter are those of the people who are authorized to give those opinions. Under the United States Constitution, that authority is vested in the "Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish." U.S. Const. Art. 3, Sec. 1 and 2. That means the top authority goes to the United States Supreme Court, and directly below, to the United States Circuit Courts of Appeals.

Regarding Mr. Embody:
Embody does not quarrel with this accounting of what happened. To his mind, all that matters is that carrying an AK-47 pistol in a state park is legal under Tennessee law; the gun's resemblance to an assault rifle, the conspicuous arming of it, his military clothing and the concerns of passers-by add nothing. But the constitutional question is whether the officers had reasonable suspicion of a crime, not whether a crime occurred. Otherwise, all failed investigatory stops would lead to successful § 1983 actions. Having worked hard to appear suspicious in an armed-and-loaded visit to the park, Embody cannot cry foul after park rangers, to say nothing of passers-by, took the bait. The officers stopped him only as long as it took to investigate the legitimacy of the weapon and, at his insistence, bring the supervisor to the park. No Fourth Amendment violation occurred. Embody v. Ward, 695 F.3d 577, 581. (6th Cir. 2012).
Keep in mind that the Sixth Circuit includes Ohio as well as Tennessee.

Regarding reasonable articulable suspicion in general, everyone wants to acknowledge this:
Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. United States v. Black,707 F.3d 531, 540 (4th Cir. 2013).
But nobody wants to acknowledge this:
Based on McRae's admission that he was carrying a handgun in his waistband, the officers had reasonable suspicion to believe that McRae was committing a crime under Florida law - carrying a concealed weapon. *** Under Florida law, " [a] person who carries a concealed firearm on or about his person commits a felony of the third degree." *** Notably, the possession of a valid permit for a concealed weapon is not related to the elements of the crime, but rather is an affirmative defense. (Citations and footnotes omitted.) United States v. Lewis, 674 F.3d 1298, 1304 (11th Cir. 2012).
Bottom line: When a statute describes an offense, followed by "this section does not apply to," the initial provision constitutes the elements of the offense, and the subsequent provisions constitute an affirmative defense, placing a burden on the defendant to establish the same. Sometimes, the affirmative defense can be established without a trip to the courtroom, such as establishing the possession of a concealed handgun license in response to suspicion of carrying concealed weapons or possession of a firearm on D-permit liquor premises, or establishing NFA registration in response to a suspicion of illegal possession of a dangerous ordnance (silencer). Nevertheless, under Lewis, the rule of law is :
The Supreme Court has made it abundantly clear that, although an individual may ultimately be engaged in conduct that is perfectly lawful - as turned out to be the case with McRae - officers may "detain the individual[ ] to resolve the ambiguity." Id.
I'm quite sure that some folks don't want to hear that, but it doesn't make it any less the truth.
Just trying to get some clarification. It was my understanding, at least under Ohio law, that affirmative defenses were codified into the law, not something that is assumed based on "this section does not apply to". For example:
2923.12 Carrying concealed weapons wrote:(D) It is an affirmative defense to a charge under division (A)(1) of this section of carrying or having control of a weapon other than a handgun and other than a dangerous ordnance that the actor was not otherwise prohibited by law from having the weapon and that any of the following applies:

(1) The weapon was carried or kept ready at hand by the actor for defensive purposes while the actor was engaged in or was going to or from the actor's lawful business or occupation, which business or occupation was of a character or was necessarily carried on in a manner or at a time or place as to render the actor particularly susceptible to criminal attack, such as would justify a prudent person in going armed.

(2) The weapon was carried or kept ready at hand by the actor for defensive purposes while the actor was engaged in a lawful activity and had reasonable cause to fear a criminal attack upon the actor, a member of the actor's family, or the actor's home, such as would justify a prudent person in going armed.

(3) The weapon was carried or kept ready at hand by the actor for any lawful purpose and while in the actor's own home.
vs:
2923.12 Carrying concealed weapons wrote:(C)

(1) This section does not apply to any of the following:

(a) An officer, agent, or employee of this or any other state or the United States, or to a law enforcement officer, who is authorized to carry concealed weapons or dangerous ordnance or is authorized to carry handguns and is acting within the scope of the officer's, agent's, or employee's duties;

(b) Any person who is employed in this state, who is authorized to carry concealed weapons or dangerous ordnance or is authorized to carry handguns, and who is subject to and in compliance with the requirements of section 109.801 of the Revised Code, unless the appointing authority of the person has expressly specified that the exemption provided in division (C)(1)(b) of this section does not apply to the person;

(c) A person's transportation or storage of a firearm, other than a firearm described in divisions (G) to (M) of section 2923.11 of the Revised Code, in a motor vehicle for any lawful purpose if the firearm is not on the actor's person;

(d) A person's storage or possession of a firearm, other than a firearm described in divisions (G) to (M) of section 2923.11 of the Revised Code, in the actor's own home for any lawful purpose.

(2) Division (A)(2) of this section does not apply to any person who, at the time of the alleged carrying or possession of a handgun, is carrying a valid concealed handgun license, unless the person knowingly is in a place described in division (B) of section 2923.126 of the Revised Code.
Based on what you're saying, wouldn't that mean a LEO could (theoretically, not realistically) be arrested for carrying a concealed handgun, and then be forced to prove that they are excepted from it in court? Going a step further, if that is the case, since I believe a loaded, concealed handgun is an F4, wouldn't that be open to a citizen's arrest? What about carrying concealed in one's own home (2923.12(C)(1)(d))? In don't think that's the expectation, but that's part of what I'm getting from what you posted, hence my confusion. I'm certainly not a legal expert, but I try my best to be aware of these sorts of things, so I am very appreciative of the feedback from people like yourself to better understand what's okay and what's not in the eyes of the legal system, especially when it comes to case law.
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Re: FOP complains about HB 203 removing OC as RAS for Terry

Post by Werz »

AndMetal wrote:Just trying to get some clarification. It was my understanding, at least under Ohio law, that affirmative defenses were codified into the law ...
Can you point us to the specific section of the Ohio Revised Code where all the elements of self-defense are codified?

R.C. 2901.05. Burden of proof - reasonable doubt - self-defense
(A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.
* * *
(D) As used in this section:
(1) An "affirmative defense" is either of the following:
(a) A defense expressly designated as affirmative;
(b) A defense involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence.
AndMetal wrote:Based on what you're saying, wouldn't that mean a LEO could (theoretically, not realistically) be arrested for carrying a concealed handgun, and then be forced to prove that they are excepted from it in court? Going a step further, if that is the case, since I believe a loaded, concealed handgun is an F4, wouldn't that be open to a citizen's arrest? What about carrying concealed in one's own home (2923.12(C)(1)(d))? In don't think that's the expectation, but that's part of what I'm getting from what you posted, hence my confusion. I'm certainly not a legal expert, but I try my best to be aware of these sorts of things, so I am very appreciative of the feedback from people like yourself to better understand what's okay and what's not in the eyes of the legal system, especially when it comes to case law.
The issue is that, in many people's minds, an "affirmative defense" is something which will be established in a courtroom. Often, it is established in moments.
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Re: FOP complains about HB 203 removing OC as RAS for Terry

Post by MyWifeSaidYes »

Werz wrote: The issue is that, in many people's minds, an "affirmative defense" is something which will be established in a courtroom. Often, it is established in moments.
All too often, the LEO on the street no longer takes "affirmative" defenses into account, either by choice or by policy. They will simply arrest you and let the prosecutor deal with figuring things out.

THAT is when it turns into "guilty until proven innocent".
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Re: FOP complains about HB 203 removing OC as RAS for Terry

Post by Werz »

MyWifeSaidYes wrote:
Werz wrote: The issue is that, in many people's minds, an "affirmative defense" is something which will be established in a courtroom. Often, it is established in moments.
All too often, the LEO on the street no longer takes "affirmative" defenses into account, either by choice or by policy. They will simply arrest you and let the prosecutor deal with figuring things out.
Really? If you're just going off on a generalized rant, that's one thing. However, if you're remaining on topic - what constitutes reasonable articulable suspicion and what does not - those are not the stories I hear.

If you are talking about acts which do give rise to reasonable suspicion because they do require evidence of an affirmative defense, I do not hear stories of people arrested for saying, "Here is my concealed handgun license," or "Here is a copy of my NFA registration."

What I hear about are acts which do give rise to reasonable suspicion, but where someone says, "Am I being detained? What is your reasonable articulable suspicion? I do not consent to any searches or seizures! Hiibel says I am not required to identify myself!"

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Re: FOP complains about HB 203 removing OC as RAS for Terry

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Werz wrote:...What I hear about are acts which do give rise to reasonable suspicion, but where someone says, "Am I being detained? What is your reasonable articulable suspicion? I do not consent to any searches or seizures! Hiibel says I am not required to identify myself!"...
That's strange. Here on the open carry forum I routinely hear about acts that do not give rise to reasonable suspicion, yet are repeatedly asserted as doing so. :?:

Maybe you're talking about some other activity?
Yes, I do believe in open carry. An openly armed man is clear in his intentions. Concealed carriers are sneaks and skulkers and elitist, boot licking, political contribution making, running dog lackies of The Man. <wink> (thx grumpycoconut - OpenCarry.org)

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Re: FOP complains about HB 203 removing OC as RAS for Terry

Post by Werz »

BB62 wrote:
Werz wrote:...What I hear about are acts which do give rise to reasonable suspicion, but where someone says, "Am I being detained? What is your reasonable articulable suspicion? I do not consent to any searches or seizures! Hiibel says I am not required to identify myself!"...
That's strange. Here on the open carry forum I routinely hear about acts that do not give rise to reasonable suspicion, yet are repeatedly asserted as doing so. :?:

Maybe you're talking about some other activity?
Acts of open carry which may require evidence of an affirmative defense:
  • Open carry of a firearm in D-permit liquor premises
  • Open carry of a loaded handgun in a motor vehicle
  • Open carry of a firearm with a silencer, or what readily appears to be a silencer
That's just some of the potential ones based on Ohio law.

Now that I have answered your rhetorical question, let me make the point that my response was to the post where MyWifeSaidYes was alleging that police ignore "affirmative defenses," thus implying, under the rule of Lewis, that there was a reasonable suspicion created by the underlying act. You deleted that part from the quoted material. I was not volunteering to have the discussion steered into a generalized open-carry rant simply because that is within your comfort zone.
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Re: FOP complains about HB 203 removing OC as RAS for Terry

Post by BB62 »

Werz wrote:...Acts of open carry which may require evidence of an affirmative defense:

- Open carry of a firearm in D-permit liquor premises
- Open carry of a loaded handgun in a motor vehicle
- Open carry of a firearm with a silencer, or what readily appears to be a silencer

...I was not volunteering to have the discussion steered into a generalized open-carry rant simply because that is within your comfort zone.
Oh puhleeese! :roll:

Gee, here on the open carry forum I somehow missed the apparently numerous discussions of people asking/stating "Am I being detained? What is your reasonable articulable suspicion? I do not consent to any searches or seizures! Hiibel says I am not required to identify myself!" while OCing under the circumstances described.

Excuse me while I go back and re-read the past few years worth of posts. :roll:
Yes, I do believe in open carry. An openly armed man is clear in his intentions. Concealed carriers are sneaks and skulkers and elitist, boot licking, political contribution making, running dog lackies of The Man. <wink> (thx grumpycoconut - OpenCarry.org)

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Re: FOP complains about HB 203 removing OC as RAS for Terry

Post by Werz »

BB62 wrote:Excuse me while I go back and re-read the past few years worth of posts. :roll:
While you're at it, maybe you could check on how many eye-rolly icons are contained in your past posts. I suspect that if OFCC started charging for those, you could fund a lot of R.C. 9.68 lawsuits!
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Re: FOP complains about HB 203 removing OC as RAS for Terry

Post by BB62 »

Werz wrote:
BB62 wrote:Excuse me while I go back and re-read the past few years worth of posts. :roll:
While you're at it, maybe you could check on how many eye-rolly icons are contained in your past posts. I suspect that if OFCC started charging for those, you could fund a lot of R.C. 9.68 lawsuits!
They're free when used appropriately - and I'm a tightwad. :mrgreen:
Yes, I do believe in open carry. An openly armed man is clear in his intentions. Concealed carriers are sneaks and skulkers and elitist, boot licking, political contribution making, running dog lackies of The Man. <wink> (thx grumpycoconut - OpenCarry.org)

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Re: FOP complains about HB 203 removing OC as RAS for Terry

Post by AndMetal »

Werz wrote:
AndMetal wrote:Just trying to get some clarification. It was my understanding, at least under Ohio law, that affirmative defenses were codified into the law ...
Can you point us to the specific section of the Ohio Revised Code where all the elements of self-defense are codified?

R.C. 2901.05. Burden of proof - reasonable doubt - self-defense
(A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.
* * *
(D) As used in this section:
(1) An "affirmative defense" is either of the following:
(a) A defense expressly designated as affirmative;
(b) A defense involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence.
I think I get what you're saying (self-defense is an affirmative defense, but is based on case law, not codified in the ORC from what I recall), but I'm not sure how that pertains to the "This section does not apply to any of the following" parts of 2923.12.
Werz wrote:
AndMetal wrote:Based on what you're saying, wouldn't that mean a LEO could (theoretically, not realistically) be arrested for carrying a concealed handgun, and then be forced to prove that they are excepted from it in court? Going a step further, if that is the case, since I believe a loaded, concealed handgun is an F4, wouldn't that be open to a citizen's arrest? What about carrying concealed in one's own home (2923.12(C)(1)(d))? In don't think that's the expectation, but that's part of what I'm getting from what you posted, hence my confusion. I'm certainly not a legal expert, but I try my best to be aware of these sorts of things, so I am very appreciative of the feedback from people like yourself to better understand what's okay and what's not in the eyes of the legal system, especially when it comes to case law.
The issue is that, in many people's minds, an "affirmative defense" is something which will be established in a courtroom. Often, it is established in moments.
This doesn't answer my questions, but thank you for taking the time to respond.
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Re: FOP complains about HB 203 removing OC as RAS for Terry

Post by Werz »

AndMetal wrote:
Werz wrote:
AndMetal wrote:Just trying to get some clarification. It was my understanding, at least under Ohio law, that affirmative defenses were codified into the law ...
Can you point us to the specific section of the Ohio Revised Code where all the elements of self-defense are codified?

R.C. 2901.05. Burden of proof - reasonable doubt - self-defense
(A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.
* * *
(D) As used in this section:
(1) An "affirmative defense" is either of the following:
(a) A defense expressly designated as affirmative;
(b) A defense involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence.
I think I get what you're saying (self-defense is an affirmative defense, but is based on case law, not codified in the ORC from what I recall), but I'm not sure how that pertains to the "This section does not apply to any of the following" parts of 2923.12.
Read the bold, italicized portion above.
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"Remember that protecting our gun rights still boils down to keeping a majority in the electorate, and that our daily activities can have the impact of being ambassadors for the gun culture ..."
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Re: FOP complains about HB 203 removing OC as RAS for Terry

Post by MyWifeSaidYes »

AndMetal wrote:...
This doesn't answer my questions, but thank you for taking the time to respond.
Could you re-state your questions, but without the huge amount of quoted text?

2923.12 (D) only applies to weapons lower than handguns (ie. not handguns and not dangerous ordnance)

A man in Youngstown was stopped for OC of a handgun, but was arrested for the folding knife he had clipped to his belt, since his shirt concealed it.

Since he was a person of slim build, walking to a restaurant alone at night, past establishments that serve alcohol, in a city that is less than crime-free, under 2923.12(D)(2) he may have had reasonable cause to fear a criminal attack. That would qualify as an affirmative defense, right?

He eventually got his case thrown out (no RAS for the OC stop). He eventually got his gun and knife back, too, but THAT took a written order from the judge. The guy never should have learned what the back seat of a cruiser smelled like, let alone what the inside of a jail cell looked like, IMHO.

:evil:
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