details, audio, and questions regarding my open carry case

Open Carry is carrying a firearm unconcealed in Ohio. OC does not require a concealed handgun license, but the practice requires intimate knowledge of the law since there are places and situations where OC is prohibited but carrying concealed would be permitted. OC is also likely to attract attention. This forum is for discussion of OC, not for debating the pro's and con's or coordinating any type of protest events.

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JediSkipdogg
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Re: details, audio, and questions regarding my open carry ca

Post by JediSkipdogg »

Michael Porschien wrote:The raw audio from the dispatch call is up, along with the transcription following along in the video. I really do not think that it needs any introduction, so i will let it speak for itself. take a look, and tell me what you think.

http://www.youtube.com/watch?v=3d9nkddL ... e=youtu.be" onclick="window.open(this.href);return false;
Wowzers........

Carrying a gun is PC for a stop? :roll:

I'm definitely glad I don't live over there in Youngstown. Never knew it was Cleveland Jr.
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Re: details, audio, and questions regarding my open carry ca

Post by Werz »

BB62 wrote:As to the notion that "cooperation is better than challenging" - there is no one-size-fits all approach when you have mitigating circumstances. The problem goes back to what I just said - at the core of incidents like Mr. Porschien's is the willingness of ignorant/biased LEOs to enforce, via intimidation or actual charges, a policy of "open carry will not be tolerated here". Unless and until this issue is dealt with in a different and continuous manner, by individuals and by Ohio's gun "rights" organizations, there will continue to be more victims. To that end, there is no riskless or low-risk response to an inquisitive police officer when he/she has agenda.
You're right about one thing: "There is no one-size-fits all approach when you have mitigating circumstances." Based on my experience, Mr. Porschien's polite and cooperative behavior did nothing to make his situation worse, and I believe that the results would have been no better if he had been confrontational. By the same token, in the aftermath, when these matters are viewed by a judge, his polite and cooperative behavior will stand in sharp contrast to Det. Sgt. Payne's words and actions. Any suppression hearing and any trial will be heard before a judge or a jury, not a bunch of gun advocates, and viewing it from that perspective, Mr. Porschien is likely to look pretty good.

I also agree that "unless and until this issue is dealt with in a different and continuous manner, by individuals and by Ohio's gun "rights" organizations, there will continue to be more victims," but not for the same reasons you do. As long as the "open carry commandos" over on OpenCarry.org are counseling highly confrontational curbside behavior and "scorched earth" reactions in the aftermath, there will be problems. Will the individual's open carry rights be upheld? Probably. Will there be collateral charges? Very probably, yes. The theory in the OpenCarry.org forum seems to be, "If the cops push you, you push back." Except then, the cops push back harder, and you push back harder. It's called "escalation." Then, if others (including the ardent letter-writers) try to "push" the prosecutor, the same thing will happen there. Remember the pyrrhic victory in Waverly? There wasn't a lot champagne and confetti after that, was there? And after the "open carry commandos" in OpenCarry.org started blasting Dave Kelsey for his article on the OFCC web page, do you remember him making this observation in the OFCC forums?
My concern is that some people end up in just such a situation because they get ginned-up reading comments by essentially anonymous persons who talk about tyranny and freedom and justice and civil suits. Some may make decisions based upon a desire to please that crowd to their ultimate detriment. The first clue that a person might be vulnerable to this pressure is that they publicly post about their case on forums like this and opencarry.
So, yeah, I agree that there will be more victims until folks continuously deal with these situations in a different manner. I personally like the way that Mr. Porschien dealt with this matter. If he had dealt with it in a more confrontational manner, or if he done something stupid like demanding Aggravated Robbery charges against the officer who seized his mobile telephone, I am relatively certain that things would be much worse.
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Re: details, audio, and questions regarding my open carry ca

Post by Werz »

Michael Porschien wrote:The raw audio from the dispatch call is up, along with the transcription following along in the video. I really do not think that it needs any introduction, so i will let it speak for itself. take a look, and tell me what you think.

http://www.youtube.com/watch?v=3d9nkddL ... e=youtu.be" onclick="window.open(this.href);return false;
OK. You did a very good job. But there are still some things you have not considered.

It is explicitly clear from the discussions between the sergeant and the captain that they were "reaching." They both appear to have come to the conclusion that your act of openly carrying a handgun was sufficient grounds for a Terry stop. In this forum, we all know that is not the case. Sure, the officer could approach you and ask questions, but detaining you, then having you put your hands on the car and removing the handgun from the holster, that's a full Terry stop, and the justification simply does not exist. It would appear that somehow, before the officer's narrative supplement was written, they decided to charge you with "jaywalking," just to have another basis for the stop. The interesting thing there is that you were not charged with jaywalking: you were charged with Walking in the Roadway, R.C. 4511.50(A). Therein lies an important point which you are missing, and which you may want to ignore because it involves "vehicle codes." I strongly recommend that you pay attention.

Despite the conversation between the sergeant and the captain, somebody caught onto the fact that the open carry of a handgun might not be enough to justify a Terry stop. Something else was need, some sort of violation of law. The original officer plainly stated:
Officer Menichini pulled into a driveway on Michigan Ave to turn around, at this time he observed Michael proceed into the middle of Michigan Ave from the sidewalk, then stand on the cement median, and then proceed to the corner of Madison Ave and Michigan Ave where he stood on the sidewalk watching officer Menichini pull up toward his location.
It is clear that you were crossing the street between intersections, so the officer immediately thought, "Oh. Jaywalking." Wikipedia defines "jaywalking" as "a term commonly used in North America to refer to illegal or reckless pedestrian crossing of a roadway." What you may not realize is that there is state "jaywalking" statute: R.C. 4511.48, Right-of-Way Yielded by Pedestrian. You obviously were not crossing at a crosswalk, but if your crossing did nothing to impede or slow motor vehicle traffic, there was not violation of R.C. 4511.48(A). There are a couple of other ways you could be charged with "jaywalking" under that statute, and if you read them, maybe you will understand why I said in this post that you should take some photographs of the area where this occurred. I assume that none of those scenarios applied, and that is why they charged Walking in the Roadway under R.C. 4511.50(A): it was the closest thing they could think of which might apply to what you did. However, the original officer admits, in his own words, that you were crossing the street, not walking on the roadway, and if that act of crossing the street did not constitute "jaywalking" under R.C. 4511.48, they are back to being stuck with what the captain said was the justification for the stop and detention: "The probable cause is you saw him carrying a gun in a holster[.]" We all know that one is going to be a loser.

I didn't write all this to show that I know the law; I did it for your benefit. Whether or not you choose to pay attention is up to you.
"An armed society is a polite society. Manners are good when one may have to back up his acts with his life."
-- Robert A. Heinlein, Beyond This Horizon
"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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Open carry is a First Amendment exercise.
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Re: details, audio, and questions regarding my open carry ca

Post by techguy85 »

Werz wrote:
Michael Porschien wrote:The raw audio from the dispatch call is up, along with the transcription following along in the video. I really do not think that it needs any introduction, so i will let it speak for itself. take a look, and tell me what you think.

http://www.youtube.com/watch?v=3d9nkddL ... e=youtu.be" onclick="window.open(this.href);return false;
OK. You did a very good job. But there are still some things you have not considered.

It is explicitly clear from the discussions between the sergeant and the captain that they were "reaching." They both appear to have come to the conclusion that your act of openly carrying a handgun was sufficient grounds for a Terry stop. In this forum, we all know that is not the case. Sure, the officer could approach you and ask questions, but detaining you, then having you put your hands on the car and removing the handgun from the holster, that's a full Terry stop, and the justification simply does not exist. It would appear that somehow, before the officer's narrative supplement was written, they decided to charge you with "jaywalking," just to have another basis for the stop. The interesting thing there is that you were not charged with jaywalking: you were charged with Walking in the Roadway, R.C. 4511.50(A). Therein lies an important point which you are missing, and which you may want to ignore because it involves "vehicle codes." I strongly recommend that you pay attention.

Despite the conversation between the sergeant and the captain, somebody caught onto the fact that the open carry of a handgun might not be enough to justify a Terry stop. Something else was need, some sort of violation of law. The original officer plainly stated:
Officer Menichini pulled into a driveway on Michigan Ave to turn around, at this time he observed Michael proceed into the middle of Michigan Ave from the sidewalk, then stand on the cement median, and then proceed to the corner of Madison Ave and Michigan Ave where he stood on the sidewalk watching officer Menichini pull up toward his location.
It is clear that you were crossing the street between intersections, so the officer immediately thought, "Oh. Jaywalking." Wikipedia defines "jaywalking" as "a term commonly used in North America to refer to illegal or reckless pedestrian crossing of a roadway." What you may not realize is that there is state "jaywalking" statute: R.C. 4511.48, Right-of-Way Yielded by Pedestrian. You obviously were not crossing at a crosswalk, but if your crossing did nothing to impede or slow motor vehicle traffic, there was not violation of R.C. 4511.48(A). There are a couple of other ways you could be charged with "jaywalking" under that statute, and if you read them, maybe you will understand why I said in this post that you should take some photographs of the area where this occurred. I assume that none of those scenarios applied, and that is why they charged Walking in the Roadway under R.C. 4511.50(A): it was the closest thing they could think of which might apply to what you did. However, the original officer admits, in his own words, that you were crossing the street, not walking on the roadway, and if that act of crossing the street did not constitute "jaywalking" under R.C. 4511.48, they are back to being stuck with what the captain said was the justification for the stop and detention: "The probable cause is you saw him carrying a gun in a holster[.]" We all know that one is going to be a loser.

I didn't write all this to show that I know the law; I did it for your benefit. Whether or not you choose to pay attention is up to you.
Read this post carefully because it is 100 percent spot on.
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Re: details, audio, and questions regarding my open carry ca

Post by xpd54 »

Werz wrote: I don't think even that qualifies. The use or attempted use of physical force against a family or household member must be an actual element of the offense. 18 U.S.C. 921(a)(33)(A)(ii).
I've had this come up when our prosecutor ordered guns be returned to DV suspects who pled to DC Fighting. Here's an interesting bit of information I found from the Ohio Patrolmen's Benevolent Association:

http://www.opba.com/index.php?option=co ... Itemid=118

According to their legal counsel, the DC Fighting would qualify for the Brady disqualification.
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Re: details, audio, and questions regarding my open carry ca

Post by Werz »

xpd54 wrote:
Werz wrote: I don't think even that qualifies. The use or attempted use of physical force against a family or household member must be an actual element of the offense. 18 U.S.C. 921(a)(33)(A)(ii).
I've had this come up when our prosecutor ordered guns be returned to DV suspects who pled to DC Fighting. Here's an interesting bit of information I found from the Ohio Patrolmen's Benevolent Association:

http://www.opba.com/index.php?option=co ... Itemid=118

According to their legal counsel, the DC Fighting would qualify for the Brady disqualification.
Thanks for bringing this to my attention. I didn't check to see if certiorari had been granted in Hayes. Although I tend to agree more with the Roberts and Scalia dissent, the holding is what it is. I was wrong.
"An armed society is a polite society. Manners are good when one may have to back up his acts with his life."
-- Robert A. Heinlein, Beyond This Horizon
"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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Open carry is a First Amendment exercise.
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Re: details, audio, and questions regarding my open carry ca

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Your welcome. I try to stay on top of stuff like this. Having a wife who is a Victim Advocate who deals with the DV stuff ALOT helps.
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Re: details, audio, and questions regarding my open carry ca

Post by Werz »

xpd54 wrote:Your welcome. I try to stay on top of stuff like this. Having a wife who is a Victim Advocate who deals with the DV stuff ALOT helps.
I really don't pay much attention to disability under the 18 U.S.C. 922(g)(9). If an officer comes to me and says that he went to a domestic violence call where the guy has a prior conviction, and he seized a firearm, I tell him to turn it over the BATFE: it's their problem.
"An armed society is a polite society. Manners are good when one may have to back up his acts with his life."
-- Robert A. Heinlein, Beyond This Horizon
"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 ..."
-- BobK
Open carry is a First Amendment exercise.
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Re: details, audio, and questions regarding my open carry ca

Post by BB62 »

Werz wrote:...I also agree that "unless and until this issue is dealt with in a different and continuous manner, by individuals and by Ohio's gun "rights" organizations, there will continue to be more victims," but not for the same reasons you do. As long as the "open carry commandos" over on OpenCarry.org are counseling highly confrontational curbside behavior and "scorched earth" reactions in the aftermath, there will be problems...
My, my, my. That straw man still has some stuffing?

Rather than stereotyping indivduals, or continuing to lay blame at the feet of individuals based on their behavior, why not lay blame where it belongs - at the feet of those in positions of power and/or influence? The fault lies with those who allow others to continue to enforce their biases and desires, and those who don't forcefully direct or challenge their behavior. Specifically, at the feet of those in the Attorney General's office, county prosecutor's offices, law departments, and the "top brass" of Ohio's gun "rights" organizations.

Because of the radio traffic recording, it's clear that Mr. Porschien's incident has some elements not usually clearly seen or provable - outright ignorance and a clear conspiracy to charge him with something, ANYTHING. Once again, an open carry stop ends with intimidation - or in Porschien's case, a conspiracy to deprive him of his rights.

This is looking more and more like something the grassroots needs to go after.
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: details, audio, and questions regarding my open carry ca

Post by Werz »

BB62 wrote:
Werz wrote:...I also agree that "unless and until this issue is dealt with in a different and continuous manner, by individuals and by Ohio's gun "rights" organizations, there will continue to be more victims," but not for the same reasons you do. As long as the "open carry commandos" over on OpenCarry.org are counseling highly confrontational curbside behavior and "scorched earth" reactions in the aftermath, there will be problems...
My, my, my. That straw man still has some stuffing?
Straw man?
“That is the point in time when he went from being a LEO to being a thug, from enforcing the law to breaking it. He should be arrested and held to account for robbery, possibly even armed robbery! I think you should swear out a criminal complaint.”
“I can't stress this enough: I would swear out a criminal complaint against the officer.”
“I am saying charge the officer with armed robbery.”
“I concur with ***** that a criminal complaint should be filed.”
"An armed society is a polite society. Manners are good when one may have to back up his acts with his life."
-- Robert A. Heinlein, Beyond This Horizon
"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 ..."
-- BobK
Open carry is a First Amendment exercise.
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Re: details, audio, and questions regarding my open carry ca

Post by JediSkipdogg »

Werz wrote:
BB62 wrote:
Werz wrote:...I also agree that "unless and until this issue is dealt with in a different and continuous manner, by individuals and by Ohio's gun "rights" organizations, there will continue to be more victims," but not for the same reasons you do. As long as the "open carry commandos" over on OpenCarry.org are counseling highly confrontational curbside behavior and "scorched earth" reactions in the aftermath, there will be problems...
My, my, my. That straw man still has some stuffing?
Straw man?
“That is the point in time when he went from being a LEO to being a thug, from enforcing the law to breaking it. He should be arrested and held to account for robbery, possibly even armed robbery! I think you should swear out a criminal complaint.”
“I can't stress this enough: I would swear out a criminal complaint against the officer.”
“I am saying charge the officer with armed robbery.”
“I concur with ***** that a criminal complaint should be filed.”
Yup, when I saw that over there I went nuts and why I pointed out a big fat good luck on that and finding anyone that would take it serious. On duty police are given alot more ability to do something than off duty.
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Re: details, audio, and questions regarding my open carry ca

Post by gmhiggins »

I believe, at the conclusion of this, the OP should take Werz to a nice dinner or buy him a box of nice ammunition.

He's the MVP of all Porschien threads, as far as I can tell.
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Re: details, audio, and questions regarding my open carry ca

Post by deanimator »

Werz wrote:As long as the "open carry commandos" over on OpenCarry.org are counseling highly confrontational curbside behavior and "scorched earth" reactions in the aftermath, there will be problems.
I counsel people to give the cop one chance to not be an arrogant, drooling imbecile.

If that doesn't work, do whatever is REQUIRED by black letter law, then invoke your right to remain silent and refuse consent to any and all searches. Use a recording device to document the incident. Keep an eye out for third party recording devices, such as security cameras, even ones at a distance. Then SHUT UP. No point in arguing with or even trying to educate a fool who's full of himself.

After the fact do EVERYTHING humanly possible within the law to damage him, and if necessary his department, administratively, legally and politically.

Revenge is a dish best served cold.
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Re: details, audio, and questions regarding my open carry ca

Post by MyWifeSaidYes »

deanimator wrote:
Werz wrote:As long as the "open carry commandos" over on OpenCarry.org are counseling highly confrontational curbside behavior and "scorched earth" reactions in the aftermath, there will be problems.
I counsel people to give the cop one chance to not be an arrogant, drooling imbecile.

If that doesn't work, do whatever is REQUIRED by black letter law, then invoke your right to remain silent and refuse consent to any and all searches. Use a recording device to document the incident. Keep an eye out for third party recording devices, such as security cameras, even ones at a distance. Then SHUT UP. No point in arguing with or even trying to educate a fool who's full of himself.

After the fact do EVERYTHING humanly possible within the law to damage him, and if necessary his department, administratively, legally and politically.

Revenge is a dish best served cold.
I like the way Deanimator thinks.

Werz may not agree with the suggestions that one be "confrontational", but the response from the police chief in this case (as posted by user "troy bilt" on OCDO link (Page #4, post #87) begs for someone to stand up for what is right.

Is being a jerk to the street cop called for? Sometimes. In this case, it would have done no good. The problem lies further up the chain of command. The chief would reprimand any officer that does NOT stop an open carrier. Nice.
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Re: details, audio, and questions regarding my open carry ca

Post by Werz »

MyWifeSaidYes wrote:
deanimator wrote:
Werz wrote:As long as the "open carry commandos" over on OpenCarry.org are counseling highly confrontational curbside behavior and "scorched earth" reactions in the aftermath, there will be problems.
I counsel people to give the cop one chance to not be an arrogant, drooling imbecile.

If that doesn't work, do whatever is REQUIRED by black letter law, then invoke your right to remain silent and refuse consent to any and all searches. Use a recording device to document the incident. Keep an eye out for third party recording devices, such as security cameras, even ones at a distance. Then SHUT UP. No point in arguing with or even trying to educate a fool who's full of himself.

After the fact do EVERYTHING humanly possible within the law to damage him, and if necessary his department, administratively, legally and politically.

Revenge is a dish best served cold.
I like the way Deanimator thinks.

Werz may not agree with the suggestions that one be "confrontational", but the response from the police chief in this case (as posted by user "troy bilt" on OCDO link (Page #4, post #87) begs for someone to stand up for what is right.
I read that yesterday. And I agree that something needs to be done when the Chief of Police announces a policy to openly violate state law. But pestering the police chief for a discussion of the issues (or addressing a couple of city councils as I have done) is a far cry from being a confrontational d-bag with a patrolman at curbside. I know that, you know that, and so does deanimator.

What is being discussed in OCDO-Ohio goes far beyond anything that will produce positive results, particularly now that the Alabama Blowhard seems to have taken over the discussions.
"An armed society is a polite society. Manners are good when one may have to back up his acts with his life."
-- Robert A. Heinlein, Beyond This Horizon
"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 ..."
-- BobK
Open carry is a First Amendment exercise.
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