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firefighterSTFD22
Regular Member
| Joined: | Fri Oct 23rd, 2009 |
| Location: | Davisburg, MI |
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Posted: Wed Oct 28th, 2009 01:12 pm |
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I have been open carrying for about a month now and have not had a single issue with the public or with LEO's.
I have thoroughly investigated the laws and my rights with regard to open carry. I understand that if I am stopped by a LEO while open carrying I do not have to provide I.D. or personal information. A question did arise yesterday while having lunch, while open carrying, with my wife at the Olive Garden in Auburn Hills, MI.
I have my CPL and was open carrying in an establishment that is licensed by the Michigan Liquor Control Board; I WAS NOT partaking of any alcohol. If I would have been approached by a LEO in this situation, what information (if any) am I required to provide? It seems logical to me that in this situation I would have to provide both my drivers License and my CPL.
Thanks for any information you all can provide.
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autosurgeon
Regular Member
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Posted: Wed Oct 28th, 2009 01:21 pm |
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That is NOT a CEZ as they do not derive 50% of their income from booz....
Now if you are in a CEZ and are OCing with a cpl... it is a grey area... some say they can check some say not.
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Michigander
Regular Member
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Posted: Wed Oct 28th, 2009 01:22 pm |
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firefighterSTFD22 wrote: It seems logical to me that in this situation I would have to provide both my drivers License and my CPL.
There is no reason at all to try to inject sense into most of Michigan's gun laws. It doesn't work that way.
To start with, the disclosure law is feel good nonsense, because obviously the only people who will disclose are good people anyway.
The exact wording of the law provides no requirement to disclose anything while OCing. It does not make an exemption for whenever you are using your CPL, it only says while concealed carrying.
Here is an old post by Springerxdacp on this subject.
In pertinent part:
(3) An individual licensed under this act to carry a concealed pistol and who is carrying a concealed pistol and who is stopped by a peace officer shall immediately disclose to the peace officer that he or she is carrying a pistol concealed upon his or her person or in his or her vehicle.
http://www.legislature.mi.gov/(S(0rubsoj4swild255tmozpo45))/mileg.aspx?page=getObject&objectName=mcl-28-425f
Last edited on Wed Oct 28th, 2009 01:24 pm by Michigander
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T Vance
Regular Member
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Posted: Wed Oct 28th, 2009 01:24 pm |
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That's a call each individual would have to make. Chances are a place such as the Olive Garden makes most of its sales from the sale of food and not alcohol. But you would not know that unless you talked with the manager of each restaurant, and I'm sure most manager's probably would devulge that information.
If you decide not to provide ID or CPL, the police could decide to detain you, take your gun and CPL, and make you fight for it in court. Chances are you would win if it took place in an Olive Garden, but who's to say that that restaurant doesn't make most of its sales with alcohol. That and you'd have to waste time fighting it in court.
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autosurgeon
Regular Member
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Posted: Wed Oct 28th, 2009 01:33 pm |
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They have to disclose it as there are some people who are on probation that have the same 50% restriction... it is a requirement of the license to disclose if someone asks.
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Venator
Regular Member
| Joined: | Wed Jan 10th, 2007 |
| Location: | Michigan USA |
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Posted: Wed Oct 28th, 2009 01:57 pm |
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firefighterSTFD22 wrote: I have been open carrying for about a month now and have not had a single issue with the public or with LEO's.
I have thoroughly investigated the laws and my rights with regard to open carry. I understand that if I am stopped by a LEO while open carrying I do not have to provide I.D. or personal information. A question did arise yesterday while having lunch, while open carrying, with my wife at the Olive Garden in Auburn Hills, MI.
I have my CPL and was open carrying in an establishment that is licensed by the Michigan Liquor Control Board; I WAS NOT partaking of any alcohol. If I would have been approached by a LEO in this situation, what information (if any) am I required to provide? It seems logical to me that in this situation I would have to provide both my drivers License and my CPL.
Thanks for any information you all can provide.
What would be the RAS that you are breaking the law???? The mere possession of a gun is not RAS for a stop (US Supreme Court decision).
My argument would entail the unconstitutional practice of asking anyone for a license where the need for one is or is not required for that particular activity. For example driving a car is lawful. Certain people are allowed to drive cars if they have a valid license. Police can not stop a person driving a car just to see if they have a valid driver’s license without some RAS or PC of a crime or that they may know the person not to have a license.
The same could be argued in regard to possessing a firearm in an exempted place. Carrying a firearm is lawful. Carrying a firearm in an exempted place is allowed for some people. Some people have less restrictions on where they can carry a firearm than others (CPL holder, owner or employees, owners permission). Therefore since firearm possession is lawful in all exempted places by some people the mere presence of a firearm in an exempted place is not RAS or PC, unless further information is known about the person (i.e. a know felon, or known to not have a CPL, or has been trespassed, etc.)
U.S. Supreme Court Delaware v. Prouse, 440 U.S. 648 (1979)
No. 77-1571 Argued January 17, 1979 Decided March 27, 1979 440 U.S. 648
CERTIORARI TO THE SUPREME COURT OF DELAWARE
Syllabus
A patrolman in a police cruiser stopped an automobile occupied by respondent and seized marihuana in plain view on the car floor. Respondent was subsequently indicted for illegal possession of a controlled substance. At a hearing on respondent's motion to suppress the marihuana, the patrolman testified that, prior to stopping the vehicle, he had observed neither traffic or equipment violations nor any suspicious activity, and that he made the stop only in order to check the driver's license and the car's registration. The patrolman was not acting pursuant to any standards, guidelines, or procedures pertaining to document spot checks, promulgated by either his department or the State Attorney General. The trial court granted the motion to suppress, finding the stop and detention to have been wholly capricious, and therefore violative of the Fourth Amendment. The Delaware Supreme Court affirmed.
Held:
1. This Court has jurisdiction in this case even though the Delaware Supreme Court held that the stop at issue not only violated the Federal Constitution but also was impermissible under the Delaware Constitution. That court's opinion shows that, even if the State Constitution would have provided an adequate basis for the judgment below, the court did not intend to rest its decision independently on the State Constitution, its holding instead depending upon its view of the reach of the Fourth and Fourteenth Amendments. Pp. 440 U. S. 651-653.
2. Except where there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment. Pp. 440 U. S. 653-663.
(a) Stopping an automobile and detaining its occupants constitute a "seizure" within the meaning of the Fourth and Fourteenth Amendments, even though the purpose of the stop is limited and the resulting detention quite brief. The permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. Pp. 440 U. S. 653-655.
428 U. S. 543, the marginal contribution to roadway safety possibly resulting from a system of spot checks cannot justify subjecting every occupant of every vehicle on the roads to a seizure at the unbridled discretion of law enforcement officials. Pp. 440 U. S. 655-661.
(c) An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. People are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalk; nor are they shorn of those interests when they step from the sidewalks into their automobiles. Pp. 440 U. S. 662-663.
(d) The holding in this case does not preclude Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. P. 440 U. S. 663.
382 A.2d 1359, affirmed.
Last edited on Mon Nov 2nd, 2009 02:50 pm by Venator
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Bronson
Regular Member
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Posted: Wed Oct 28th, 2009 02:46 pm |
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firefighterSTFD22 wrote: I understand that if I am stopped by a LEO while open carrying I do not have to provide I.D. or personal information.
Just a quick correction, as I understand it, your statement should read:
"I understand that if I am stopped by a LEO for open carrying I do not have to provide I.D. or personal information."
It's a small distinction but one worth noting in my opinion.
Bronson
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dougwg
Regular Member
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Posted: Wed Oct 28th, 2009 03:09 pm |
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Bronson wrote: firefighterSTFD22 wrote: I understand that if I am stopped by a LEO while open carrying I do not have to provide I.D. or personal information.
Just a quick correction, as I understand it, your statement should read:
"I understand that if I am stopped by a LEO for open carrying I do not have to provide I.D. or personal information."
It's a small distinction but one worth noting in my opinion.
Bronson
VERY TRUE, always ask if the reason for the "encounter" is because you are OCing.
Get the question and answer on record (you do carry a voice recorder don't you?).
If they say yes, it establishes 2 things, that you were in fact OC and not concealing and also that the stop isn't lawful because a gun in a holster is not RAS or PC.
As to the original question I would say YES you do need to show ID and CPL because the place is licensed under the LCA and as such you must have a CPL in order to carry there AND you are acting under the privileges of the CPL. (This is my opinion and I'm not a lawyer)
Last edited on Wed Oct 28th, 2009 03:09 pm by dougwg
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Venator
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| Location: | Michigan USA |
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Posted: Wed Oct 28th, 2009 03:18 pm |
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dougwg wrote: Bronson wrote: firefighterSTFD22 wrote: I understand that if I am stopped by a LEO while open carrying I do not have to provide I.D. or personal information.
Just a quick correction, as I understand it, your statement should read:
"I understand that if I am stopped by a LEO for open carrying I do not have to provide I.D. or personal information."
It's a small distinction but one worth noting in my opinion.
Bronson
VERY TRUE, always ask if the reason for the "encounter" is because you are OCing.
Get the question and answer on record (you do carry a voice recorder don't you?).
If they say yes, it establishes 2 things, that you were in fact OC and not concealing and also that the stop isn't lawful because a gun in a holster is not RAS or PC.
As to the original question I would say YES you do need to show ID and CPL because the place is licensed under the LCA and as such you must have a CPL in order to carry there AND you are acting under the privileges of the CPL. (This is my opinion and I'm not a lawyer)
Why, what RAS? Firearms are allowed in most areas, like driving is allowed. You can't stop a driver JUST to ask to see a license, the same argument can be made for a firearm. Again what RAS????
Now if he was in a area armed where NO WEAPONS are allowed by law, then there is RAS to make a stop.
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Michigander
Regular Member
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Posted: Wed Oct 28th, 2009 03:29 pm |
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dougwg wrote: As to the original question I would say YES you do need to show ID and CPL because the place is licensed under the LCA and as such you must have a CPL in order to carry there AND you are acting under the privileges of the CPL. (This is my opinion and I'm not a lawyer)
That would make sense, in a way. But I'm not aware of a law that ever requires CPL disclosure when OCing, except when it's magically concealed in a car.
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dougwg
Regular Member
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Posted: Wed Oct 28th, 2009 03:39 pm |
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There is NOTHING in the CPL statute that says a cop needs RAS to ask you for your CPL and DL. Only that you must provide them if demanded by LEO.
This is a gray area as far as I'm concerned. I'll try to explain but I have no desire to sit here and write a book on it either, I have work to get done.
If you are in a place licensed under the LCA, you must have a CPL in order to carry open or concealed therefore you are acting under authority of the CPL (like carrying open in a car, not exactly but like it)
Because you are acting under authority of the CPL you are bound by the CPL statute and there for must have your CPL on you(you accept this to be true Brian) and are required to give up your CPL and DL as it states in the CPL law.
Like I said, this is my opinion on how I interpret the law and I'm not a lawyer. In a case like this I would give ID, but just walking down the street? hell no!
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ISMOID
Regular Member
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Posted: Wed Oct 28th, 2009 04:04 pm |
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dougwg wrote: There is NOTHING in the CPL statute that says a cop needs RAS to ask you for your CPL and DL. Only that you must provide them if demanded by LEO...If you are in a place licensed under the LCA, you must have a CPL in order to carry open or concealed therefore you are acting under authority of the CPL (like carrying open in a car, not exactly but like it)
Because you are acting under authority of the CPL you are bound by the CPL statute and there for must have your CPL on you(you accept this to be true Brian) and are required to give up your CPL and DL as it states in the CPL law.
Like I said, this is my opinion on how I interpret the law and I'm not a lawyer. In a case like this I would give ID, but just walking down the street? hell no!
I see you are using Common Sense to understand the law. Therefore, by the very nature of the beast, you must be WRONG! Common Sense plays no part in the law, we all know that.
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dougwg
Regular Member
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Posted: Wed Oct 28th, 2009 04:20 pm |
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ISMOID wrote: I see you are using Common Sense to understand the law. Therefore, by the very nature of the beast, you must be WRONG! Common Sense plays no part in the law, we all know that.
Damn it all to hell....I totally forgot about that.... Last edited on Wed Oct 28th, 2009 04:20 pm by dougwg
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Venator
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Posted: Wed Oct 28th, 2009 04:21 pm |
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dougwg wrote: There is NOTHING in the CPL statute that says a cop needs RAS to ask you for your CPL and DL. Then you are arguing that a LEO can at anytime ask for your CPL and you have to give it to him? Only that you must provide them if demanded by LEO. ONLY if carrying concealed. Just because I have a CPL a LEO can't demand I produce it without RAS. What you are saying is that if you have a CPL a LEO can at anytime ask for your CPL and you must comply....that's a stretch.
This is a gray area as far as I'm concerned. I'll try to explain but I have no desire to sit here and write a book on it either, I have work to get done.
If you are in a place licensed under the LCA, you must have a CPL in order to carry open or concealed therefore you are acting under authority of the CPL (like carrying open in a car, not exactly but like it) IF you are driving a car you must have a drivers license, BUT a LEO can't just stop you to see if you have a drivers license without some RAS..yes...no???
Because you are acting under authority of the CPL you are bound by the CPL statute and there for must have your CPL on you(you accept this to be true Brian) and are required to give up your CPL and DL as it states in the CPL law. Only if carrying concealed. When I am driving my car I must have my DL on me as well...gets back to RAS.
Like I said, this is my opinion on how I interpret the law and I'm not a lawyer. In a case like this I would give ID, but just walking down the street? hell no! But you wrote this "There is NOTHING in the CPL statute that says a cop needs RAS to ask you for your CPL and DL" surely you have to present CPL then as well???
Check out this courts decision, seems to uphold RAS in order to detain for OC. Also the SCOTUS held, The mere presence of a firearm is not enough for a "stop". I think my driving argument holds. But I'm not a lawyer either.Attachment: St[1].John v Alamogordo Police Order.pdf (Downloaded 20 times)
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lapeer20m
Regular Member
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Posted: Wed Oct 28th, 2009 09:39 pm |
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Venator wrote:
What would be the RAS that you are breaking the law???? The mere possession of a gun is not RAS for a stop (US Supreme Court decision).
My argument would entail the unconstitutional practice of asking anyone for a license where the need for one is or is not required for that particular activity. For example driving a car is lawful. Certain people are allowed to drive cars if they have a valid license. Police can not stop a person driving a car just to see if they have a valid driver’s license without some RAS or PC of a crime or that they may know the person not to have a license.
The same could be argued in regard to possessing a firearm in an exempted place. Carrying a firearm is lawful. Carrying a firearm in an exempted place is allowed for some people. Some people have less restrictions on where they can carry a firearm than others (CPL holder, owner or employees, owners permission). Therefore since firearm possession is lawful in all exempted places by some people the mere presence of a firearm in an exempted place is not RAS or PC, unless further information is known about the person (i.e. a know felon, or known to not have a CPL, or has been trespassed, etc.)
+1
The law does not require that you give your dl and cpl to an officer if you are carrying openly in an exempted area under the authority of your cpl. The law only requires you give an officer your cpl and DL when you are carrying concealed.
"An individual who is licensed under this act to carry a concealed pistol and who is carrying a concealed pistol shall show both of the following to a peace officer upon request by that peace officer:"
http://www.legislature.mi.gov/%28S%28jqxoq345xf4yxe450nwgjaev%29%29/mileg.aspx?page=getobject&objectname=mcl-28-425f&query=on&highlight=pistol%20AND%20officer
that being said, i am not necessarily opposed to giving my licenses to an officer upon request, even if the law does not require me to.
Last edited on Wed Oct 28th, 2009 09:48 pm by lapeer20m
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T Vance
Regular Member
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Posted: Wed Oct 28th, 2009 09:54 pm |
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| I forgot about the RAS factor.
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hamaneggs
Regular Member
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Posted: Thu Oct 29th, 2009 07:12 am |
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ISMOID wrote: dougwg wrote: There is NOTHING in the CPL statute that says a cop needs RAS to ask you for your CPL and DL. Only that you must provide them if demanded by LEO...If you are in a place licensed under the LCA, you must have a CPL in order to carry open or concealed therefore you are acting under authority of the CPL (like carrying open in a car, not exactly but like it)
Because you are acting under authority of the CPL you are bound by the CPL statute and there for must have your CPL on you(you accept this to be true Brian) and are required to give up your CPL and DL as it states in the CPL law.
Like I said, this is my opinion on how I interpret the law and I'm not a lawyer. In a case like this I would give ID, but just walking down the street? hell no!
I see you are using Common Sense to understand the law. Therefore, by the very nature of the beast, you must be WRONG! Common Sense plays no part in the law, we all know that.
Common sense helps you if you end up in court and recorded evidence too! Common sense wins in the end!
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1245A Defender
Regular Member
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Posted: Thu Oct 29th, 2009 11:56 am |
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Venator wrote: firefighterSTFD22 wrote: I have been open carrying for about a month now and have not had a single issue with the public or with LEO's.
I have thoroughly investigated the laws and my rights with regard to open carry. I understand that if I am stopped by a LEO while open carrying I do not have to provide I.D. or personal information. A question did arise yesterday while having lunch, while open carrying, with my wife at the Olive Garden in Auburn Hills, MI.
I have my CPL and was open carrying in an establishment that is licensed by the Michigan Liquor Control Board; I WAS NOT partaking of any alcohol. If I would have been approached by a LEO in this situation, what information (if any) am I required to provide? It seems logical to me that in this situation I would have to provide both my drivers License and my CPL.
Thanks for any information you all can provide.
What would be the RAS that you are breaking the law???? The mere possession of a gun is not RAS for a stop (US Supreme Court decision).
My argument would entail the unconstitutional practice of asking anyone for a license where the need for one is or is not required for that particular activity. For example driving a car is lawful. Certain people are allowed to drive cars if they have a valid license. Police can not stop a person driving a car just to see if they have a valid driver’s license without some RAS or PC of a crime or that they may know the person not to have a license.
The same could be argued in regard to possessing a firearm in an exempted place. Carrying a firearm is lawful. Carrying a firearm in an exempted place is allowed for some people. Some people have less restrictions on where they can carry a firearm than others (CPL holder, owner or employees, owners permission). Therefore since firearm possession is lawful in all exempted places by some people the mere presence of a firearm in an exempted place is not RAS or PC, unless further information is known about the person (i.e. a know felon, or known to not have a CPL, or has been trespassed, etc.)
i am so glad ive have found you! see my threads about CPL demands by LEO, RAS and PC. ive studied for months to show that LEO fishing for ID by CPL would be unconstitutional. in the end, even if the LEO sees your CCd gun, without RAS of a CRIME he can ask, but he Cant DEMAND! you have helped me to see THAT light. a LEO has to be investigating a CRIME before he can demand, ANYTHING!
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JeffSayers
Regular Member
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Posted: Fri Oct 30th, 2009 01:39 pm |
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I think Dougs point here is that when carrying concealed (under authority of that license) you are obligated to provide it upon request. What he is seeing is the fact that by using the authority of that license to OC in a victim zone you are in theory obligated to provide it upon request.
I would agree with Doug here. I could see a judge being allowed to interpret the intent of the disclosure requirement and making this a bad situation.
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Venator
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Posted: Fri Oct 30th, 2009 02:33 pm |
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JeffSayers wrote: I think Dougs point here is that when carrying concealed (under authority of that license) you are obligated to provide it upon request. What he is seeing is the fact that by using the authority of that license to OC in a victim zone you are in theory obligated to provide it upon request.
I would agree with Doug here. I could see a judge being allowed to interpret the intent of the disclosure requirement and making this a bad situation.
Again where is the RAS? You have not given me any reason for the stop other than the person had a gun, which is not RAS. Really think about what you are saying and what I'm saying. I might be an employee with permission from the owner, I might be a friend of the owner and have permission to be there. Keep in mind there are other legal ways to have a handgun in an exempted place other than a CPL.
Guns are allowed in a Meijer's store. The LEO sees a person with a gun. What's his RAS to ask for ID or to detain you? He has to assume you are legal, he can't just ask to see a license, no more than he can just stop a driver to see if he has a license.
This isn't rocket science.
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