Texas cops arrest soldier for legally carrying a gun

[Centimeter]

They DO need cause, and in this case it just didn't exist.  It just didn't exist. Not probable, not reasonable, it just wasn't there.

Greg, I agree with you completely. This stop was untenable. It was exceedingly weak. There simply wasn't sufficient information for the officers to determine, as a reasonable and prudent man, that there was evidence a crime had been or was being committed by the guy just walking around with a gun. He shouldn't have touched the citizen or his weapon until he had developed probable cause sufficient to affect an arrest. He should have asked what the guy was doing, why he needed the gun, if he was lawfully allowed to possess the weapon, and then let the guy go on his way. Clearly this was another instance of a police officer becoming uncomfortable with a situation that they typically have little training in and he reacted rashly, to the point of over-reaching in his authority to the detriment of the citizen with the rifle.

The stop should have merely been an encounter, which the citizen should have been freely able to break off at any point, because there was no reasonable suspicion sufficient to conduct a stop (a detainment) for the purpose of investigation. Unless the citizen had pointed the weapon at someone (or "brandished" in some jurisdictions) or done something else to lead the officers to have probable cause, or even reasonable suspicion, they had no business fully detaining him in the first place. He should have been allowed to walk free, unmolested, whenever he wanted and the instant he wasn't able to he was being detained unlawfully.

[4949shooter]

I've been stopped with weapons.  I keep my head on a swivel, and it doesn't take a rocket scientist to now you've drawn the attention of law enforcement.  Well before their final approach, I handle the gun by the barrel place it against a tree or fence, or on the ground and take several steps toward the place where I can meet with officer.  Its just not smart to have that weapon that ready for use with LEOs.

I would then let them know I wasn't a harm to any one, but I really don't want to chat with them either.  That's (talking to LEO's) is not smart either!!!  I would ask if I'm detained, what the reason for the detention if they said "yes" and request that I'd be allowed to be on my way if they said "no". 

They DO need cause, and in this case it just didn't exist.  It just didn't exist. Not probable, not reasonable, it just wasn't there.

Greg

I agree with you Greg, that the incident could have been handled better on both sides. And you are correct, that PC did not exist initially. This is why I brought up the "Mere encounter."

Unfortunately, our open carry advocate decided to escalate the situation. Remember, "DON'T DISARM ME" as he put his hands on his rifle.

Our open carry advocate chose to make his point in a manner that was devoid of common sense. Then he resisted (obstructed) by not putting his hands behind his back. He was found GUILTY of this in a court of law.

So.....please. Let's not look at this blindly as a gun rights issue. Let's look at this as a faulty way of some guy trying to make a stand for open carry. He could have done this better. I have been a LEO for 26 years, and the feeling I get from the way the officers were acting, was that they would have sent him on his way if he would have been cooperative.

Remember, this happened in TEXAS, where most cops are pro gun.

[4949shooter]

They DO need cause, and in this case it just didn't exist.  It just didn't exist. Not probable, not reasonable, it just wasn't there.

Greg, I agree with you completely. This stop was untenable. It was exceedingly weak. There simply wasn't sufficient information for the officers to determine, as a reasonable and prudent man, that there was evidence a crime had been or was being committed by the guy just walking around with a gun. He shouldn't have touched the citizen or his weapon until he had developed probable cause sufficient to affect an arrest. He should have asked what the guy was doing, why he needed the gun, if he was lawfully allowed to possess the weapon, and then let the guy go on his way. Clearly this was another instance of a police officer becoming uncomfortable with a situation that they typically have little training in and he reacted rashly, to the point of over-reaching in his authority to the detriment of the citizen with the rifle.

The stop should have merely been an encounter, which the citizen should have been freely able to break off at any point, because there was no reasonable suspicion sufficient to conduct a stop (a detainment) for the purpose of investigation. Unless the citizen had pointed the weapon at someone (or "brandished" in some jurisdictions) or done something else to lead the officers to have probable cause, or even reasonable suspicion, they had no business fully detaining him in the first place. He should have been allowed to walk free, unmolested, whenever he wanted and the instant he wasn't able to he was being detained unlawfully.

Please see the above explanation to Greg. The subject himself escalated this situation from a mere encounter to a stop.

[Geeman]

The whole video makes my heart sink.

First, somehow, its some how OK to stop someone doing nothing wrong.  What about someone driving a car?  Is there not destruction power in a 3500 lb vehicle?  Why is it OK to stop someone open carrying, but not knowing (concealed) would have never had an issue?  IMHO there is just no justification based on what could be done with the firearm.  If there were reports of shots fired, sure.

Then there is our activist.  I repeat its not a good thing to not manage to get that firearm off his body before the officer made the stop.  He is risking a hole in his body.  The officer was certainly under-gunned in that situation and I'd be twitchy too.  To place hands on the gun was a boo-boo on the officer's part.  If he was going to do that, he should announce his intentions.  "I'm going to remove the magazine for my safety".  "I'm going to clear the chamber", or better yet, "Please place the gun on the ground".  The dude was ex-military and I can see the reaction to being disarmed as being a remnant of his military training.  You just don't let someone take possession of you weapon in the military.

The dude was out to get a video and he accomplished that.  It has us all wound up about it years after it happened. 

Greg

[4949shooter]

Yes, and you know what else I though of Greg? Nobody here would have acted like that guy.

If any of us wanted to make a point about open carry, we would have been much smarter about it.

[P33v3]

I've been stopped before while CCWing. Out of RESPECT for our heroes of law enforcement it went something like this. (Both hands on steering wheel) officer, sir. I am a licensed concealed weapons permit licensee, I am carrying a S&W semi auto in a shoulder holster under my left arm pit. It is loaded but secure. What woul you like me to do?

From that point EVERYTHING I did I described to him in detail from getting my wallet to handing him my registration as I was doing it very slowly. I Didn't legally have to but it seemed stupid not to. He thanked me and let me go on my way with maybe an extra 5 minutes added on to the stop while he made sure my pistol wasn't stolen and my ccw license was valid. Not even ticketed.

[sqlbullet]

SqlBullet, a Terry Stop is a reasonable suspicion stop.

Normally out in the country this most likely would not apply, especially in Texas. But...the police received a call on this guy, so they have to stop and at least check him out.

Quite right... brain fart on my part.

So....What was the reasonable suspicion?

But...the police received a call on this guy, so they have to stop and at least check him out.

No, they didn't.  Far too often a caller needs to be told that an activity isn't breaking a law and they CAN'T do anything.

In fact, they shouldn't unless there was cause, and someone doing a lawful activity shouldn't be bothered.

Greg

I am going to have to disagree here, Greg.  They have a job to protect the community. If people are calling about this guy (which they did according to the video) the LEO's have a duty to at least stop and talk to the guy.

What if he was some kind of mentally unstable individual, and the police did nothing, and the guy later went on to kill some people?

The police have an obligation to protect the public.

By this rationale, would you have to interview someone walking about with a coke bottle in there hand, if there was a call about a man with a coke bottle?

I think we can both agree that dispatch would NOT put such a complaint through to an officer.  And certainly if they did and the officer terry stopped a man for holding a bottle of coke and clutching it defensively, it would not stand up in court.

A man about with a gun IS legal here.  Doing a legal thing in a legal place is NOT reasonable suspicion for a terry stop no matter how uncomfortable it make hoplophobes.

Yes, the police are free to interview anyone dumb enough to stop and talk to them.  But, given that this interview starts  a command to "hang on a minute", I also think it is reasonable to say this whole thing started with an unwarranted terry stop, not a consensual interview.

I would love to read some legal opinion on this case if anyone has any commentary to cite.  Cause I honestly don't see the legal foundation for this stop in a truly free country.

[my_old_glock]

To me it looked like the guy with the gun was looking to make a statement (looking for a fight). He got what he wanted and lost. It was all about him and what he wanted. He didn't care if someone else didn't like his behavior.

Why was he carrying a loaded rifle out in the middle of nowhere?
Did he think he would be attacked by a charging rhino?
Why didn't he have the gun slung over his shoulder with the magazine removed? Was he afraid a Fugawee Pigmy would run out of the grass and steal his rifle?

It may be legal for him to do it, but he has to realize that his actions, in this day and age, will draw unwanted attention and possible the police. I could legally walk through a busy mall with nothing but a skimpy speedo and bunny slippers, but I would expect security to stop me and ask questions.

Personally I am sick of people using; "this is America," "it's a free country," "this isn't Nazi Germany," and/or "I have the right" as an excuse for anti-social narcissistic behavior. People around here ride their uncorked Harley motorcycles through the neighborhood at 2am because  "this is a free country." Other punks play their stereo so loud it rattles a house a block away: They think it is funny. And then there are those people who feel they have the right to blow their cigarette or cigar smoke in your face while at a restaurant (Thankfully they can't do this in California anymore).



.

[4949shooter]

SqlBullet, a Terry Stop is a reasonable suspicion stop.

Normally out in the country this most likely would not apply, especially in Texas. But...the police received a call on this guy, so they have to stop and at least check him out.

Quite right... brain fart on my part.

So....What was the reasonable suspicion?

But...the police received a call on this guy, so they have to stop and at least check him out.

No, they didn't.  Far too often a caller needs to be told that an activity isn't breaking a law and they CAN'T do anything.

In fact, they shouldn't unless there was cause, and someone doing a lawful activity shouldn't be bothered.

Greg

I am going to have to disagree here, Greg.  They have a job to protect the community. If people are calling about this guy (which they did according to the video) the LEO's have a duty to at least stop and talk to the guy.

What if he was some kind of mentally unstable individual, and the police did nothing, and the guy later went on to kill some people?

The police have an obligation to protect the public.

By this rationale, would you have to interview someone walking about with a coke bottle in there hand, if there was a call about a man with a coke bottle?

I think we can both agree that dispatch would NOT put such a complaint through to an officer.  And certainly if they did and the officer terry stopped a man for holding a bottle of coke and clutching it defensively, it would not stand up in court.

A man about with a gun IS legal here.  Doing a legal thing in a legal place is NOT reasonable suspicion for a terry stop no matter how uncomfortable it make hoplophobes.

Yes, the police are free to interview anyone dumb enough to stop and talk to them.  But, given that this interview starts  a command to "hang on a minute", I also think it is reasonable to say this whole thing started with an unwarranted terry stop, not a consensual interview.

I would love to read some legal opinion on this case if anyone has any commentary to cite.  Cause I honestly don't see the legal foundation for this stop in a truly free country.

There was no reasonable suspicion. The stop began as a mere encounter, the way I saw it. It escalated once our open carry advocate put his hands on his weapon and demanded not to be disarmed. Not a smart move under the circumstances I think we can all agree. Terry vs. Ohio gives police officers the tools they need to protect themselves. In another words, all an officer has to do is articulate why he or she is in fear for his or her safety, and they can conduct a patdown frisk, or handcuff people for safety purposes.

Johnny Open Carry grabbed his gun in the officer's presence, which legally escalated the encounter into a Terry stop. It was all down hill from there. He was convicted of obstruction in a TEXAS court of law.

Personally, I would have handled the encounter differently. But...this does not mean the officer acted outside his authority under the law. This is reinforced by the fact that Johnny was found guilty in court.

[4949shooter]

To me it looked like the guy with the gun was looking to make a statement (looking for a fight). He got what he wanted and lost. It was all about him and what he wanted. He didn't care if someone else didn't like his behavior.

Why was he carrying a loaded rifle out in the middle of nowhere?
Did he think he would be attacked by a charging rhino?
Why didn't he have the gun slung over his shoulder with the magazine removed? Was he afraid a Fugawee Pigmy would run out of the grass and steal his rifle?

It may be legal for him to do it, but he has to realize that his actions, in this day and age, will draw unwanted attention and possible the police. I could legally walk through a busy mall with nothing but a skimpy speedo and bunny slippers, but I would expect security to stop me and ask questions.

Personally I am sick of people using; "this is America," "it's a free country," "this isn't Nazi Germany," and/or "I have the right" as an excuse for anti-social narcissistic behavior. People around here ride their uncorked Harley motorcycles through the neighborhood at 2am because  "this is a free country." Other punks play their stereo so loud it rattles a house a block away: They think it is funny. And then there are those people who feel they have the right to blow their cigarette or cigar smoke in your face while at a restaurant (Thankfully they can't do this in California anymore).
.

Well said Sir.

[Wolfie]

Wow, sounds like a women dressing in a short skirt and heels is looking to get raped defense.

[4949shooter]

Wow, sounds like a women dressing in a short skirt and heels is looking to get raped defense.

Camon Wolfie, do you walk around town with an AR exposed? My AR rides in my trunk. I don't walk around the mall with it, even though I could do so and be 100% legal.

[Centimeter]

Wolfie's right; doesn't matter what the guy was doing if it was legal. Just because the officer was uncomfortable doesn't mean he can start violating people's rights. And it doesn't matter if the guy resisted being disarmed or resisted being arrested. That's fully legal when the impending arrest is unconstitutional. All the officer had to do was leave the gun be and tell the guy not to touch it, for safety, and then he'd conduct the rest of the "interview" like a respectful human being. When a police officer just starts grabbing you or your belongings without justification, regardless of what those items are, it's not okay. If the citizen actively began fighting with the officer that's a different story but in this instance all the guy did was attempt to break contact when the officer started to illegally disarm him and that's when the officer took it too far. Doesn't matter if he was convicted or not; doesn't matter if the guy was making a point or not; juries aren't always right, prosecution isn't always right, and defenses don't always win. That's what appeals are for. The guys rights were violated.

[4949shooter]

Wolfie's right; doesn't matter what the guy was doing if it was legal. Just because the officer was uncomfortable doesn't mean he can start violating people's rights. And it doesn't matter if the guy resisted being disarmed or resisted being arrested. That's fully legal when the impending arrest is unconstitutional. All the officer had to do was leave the gun be and tell the guy not to touch it, for safety, and then he'd conduct the rest of the "interview" like a respectful human being. When a police officer just starts grabbing you or your belongings without justification, regardless of what those items are, it's not okay. If the citizen actively began fighting with the officer that's a different story but in this instance all the guy did was attempt to break contact when the officer started to illegally disarm him and that's when the officer took it too far. Doesn't matter if he was convicted or not; doesn't matter if the guy was making a point or not; juries aren't always right, prosecution isn't always right, and defenses don't always win. That's what appeals are for. The guys rights were violated.

I agree with your assessment. The officer didn't handle the situation as he should have, though what he did was legal. The guy didn't handle himself properly either.

Perhaps we can all learn from it.

[Centimeter]

Perhaps we can all learn from it.

You're absolutely right 4949shooter. I should have mentioned that I thought neither really behaved themselves as grown men should have and the situation escalated unnecessarily. We all should at least take note of the video and the implications it might have for those of us that may one day be stopped for something like this. It can always turn bad, sometimes very bad, but it doesn't need to. The totality of the circumstances is what we need to observe and respect and that includes treating the police officer with the same amount of respect that we feel we'd deserve. It's fine to make a point and to protest and so forth but there's a point where the fight isn't worth fighting when the possibility of a positive outcome cannot hope to overcome how terribly it could go, as was the case here. Let the officer do his job and if something unconstitutional happens that you feel needs to be pursued, then you pursue it. You don't stand and argue with a police officer, even if he's wrong. You let him be wrong and then you go on about your day, as a free American citizen, who is then able to freely contact the chief of police, the mayor, or a lawyer. The fight isn't won in the streets, it's won in the courts. Arguments and arrests don't set precedent, case law does.