Originally Posted by Frank Ettin
So how is this supposed to work? If the cop doesn't know who you are, or if you don't show him your permit, he has absolutely no way of knowing whether or not you have a permit, so he has absolutely no way of knowing whether or not you are committing a crime.
He does, however, have a reasonably articulable suspicion that you may be committing a crime because (1) he has reason to believe you are carrying a gun; and (2) he has no reason to believe that you have a permit.
Sorry, but that's how a court is most likely to see things in the real world. I know it irks you, but the alternative is that an LEO is effectively powerless to investigate the possibility that someone maybe carrying a gun illegally.
Frank, it is supposed to work just the way you don't think it can't work, which is that the presumption is innocence rather than guilt, and the cop has to have something more than just a suspicion that the person is carrying a gun. He has to have something to suggest that the person more than likely does NOT have a carry permit.
The best parallel I can think of is Philadelphia. In Pennsylvania, a License to Carry Firearm (LTCF) is required to carry concealed, but open carry is legal in Pennsylvania without an LTCF everywhere except Philadelphia. Under PA state law, Philadelphia is a "city of the first class," and an LTCF is also required to open carry.
Philadelphia is notoriously anti-gun. The police have a long history of harassing legally armed citizens. Their view until recently has been "If we see a gun we're going to stop you and prone you out."
A few months ago, they pulled this on a young man who "happened" to have a pocket video recorder running. He also happened to have his LTCF. They arrested him on a bunch of bogus charges that basically boiled down to "Failure to respect mah aw-thaw-ri-tay." Rather than just pay the fines, he took them to court, and he won an award of damages against the department. The reason he won was precisely the reason you seem to think should not prevail: The young man was openly carrying a firearm, in Philadelphia. There was no way the officer could know whether or not the kid was legal without seeing his LTCF. BUT
... open carry IS legal with a LTCF, and the officer had no "clearly articulable facts" suggesting that the kid did NOT have a LTCF, and therefore the officer had no legally-sustainable basis on which to found (based on Terry v Ohio
) a "reasonable suspicion" that a crime was being committed. Ergo, the cop had no valid reason to stop the kid, let alone to prone him out at gunpoint.
I don't see the Florida law as being any different.
(A) Carrying a concealed firearm is a crime.
(B) If you nave a permit, (A) does not apply. [Thus, if you have a permit, carrying a concealed weapon is NOT a crime.]
So, you ask, when CAN an officer stop someone if he suspects the carrier doesn't have a permit? Well, for example, the officer may know from prior incidents that the suspect is a convicted felon, or the officer may know the person and know that the person is the subject of a restraining order barring him from possessing firearms. In such limited circumstances, the officer could, based on the totality of the circumstances, have some clearly articulable facts ("I knew the guy was on parole after ten years in the pen") to support a reasonable suspicion that the guy couldn't be carrying legally.
If the officer sees a complete stranger and knows nothing about the person, I respectfully submit that he has no basis on which to form a reasonable suspicion of any illegal activity. To follow your logic, the police should stop every car on the street because otherwise how could they possibly know the driver has a license?