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Old August 23, 2012, 10:35 PM   #1
Wagonman
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Open Carry police encounter

http://www.policeone.com/Patrol-Vide...se-goes-viral/

I think that playing games like this are not moving the ball forward RKBAwise. You cannot tell if a weapon is semi-auto or full auto without a physical check. The activist's citing of Terry was also fallacious. Just a dumb thing to do.


To say nothing of my issues with open carry to begin with.
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Old August 23, 2012, 11:11 PM   #2
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We'll be watching this one closely, as open carry threads tend to get snarky.

That said, that officer is just...wow. I expect a certain degree of professionalism from law enforcement, but Nork was amazing. I liked his knowledge of NFA law (even if "Class 3 tax stamp" is slightly incorrect), and his acknowledgement and support of the right to carry was exemplary.

Looks like the guy taping the video was looking for a confrontation, and Nork utterly swept the rug out from under him.

Now for the L&CR question: does this meet the requirements for a Terry stop, and was Nork's suspicion that the guy was carrying an NFA weapon reasonable?
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Old August 23, 2012, 11:21 PM   #3
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I am not a fan of deliberate setups such as this seemed to have been.

OTOH, some of the comments from supposed LEOs below the article linked in the OP were downright disturbing. For example, Nork should only have approached once other officers were set up in overwatch, with weapons covering the open carrier?

So I read comments like that, and I can't help but think some of these YouTube showboats have a point...
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Old August 23, 2012, 11:25 PM   #4
Aguila Blanca
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The test for initiating a Terry stop is that the officer must have a "reasonable suspicion based on clearly articulable facts that a crime has been committed, is being committed, or is about to be committed." The key factor is "clearly articulable facts." The Terry decision specifically stated that a mere hunch is not sufficient.

The officer stated that he had familiarity with similar-appearing firearms that are fully automatic (not surprising, since the firearm in question was designed to look like its full-auto big brother). Normally in cases of bogus Terry stops I tend to argue that the officer at best had only a hunch, and did not have any clearly articulable facts to support his suspicion. For once, I'm going to reverse course and vote with the officer.

Fact: It looked like a firearm (and there would be no way to know otherwise without an examination)

Fact: It looked like a full-auto firearm (and there would be no way to know otherwise without an examination)

I think it was noteworthy that the idiot almost immediately stated he wasn't going to provide ID, but the officer never asked for ID. The officer (once he cut through the idiot's BS) went right to the point: Is this a full-auto firearm or a semi-auto firearm? Once he had ascertained that it was semi-auto, he handed it back and didn't pursue asking for ID.

Kudos to Officer Nork. Well played, Sir.
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Old August 23, 2012, 11:40 PM   #5
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Aquila Blanca,

Fully agreed. This officer handled it right. I've been on the receiving end of such an encounter, and I had professionals, too.

Of course, I wasn't trying to provoke a confrontation, which I think this clown was doing.

Some of the cops' comments on the Police One site are downright alarming.
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Old August 23, 2012, 11:46 PM   #6
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Two things:

Obviously some gun owners seem to be seeking a confrontation just so they can “educate” the Police Officer. Why not be more mature and cooperative about the whole thing and try to win them over? While I carry concealed almost all the time and support the right to open carry these types of encounters really do very little to advance our cause.

Having said that I am also concerned about the number of LEOs that I hear of who do not seem to understand or sometimes even care what the laws are. Several months back I was stopped after leaving a restaurant and I was carrying concealed. The LEO was nice and professional, but a lot of what he said did not seem correct and I found out later it was not. So, was he just misinformed or abusing his power?
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Old August 23, 2012, 11:50 PM   #7
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Absolutely beautiful example of a LEO doing his job correctly! Kudo's to officer Nork! Maybe I'm misguided but some guy wandering around with what could be a fully automatic MP5 makes me uncomfortable too. We're not in Jerusalem or Kandahar this just isn't normal behavior even if it is legal.

I carry a weapon to reduce the risk to me. There are places in America (The really scary parts of places like Detroit or Chicago maybe)where carrying even a full auto weapon might actually be warranted depending on the circumstances,BUT, I've been in the scary parts of several big cities and can say without hesitation openly carrying something like this would be an invitation to have someone shoot you so they could take it. Might as well walk around with $100 bills hanging out of your pocket. I'm sorry, this guy made us all look bad.
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Old August 24, 2012, 07:36 AM   #8
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Quote:
I am not a fan of deliberate setups such as this seemed to have been.
+1

I think Wagonman and I disagreed on another thread about open carry, but I do agree with him that this kid* was just trying to provoke a confrontation. I am glad it turned out as well as it did, for both the officer and the kid.


*I do not know the age of the guy who made the video, but I feel his actions and response was childish, therefore I used the reference kid.

Open carry has its place and time, trying to provoke a response is not the place or time.
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Old August 24, 2012, 07:57 AM   #9
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I'm an advocate for 2A and open carry if it so suits you. Personally it doesn't suit me to open carry however I'm not going to condemn others for doing so if they aren't legally barred from doing so.

That said I've seen too many videos made by people who are not only open carry advocates but are also just jerks. They purposefully go out and about open carrying (and sometimes the dumbest things like a GSG 522) in an attempt to instigate an encounter with LEO. Seriously who goes around with a video camera AND a live weapon like that openly carried unless they're trying to set up the first cop that comes their way? I've got many friends who are LEO and personally I'd be pretty upset if one of them were ambushed like this.

I think the mature thing to do would be to simply OC if that's what you wish to do and if you can do it legally. If you are confronted by LEO deal with it politely and in a manner that draws as little attention to you as possible and if your rights have clearly been violated then retain a lawyer.
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Old August 24, 2012, 08:13 AM   #10
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I don't understand these people who just go for a walk when open carrying. They're just asking for trouble. They're out scaring people and wasting police officer's time and resources. OC offers no tactical advantage IMO and I think these "second amendment activists" who open just give gun owners a bad name.
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Old August 24, 2012, 08:18 AM   #11
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I can see open carry in the wilderness, on a ranch, or similar environment (any environment where I'd expect someone to be toting a deer rifle or shotgun). But agreed, its not prudent in an urban or suburban environment.

Setting aside the 2nd Amendment Right issue, just because you can do a thing, doesn't mean you should do a thing.
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Old August 24, 2012, 08:43 AM   #12
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Saw the vid yesterday on a 'conspiracy' site...People were praising both the guy and the LEO...

Sorry, but neither came off very well IMNSHO...

I just loved the glance in the breech: "In my experience and training, this is not a full-auto"...

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Old August 24, 2012, 09:47 AM   #13
zincwarrior
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Maybe he saw there was no select fire switch...
Absent shooting the thing thats about as good as its going to get no?
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Old August 24, 2012, 10:00 AM   #14
Aguila Blanca
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Quote:
Originally Posted by zincwarrior
Maybe he saw there was no select fire switch...
DING!

We have a winnah!
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Old August 24, 2012, 10:09 AM   #15
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While I supprt the right to open carry, I would agree that it's not always a good idea. As others have noted, a lot of the open carry videos are intended to provoke a police response and (ostensibly) to "educate" the police. IMNSHO, that's not the right way to go about educating the local police.

With that said . . . My full-time day job is assistant city attorney. Part of that job involves defending police officers from civil right suits and I've spent ~7 of the last 10 years doing just that. From that perspective, I'll take on cases for guys that behave like Officer Nork did every day of the week and twice on Sunday, thank you very much. He was clear, he didn't waffle on whether the guy was being detained, but he articulated his reasons for the detention, and clearly stated the point at which his facts no longer supported a reasonable suspicion about a possible full-auto weapon. There's no such thing as a slam dunk in litigation, but if I had to defend a lawsuit on something like this, I'd be looking for a Motion for Summary Judgment on qualified immunity right out of the gate.

Quote:
Originally Posted by Tom Servo
. . . .Now for the L&CR question: does this meet the requirements for a Terry stop, and was Nork's suspicion that the guy was carrying an NFA weapon reasonable?
Yes. Officer Nork got a call from a concerned citizen about a weapon. When he arrived on the scene:
  • he recognized something that looked like an MP5, which is full auto, & known to him from training and experience to be so;
  • he knew from his training and experience that carrying a full-auto weapon requires ID and paperwork to be carried under Oregon law (I'm not familiar with OR law, but have no reason to dispute his statements from the video);
  • he was able to articulate those facts then and there, on the street, as opposed to three months later in a courtroom.
From Terry v. Ohio, edited for brevity, but emphasis supplied by myself:
Quote:
But we deal here with an entire rubric of police conduct—necessarily swift action predicated upon the on-the-spot observations of the officer on the beat—which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures.

Nonetheless, the notions which underlie both the warrant procedure and the requirement of probable cause remain fully relevant in this context. In order to assess the reasonableness of Officer McFadden's conduct as a general proposition, it is necessary ‘first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,’ for there is ‘no ready test for determining reasonableness other than by balancing the need to search (or seize) against the invasion which the search (or seizure) entails.’ [citations omitted] And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances.
Terry v. Ohio, 392 U.S. 1, 20-21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889 (1968).

IMNSHO, Officer Nork met the requirements of Terry, and is very easily within federal constitutional requirements.
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Old August 24, 2012, 10:41 AM   #16
Salmoneye
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Quote:
Maybe he saw there was no select fire switch...
Absent shooting the thing thats about as good as its going to get no?
So there's no switch...He could have visually verified that without touching the weapon...

How this equates to him being able to determine that the internals have not been illegally tampered with by looking in the breech, I have no idea...
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Old August 24, 2012, 10:43 AM   #17
Wagonman
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I don't have a problem with OC.... It seems more trouble than it's worth IMHO. I get paid to OC at work to do so for free seems like a problem waiting to happen.....if it is legal in your area have at it vive la difference



How this equates to him being able to determine that the internals have not been illegally tampered with by looking in the breech, I have no idea...

It's all about reasonableness. It is reasonable to assume that if the selector switch has no auto setting that it is semi-auto.
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Old August 24, 2012, 11:05 AM   #18
Salmoneye
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It's all about reasonableness. It is reasonable to assume that if the selector switch has no auto setting that it is semi-auto.
There is no switch whatsoever, let alone a 'full auto' setting...

It is 'reasonable' to assume that by a simple glance at the gun one could verify that there was no switch, thus no need to touch it whatsoever...

What was the 'reasonable' purpose of dry-firing it?

I'd like to add that I have no want or need to walk down the street with a gun slung over my back, but if I were walking to or from coyote hunting with an AR, I do not expect to be stopped and disarmed because someone drove by and called LEO's allegedly because it 'looks' like I am carrying a 'full-auto'...
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Old August 24, 2012, 11:40 AM   #19
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How this equates to him being able to determine that the internals have not been illegally tampered with by looking in the breech, I have no idea...
He might not have been looking for tampering - he may just have been thinking "If I look at the chamber and it looks like a .22, then it's probably just a GSG-22 and I'll stop there."
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Old August 24, 2012, 11:40 AM   #20
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"There is no switch whatsoever, let alone a 'full auto' setting..."

Are you at all familiar with the MP-5 family of firearms?

There most certainly is a "switch," which is a coloquial term for lever.

In a semi-automatic version of the MP-5 the "switch" moves through two positions -- Safe and Fire.

In the fully automatic version of the MP-5, the "switch" moves through three (or in some versions, I THINK four) positions -- Safe, Semi-automatic, Burst, and Fully Automatic.

Without physically examining the firearm, there's simply no way for the officer to ascertain if the gun is in fact a semi-automatic or fully automatic.

From that standpoint alone his actions were fully justified based on the stated requirements of Oregon law regarding semi-automatic vs. fully automatic firearms.
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Old August 24, 2012, 12:03 PM   #21
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To each his own on open carry, I don't care to. The young man is not an idiot as some have stated, he was exercising his rights just as I would have.
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Old August 24, 2012, 12:06 PM   #22
Mike Irwin
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"The young man is not an idiot as some have stated, he was exercising his rights just as I would have."

Yes, yes he was, but he seems to have been exercising those rights in a very idiotic manner by searching for confrontation and then trying to incite it with some of his statements.
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Old August 24, 2012, 12:08 PM   #23
Salmoneye
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There most certainly is a "switch," which is a coloquial term for lever.

In a semi-automatic version of the MP-5 the "switch" moves through two positions -- Safe and Fire.
I stand corrected again today...

Probably won't be the last time...

Thanks for the clarification...
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Old August 24, 2012, 12:27 PM   #24
zukiphile
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Quote:
Originally Posted by MLeake
I am not a fan of deliberate setups such as this seemed to have been.

OTOH, some of the comments from supposed LEOs below the article linked in the OP were downright disturbing. For example, Nork should only have approached once other officers were set up in overwatch, with weapons covering the open carrier?

So I read comments like that, and I can't help but think some of these YouTube showboats have a point...
I think many of the problems reported by people carrying legally pertain to police cultures, with some behaving very reasonably, while other behave in ways that concern us all. The Canton, Ohio PO who told a carrier not to speak, then lost it when he later discovered that the man was armed is an extreme that was dealt with because the car had tape running. We've also read examples of some prosecutors charging wiretap violations when people record police action.

Like sitting at a lunch counter or not sitting toward the front of the bus, carrying openly may seem unduly confrontational. However, if it help to change the culture so that more POs don't see carrying as a threat, those set ups do some good. You aren't going to change a culture that doesn't get scrutiny because the problems aren't recorded.

This isn't the only video in which a PO handles a carrier well. What impresses me about this genre (the "doing it right" video) is how much farther a PO gets with a smile and reasonable courtesy that they get with an instinct to ostentatiously control all aspects of an encounter.
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Old August 24, 2012, 12:31 PM   #25
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Their is exercising your rights and having a bit of common sense. Their was no law here regards carrying a shotgun uncovered when going shooting. But its not a good idea. Its only a matter of time before someone rings the police who have to respond. I can totally understand a someone being concerned and ringing the police after seeing someone carrying a mp5. The guy was trying to make a point and in my opinion being a ass.
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