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Old November 21, 2012, 12:54 AM   #1
hogdogs
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Florida AG Bondi Fights Against Gun Rights...

What does she think she is going to accomplish if she wins this? With nearly or just over ONE MILLION current active concealed weapons permits, I think she is just looking to isolate herself from those who 2A embracing voters...


Florida AG Bondi fights against gun rights...
http://www.humanevents.com/2012/11/18/71665/

WOW is all i got to add further...

Brent
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Old November 21, 2012, 01:22 AM   #2
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thanks for pointing out.
looks like anti-individual-right biased courts have found a way to exploit the tecnicality of the law. These courts are definetely ingoring the intention of legislature.

Hope it gets resolved in the favor of rights to cary

from floridacarry.org

Quote:
Now the courts are saying that anytime you carry a firearm you are committing a crime. If you have a concealed carry license, that just gives you an "affirmative defense" to the charges.
http://www.floridacarry.org/flcinews...-carry-license
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Old November 21, 2012, 09:54 AM   #3
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She is playing to the base in Florida. She is a politician in the end.
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Old November 21, 2012, 11:16 AM   #4
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So, admittedly no legal scholar, but just out of curiosity from a purely theoretical standpoint is she correct? Is this an example of badly written law?
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Old November 21, 2012, 11:29 AM   #5
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The Fourth Amendment has been hashed out since the beginning. My take, based on limited information, is that there was no probable cause so it should be case dismissed. All the officer had to do was articulate a need for a "safety search" or just lie and say "I thought it looked like he had a gun."
P.S. I read the facts of the case and it is clear the office did have probable cause as here is the factual summary from the case:

"Officer May saw Petitioner standing alone on one side of a fence by an
apartment complex. (D. 6). As the officer approached, he slowed down, and
observed a solid object inside of Petitioner’s pocket. (D. 5, 7). As he drew closer,
he observed a “piece of the handle sticking out. Not much, but a piece enough for
[him] to identify a firearm.” (D. 5, 7). Based on his training and experience, he
knew that it was a firearm. (D. 8). Officer May exited his vehicle, approached
Petitioner and asked Petitioner if he had anything on him...The
officer proceeded to conduct a pat down search of Petitioner’s pocket, felt the
firearm he had seen earlier, retrieved it, and subsequently asked Petitioner if he had
a concealed weapons permit. (D. 8). After Petitioner said “no,” he was arrested
and placed into custody. (D. 8). Petitioner spontaneously stated that he kept the
firearm for “protection because he’s been shot at before.” (D. 10).
At the conclusion of the hearing, defense counsel first argued that the
firearm was not concealed."

There was probable cause and the defendant's attorney even argued that the gun was not concealed. If your concealed weapon is not concealed then that is probable cause for a search and investigation. Here is one take of those in Florida from the link above:

"Now, under the Mackey decision, any time you exercise your Second Amendment right you are engaged in presumably criminal activity.

Therefore, you can be stopped, searched, and even arrested for carrying a firearm and then be made to present the "affirmative defense" to a judge that you have a valid concealed carry license."

Bad facts make bad case law and the fact that this felon illegally carrying a gun is the basis for the appeal is not good.

Last edited by jmortimer; November 21, 2012 at 12:21 PM.
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Old November 21, 2012, 12:12 PM   #6
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I also just finished reading the stipulated facts. There was an articulable reasonable suspicion to conduct a Terry stop and pat down.

However else the Florida statutes may be construed, the officer did ask if the petitioner had a CC permit. The petitioner answered, "No." It was at that point the petitioner was arrested.

As JM wrote above, bad facts make bad case law.
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Old November 21, 2012, 12:27 PM   #7
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Don't attack me, I'm just asking a question, not taking a side.

Isn't the States AG duty bound to defend the State in such cases? Much like a defense attorney defends his client. Isn't she supposed to put forth here best effort to advocate the side she is on, regardless of her personal opinion?
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Old November 21, 2012, 12:43 PM   #8
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Quote:
Originally Posted by nate45
Isn't the States AG duty bound to defend the State in such cases? Much like a defense attorney defends his client. Isn't she supposed to put forth here best effort to advocate the side she is on, regardless of her personal opinion?
Yes. From the Florida Attorney general's site:
Quote:
The Role and Function of the Attorney General
...The Attorney General defends the constitutionality of statutes duly enacted by the Legislature and is authorized to issue formal legal opinions at the request of various public officials on questions relating to the application of state law...
I recall instances here in Utah where the AG opined that the law he was defending was unconstitutional (either federal or state), and yet defended it vigorously and sometimes successfully. I would imagine it's the same way in other states.
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Old November 21, 2012, 12:44 PM   #9
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I think the concern here, Al, is Bondi's wording that a permit is an "affirmative defense" to commission of a crime.

That's something I don't think any of us want to see codified, anywhere.
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Old November 21, 2012, 01:34 PM   #10
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Quote:
I think the concern here, Al, is Bondi's wording that a permit is an "affirmative defense" to commission of a crime
The actual wording doesn't seem to be in the statutes, but it's implied by the idea that concealed carry is a felony unless the person carrying has a permit. That's the thing with affirmative defense: the defendant has to prove his innocence. Georgia was that way until recently.
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Old November 21, 2012, 05:35 PM   #11
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Quote:
Originally Posted by Tom Servo
The actual wording doesn't seem to be in the statutes, but it's implied by the idea that concealed carry is a felony unless the person carrying has a permit. That's the thing with affirmative defense: the defendant has to prove his innocence. Georgia was that way until recently.
Except for the construction of the statute, which does not provide that having a permit provides an affirmative defense, it provides that if you have a permit the prohibition does not apply to you.

Ain't it wonderful when the AG is illiterate?

Quote:
Originally Posted by FL Statute
790.01 Carrying concealed weapons.
(1) Except as provided in subsection (4), a person who carries a concealed weapon or electric weapon or device on or about his or her person commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(2) A person who carries a concealed firearm on or about his or her person commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) This section does not apply to a person licensed to carry a concealed weapon or a concealed firearm pursuant to the provisions of s. 790.06.
(4) It is not a violation of this section for a person to carry for purposes of lawful self-defense, in a concealed manner:
(a) A self-defense chemical spray.
(b) A nonlethal stun gun or dart-firing stun gun or other nonlethal electric weapon or device that is designed solely for defensive purposes.
(5) This section does not preclude any prosecution for the use of an electric weapon or device, a dart-firing stun gun, or a self-defense chemical spray during the commission of any criminal offense under s. 790.07, s. 790.10, s. 790.23, or s. 790.235, or for any other criminal offense.
So we must look at Section 790.06

Quote:
790.06 License to carry concealed weapon or firearm.
(1) The Department of Agriculture and Consumer Services is authorized to issue licenses to carry concealed weapons or concealed firearms to persons qualified as provided in this section. Each such license must bear a color photograph of the licensee. For the purposes of this section, concealed weapons or concealed firearms are defined as a handgun, electronic weapon or device, tear gas gun, knife, or billie, but the term does not include a machine gun as defined in s. 790.001(9). Such licenses shall be valid throughout the state for a period of 7 years from the date of issuance. Any person in compliance with the terms of such license may carry a concealed weapon or concealed firearm notwithstanding the provisions of s. 790.01. The licensee must carry the license, together with valid identification, at all times in which the licensee is in actual possession of a concealed weapon or firearm and must display both the license and proper identification upon demand by a law enforcement officer. Violations of the provisions of this subsection shall constitute a noncriminal violation with a penalty of $25, payable to the clerk of the court.
(2) The Department of Agriculture and Consumer Services shall issue a license if the applicant:
...
It's lengthy, but it's basically the carry permit section. Link: http://www.leg.state.fl.us/statutes/...s/0790.06.html

So, what the statute says is that it's a felony to carry a concealed firearm and, oh by the way, if you have a permit this DOES NOT APPLY.

The thing about laws is that you can't cherry pick the part you like and leave out that parts that don't fit your agenda. The law must be read as a whole, and you have to follow the path through the statutes. "This section does not apply ..." seems pretty danged clear to me. Is the law broken? Obviously not ... the law clearly exempts permit holders. The problem is not the law, the problem is a prosecutor, a judge, and an attorney general.
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Old November 21, 2012, 09:05 PM   #12
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Quote:
Originally Posted by MLeake
I think the concern here, Al, is Bondi's wording that a permit is an "affirmative defense"...
There are a number of affirmative defenses, and the concept is well established. Here's the rub. The nature of an affirmative defense is such that the facts supporting it are generally most available to the subject.

If an LEO has a reasonably articulable suspicion that someone is carrying a concealed firearm, it appears to the LEO that prima facie a crime is being committed. If the subject has a CHL, a crime has not been committed; but the only ways to determine if the subject has a CHL are either to identify the subject and verify his license status by a record search or have the subject produce his valid CHL.

It will be interesting to see how the court handles the issue.
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Old November 22, 2012, 08:29 PM   #13
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I think the choice of the term "affirmative defense" is poor. It doesn't really apply when determining probable cause to search or arrest. It is a term applied to the burden of proof once the matter is in court. In criminal law, there are very few true affirmative defenses. In most instances, a defendant has to make some showing that a defense exists, such as insanity or entrapment, but not to actually prove it. The burden is on the state to prove beyond a reasonable doubt that the defendant was sane or that police did not entrap the defendant.

Once there was reasonable suspicion to conduct the pat down, it makes perfectly good sense for the officer to inquire about a concealed carry license. If the suspect does not produce one, it is logical for a police officer to assume he or she doesn't have one and this forms the basis for probable cause to arrest.

Other than the poor choice of words, I think the Florida AG is 100% correct in pursuing it as she has.
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Old November 22, 2012, 09:51 PM   #14
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KyJim, this is one of those cases where I don't think the officer was in the wrong, but the justification as offered by the AG could be twisted rather badly.

In other words, if the stop were the result of an aggregate of factors (as it may well have been), there is no problem.

But saying that possession of the firearm is necessarily a crime, and that possession of a permit is an affirmative defense? Seriously?

First, for those who argue that RKBA applies to individuals outside the home, accepting the argument offered by Bondi provides ammo for the antis. It's bad enough a permit is required to exercise a right, but to call that permit an affirmative defense is an insult.
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Old November 22, 2012, 10:18 PM   #15
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Frank Ettin has pointed me to other statutes that DO discuss affirmative defense, and in each of those I have seen the statute starts out by saying [act] is a crime, BUT [condition] shall be an affirmative defense. Probably the most universal of these is the law against killing another person -- the laws of every state say we aren't allowed to do that, but then they toss in some sort of affirmative defense that says "but if you do it in self defense you can raise that as an affirmative defense."

In the Florida law, it doesn't say that. It doesn't say "You can't carry a concealed firearm, but if you are caught with one and you have a permit you can raise that as an affirmative defense." What it says is:

(A) Carrying a concealed firearm is a crime.

(B) If you have a permit, (A) DOES NOT APPLY.

Words have meaning, even (especially?) in laws. "Does not apply" is pretty straightforward. If the law says carrying a concealed firearm is a crime but if you have a permit the law DOES NOT APPLY, therefore and ergo, if you have a permit carrying a concealed firearm is NOT a crime ... for the simple reason that the law that otherwise makes it a crime says it does not apply to you.

If the law doesn't apply to me, then there is no underlying "crime" for which I can/should/must raise any affirmative defense. I have a permit; carrying a concealed firearm is not a crime for me. Period.

The AG is functionally illiterate.
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Old November 23, 2012, 01:00 AM   #16
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Quote:
Originally Posted by MLeake
...But saying that possession of the firearm is necessarily a crime, and that possession of a permit is an affirmative defense? Seriously?...
Quote:
Originally Posted by Aguila Blanca
...If the law doesn't apply to me, then there is no underlying "crime" for which I can/should/must raise any affirmative defense. I have a permit; carrying a concealed firearm is not a crime for me. Period.
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.
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Old November 23, 2012, 01:44 AM   #17
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I don't want to get into law jargon and semantics, but address a broader ethical standpoint.

If i understand this correctly, it seems that a suspicion (subjective) of one having a gun means that they are subjected to a search. I dislike the notion that there is an inherent negative quality associated with the carrying of a weapon. "He might have a gun, so he's probably doing something wrong." If that sort of rationale was applied to any other form of tool, it would be laughed at. "He looks like he's holding a powersaw, he must be ready to commit a crime". It intrinsically labels guns to have no other purpose but crime and the only way to prove that you are not doing something illegal is to have a state approved form. We are all mindless criminals holding toys we don't understand unless Uncle Sam says we can take it out of the playpen. It's offensive.
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Old November 23, 2012, 01:48 AM   #18
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I dislike the notion, as well.

Gun ownership (keeping and bearing) is supposed to be a right.

Driving is a privilege, as we often like to point out.

Operating a vehicle without a license is a crime; should the officer assume drivers don't have licenses, and pull over each and every driver to check for licenses? He can't, because the courts restrict such actions, requiring randomness, only one in so many passing, etc, unless other factors indicate a stop should be conducted.

Is possession of a driver's license an Affirmative Defense against the crime of Operating without a License, or does Operating without a License simply no longer apply to the license holder?

Again, my greater concern is with Bondi's wording.
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Old November 23, 2012, 09:38 AM   #19
Aguila Blanca
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Quote:
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.

Except ...

(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?
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Old November 23, 2012, 12:02 PM   #20
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Quote:
Originally Posted by Aguila Blanca
... 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...
You might think that's how it's supposed to work, but on what basis? And indeed, in the real world it does not. The Fourth Amendment protects against unreasonable searches and seizures, and the courts have consistently found that a detention for investigation based on a reasonably articulable suspicion is reasonable.

This isn't a question of the presumption of innocence. That is a rule of evidence that applies in court. It means that it is the persecution's burden to prove in court the defendant's guilty.
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Old November 23, 2012, 12:42 PM   #21
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"This isn't a question of the presumption of innocence. That is a rule of evidence that applies in court."
This is an important point as the public and media parrots this all the time. Yes we can presume that someone is guilty, just not the trier of fact, i.e. the judge and/or jury.
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Old November 23, 2012, 01:11 PM   #22
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Quote:
Originally Posted by Frank Ettin
This isn't a question of the presumption of innocence. That is a rule of evidence that applies in court. It means that it is the persecution's burden to prove in court the defendant's guilty.
Well, in the Philadelphia case the court certainly agreed with you that the young man was being subjected to persecution (sic).

I understand that the ruling in Terry does not require probable cause, but it DOES require that the officer have a reasonable suspicion based on clearly articulable facts that a crime is being committed. And the Pennsylvania court determined that, since open carry is legal and that the officer had nothing on which to base a suspicion that the young man did NOT have a LTCF, the court held that the young man had been unlawfully detained and that the City of Brotherly Love owed him monetary damages as well as an apology.

How is the Florida law substantively different? If I have a Florida carry permit (which I do), the law saying that concealed carry is a crime DOES NOT APPLY TO ME. If the law does not apply to me, there is no way I can be guilty of violating it. So if a police officer sees me on the street and catches a glimpse of my pistol under my jacket ... what "clearly articulable facts" can he cite to support a reasonable suspicion that I am violating a law ... which does not apply to me?

"But he doesn't know the law doesn't apply until he investigates," you reply. But that's not good enough. That's no different from stopping every car on the street to determine that the driver has a driver's license. Between resident and non-resident permits, Florida has issued hundreds of thousands of carry permits. Your logic would allow officers to stop, detain and investigate potentially hundreds of thousands of people. I don't think that's quite what the 4th Amendment had in mind. I respectfully submit that the police officer's perceiving that I am carrying does not rise to a satisfactory level of clearly articulable facts that I am carrying illegally. He needs more -- such as some way of knowing that I am a prohibited person and therefore cannot be carrying legally.

There was a case discussed several weeks ago (here, I believe) about a motorcyclist who was arrested in Maryland for carrying a handgun without a Maryland permit. The biker argued (IIRC) that the officer stopped him "because he was a biker." The officer (and the state) countered that the biker was wearing "colors" of a biker gang while riding in the "turf" of a rival gang, and that the officer didn't think any biker would enter enemy territory unarmed. That would be another example of the "totality of the circumstances."

IMHO, merely seeing the gun isn't enough to establish reasonable suspicion for a Terry stop. (In Florida. Chicago is a different story)
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Old November 23, 2012, 10:07 PM   #23
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Quote:
If i understand this correctly, it seems that a suspicion (subjective) of one having a gun means that they are subjected to a search. I dislike the notion that there is an inherent negative quality associated with the carrying of a weapon. "He might have a gun, so he's probably doing something wrong."
First, to conduct a Terry stop/frisk there must be a reasonable (objective) and articulable suspicion that the person has violated or is in the process of violating the law or carrying contraband. For a the safety frisk, there must be a separate, reasonable (objective) suspicion the suspect might be armed. If carrying concealed is not unlawful in that state/municipality, then merely suspecting one of carrying a gun does not justify a stop or frisk. If it is illegal to do so, then a stop and frisk may be warranted if there is reasonable suspicion based on the totality of the circumstances.

Keep in mind that the right to carry concealed has generally NOT been protected. States have had the right to ban or regulate concealed carry. The federal 2A rights are still being explored.
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Old November 23, 2012, 10:19 PM   #24
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Actually, it goes a bit beyond the preceding two posts.

As noted, a "Terry stop" is allowed if/when an officer has a "reasonable suspicion" of criminal activity. As KyJim stated, the suspicion can't be a hunch, it must be founded in clearly articulable facts.

But, a Terry stop is still not an arrest based on probable cause. It is a preliminary, investigative stop. The officer involved is NOT allowed to conduct a full-scale search of the "subject." The officer is allowed to conduct a quick pat-down (a so-called "Terry frisk"), for the sole purpose of determining whether or not the subject is armed and thus might pose a significant threat to the officer's safety.

But in the case in point, the entire incident arose because an officer saw a gun. So there was no need for a frisk of any sort, because the officer already knew the subject was armed. The law specifically provides that concealed carry is not illegal if you have a permit. In fact, as I have stated multiple times, the law itself specifically says that it does not even apply if the subject has a permit.

Therefore, the officer had no legitimate basis, in light of Terry, to make even an investigatory stop. He had NO clearly articulable facts to suggest that a law was being broken.
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