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Old August 24, 2012, 10:09 AM   #15
Spats McGee
Join Date: July 28, 2010
Location: Arkansas
Posts: 6,915
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.

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:
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.
I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some.

Last edited by Spats McGee; August 24, 2012 at 10:09 AM. Reason: Spelling
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