looking for laws to help fight harrassment by LEOs

[Jimmy Dean]

ok, t his happened tonight


OK, so, I walk into Citgo, 4 officers inside, 1 local, 2 sheriffs, and one local from the town over. I walk in, get my smokes, and walk out.

Sheriffs follow me outside and ask me to holdup, ask why I am carrying a pistol...instead of replying "Because I can." I responded with self defense. They then proceeded to run my I.D. the serial number on the gun, ask the 50 quistions, call another local to see if me carrying was even legal, give me a lecture, and then finish it off with the "We carry as well, but we are P.O.s and it is for our defense, so you don't have to carry." Then goes into another speel about all the what ifs if they where called to a scene and I was there and my gun was visible how I could be shot etc etc etc.

Oh, and then he finished off with "Well, if you want to get technical, that weapon is concealed." "Um, sir, it is perfectly visible." "No, it is in a holster, which means that part of the gun is not visible so we COULD arrest you for that"

(Now, I was wearing a paddle holster, molded plastic, where the gun hangs outside my waistband with the barrel, obviously, inside the holster. My shirt was not tucked in, however, on my right side (where the pistol was) was tucked behind the gun, so that it was VERY plainly visible from every direction except my immediate left)

Now obviously, since I am here, and still have my gun, they were unable to find anything at all to arrest me for or hold me up any longer, however, they did manage to hold me up for about 45 minutes through all this crap, so, basically, what/is there anything that I can do to speed this friggin process up whenever they feel like getting on a power trip? I mean, ok, I understand that they do not see people up here carrying in the open....ever..prety much...hell, I haven't seen a single person open carry up here in the 4 years I have been here, but after running my name, that SHOULD be the end of the process, if the process is even started (which it shouldnt if I am doing nothing wrong in the first place) This 45 min bullcrap is ridiculous, granted, it will not stop me from strapping it on tomorrow.



Now, I have printed out a few laws, including ones showing that I am within my rights to carry in my vehciel on campus for future referance,

BUT, I cannot find a louisiana law defining exactly is and isn't concealed. Or should I just start walking around town holding the pistol in my hand if a holster is concealed?????

 

[LouisianaCarry]

Our law (LA RS 14:95) defines illegal carrying of weapons as the "intentional concealment" of weapons. This, of course means, that you would need to be purposely trying to hide it.

Here is some case law on the subject:

This is State v. Fluker 311 So. 2d 863, a 1975 cases which discusses the determination of concealment as stated in State v. Bias.

ON WRITS OF CERTIORARI, PROHIBITION AND MANDAMUS TO THE FIRST JUDICIAL DISTRICT COURT FOR THE PARISH OF CADDO, HONORABLE C. J. BOLIN, JR., JUDGE.


COUNSEL:
Donald L. Baker, Skeels, Baker & Coleman, Shreveport, for Defendant-Relator.
William J. Guste, Jr., Atty. Gen. Barbara Rutledge Asst. Atty. Gen., John A. Richardson, Dist. Atty., Dan J. Grady, III, Asst. Dist. Atty., for Plaintiff-Respondent.

JUDGES:
Marcus, Justice.

OPINION BY:
MARCUS

OPINION:
Defendant James C. Fluker was charged by bill of information with the intentional concealment of a.38 calibre pistol in violation of La. R.S. 14:95. He was tried by a judge without a jury, found guilty as charged, and sentenced to pay a fine of $100.00 and costs or, in default, to serve fifteen (15) days in jail. Lacking appellate jurisdiction over the matter, n1 we granted defendant's application for a writ of certiorari to review his conviction. 305 So. 2d 128 (La. 1974).

At the time of defendant's trial in 1974, this court possessed appellate jurisdiction in criminal cases only where the fine exceeding $300.00 or a sentence exceeding six (6) months had actually been imposed. La. Const, art. 7, § 10 (1921). The new constitution raises the monetary jurisdictional amount to $500.00. La, Const, art. V, § 5(D) (1974).

Defendant assigns two errors allegedly committed by the trial court as grounds for reversal of his conviction and sentence. Since both assigned errors present an identical issue of law, viz., whether a partially visible weapon is a "concealed" weapon under our criminal laws, they will be considered together.

The testimony given at trial and findings of the trial judge are easily summarized. Pursuant to a complaint from a passing motorist who had observed defendant driving in an erratic manner one evening, a Shreveport police officer stopped defendant on suspicion of drunken driving and asked him to get out of his car. As was his custom when carrying the day's business receipts, defendant was armed with a small pistol. Another police officer happened by and stopped to offer assistance. Approaching from defendant's rear, he noticed a small, brown holster housing the pistol attached to defendant's belt on his right hip. Defendant wore no outer clothing, such as a coat or jacket, that otherwise hid the holster and gun from view. It was admitted that enough of the gun protruded from the holster to make it recognizable as a pistol. The officers disarmed defendant and arrested him on the charge for which he was eventually prosecuted.

In written reasons for judgment, the trial judge found that the position of the holster and gun on defendant's right hip effectively obscured it from the first officer's view. He then concluded that considering the time of night, the size of the weapon and the dark color of it and its scabbard, and its appearance in the pictures in evidence, it is apparent that this weapon was not in full open view, but was effectively concealed.


Finding the applicable rule on concealment of weapons to be that stated in State v. Bias, 37 La. Ann. 259 (1885), viz., that a partially concealed pistol is a "concealed" weapon within the meaning of the law, the trial judge found the defendant guilty as charged. For the reasons hereafter assigned, we reverse.

The gravamen of defendant's argument here is that the trial court committed reversible error in its interpretation and application of the concealed weapons law, La. R.S. 14:95(A)(1), as prohibiting any partial concealment of a weapon. More specifically, defendant assigns as error the trial court's refusals to grant defense motions for a directed verdict and a requested instruction that, in order to be "concealed" within the meaning of the law, an object must be fully hidden from view. Resolution of the legal issue presented here requires an historical exegesis of the concealed weapons law in Louisiana.

The first statute to proscribe concealment of weapons was enacted in 1813. Responding to the apparently increasing frequency of bloodshed in the state,the legislature proscribed the carrying of a concealed weapon in the following terms:


. . . any person who shall be found with any concealed weapon, such as a dirk, dagger, knife, pistol or any other deadly weapon concealed in his bosom, coat or in any other place about him that do not appear in full open view, any person so offending, shall on conviction thereof before any justice of the peace, be subject to pay a fine not to exceed fifty dollars nor less than twenty dollars. . . .



La. Acts 1813, p. 172, § 1 (emphasis added). In 1855, the statute was reenacted to proscribe the carrying of ". . . a weapon or weapons concealed on or about [one's] person. . . ." La. Acts 1855, No. 120, § 115. Although the 1855 statute did not include the language of the 1813 act that required the weapon to be in full open view, this court interpreted the later statute as carrying forward that requirement. State v. Smith, 11 La. Ann. 633 (1856); see also State v. Bias, 37 La. Ann. 259 (1885). Later amendments simply graded the offense and altered the penalty for conviction; the statutory formula to determine what constituted concealment was left unaltered. La. Acts 1906, No. 43; La. Acts 1902, No. 107.

The preamble to the statute reads:
Whereas assassination and attempt to commit the same, have of late been of such frequent occurrence as to become a subject of serious alarm to the peaceable and well disposed inhabitants of this state; and whereas the same is in a great measure to be attributed to the dangerous and wicked practice of carrying about in public places concealed and deadly weapons, or going to the same armed in an unnecessary manner. . . .


The present statute was originally enacted in 1942 and was enrolled as part of the Revised Statutes in 1950. See La. Acts 1942, No. 43, § 1, art. 95. Subsequent amendments have not related to the section in question here, which defines the crime of illegally carrying a weapon as, inter alia, the intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one's person. . . .



La. R.S. 14:95(A)(1) (1950), as amended, La. Acts 1968, No. 647, § 1.
Clearly, the present version of the statute differs from its predecessors by requiring intentional concealment. Thus, the old formula, which required that the weapon be carried in full open view, is obsolete. By making the offense of concealment a crime of specific intent, the legislature has abandoned the old rule that a partially hidden weapon is a concealed weapon in favor of a more realistic proscription that contemplates that a weapon, although not in "full, open view," is nonetheless not a "concealed" weapon if it is sufficiently exposed to reveal its identity. If the weapon is carried in a manner that reveals its identity, its carrier cannot be presumed to have intended to conceal it and, accordingly, is not in violation of the statute.

As one commentator has observed,

the problem is whether there has been an intentional concealment. If a part of the weapon is openly displayed, such open display is hardly consistent with an intent to conceal. If a part is subject to view, not through an intention for it to be openly displayed but merely by virtue of sloppy concealment, then it seems there may be intentional concealment even though there is not full concealment. These are jury questions and there ought not be any simplistic rule designed to govern both the rural outdoorsman and the city street roamer by so mechanistic a standard as that of whether the weapon was partially or fully concealed.


Ellis, The Work of the Louisiana Appellate Courts for the 1970-1971 Term, Criminal Law, 32 La. L. Rev. 298, 305-06 (1972) (emphasis in original).

In sum, the trial court erred in its application of the mechanistic standard that obtained under prior laws. The appropriate test to be applied in prosecutions for illegal carrying of weapons is whether, under the facts and circumstances of the case as disclosed by the evidence, the manner in which defendant carried the weapon evinced an intent to conceal its identity. Applying this interpretation of the statute to the facts of this case, we find no evidence of an intentional concealment of the weapon. Defendant wore the gun in a holster on his hip in open view. The gun was exposed, except for that portion in the holster. There was no attempt to conceal its identity. It was fully admitted by the arresting officers that the weapon was sufficiently exposed to be fully recognizable as a pistol. Hence, we find no evidence to substantiate this conviction. La. Code Crim. P. art. 778 (1966); see State v. Douglas, 278 So. 2d 485 (La. 1973). We conclude that the trial court erred as a matter of law in not granting defendant's motion for a directed verdict of acquittal.
DECREE
For the reasons assigned, defendant's conviction is reversed, and the sentence is annulled and set aside. The cause is remanded to the trial court for proper judgment of acquittal in compliance with this opinion.

 

[LouisianaCarry]

I was reading about something similar the other day on opencarry.org

http://opencarry.mywowbb.com/view_topic.php?id=8220&forum_id=52&highlight=detained

I like Mainsail's reply (13th post).

 

[CEHollier]

Get a CCL. Having one will probably cut down on crap like that. Concealed or open carry your covered.

 

[CEHollier]

Oh, and BTW Citgo stations are owned by and support Hugo Chaves and his government. I would **** in my pants before using their bathroom.

 

[George]

brings me back to my post in the other theard!

Get a CCL. Having one will probably cut down on crap like that. Concealed or open carry your covered.

thank you!

 

[spanky]

"Am I under arrest?"

If not, leave. That's how I see it. You did nothing wrong and they knew you did nothing wrong. Don't take this as anything more than face value because I've only OC'd once and I received 0 reaction from anyone. I have a permit and even if I carry OWB in the future it'll probably be covered to save myself from such harassment even though I am aware of the laws and legalities enough to talk my way out of a situation save for extenuating circumstances.

Whether I'm okay with OC or not, I'm not okay with officers who either do not know the law or know it and use their assumption of the lack of education of the general public to scare people into not doing what they believe is acceptable.

If you continue to OC, keep the laws with you and use them to your advantage.

 

[George]

"Am I under arrest?"

If not, leave. That's how I see it. You did nothing wrong and they knew you did nothing wrong. Don't take this as anything more than face value because I've only OC'd once and I received 0 reaction from anyone. I have a permit and even if I carry OWB in the future it'll probably be covered to save myself from such harassment even though I am aware of the laws and legalities enough to talk my way out of a situation save for extenuating circumstances.

Whether I'm okay with OC or not, I'm not okay with officers who either do not know the law or know it and use their assumption of the lack of education of the general public to scare people into not doing what they believe is acceptable.

If you continue to OC, keep the laws with you and use them to your advantage.

Technically any LEO has the right to stop and talk as well as a Terry Pat.(if this wasnt the case then 99.9% of all of my District/Federal Court cases would have and will be thrown out)

Personally if I see a guy with a gun on his side, HELL YES, im gonna stop hima nd run him for NCIC and Local Warrant as well as check for any Felony Convictions. plus run the gun.

You may ask y?? What if that guy just killed 6 people

"Five of the victims had been shot and at least one child had been stabbed sometime between Saturday night and Monday evening, authorities said. The children ranged in age from about 1 to 12 years old, police said."

and is now hiding in LA. at least I have him identified right?? Now you may say thats BIG BROTHER ****... I call is DAMN GOOD POLICE WORK!


If you dont wanna be "harassed" get a CCW, but you will still be "Harassed"(as you all call it) by some LEO.

 

[LouisianaCarry]

George- just asking questions here.

Don't you need a specific reason (law that is or may be being broken) that you can articulate to detain someone? Serious question.

LA case law has determined that the mere sight of a holstered openly carried weapon is not in and of itself sufficient cause for that.

 

[George]

George- just asking questions here.

Don't you need a specific reason (law that is or may be being broken) that you can articulate to detain someone? Serious question.

LA case law has determined that the mere sight of a holstered openly carried weapon is not in and of itself sufficient cause for that.

Well the law is so written that it can be articulated in many way. Now grant it that person does not have to say anything, but then my EXPERIENCE comes into play. Is this person acting suspicious? Nervouness, looking around, figitting. All these have stood up in court and never overturned on appeals.

there is a book for LEO's called Louisiana Law Enforcement Handbookit is published by the LA District Attorney's Association(http://www.ldaa.org/). Here is a portion of the Stop and Frisk section.

 

[aroundlsu]

If an LEO stops me because he sees my weapon he'll get a lecture from ME.

George, please reconsider your standard operating procedure. Legally carrying a weapon is not probable cause to detain someone which is what's happening when you force someone to stop and show their ID. Any person walking the street could have just shot and killed 10 people. A weapon professionally carried on a persons hip does not make him more likely to be a bad guy.

If anything, he's more likely a good guy.

 

[greg t]

if i'm reading correctly, seeing a person with a holstered weapon on the street gives an officer "reasonable suspicion" to detain that person, terry frisk them and ask them questions for a reasonable amount of time to determine whether the officer's suspicion's were warranted.

my understanding is an officer does not need PC to detain an individual; he merely need RS.

it's also my understanding an officer may approach any one in any public place at any time and start up a conversation ("voluntary and concensual conversation" in george's scan). if, during that conversation, the officer develops RS which he can articulate, he can then detain that individual. from there it can go to a full-blown arrest with a full-blown search (vice the terry frisk in the event of being detained).

please, someone correct me if i'm wrong in any of this since these are the presumptions i operate on every day.

 

[George]

If an LEO stops me because he sees my weapon he'll get a lecture from ME.

George, please reconsider your standard operating procedure. Legally carrying a weapon is not probable cause to detain someone which is what's happening when you force someone to stop and show their ID. Any person walking the street could have just shot and killed 10 people. A weapon professionally carried on a persons hip does not make him more likely to be a bad guy.

If anything, he's more likely a good guy.

what do ya mean by my SOP? Legally carrying a weapon is not PC it can be Reasonable Suspicion.

What "lecture" could you give an LEO?

But it is Illegal to OC if you are a convicted Felon. How does a LEO know that a person OC is not a convicted Felon? by an LEO stopping to chat with a person and my Reasonable Suspicion leads me to belive he may be a Convicted Felon then that LEO can check him.

 

[George]

if i'm reading correctly, seeing a person with a holstered weapon on the street gives an officer "reasonable suspicion" to detain that person, terry frisk them and ask them questions for a reasonable amount of time to determine whether the officer's suspicion's were warranted.

my understanding is an officer does not need PC to detain an individual; he merely need RS.

it's also my understanding an officer may approach any one in any public place at any time and start up a conversation ("voluntary and concensual conversation" in george's scan). if, during that conversation, the officer develops RS which he can articulate, he can then detain that individual. from there it can go to a full-blown arrest with a full-blown search (vice the terry frisk in the event of being detained).

please, someone correct me if i'm wrong in any of this since these are the presumptions i operate on every day.

+1

 

[aroundlsu]

How do you know someone driving a car does not have a suspended license? Do you stop every person you see driving and run their DL?

As mass killings continue in this country legally carrying a gun will become as commonplace as wearing a seatbelt. Better get used to it.

Bottom line, it's disheartening that openly carrying a responsible means of defense is regarded as suspicious. You should instead stop each citizen you see with a handgun and say "Thank you for protecting yourself."

Instead you make him or her feel like a criminal. That's sad.

That's my lecture.

 

[greg t]

How do you know someone driving a car does not have a suspended license? Do you stop every person you see driving and run their DL?

As mass killings continue in this country legally carrying a gun will become as commonplace as wearing a seatbelt. Better get used to it.

Bottom line, it's disheartening that openly carrying a responsible means of defense is regarded as suspicious. You should instead stop each citizen you see with a handgun and say "Thank you for protecting yourself."

Instead you make him or her feel like a criminal. That's sad.

That's my lecture.

here's my take on this ... the officer who stops a legally open-carrying citizen in order to establish their legality is doing their job, plain and simple.

now, HOW they do their job is what's at question. giving someone a lecture (on either side of the badge) IMO should be reserved for parents to children.

but the bottom line is that if that officer sees something which could in any way, shape or form be illegal, he is obligated to beat the weeds until he's satisfied nothing illegal is going on.

the easy way to circumvent that is don't OC. it seems pretty simple to me, but then again, i'm a simpleton in things like this

------

as an aside, i really think we need to try to get away from this "us versus them" attitude as it pertains to law enforcement officers. IMHO society will be best served when those who choose to carry a weapon for self protection (be it open or concealed) and law enforcement officers can work in an amicable, complementary manner.

in order to get to that point, someone is going to have to take the first step, and i think it's going to have to be those of us who don't wear the badge.

 

[George]

not bad. good points. but then again driving a vehicle is a Privilage where as OC is a right. If i see someone carrying ill watch them and see how they act or what they do. Just cause they are carrying doesnt mean that I stop them.when im off duty, i carry concealed, ankle or paddle or IWB. most LEO's will carry concealed. this brings to my argument. WHY WOULD YOU OPEN CARRY? and i dont wanna hear the CAUSE ITS MY RIGHT AND I CAN. well no ****!i want a resonable answer. I personally dont want anyone know im carrying.

 

[aroundlsu]

not bad. good points. but then again driving a vehicle is a Privilage where as OC is a right. If i see someone carrying ill watch them and see how they act or what they do. Just cause they are carrying doesnt mean that I stop them.when im off duty, i carry concealed, ankle or paddle or IWB. most LEO's will carry concealed. this brings to my argument. WHY WOULD YOU OPEN CARRY? and i dont wanna hear the CAUSE ITS MY RIGHT AND I CAN. well no ****!i want a resonable answer. I personally dont want anyone know im carrying.

I agree. I carry concealed 100% of the time and have only been spotted by citizens when using a OWB holster which I don't use anymore. I recommend to everyone to get a permit and carry concealed. Being stopped and questioned about my weapon is simply not an issue.

However, the OP chose to open carry, was stopped, detained, and treated like a criminal. In this case, with the information provided, I have to take his "side" and say the officers did a poor job. Now, perhaps we're not hearing the entire story and he gave the officers a reason to act the way they did. 99% of the time this is the case. Through my line of work I have met many officers and they rarely give someone a hard time who isn't asking for it.

You say wouldn't stop just anyone carrying a gun. You observe and gather more information about the person before moving in. That's great. That's all I wanted to hear. Just keep in mind, you will probably never see a felon carry a Springfield XD in a Serpa holster in plain view. (or something similar)

 

[Jimmy Dean]

Hey folks.

The reason I dont have a CCW right now is simple. Money, I am a college student who does not work during the school year due to my degree taking up so much time. if I have 200 buckls laying around, it means that I have a bill that needs to be paid. Therefore until such time I can afford it, hopefully this summer, I will continue to open carry.

I have a few friends who are officers, at the LSP level and the PD on campus. I get along with them, we talk about guns, why students should be able to CCW on campus, talk about OCing around town, etc. The only laws I have ever broken are traffic laws, I have no intention of ever being on the wrong side of 'teh law' so long as they don't try and take away my rights or the rights of others. I am, and always have been, very condierate towards LEOs, and plan on remaining so, helping out in any capacity I am capable of. whenever an officer has ever asked me about if I have weapons in the truck or asked to search my truck, I have always complied. If last nights experience continues, this will likely not be the case any longer though. I have made the first step being as civil as possible even while rights where violated, it is their turn to learn their job, learn the laws, and act accordingly.

 

[aroundlsu]

Maybe you could just take the class now and wait to save up some money for the application. The class certificate is good for a year.

Or you could get a 2 year permit for $50 instead of the usual $100 for a 4 year.