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10th Circuit court rules on Open carry.

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  • #16
    Originally posted by coolhead64 View Post
    Of course, you can always stop and talk to anyone, but they dont have to talk to you and you have no ability to make them. In Georgia in the instances you provided.
    I think that in some of the instances I listed, you might be able to arrest the person if he fails to identify himself and explain his conduct. In addition, local ordinances may apply.

    Georgia Code § 16-11-36.

    (a) A person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.

    (b) Among the circumstances which may be considered in determining whether alarm is warranted is the fact that the person takes flight upon the appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstances make it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this Code section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this Code section if the law enforcement officer failed to comply with the foregoing procedure or if it appears at trial that the explanation given by the person was true and would have dispelled the alarm or immediate concern.

    (c) A person committing the offense of loitering or prowling shall be guilty of a misdemeanor.

    (d) This Code section shall not be deemed or construed to affect or limit the powers of counties or municipal corporations to adopt ordinances or resolutions prohibiting loitering or prowling within their respective limits.
    Facts do not cease to exist because they are ignored. -- Aldous Huxley
    Two things are infinite: the universe and human stupidity. -- Albert Einstein

    Comment


    • #17
      As far as this case goes, the officers were clearly out of line. They should have known the law better and it just goes to show that even police officers are extremely ignorant to gun laws. I had a police officer on this forum PM me and inform me that I should not be open carrying in Kentucky because I could get in trouble. I informed him of the law and he said that even though the law says I can I still should not do it because a lot of officers don't know the law or something along those lines. That's the stupidest thing I have ever heard. I don't know why a lot of police officers are ignorant of these laws. Makes no sense to me.
      sigpic

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      • #18
        Originally posted by DAL View Post
        I think that in some of the instances I listed, you might be able to arrest the person if he fails to identify himself and explain his conduct. In addition, local ordinances may apply.

        Georgia Code § 16-11-36.

        (a) A person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.

        (b) Among the circumstances which may be considered in determining whether alarm is warranted is the fact that the person takes flight upon the appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstances make it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this Code section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this Code section if the law enforcement officer failed to comply with the foregoing procedure or if it appears at trial that the explanation given by the person was true and would have dispelled the alarm or immediate concern.

        (c) A person committing the offense of loitering or prowling shall be guilty of a misdemeanor.

        (d) This Code section shall not be deemed or construed to affect or limit the powers of counties or municipal corporations to adopt ordinances or resolutions prohibiting loitering or prowling within their respective limits.
        wow, that's all i can say, that and I hope you don't shoot me if you ever see me walking around with my firearm.
        I'd say its usual for law abiding citizens to stand or walk around. You should really look at the armed AND dangerous part of Terry V. Ohio. Its long been held that possession of a firearm is not even close to RAS, or even a Terry Pat down, even in the case we are talking about here, the court said that someone calling 911 saying someone had a gun in itself was not enough to warrant what occured.

        Lawful citizens do carry guns, and I highly encourage them to, they can trust that I wont question there ability to.

        Comment


        • #19
          Originally posted by coolhead64 View Post
          wow, that's all i can say, that and I hope you don't shoot me if you ever see me walking around with my firearm.
          I'd say its usual for law abiding citizens to stand or walk around. You should really look at the armed AND dangerous part of Terry V. Ohio. Its long been held that possession of a firearm is not even close to RAS, or even a Terry Pat down, even in the case we are talking about here, the court said that someone calling 911 saying someone had a gun in itself was not enough to warrant what occured.

          Lawful citizens do carry guns, and I highly encourage them to, they can trust that I wont question there ability to.
          Who said anything about shooting you?

          Once again, you ignore the surrounding circumstances. I posited examples where there was more than sitting around quietly carrying a gun.

          It is not simply the gun, but the totality of the circumstances that is important. And Terry deals with being armed only in the context of conducting a pat-down to protect the safety of the officer. I already discussed its holding. Hiibel holds that statutes that allow an officer to arrest someone who refuses to identify himself when stopped under suspicious circumstances are constitutional. Apparently, you don't consider it suspicious to parade back in forth in front of a jail sally port while visibly displaying a weapon; I do.
          Facts do not cease to exist because they are ignored. -- Aldous Huxley
          Two things are infinite: the universe and human stupidity. -- Albert Einstein

          Comment


          • #20
            Originally posted by DAL View Post
            I think that in some of the instances I listed, you might be able to arrest the person if he fails to identify himself and explain his conduct. In addition, local ordinances may apply.

            Georgia Code § 16-11-36.

            (a) A person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.

            (b) Among the circumstances which may be considered in determining whether alarm is warranted is the fact that the person takes flight upon the appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstances make it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this Code section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this Code section if the law enforcement officer failed to comply with the foregoing procedure or if it appears at trial that the explanation given by the person was true and would have dispelled the alarm or immediate concern.

            (c) A person committing the offense of loitering or prowling shall be guilty of a misdemeanor.

            (d) This Code section shall not be deemed or construed to affect or limit the powers of counties or municipal corporations to adopt ordinances or resolutions prohibiting loitering or prowling within their respective limits.
            Sorry man this code section does not apply as you suggest. Basically time and place are relative and a key factor in charging a subject under this code section.

            So far I have only seen subjects charged under this law that have been seen loitering behind businesses in the middle of the night, with burglary tools etc.
            Last edited by westside popo; 09-12-2009, 08:44 PM.

            Comment


            • #21
              Originally posted by westside popo View Post
              Sorry man this code section does not apply as you suggest. Basically time and place are relative and a key factor in charging a subject under this code section.

              So far I have only seen subjects charged under this law that have been seen loitering behind bussinesses in the middle of the night, with burglary tools etc.
              The statute is written in the disjunctive: "in a place at a time or in a manner not usual for law-abiding individuals." Of course, we could throw into the hypothetical that the armed man was loitering outside the jail sally port at 2 a.m., or walking past bars in Atlanta at 1 a.m. carrying a rifle and two pistols. At some point, the threshold for alarm will be reached.
              Facts do not cease to exist because they are ignored. -- Aldous Huxley
              Two things are infinite: the universe and human stupidity. -- Albert Einstein

              Comment


              • #22
                Originally posted by DAL View Post
                The statute is written in the disjunctive: "in a place at a time or in a manner not usual for law-abiding individuals." Of course, we could throw into the hypothetical that the armed man was loitering outside the jail sally port at 2 a.m., or walking past bars in Atlanta at 1 a.m. carrying a rifle and two pistols. At some point, the threshold for alarm will be reached.
                Hey DAL you said that in many states open carry is illegal. Do you still think this knowing that it is legal in 42 states?
                sigpic

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                • #23
                  Just because its legal does not mean it should be commonplace.


                  If I feel threatened, I certainly would do more than talk to an open carry holder...

                  Comment


                  • #24
                    Originally posted by coolhead64 View Post
                    1. In Georgia, Not illegal nor PC, nor RAS, as long as it isnt at church, public gathering.
                    2. Same as #1
                    3. As long as he is outside the guard line see #1
                    4. As long as he isn't pointing it at someone, see #1

                    Nothing out of the ordinary about a citizen carrying a gun, especially in the open(which is legal in GA)

                    As for your other statement about legality, stopping someone because you see them doing something illegal isn't the same as simply stopping someone because they have a gun.
                    Your not entirely correct in your assumtions either. For one you must have a CCW license to carry concealed or open. You can also carry open (only) if you have a hunting or fishing license and engaged in hunting or fishing.

                    BTW I am 100% for law abiding citizens owning and carying firearms. I'm just pointing out what is the current law. I also hope that the state legislature will remove more restrictions on concealed carry in the future such as in public gatherings.
                    Last edited by westside popo; 09-12-2009, 11:04 PM.

                    Comment


                    • #25
                      Originally posted by KY Blue 72 View Post
                      Hey DAL you said that in many states open carry is illegal. Do you still think this knowing that it is legal in 42 states?
                      According to Wikipedia, open carry is lawful without restriction in only 10 states, and there are 7 states where it is absolutely prohibited. The rest of the states require permits, have other restrictions, or are subject to local prohibitions.

                      Even if I assume that you are correct in your assertion, I would classify 8 states as "many", especially considering that they include the most populous states: California, Texas, Illinois and New York.
                      Facts do not cease to exist because they are ignored. -- Aldous Huxley
                      Two things are infinite: the universe and human stupidity. -- Albert Einstein

                      Comment


                      • #26
                        Originally posted by DAL View Post
                        The statute is written in the disjunctive: "in a place at a time or in a manner not usual for law-abiding individuals." Of course, we could throw into the hypothetical that the armed man was loitering outside the jail sally port at 2 a.m., or walking past bars in Atlanta at 1 a.m. carrying a rifle and two pistols. At some point, the threshold for alarm will be reached.
                        That is not the only law we have to deal with situations as you stated. It is not unusual, in my experience, to see people standing in or around our sally port waiting on someone to get out of jail or to give a subject money etc for bail. If any of us see any one standing or sitting out side a simple " may I help you?" is enough to learn their intentions. Now if one of them were openly carrying a pistol I would at least ask to see a CCW license. If they did not have a legit reason for being there then yes they could possibly be charged with the law.
                        A subject carrying a rifle and 2 pistols, walking past bars at 0100 hours on Saturday, in Atlanta could not be charged with loitering and prowling. But he could be charged with other violations of the laws. While you do have "alarm" it is not unresonable for people to be in that place and at that time. Because you will have poeple leaving and or entering the bars. Now if it was in Smallville, GA at 0100 hours on Monday then you may have a case of loitering and prowling.
                        Last edited by westside popo; 09-12-2009, 09:34 PM.

                        Comment


                        • #27
                          Originally posted by KY Blue 72 View Post
                          Hey DAL you said that in many states open carry is illegal. Do you still think this knowing that it is legal in 42 states?
                          As DAL stated, many require a permit (or other restriction), which gives us every right to approach and verify, all the while doing what we feel is necessary to protect ourselves. Although the letter of the law in TN says no one has to actually conceal it, those valid CCW holders do so. They actually exercise some common sense in the matter because it is not commonplace here, with probably a few exceptions out in the cow towns. As I have mentioned a half-dozen times, permit holders get arrested too so there is no safe assumption for anyone with a gun.
                          I'm 10-8 like a shark in a sea of crime..

                          Comment


                          • #28
                            Originally posted by westside popo View Post
                            That is not the only law we have to deal with situations as you stated. It is not unusual, in my experience, to see people standing in or around our sally port waiting on someone to get out of jail or to give a subject money etc for bail. If any of us see any one standing or sitting out side a simple " may I help you?" is enough to learn their intentions. Now if one of them were openly carrying a pistol I would at least ask to see a CCW license. If they did not have a legit reason for being there then yes they could possibly be charged with the law.
                            A subject carrying a rifle and 2 pistols, walking past bars at 0100 hours on Saturday, in Atlanta could not be charged with loitering and prowling. But he could be charged with other violations of the laws. While you do have "alarm" it is not unresonable for people to be in that place and at that time. Because you will have poeple leaving and or entering the bars. Now if it was in Smallville, GA at 0100 hours on Monday then you may have a case of loitering and prowling.
                            My fundamental point is that you are justified in approaching and questioning the person, and you seem to agree.

                            I do think there is a difference between walking up and down the street in the bar district at 1 am and doing the same thing while openly carrying firearms. I would be very concerned that the person was looking for someone whom he intended to shoot.

                            As to the interpretation of the statute I found, I would have to research the legsilative history and court decisions, which I am not prepared to do.
                            Facts do not cease to exist because they are ignored. -- Aldous Huxley
                            Two things are infinite: the universe and human stupidity. -- Albert Einstein

                            Comment


                            • #29
                              Originally posted by SgtScott31 View Post
                              As DAL stated, many require a permit (or other restriction), which gives us every right to approach and verify, all the while doing what we feel is necessary to protect ourselves. Although the letter of the law in TN says no one has to actually conceal it, those valid CCW holders do so. They actually exercise some common sense in the matter because it is not commonplace here, with probably a few exceptions out in the cow towns. As I have mentioned a half-dozen times, permit holders get arrested too so there is no safe assumption for anyone with a gun.

                              Whether a permit is required or not, it is still legal in 42 states. If you feel that the individual open carrying is threatening feel free to stop them. That doesnt bother me one bit.
                              sigpic

                              Comment


                              • #30
                                Originally posted by coolhead64 View Post
                                Any officer who stops someone simply for open carry is an over-zealous officer who probably just wants to exert some sort of authority over a poor citizen who is probably upstanding and just carrying a firearm to help protect themselves. Some officers just think that no one except them should have a gun, sad.
                                What an ignorant statement. I believe that it's an officer's duty to ensure that someone who is carrying a weapon can do so legally.

                                Comment

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