Question about open carry and probable cause for police questioning.

[NickB]

I apologize in advance for the long post.

I've been around enough police officers in my life to understand that if they want to find probable cause to do something, they'll usually find it. I also understand that LEOs obtain a lot of information by questioning individuals who are either willing to speak, or unaware of their rights.

Preface to my question:
The State of Colorado allows open carry with very few exceptions. This incident took place in the City and County of Boulder where open carry is not prohibited, save for University of Colorado grounds.

An acquaintance of mine is a 22-year-old, clean-cut, Caucasian male college graduate who open carries his pistol wherever it is not legally prohibited. He was walking down a public street around 2:00 p.m., and was approached by two uniformed female Boulder police officers. They requested he speak to them away from his three friends (two 34-year-old Caucasian males, one 22-year-old Caucasian male).

This conversation started by them asking if he was law enforcement, to which he responded that he is in the process of being hired by a local department. He inquired as to why he was being questioned, and they informed him they had received phone calls from people who felt uncomfortable or threatened. They asked for his identification, which he provided, and called in his information to check for warrants. He came back clean, and they continued to question him about why he was carrying, why he felt the need, etc. They told him he “shouldn’t” carry again until he can legally do so concealed, and claimed he would have a difficult time obtaining a law enforcement job should he choose to continue his behavior. I understand the entire conversation lasted roughly 5 minutes.

The question:
Is a stop such as this voluntary for the individual being questioned, i.e. could have he refused to provide identification/walked away without consequence? What constitutes probable cause to force him to produce identification? Suspicion of underage weapons possession? Is calling in to check for warrants indicative of being detained (like a traffic stop)? Once they have established age, does the reason for questioning cease to exist, and if so, how do they justify checking for warrants on someone who has broken no apparent law? I’m curious as to the amount of case law on this subject. What has your experience been with these situations?

[Jay Cunningham]

I apologize in advance for the long post.

I've been around enough police officers in my life to understand that if they want to find probable cause to do something, they'll usually find it. I also understand that LEOs obtain a lot of information by questioning individuals who are either willing to speak, or unaware of their rights.

Preface to my question:
The State of Colorado allows open carry with very few exceptions. This incident took place in the City and County of Boulder where open carry is not prohibited, save for University of Colorado grounds.

An acquaintance of mine is a 22-year-old, clean-cut, Caucasian male college graduate who open carries his pistol wherever it is not legally prohibited. He was walking down a public street around 2:00 p.m., and was approached by two uniformed female Boulder police officers. They requested he speak to them away from his three friends (two 34-year-old Caucasian males, one 22-year-old Caucasian male).

This conversation started by them asking if he was law enforcement, to which he responded that he is in the process of being hired by a local department. He inquired as to why he was being questioned, and they informed him they had received phone calls from people who felt uncomfortable or threatened. They asked for his identification, which he provided, and called in his information to check for warrants. He came back clean, and they continued to question him about why he was carrying, why he felt the need, etc. They told him he “shouldn’t” carry again until he can legally do so concealed, and claimed he would have a difficult time obtaining a law enforcement job should he choose to continue his behavior. I understand the entire conversation lasted roughly 5 minutes.

The question:
Is a stop such as this voluntary for the individual being questioned, i.e. could have he refused to provide identification/walked away without consequence? What constitutes probable cause to force him to produce identification? Suspicion of underage weapons possession? Is calling in to check for warrants indicative of being detained (like a traffic stop)? Once they have established age, does the reason for questioning cease to exist, and if so, how do they justify checking for warrants on someone who has broken no apparent law? I’m curious as to the amount of case law on this subject. What has your experience been with these situations?

He needs to talk with an attorney. Don't look for legal advice on the internet.

[11B101ABN]

1) The incident was not consentual, It was a "brief stop". His compliance with the investigation of a complaint is expected.

2) Probable cause is not needed to ask a person to produce identification. An officer may do so on a first tier encounter and the contact would still be consentual. This has ben upheld.

3) Checking for warrants/probation/parole is an activity that is usually indicitve of an officer checking to see who he/she is speaking with . It is an officer safety issue more than anything.

4) The officers are in contact with your friend in response to a citizen being concerned with the open display of a weapon (ie, a complaint). The officers can/ will detain him until any alarm is dispelled and until it is clear that they are not dealing with someone who is not in violation of statute as a result of thier history, hence the the checking of status: warrants, parole, probation, ect.

5) An officer needs no reasonable suspicion or probable cause to check for wants/status/ warrants on another person. If an officer has had dealing with a particular person previously, for example, and had that persons name and date of birth, which is common for an officer to retain, then the officer may at his discretion, check that person's status. It is akin to checking a license plate on a vehicle for which there is no expectation of privacy.

6) There is a metric assload of case law on officer citizen encounters, hope your friend likes to read.

7) My experience is pretty simple, I do it for a living.

In my opinion, based on what was written, is that the officers did not exceed the scope of their authority during the encounter. Their opinions of his carrying in the open are just that, and as long as he is in compilance with the law, he can drive on. If he feels the need to obtain legal counsel, fine, however the officers are not, based on what you wrote, culpabe for any wrong doing.

Good Luck.

[the1911fan]

I check warrant status on people I assist at the roadside, complainants, people that come to the station for assistance installing a child car seat, and anyone that I locate in reference to a complaint.

Some people do fear open carry of weapons (I imagine since someone was in fear to the point of calling police)...why not sling your favorite AR15 and walk around downtown Boulder?...what would the diiference be? Hell you start praying to Mecca in public and you get people calling the police. In some areas if you are walking while black people call the police and say that you are "suspicious".

IMO anyone that open carries is doing so to make a point and nothing more.
Maybe he likes to read as much as he likes to open carry... hope so b/c as stated loads of case law exist and his encounter has been addressed previously by many courts in many jurisdictions.

The only way to find out if the person open carrying is a prohibited person is to run them for warrants and CCH. Walking away from an officer or officers that are only engaging you in conversation when you are open carrying would reasonably raise the suspicion that you "might" be a prohibited person and further investigation would reasonably warranted. Your friend acted properly as did the officers.

[DrMark]

Nick,

As I'm sure you know, laws vary greatly from state to state. I won't pretend I know anything about Colorado law, but if you go to http://opencarry.mywowbb.com/forum13 you can likely find others with similar experiences, advice on finding local lawyers (if desired), etc.

Mark

[BarryP]

could have he refused to provide identification/walked away without consequence? What constitutes probable cause to force him to produce identification?

This is the real question.

[Patrick Aherne]

The officers were responding to a complaint about a suspicious person call. It sounds like they did a consensual encounter and asked questions.

I think your friend should heed their advice, or he will not wind up as a LEO.

[NickB]

He needs to talk with an attorney. Don't look for legal advice on the internet.

He's not seeking legal advice - this is more for me personally. I'd just like to know the norm of officer/civilian interaction when legal weapons are involved.

[NickB]

1) The incident was not consentual, It was a "brief stop". His compliance with the investigation of a complaint is expected.

2) Probable cause is not needed to ask a person to produce identification. An officer may do so on a first tier encounter and the contact would still be consentual. This has ben upheld.

3) Checking for warrants/probation/parole is an activity that is usually indicitve of an officer checking to see who he/she is speaking with . It is an officer safety issue more than anything.

4) The officers are in contact with your friend in response to a citizen being concerned with the open display of a weapon (ie, a complaint). The officers can/ will detain him until any alarm is dispelled and until it is clear that they are not dealing with someone who is not in violation of statute as a result of thier history, hence the the checking of status: warrants, parole, probation, ect.

5) An officer needs no reasonable suspicion or probable cause to check for wants/status/ warrants on another person. If an officer has had dealing with a particular person previously, for example, and had that persons name and date of birth, which is common for an officer to retain, then the officer may at his discretion, check that person's status. It is akin to checking a license plate on a vehicle for which there is no expectation of privacy.

6) There is a metric assload of case law on officer citizen encounters, hope your friend likes to read.

7) My experience is pretty simple, I do it for a living.

In my opinion, based on what was written, is that the officers did not exceed the scope of their authority during the encounter. Their opinions of his carrying in the open are just that, and as long as he is in compilance with the law, he can drive on. If he feels the need to obtain legal counsel, fine, however the officers are not, based on what you wrote, culpabe for any wrong doing.

Good Luck.

Perfect - just the kind of post I was looking for. Thank you. Is there any possibility of him being cited for anything just by carrying the gun? Something like disturbing the peace?

I feel an officer's opinion should be kept to themselves when laws are not being broken, and in that respect they overstepped their grounds. It's not something I would file a complaint about, but IMO, that is unprofessional.

[NickB]

I check warrant status on people I assist at the roadside, complainants, people that come to the station for assistance installing a child car seat, and anyone that I locate in reference to a complaint.

Some people do fear open carry of weapons (I imagine since someone was in fear to the point of calling police)...why not sling your favorite AR15 and walk around downtown Boulder?...what would the diiference be? Hell you start praying to Mecca in public and you get people calling the police. In some areas if you are walking while black people call the police and say that you are "suspicious".

IMO anyone that open carries is doing so to make a point and nothing more.
Maybe he likes to read as much as he likes to open carry... hope so b/c as stated loads of case law exist and his encounter has been addressed previously by many courts in many jurisdictions.

The only way to find out if the person open carrying is a prohibited person is to run them for warrants and CCH. Walking away from an officer or officers that are only engaging you in conversation when you are open carrying would reasonably raise the suspicion that you "might" be a prohibited person and further investigation would reasonably warranted. Your friend acted properly as did the officers.

I completely agree that he was open carrying simply to make a political statement, and is foolish if he didn't expect an incident like this. I still find it interesting that one is expected to produce identification due to another person's complaint about a legal activity. I know this is a stretch, but that is almost like me calling 911 and reporting that another driver is doing nothing wrong, but he's making me nervous.