In our last post, we focused on police-citizen encounters in the context of Pennsylvania Law Abiding Gun Owners (PennLAGOs)  involved in a traffic stop: I’ve Been Stopped by an Officer While Carrying … What are my Rights and Obligations?

So the next logical question is what can the police do and what must a PennLAGO do outside of a car when you’re carrying openly in Pennsylvania?

Again, this type of issue demands a delicate balance between following the law, protecting your rights, and remaining respectful within reason.

As of late, videos of interactions with law enforcement officers (LEO) have become increasingly popular. Open carry proponents have contributed their fair share. They usually go like this:

• Open Carry Carl is in Pennsylvania.
• He is a PennLAGO with a License to Carry Firearms (LTCF).
• He is going about his daily activities with his firearm on his hip or carrying his rifle perhaps on a sling.
• All of the places that he visits throughout the day are places that are not prohibited places by federal or state law and where he is lawfully permitted to carry.
• Carl has not threatened anyone.
• He is polite.
• He shows no aggressive or threatening behavior.
• He has not done anything illegal.
• However, some people just don’t know the law of open carry in Pennsylvania or they do not “feel comfortable” with someone open carrying. That person calls the police.
• The report to 911 may or may not be sensationalized by the caller.
• The police are dispatched.
• The police come on down to check out the situation and approach Carl.
• The LEO asks Carl a string of questions, simply because Carl is carrying a firearm openly.
• Again, Carl has been simply minding his own business.

Retrieved from http://www.guns.com/wp-content/uploads/2012/12/open-carry-utah1.jpg on 6/9/2015.

Here’s the big question: Does Carl have to stand there and answer their questions UNDER THESE FACTS?

No.

If the officer is not detaining Carl, this is nothing but a “mere encounter.” During a mere encounter, a law enforcement officer can legally ask you questions just like anybody else can. But that doesn’t mean you have to stick around and answer them. You’re free to go.

Where’s the line between a mere encounter and being detained? Like we said, during mere encounters, you’re always free to go.

Carl can simply say nothing and leave.

Perhaps the better route is for Carl to simply and politely ask “Am I being detained?” Or the best question is: “Am I free to go?”

Life tip: Presuming the worst in the LEO and involving yourself in an attempted long soliloquy over the law of open carry in Pennsylvania is absolutely your First Amendment right, but perhaps is not the best first move. First impressions count.

There is no bright line rule as to when a mere encounter turns into a detention. It is based upon the “totality of the circumstances.” In general, if considering the totality of the circumstances a reasonable person would feel that he or she was not free to decline the officer’s requests or otherwise terminate the encounter, you are dealing with a detention rather than a mere encounter. How do  you know what a court will believe is enough under the totality of the circumstances to justify the detention? You don’t. This is why it is best that Carl at first simply and politely ask if he’s free to go in order to more clearly make that distinction between a mere encounter (where he can simply leave without saying anything else) or if he must remain (it is a detention).

If the LEO has no reason to believe that Carl has done anything illegal, the LEO cannot legally detain Carl. The question of the legality of the detention will never be solved at the scene. No judge is on call to hear your complaints.

If the LEO answers that Carl is being detained or is not free to go, again, although it is Carl’s right to protest it and engage in an attempted long discussion over the law of open carry in Pennsylvania, it may not be the best move for Carl at this time. It might make Carl into a YouTube hero for moments, but we suggest that in this type of situation Carl’s or anyone’s goals should be only 3 things: (1) Don’t do anything that would cause you to get shot, (2) Lawyer Up, and (3) Get home safely to your family.

According to the law, in order to detain Carl, the LEO must have reasonable suspicion, based on articulable facts, that a crime is being committed or has been committed and that Carl is the suspect involved in that particular crime. A mere hunch or suspicion or being nearby a crime scene is not enough. While the officer does not have to be 100% sure or have proof beyond a reasonable doubt, again proof is required.

So if Carl asks if he’s free to go, and the LEO improperly asserts that Carl is not, we suggest that Carl:

1. consider videotaping the detention with your cellphone, but be careful pulling your phone out from your pocket as that action may be misinterpreted [Despite what some people believe, it is not a violation of the Pennsylvania Wiretap Law to video and audio tape LEOs while they are in the open and performing their duties. In Robinson v. Fetterman the District Court for the Eastern District of Pennsylvania held that there was a free speech right to film police officers in the performance of their duties. Subsequently, in 2010 the Third Circuit found in Kelly v. Borough of Carlisle, there was a broad right to videotape the police.];
2. consider asking on video “What crime do you believe that I have committed?” (The LEO doesn’t have to answer you.)
3. consider asking on video “What is your basis of believing that I committed that crime?” (The LEO doesn’t have to answer you.)
4. consider asking for a supervisor;
5. lawyer up (call the U.S. Law Shield Emergency Member Hotline and we will be on scene with you), don’t answer any questions and make no statements; and
6. most of all be safe.

If a LEO has decided to unlawfully detain Carl, nothing Carl says or does is going to change that LEO’s mistaken belief. So it’s best that Carl doesn’t try. Universally, people talk their way into trouble rather than talking their way out of trouble. Follow this 6 step process above.

This will likely be a tense situation for both Carl and the LEO. Carl will likely be upset as Carl did nothing wrong, but this situation is always handled best with a cool head and through a lawyer.

Carl should be prepared, regardless of the legality of the detention, that if the LEO has made the decision to detain Carl, the LEO will likely seek to disarm Carl. Undoubtedly, Carl will not like this. But again, follow the 6 steps above. If the LEO decides to take the weapon, it would be an unwise move to try to retain the gun. Again, remember goal 1 and goal 3 (Don’t do anything that would cause you to get shot. Get home safely to your family.)

One of the most persistently frustrating myths among even experienced LEOs is that a LEO can demand (meaning lawfully command under color of law) that the PennLAGO, like Carl, produce identification “so I can know whether or not you are allowed to carry a gun.” Sometimes, LEOs will threaten jail if Carl doesn’t produce ID “and sort it out downtown.” The LEO might say, “You can do this the easy way or the hard way.”

If all that Carl is doing is openly carrying in a lawful place to do so, LEOs cannot lawfully force Carl to produce identification. LEOs can require a person to identify himself or herself only if the LEO has the reasonable suspicion required of detention (reasonable suspicion that a crime is being committed or has been committed). Absent reasonable suspicion, the LEO has no authority to demand identification.

Again, no amount of arguing, action or videotaping will change a LEO’s mind that the LEO has reasonable suspicion. So again, what should Carl do? Follow the six step method above.

In Pennsylvania, openly carrying in a place where one is allowed to alone doesn’t constitute reasonable suspicion that a crime has been committed. Might there be some other context that the open carrier may not know that could give rise to reasonable suspicion? Sure. The phenomenon of “swatting” open carriers (where people who do not like open carriers lie to 911 and report that the open carrier threatened the caller or was pointing his or her gun at others) may constitute such a situation. But then again, the context of that 911 call is important. A wholly anonymous tipster (the swatting caller refused to give his or her name or contact information) is likely not to be determined to constitute sufficient reasonable suspicion. The Pennsylvania Court has told us that “While a tip can be a factor [in determining whether reasonable suspicion existed], an anonymous tip alone is insufficient as a basis for reasonable suspicion.” Commonwealth v. Leonard, 951 A.2d 393, 397 (Pa.Super. 2008) (quoting In re M.D., 781 A.2d 192 , 197 (Pa.Super. 2001)). However, if this person does leave his or her name and contact information while staying on the phone meeting with police before the police come to the open carrier, this will likely be deemed sufficient reasonable suspicion even if ultimately later proven to be a lie. Furthermore, other surrounding circumstances when combined with the anonymous tip might give the LEO sufficient reasonable suspicion. Again, the Pennsylvania Superior Court has provided guidance: “[I]f the person described by the tipster engages in other suspicious behavior . . .  reasonable suspicion justifying an investigatory detention is present.” Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa.Super. 2009) (en banc), appeal denied, 605 Pa. 694, 990 A.2d 727 (2010).

The notion that the LEO has to identify the open carrier for “officer safety” or “write my report” or “to make sure the gun isn’t stolen” or “to confirm that you are a lawful carrier” is simply not the law in Pennsylvania.

Like we’ve discussed, open carry is generally legal, with or without a license [except in Philadelphia and other restricted areas]. So, if a PennLAGO simply carries openly and there are no other facts, and goes about his or her law abiding business, a LEO is unlikely to have the legal authority to lawfully and properly detain that open carrier.

Some federal courts of appeals have expressly held that carrying openly in and of itself is insufficient to detain an individual. Unfortunately, these courts do not cover our jurisdiction in Pennsylvania, and the Third Circuit (which covers Pennsylvania) hasn’t reached a holding on this particular issue to date. While not specific to open carry, the Third Circuit has held that possession of a firearm in and of itself (if in a location that is not prohibited by law) does not constitute reasonable suspicion. United States v. Ubiles, 224 F.3d 213, 218 (3d Cir. 2000).

Practically speaking, is there a chance that asserting rights will compound inconvenience? Absolutely. That is always a possibility. There are several examples posted all over the internet verifying that asserting your rights or exercising your rights may cause inconvenience. Is that right or wrong? Is open carry right or now? But that’s for an entirely different conversation. That is a political and/or tactical discussion. One worthy of having, but is beyond the scope of this post. Today, we’ll stick to the bounds of the law.

In those various internet videos, some officers state that open carry gives them reasonable suspicion, simply because a person can be disqualified from possessing a firearm under state or federal law (See 1:45-2:00; 4:25-4:45 in the video below). However, there’s a flaw with this line of reasoning. Arguments like “carrying is illegal if you’re a felon” or “carrying in Philadelphia is illegal without a license” insinuate that it’s legal to detain somebody because what they are doing is illegal under certain circumstances. That would give the officers the ability to stop any car they wish to make sure the driver is licensed, because it’s illegal to drive without a license. Or to ensure that the car’s equipment functions properly, because driving faulty equipment ‎is illegal as well. It is flawed logic.

Can you imagine if that were permissible? Picture being pulled over, and asking why you’ve been stopped. Picture the LEO responding “I just wanted to make sure you have a driver’s license because it’s illegal to drive without one.” When you put it into that context, it seems utterly ridiculous. For these reasons, the assertion seemingly stretches the principle of “reasonable suspicion” a bit too far.

The Pennsylvania Chiefs of Police Association seemingly agrees with our reasoning here. They provide the following advice for officers in their bulletin, Open Carry in Pennsylvania- A Guidance Document For Local Law Enforcement (prepared by Peter Erndwein & Christopher Boyle, Esq.):

Regardless of your opinion on open carry, recognize that it is a constitutional right. Law enforcement officers remain permitted to engage in a mere encounter with someone who is open carrying. If they choose not to speak to you, and you have no articulable reasonable suspicion of a crime, you do not have a reason to detain them further. Give them a nod and wish them a good day.

Be aware that not all LEOs will share the views expressed in the guidance document above. LEOs have claimed that they have a right to stop somebody and demand identification merely because they are carrying openly. And until we have binding authority stating otherwise, they will likely continue to do so.

Here’s a quick example. The action begins at about 2:30:

https://www.youtube.com/watch?v=agWde2tpfx4

After we watch this video, apparently, and to be kind, these officers are dangerously unfamiliar with the law.

Notice how one officer mentions that in order to stop a vehicle, they must have committed a violation. He effectively proves the point discussed above. In order to detain somebody, an officer must have reasonable suspicion based on articulable facts (“I’ve been on the job a long time and I know it when I see it” and “I had a gut feeling that something wasn’t right” will not suffice). Openly carrying a handgun or a rifle in and of itself likely cannot provide enough information, or enough facts, to constitute reasonable suspicion.

It is very important to understand the law, and be prepared to interact with a LEO who may neither know nor understand the law. Aside from the erroneous grounds for the stop itself, the officers in the video above made other false claims (hollow point rounds are illegal; there is a legal limit as to how many rounds you can carry). We will discuss some of these false statements of law in a future post. But this is a great example of how knowing your rights and understanding your obligations are essential in these situations. As Miles Davis once said, “Knowledge is freedom . . . .” Without using our knowledge to lawfully exercise our rights, we are doomed to lose our freedom.

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