Food for thought: Lawful Gun Possession and Encounters with Police

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During a Terry stop, an officer who has reasonable suspicion that a suspect is armed and dangerous may frisk the suspect and may confiscate any weapons that the officer finds. Does an officer have the same authority during a traffic stop? In other words, if an officer reasonably suspects that a driver is in possession of a gun, even lawfully, may the officer confiscate the gun for the duration of the stop as a safety precaution? What about during a consensual encounter between an officer and a pedestrian?

Terry stops.
It’s helpful to start with a review of the law regarding Terry stops. When an officer has reasonable suspicion that a person has just committed, or is about to commit, a crime, the officer may briefly detain the person to investigate. Terry v. Ohio, 392 U.S. 1 (1968). If the officer has reasonable suspicion that the person is armed and dangerous, the officer may also frisk the person for weapons and may confiscate any that the officer finds. Id.

In the Terry stop context, it doesn’t matter whether the suspect is legally entitled to possess the weapon. If a person is reasonably likely to be involved in criminal activity and is armed, the person is dangerous even if not prohibited from possessing a weapon, and the officer may seize the weapon at least temporarily on that basis. In Terry itself, the Court upheld a frisk and the officer’s decision to “reach[] for and remove[] the [suspects’] guns” without regard to the possibility that the suspects could have been legally armed. See United States v. Rodriguez, 739 F.3d 481 (10th Cir. 2013) (ruling that a New Mexico officer was entitled to seize a citizen’s gun during a Terry stop even though New Mexico law allows concealed carry with a permit and under certain other circumstances; the officer did not need to “wait[] to find out” whether the suspect’s possession was lawful). Cf. United States v. Pope, 910 F.3d 413 (8th Cir. 2018) (citing Terry and other cases for the proposition that “the Supreme Court has already authorized police officers to frisk a suspect reasonably believed to be armed even where it could be that the suspect possesses the arms legally”).

Consensual encounters.
Terry stops are inherently tense because they are forcible seizures based on suspicion of criminal activity and frequently lead to arrests. By contrast, consensual encounters are not compulsory, may involve no suspicion, and relatively rarely result in arrests. I noted the split of authority regarding whether officers may frisk citizens during consensual encounters in this prior blog post. Since then, the Sixth Circuit has addressed the issue in Northrup v. City of Toledo Police Dept., 785 F.3d 1128 (6th Cir. 2015). In that case, the court denied qualified immunity to an Ohio officer who approached a citizen carrying a handgun openly and “temporarily took possession of his firearm.” The court reasoned that open carry was lawful in Ohio, so the fact that the citizen was carrying a gun did not provide the officer with reasonable suspicion that the citizen was armed and dangerous: “all [the officer] ever saw was that [the citizen] was armed—and legally so.” Bottom line, although the issue is far from settled, I’m skeptical of the idea that an officer may seize a lawfully possessed gun during a consensual encounter, at least absent specific indicia of danger. In any event, a citizen who doesn’t want to hand his or her weapon over to an officer during a consensual interaction is free to terminate the encounter.

Traffic stops.
I’ve been asked many times whether an officer may take a motorist’s gun away during a traffic stop. An officer conducting a traffic stop may learn that the driver has a gun because the officer sees all or part of the weapon in the vehicle or on the driver’s person, or because the driver says something about the weapon. Indeed, if the driver holds a concealed handgun permit, he or she must notify the officer if the driver is armed. See G.S. 14-415.11(a).
When the officer knows that it is unlawful for the driver to possess the gun – for example, because the driver has a felony conviction – the officer certainly may seize the weapon.

Likewise, if there are specific facts establishing that the driver poses a danger to the officer, the officer may seize the weapon. See Arizona v. Johnson, 555 U.S. 323 (2009) (holding that an officer may frisk an occupant of a stopped vehicle based on reasonable suspicion that the occupant is armed and dangerous, and finding sufficient evidence of danger where an occupant was wearing gang colors and had recently been released from prison).
But what if those circumstances are not present? May an officer take control of a driver’s gun in the interest of officer safety even though, as far as the officer knows, the driver is entitled to possess it and isn’t doing anything threatening? As a matter of practice, some officers do so routinely, while others prefer to instruct the driver to leave the weapon in place and not to touch it. Some officers go so far as to remove the magazine, unload the gun, or even partially disassemble it before returning it at the end of a stop. Here’s a Florida story describing an officer who confiscated and disassembled a gun. Here’s a national story discussing the range of practices that different officers employ.

I don’t think this is an easy question to analyze. Traffic stops are analytically similar to Terry stops, but they often involve reasonable suspicion only of infractions – minor, non-criminal violations of the law. In this regard, traffic stops may have lower stakes than Terry stops and may involve a reduced risk of danger. Nonetheless, the most relevant case suggests that an officer may seize a motorist’s gun during a traffic stop. In United States v. Robinson, 846 F.3d 694 (4thCir. 2017) (en banc), the Fourth Circuit ruled that “an officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile’s occupants is armed may frisk that individual for the officer’s protection and the safety of everyone on the scene.” The court reasoned that a “danger justifying a protective frisk arises from the combination of a forced police encounter and the presence of a weapon,” even if the gun is possessed lawfully and even if the encounter is based on a traffic violation. Essentially, the court concluded that an armed citizen is a dangerous one in this context.
Although Robinson doesn’t explicitly address what an officer may do if he or she finds a weapon during the frisk, it seems certain that the court would allow an officer to seize any weapon he or she found. Otherwise, what’s the point of the frisk? And if an officer may conduct a frisk and seize any weapons that he or she finds, it follows that an officer could also achieve the same end through the less intrusive means of ordering a person to produce his or her weapon without actually putting hands on the person to locate it.

Former School of Government faculty member Bob Farb wrote about the en bancopinion in Robinson here. Bob notes that the ruling isn’t binding on North Carolina’s courts, but Fourth Circuit cases often carry a great deal of persuasive authority here. The closest case we have in North Carolina may be State v. Bullock, 370 N.C. 256 (2017), which I discussed here. One reading of Bullock is that during a traffic stop an officer has the discretion to order a driver out of his or her own vehicle, frisk the driver as a safety measure, and order the driver into the officer’s patrol car. As I explained in the linked post, I’m not sure that reading is correct, and even if it is, it doesn’t necessarily follow that an officer can frisk a driver who isn’t going to be placed in a law enforcement vehicle. Still, the generous frisk authority arguably granted in Bullock may provide some indirect support for the holding of Robinson.
If an officer were uncomfortable relying on Robinson, an alternative to ordering a driver to hand over a weapon would be asking a driver to hand over a weapon. A consensual transfer of possession would seem to remove any Fourth Amendment concern.

Continued at link
 
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It’s absurd. I was handcuffed the night after my daughter was born. Had ran home to shower and bring some stuff back to the hospital. No sleep in about 48 hours and failed to dim my lights. Two of Rock Hill’s finest pulled me over in my wife’s car and I immediately informed them that her pistol was in the console. They had me step out and handcuffed me behind my back and had me lean/sit on the bull bar of the patrol car while they informed me of my evil doing. While they were polite enough, the whole experience didn’t sit right with me but I wasn’t going to make a thing of it and ruin the best happening of my life.
 
Gspec, that is absurd, if you told them what you were doing. They shoulda given you a police escort the rest of the way to the hospital.
 
continued:
If an officer were uncomfortable relying on Robinson, an alternative to ordering a driver to hand over a weapon would be asking a driver to hand over a weapon. A consensual transfer of possession would seem to remove any Fourth Amendment concern.

Can an officer ask a driver whether the driver is armed? The discussion above has assumed that an officer has reason to believe that a driver has a gun. But if an officer doesn’t have reasonable suspicion about that, may the officer ask the driver whether he or she has a weapon? There are a smattering of opinions from across the country pointing in different directions on different rationales. Compare, e.g., United States v. Holt, 264 F.3d 1215 (10th Cir. 2001) (en banc) (ruling that “[d]uring a routine traffic stop, an officer may ask the stopped motorist whether there is a loaded firearm in the car even in the absence of particularized suspicion of the existence of such a firearm”), and Lockett v. State, 747 N.E.2d 539 (Ind. 2001) (not unreasonable for an officer to ask a driver whether he had any weapons; “[t]he question was justified by police safety concerns”), with, e.g., People v. Garcia, 983 N.E.2d 259 (N.Y. Ct. App. 2012) (“a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot”).

As I see it, Rodriguez v. United States, 575 U.S. __ (2015), frames the analysis as follows. If the officer can ask the question without extending the stop – for example, while the officer is waiting for a computer license check to come back – then there is no Fourth Amendment problem because asking questions itself is neither a search nor a seizure, and while the stop is a seizure, it is not prolonged by the question. If the question extends the stop, then there is a Fourth Amendment problem unless a court views the question as an appropriate officer safety precaution. There are a few out-of-state post-Rodriguez cases that bear on the issue, but I don’t think that they come close to settling it. See United States v. Jackson, 321 F.Supp.3d 1223 (D. Or. 2018) (officer improperly extended stop by asking driver “about drugs and guns”). Cf. State v. Pearson, 323 P.3d 994 (Or. Ct. App. 2014) (applying a Rodriguez-type analysis in a case decided before Rodriguez and ruling that an officer improperly extended a stop by asking a driver twice about weapons). I can imagine a court ruling that a question of this kind is an appropriate officer safety measure, but a cautious officer may want to pose such a question only when doing so does not extend a stop.

Acknowledgements. SOG research attorney Chris Tyner and USC law professor Seth Stoughton helped me research and think through this post. I appreciate their assistance. They’re not to blame for any remaining errors or omissions.

What am I missing? Whenever I write about police procedures and interactions with citizens, I learn something about how things go in the real world. So officers and others, what am I overlooking? Officers, what’s your normal way of dealing with citizens who are “packing”?
 
Taking a gun from a driver who voluntarily discloses its existance in a traffic stop that is not a Terry stop seems unproductive.

Sure the driver could be dangerous, and the shooting might start when the officer is headed back to his car, but in that case the driver would not likely have notified him of the presence of the firearm. Just my opinion.

@Gspec how old is that daughter?
 
I seem to recall there being an NC ruling that the presence of a gun didn't automatically meet the dangerous threshold.

I also agree with @JimB in that one who follows the (stupid) requirement of notifying isn't likely to start shooting.
 
I also agree with @JimB in that one who follows the (stupid) requirement of notifying isn't likely to start shooting.

Add the fact that one goes through the hoops to get a concealed permit isn't a felon and probably isn't intending to be one.

The whole 'notify' thing is stupid.
 
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I don’t know if notifying is stupid, in fact I’d probably notify even if not required just to make the officer feel more comfortable in the event that he suspected I was carrying. I’d feel much better though knowing for sure that he wasn’t going to disarm me for “officer safety.”

Today it seems like there are no rules, that it’s all up to officer discretion. Maybe that’s best though since no rule is perfect anyway and the number of reported instances of disarming motorists is way down from where it was just a few years ago.

FWIW, I drive a company car. It isn’t linked to my DL as far as I know, and I suspect that police are slightly less concerned about asking fire from a corporate weenie. On that note, I’ve thought about starting a business named IRS, or FBI, registering a car under that and seeing if I get any professional courtesy without saying a word.
 
Since i've had my CHP all traffic encounters resulted in a verbal warning and no ticket...even the one where the cop took my guns and unloaded them (I "think" after running them to see if they were stolen). In that instance one pistol was open view on the passenger seat and one in the driver side pocket of the door. If it were on body carry at the time think I would have refused to un-holster my firearm to turn it over. If he needed it that badly I would have let him get it.

Another time I had one on my hip and literally had a range "bag full of guns and ammo" as I was headed to the range. On that one I just got the "don't show me yours and I won't show you mine..." and a warning.

not enough data points to determine a real relationship between no ticket and CHP, but I "felt" like they were nicer once they saw the CHP

I felt "violated" after the one where the guy took it, but I think arguing about seizure would have escalated the situation as the guy got extremely nervous when he first found out....I didn't feel in fear for my life and I think that a nervous cop shot Philando Castile (who was legally armed despite early reports to the contrary) unnecessarily. I didn't think he was just out to shoot someone today and compliance would keep me alive...

I can see both sides and don't begrudge the officer
 
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Got pulled for expired tags last year in Cornelius by some dckhead cop who thought I turned down a side street to evade him, I did. [emoji16]

I informed him I was armed, he asked for my pistol, saying he needed to run it...

No doubt it Cornelius PD SOP to do that, liberal dbags.


A few weeks prior I got pulled for the same thing by ICSO, informed the deputy and he gave me a warning, as per the sheriff.

Sent from my iPhone using Tapatalk
 
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Got pulled for expired tags last year in Cornelius by some dckhead cop who thought I turned down a side street to evade him, I did. [emoji16]

I informed him I was armed, he asked for my pistol, saying he needed to run it...

No doubt it Cornelius PD SOP to do that, liberal dbags.


A few weeks prior I got pulled for the same thing by ICSO, informed the deputy and he gave me a warning, as per the sheriff.

Sent from my iPhone using Tapatalk

The whole run the serial number thing seems more illegal and invasive then taking it....
 
I have been stopped several times for speeding [imagine that]. In pre 1998 times the officer always secured my sidearm after I told him I was armed. I always attributed this to the fact that Hardly Any officers had ever seen or even knew there was such a thing as a concealed weapon permit. The permit had no picture just a number and marked State Wide Authority. It was stronger than any LEs carry rights because it was state wide. After the permits were opened to every one and watered down to the old holders, I was never asked again for my sidearm.
 
Taking a gun from a driver who voluntarily discloses its existance in a traffic stop that is not a Terry stop seems unproductive.

Sure the driver could be dangerous, and the shooting might start when the officer is headed back to his car, but in that case the driver would not likely have notified him of the presence of the firearm. Just my opinion.

@Gspec how old is that daughter?

My thoughts exactly....why announce it if you have ill intentions. She’s almost 4 now btw.
 
Got pulled for expired tags last year in Cornelius by some dckhead cop who thought I turned down a side street to evade him, I did. [emoji16]

I informed him I was armed, he asked for my pistol, saying he needed to run it...

No doubt it Cornelius PD SOP to do that, liberal dbags.


A few weeks prior I got pulled for the same thing by ICSO, informed the deputy and he gave me a warning, as per the sheriff.

Sent from my iPhone using Tapatalk

I don't know how you handled the situation, but in my CHP class we were advised to never reach for and hand over a gun to a cop that asks for it. Class taught by a retired cop. He straight out said that there are "some" out there that might see that as an "opportunity" to test out their skills. My guess is that he ran across a few fellers like that in his career.

Don't object, but offer to allow them to disarm you themselves.
 
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“Reasonable”

That word keeps being used above. Who decides reasonable? Lol
 
“Reasonable”

That word keeps being used above. Who decides reasonable? Lol

I think that it is "reasonable" to believe that if I shoot a cop during a traffic stop I will be charged and prosecuted and if they shoot me they will get paid leave and no charges....
 
I think that it is "reasonable" to believe that if I shoot a cop during a traffic stop I will be charged and prosecuted and if they shoot me they will get paid leave and no charges....

I think that train of non thought has left the station. We keep hearing more and more of officers being charged for various offenses and/or fired once investigations are completed.
 
I think that train of non thought has left the station. We keep hearing more and more of officers being charged for various offenses and/or fired once investigations are completed.

you're right, I used hyperbole in my statement.

I do suspect that despite the fact that we are both carrying legally, that even if charged, I would be more likely to be convicted of a crime than the officer.
 
you're right, I used hyperbole in my statement.

I do suspect that despite the fact that we are both carrying legally, that even if charged, I would be more likely to be convicted of a crime than the officer.

It's written into NC castle law that you basically cannot defend yourself from LEOs if they shout "police" while home invading/raiding/kicking/shooting your dog wife or kid.
 
you're right, I used hyperbole in my statement.

I do suspect that despite the fact that we are both carrying legally, that even if charged, I would be more likely to be convicted of a crime than the officer.
How could you be convicted if you were legally carrying? IF you were legal then the charges would either not happen or be dismissed. If there were questions of legality you would probably have a trial and its then up to 12 people unable to get out of jury duty.
 
It’s absurd. I was handcuffed the night after my daughter was born. Had ran home to shower and bring some stuff back to the hospital. No sleep in about 48 hours and failed to dim my lights. Two of Rock Hill’s finest pulled me over in my wife’s car and I immediately informed them that her pistol was in the console. They had me step out and handcuffed me behind my back and had me lean/sit on the bull bar of the patrol car while they informed me of my evil doing. While they were polite enough, the whole experience didn’t sit right with me but I wasn’t going to make a thing of it and ruin the best happening of my life.

I wasn’t cuffed but I was spread eagled on my hood one Sunday morning by a Cayce SC patrol...woman. She unloaded my pistol by pointing it into my car and then took all the rounds out of the magazine and ran the serial number.
 
I think that train of non thought has left the station. We keep hearing more and more of officers being charged for various offenses and/or fired once investigations are completed.

An east Cincinnati swat officer was passed out behind the wheel and was subsequently arrested for DUI a month or so ago. He was armed and drunk, had his SWAT turnout kit in the vehicle (including MP5) and the arresting officers had to bust out two windows because he tried to drive off. He got booked while armed, and only got a 30 day admin leave w/o pay from his department. And he refused blood/breath which for us peons results in a loss of driver’s license. Not him
 
An east Cincinnati swat officer was passed out behind the wheel and was subsequently arrested for DUI a month or so ago. He was armed and drunk, had his SWAT turnout kit in the vehicle (including MP5) and the arresting officers had to bust out two windows because he tried to drive off. He got booked while armed, and only got a 30 day admin leave w/o pay from his department. And he refused blood/breath which for us peons results in a loss of driver’s license. Not him
I'm not saying it doesn't happen, just that those trends are stopping all around the country.
 
It's written into NC castle law that you basically cannot defend yourself from LEOs if they shout "police" while home invading/raiding/kicking/shooting your dog wife or kid.
Hahahahahaha....yeah.
Maroons...

Sent from notthedroidyourelookingfor
 
I wasn’t cuffed but I was spread eagled on my hood one Sunday morning by a Cayce SC patrol...woman. She unloaded my pistol by pointing it into my car and then took all the rounds out of the magazine and ran the serial number.
Hopefully when she was done you asked why she had assumed that you only had that one gun.
Did you report the incident to her Sargent or commanding officer?
How long ago?

I ask because the reporting of these types of incidents has declined, and I attribute that to the citizens being subjected to them keeping their cool with the officer and reporting the inappropriate actions taken. It takes time to change how people act, and it's never gonna be perfect, but it seems to me that we're seeing acceptable improvement.
 
I wasn’t cuffed but I was spread eagled on my hood one Sunday morning by a Cayce SC patrol...woman. She unloaded my pistol by pointing it into my car and then took all the rounds out of the magazine and ran the serial number.

I've never understood why they run the serial number. Shouldn't they need a reasonable suspicion to believe that the gun may be stolen?
 
I've never understood why they run the serial number. Shouldn't they need a reasonable suspicion to believe that the gun may be stolen?

There’s that word again “reasonable” lol
 
I've never understood why they run the serial number. Shouldn't they need a reasonable suspicion to believe that the gun may be stolen?
It's called a fishing expedition for a reason.

I was on the way home from work one night. I was almost home and I get in the city limits and the local PD is running a liscence check. I do what is required a pull my permit and DL and inform the officer that I have a carry permit and I am armed. Long story short I am out of the car and the officer is running my guns to see if they are stolen. I'm pissed but remain calm. Next morning I am the first phone call the Chief of Police has waiting when he gets in. I told the Chief that my duty to inform is not his officers right to run my guns. Next Monday night. Guess what? Another liscence check. This time I inform, they look at permit and DL and I'm on my way. Do you think my call to the Chief had any bearing on the second encounter? I do. I am willing to bet that some officer had a one way meeting with the chief.

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An east Cincinnati swat officer was passed out behind the wheel and was subsequently arrested for DUI a month or so ago. He was armed and drunk, had his SWAT turnout kit in the vehicle (including MP5) and the arresting officers had to bust out two windows because he tried to drive off. He got booked while armed, and only got a 30 day admin leave w/o pay from his department. And he refused blood/breath which for us peons results in a loss of driver’s license. Not him
So he was arrested?
What is "booked while armed" I doubt he was in cuffs and still packing heat.
So he was suspended while awaiting trial instead of being fired, isn't innocent until proven guilty a thing anymore?
How do you know his license wasn't suspended? Is that even a thing in Ohio?
 
I have been stopped, told them I was carrying, never, ever had a problem. Funniest was coming home from the range with a friend, $15K worth of SBRs and ARs, most of which were suppressed. Trooper pulls me over after a 'soft stop' at the stop sign. He walked up, I 'informed,' he saw the arsenal in the backseat, laughed, and said "yeah, it appears that you are (carrying)." Gave me a warning for the stop sign, but we talked for 30 minutes about the guns.
 
I've only been "asked" for my gun once and when I asked him if he was familiar with a cocked and locked 1911 and he said no, and also said to forget about it so I didn't hand over the gun. I wasn't going to anyway.... Running the serial number on my gun without probable cause is akin to an illegal search and seizure and a violation of my 4th amendment rights.
You have the right to tell them to pound sand, politely of course.....
 
Only been through one 'check point' so far since I've been in NC. I really don't go above the radar unless it's needed (blood, bone, life threatening, his/hers or mine, etc).

In Lincolnton at 73W onramp to 321N was a couple of years ago so I don't recall if it was local or SP. I was going to the BR Pkwy with my wife about 9am. He asked for license so I gave him that and LTC. He did even take them, just said have a good day.

My wife:

WTH.jpg
 
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So he was arrested?
What is "booked while armed" I doubt he was in cuffs and still packing heat.
So he was suspended while awaiting trial instead of being fired, isn't innocent until proven guilty a thing anymore?
How do you know his license wasn't suspended? Is that even a thing in Ohio?

He was arrested for OVI (operating a vehicle while intoxicated). He was cuffed while he was armed. They never removed his pistol from him. The supervisor removed his cuffs in the station while they talk for ~15 minutes before fingerprinting and at one point the detained cop lifts his jacket and shows the supervisor his gun. The supervisor reads a form that says what will happen if he refuses. I’ll post the video


ETA
It answers all your questions and your disbelief.




The road officer says it’s an MP5, the supervisor calls it an MP7.
 
I have been stopped, told them I was carrying, never, ever had a problem. Funniest was coming home from the range with a friend, $15K worth of SBRs and ARs, most of which were suppressed. Trooper pulls me over after a 'soft stop' at the stop sign. He walked up, I 'informed,' he saw the arsenal in the backseat, laughed, and said "yeah, it appears that you are (carrying)." Gave me a warning for the stop sign, but we talked for 30 minutes about the guns.

I’ve also had a similar experience with my late brother-in-law. Back seat folded down with a trunk full of long guns that ended with a courteous verbal warning without either of us being asked out of the car. Guess it all depends on the mindset of the officer involved.
 
Yes they should. There has definitely been a learning curve for officers since the CCW laws were enacted.
If some clerk in another agency in another state fat fingers a serial number and my handgun comes back HOT or
used in a crime, I'm getting taken away for the night until it all gets straightened out.
 
If some clerk in another agency in another state fat fingers a serial number and my handgun comes back HOT or
used in a crime, I'm getting taken away for the night until it all gets straightened out.
Has this ever ever happened in the whole history of the world?
 
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