TheAgitator.com
The Pete Principle
Monday, February 11th, 2008Last fall, my friend Pete Eyre decided to test Virginia’s “open carry” law, which allegedly allows citizens with a permit to carry an unconcealed handgun. If I’m writing about it here, you can guess it didn’t end well.
Pete was stopped by police officers from Arlington, Virginia. He hadn’t done anything wrong. He was merely carrying a handgun, which he was permitted to do in Virginia. Apparently, someone had called 911 to report him, even though he’d broken no laws. He was unlawfully detained, illegally asked to show identification, then threatened when he dared to assert his rights. The police also lied to him about what was said in the 911 call. The caller merely said someone was carrying a gun, and even added that Pete had done nothing threatening. The cops told Pete the caller said someone had brandished a gun.
Thing is, Pete’s not only a hardcore libertarian, he’s also well-educated about his rights. Last time I spoke with him, he also had designs on becoming a police officer. After the confrontation, Pete embarked on a lengthy process aimed at holding accountable the officers who violated his rights. It took a FOIA request and several attempts to get the Arlington police chief to finally answer his complaint. Even then the result was, to say the least, unsatisfactory. Pete isn’t allowed to know how the officers were disciplined. What’s more, the chief dismissed the most serious violations of Pete’s rights–including his detention, the confiscation of his gun and identification, and the threats made against him–as mere “miscommunication.”
Nevertheless, kudos to Pete. He stood up for himself. He did as much as he could, and was polite and articulate through the entire process.
Read up on his whole experience in this series of posts.
What do you mean, “illegally asked to show identification”?
“Asking questions is an essential part of police investigation. In the ordinary sense a police officer is free to ask a person for identification without implicating the Fourth Amendment.” (HIIBEL v. SIXTH JUDICIAL DISTRICT COURT OF
NEVADA, HUMBOLDT COUNTY, et. al.).
I like Pete as much as the next guy (I don’t know him well), but it isn’t unreasonable for the police to respond to a “man with a gun” call, legal or not. Sounds like the cops tried to get more information than they were legally entitled to, and they didn’t get it. Ok. And maybe Pete was detained longer than he should have been. But “to characterize that as a “denial of [his] freedom of movement”? Come on.
This sounds like a run of the mill Terry stop that lasted a little longer than normal, and probably only because they received a call about it (who knows if he’d have been stopped but for the call? His experience with 6 other “open carriers” a few days later indicates it might not have been a problem at all).
In short, sure this is alarming, but just barely. Legal or not, if you’re walking around like an Old West gunslinger, you have to expect there’s a greater chance of being stopped, questioned, or detained than if you aren’t.
Legal or not, if you’re walking around like an Old West gunslinger, you have to expect there’s a greater chance of being stopped, questioned, or detained than if you aren’t.
Sara Brady couldn’t have said it better, Greg. And is it too much to ask for the police to know the laws of their own state? Virginia is an open carry state. The 911 call said a guy was carrying openly. At most, they should have asked Pete for his permit, then left him alone. Instead, they took the gun, and detained him for more than an hour. If the law says open carry, you shouldn’t be harassed for carrying openly.
I guess Sara Brady is smarter and more articulate than I thought. She may have characterized the situation as I did, but does that make it untrue? Old West gunslingers “openly carried” their firearms, usually in holsters, and walked around town with them. How is what Pete did any different? I don’t think it’s wrong, of course, but it is, in fact, like an Old West gunslinger.
Your last sentence is exactly right. The proper response, given the tone of the 911 call (gun is holstered, just walking down the street) should have been to send a patrol car by, look for any suspicious activity and, seeing none, leave Pete alone. But again, it isn’t unreasonable for a police officer to ask a few questions, get a sense for what’s going on, and then let somebody go (which seems to strike the right balance between order and safety, and the rights of citizens). This went on too long, but that’s about it. The cops should be reprimanded, and taught what to do in similar situations, but I don’t see much reason to get bent out of shape here.
You know I’m not a cop apologist, but when it comes to this kind of stuff, my sense is that if Pete had submitted to having his picture taken, and didn’t worry so much about exercising every.one.of.his.rights. to their fullest extent, he’d have been out of there much sooner.
A pain in the ass? Sure. Overboard? Sounds like it. But tyranny? A reason to cite Rothbard’s argument for private police? No.
“You know I’m not a cop apologist, but when it comes to this kind of stuff, my sense is that if Pete had submitted to having his picture taken, and didn’t worry so much about exercising every.one.of.his.rights. to their fullest extent, he’d have been out of there much sooner.”
So if I understand correctly Greg, only “some” of our rights are to be protected and observed by the police?
You go Pete, push their buttons every day in every way you have time to do. Oh and don’t forget to leave your card for cop seminars with them along the way!
You don’t understand correctly, TC. The question isn’t whether “some” rights will be “protected” (as if there was a bright line between “protection” and “violation”). Rather, the question is, to what extent will our rights have to conform to the requirements of keeping peace and order, and protecting everyone else around you?
It might be the case that cops should never question anyone until after a crime has been committed. Or, perhaps cops should be able to question people who are in the act of committing a crime. Or, perhaps cops should be able to question people who appear suspicious (e.g., hanging around the front of a bank, at night, looking nervous). Or, perhaps cops should be able to question anyone at any time, to maximize their chances of reducing crime.
Any of these is logically possible, and while most would reject both of the extremes, there’s no a priori reason to choose any of them. Protecting rights is an exercise in line drawing, and cops have to balance the rights of citizens with their duty to protect everyone else.
Who likely poses a greater threat, the guy with a gun on his holster, or the guy without a gun on his holster? Clearly the former. Given that, cops have to balance the potential threat with the citizen’s right to carry. The presumption should be in favor of the citizen, but it isn’t a failure to protect your rights when cops–constitutionally–stop you and ask a few questions.
Again, they went too far here. But it isn’t at all the deprivation it’s being made out to be. We don’t live in a state of nature where you’re free to do whatever you like. That other people exist around you means that, from time to time, you might have to put up with that most-tyrannical of all demands, that you answer a few questions about the pistol you have on your hip, while walking down the street.
Or should I say the road…to SERFDOM!
FYI, “Last fall, my friend Pete Eyre decided to test Virginia’s “open carry” law, which allegedly allows citizens with a permit to carry an unconcealed handgun,” while true, is misleading. Virginia allows unlicensed open carry. There is no sort of permit required to buy, own, or openly carry a gun.
These cops are idiots and anyone too submissive to be upset about Pete’s rights should at least be bothered that the cops were being paid a good wage to waste their time on an obvious not-breaking of any law.
All right Radley, back on track. That presidential poll you took must of shaken some sense into you!
Keep up the good work!
Radley you are truly awsome when it comes to the police and SWAT thing. I think you should win some kind of award for your Mississippi writting. Your insticts on this Virginia police officer getting shot were so right on that it’s clear you’ve got the subject nailed. But I want to tell you sincerely and truthfully that any man that’s ever been in business for himself, in a tough business, has met at least a half-dozen Bill and Hillarys. They’re out there and they’ll always be out there. In DEC 1999 I remember ordering a custom Jaguar from a dealer in Omaha. When it arrived in the second week of April 2000 I told them to keep it. It wasn’t Bill Clintons fault, just like the militarization of the PD’s are not GWB’s fault. It’s the way things go.
We don’t live in a state of nature where you’re free to do whatever you like. That other people exist around you means that, from time to time, you might have to put up with that most-tyrannical of all demands, that you answer a few questions about the pistol you have on your hip, while walking down the street.
Greg, no one is arguing that we “live in a state of nature where you’re free to do whatever you like.” This is about police not knowing the law and overreacting to a completely law-abiding citizen. Pete seemed happy to answer every question he was legally obligated to answer and provide all the documentation he was legally obligated to provide. If, when dealing with the government, we don’t demand “every.one.of.(our).rights.” then we’re telling the government that they can ignore those rights when it’s convenient for them.
Bottom line is, the police treated him as if he was breaking the law, when he wasn’t. And that makes the police a bigger threat than Pete.
I am about to begin probing the Alabama open carry waters. I will first mail a legal defense of the practice (with court case citations) to local law enforcement. I’m not optimistic as to my chances of receiving a reply; however, when I start open carrying I will carry with me copies of all relevant laws and court case citations for the inevitable law enforcement encounter.
Alabama, despite being one of the reddest states one could imagine, has a mediocre record on Second Amendment rights at best. Alabamians tend to only think “legitimate” weapons are those that are designed to take a deer or a duck. Couple this with the fact that police officers are given free reign to do as they please, as well as the discretion local sheriffs have over what sort of behavior will cause a citizen to forfeit his pistol permit, and you have a recipe for anti-gun police state insanity.
Is Pete the guy who has someone shoot video of him when he’s stopped? If not, there’s another guy whose videos are available on YouTube. It’s interesting to watch the cops fish around and get stopped at every turn by the law.
Protecting rights is an exercise in protecting rights. Legislators propose and vote on the line, cops are to comply. Cops do not have unlimited discretion over what to do to you, even in the name of security.
How? Why isn’t the former a greater contributer to public safety? The gun doesn’t create a threat, the person does. If the gun creates the threat than Jesus, we taxpayers put an aweful lot of gun & holsters on hips every day.
“Who likely poses a greater threat, the guy with a gun on his holster, or the guy without a gun on his holster? ”
They guy who is hiding his gun is by far the greater threat.
If I’m packin on my hip the only ones that are really threatened are the ignorant and the cops!
Ignorant meaning, duped, stupid, or those that already live in a state of fear and are forth coming victims of violent crime, mugging, home invasion, (especially by cop posers), or for that matter real cops.
Greg it really is simple, we gotta keep it simple for cops ya know, enforce the LAW! That is simple! Don’t invent law or scenarios of what ifs, just enforce the daaum law! While abiding by it in the process! That is the problem that law ENFORCEMENT seems to have challenge with. And actually knowing the law as well.
Andy Griffith taught this nation one hell of a lot about the hows of law enforcement. Too bad this current generation does not even know the name. Such could provide about 80% of POST training and should.
I’m guessing Pete’s white. I’m also going to make an unsupported wild-ass guess that if he’d been black, it wouldn’t have taken a 911 call for the cops to stop him, and he wouldn’t have been back on the street an hour later none the worse for his experience.
Arlington County doesn’t consider itself part of the Commonwealth of Virginia. They have their own laws and their own ways and only pay lip service to Richmond, if at all.
Ditto Fairfax County, where the police officer’s first oath is to Sarah Brady and her ilk, not the constitution.
I’m always surprised by comments such as (paraphrased) “if he’d have just let them take his picture and not exercised all of his rights so completely then the cops would have let him go on his way…”
The laws have already been codified–we should never say that a citizen should have to give up additional liberties, no matter how small, in order to be free to go on their way.
Nobody is disputing that an officer can stop and ask questions, but if open-carry is such a threat, then the laws need to be changed before it becomes an issue where we can be detained for an hour with no other probable cause. If we all cede a bit more of our freedom, then the next step will be “it’s no big deal, if you’d have just disassembled your weapon (thus defeating the purpose of carrying in the first place…) and put it in your briefcase, then the cops would have let you go on your way…”
A law-abiding citizen is a law-abiding citizen. We need to abide by the laws that are on the books, and hold law enforcement accountable when they cross the line and try to force (or succeed in enforcing) laws that do not YET exist.
Chris
I find it totally reasonable for an officer to question a law-abiding citizen if his actions have caused the public to become nervous. There is no reason why the officer shouldn’t question Pete and be sure that, a) he is in his right mind; b) he isn’t a danger to himself or others; and, c) he is aware of how his actions affect those around him.
Just because something is legal doesn’t make it right in society. For example, an action that may cause panic and thus injury is illegal (like yelling fire in a crowded auditorium). How is carrying a gun not achieving the same thing? The reason is because, even tho legal, it is not something that is seen often. I’ve lived in VA since 1999 and I’ve never seen a person openly carry a firearm outside of a hunting trip or in a shooting range.
Should the officer have questioned him at length? I don’t know. It depends on the attitude the officer interpreted from Pete’s responses. But I find it totally acceptable for an officer to question anyone who’s been the subject of a 911 call.
Greg (and congratulations on your popularity in this thread!), a couple points responding to your original comment.
First, the problem was not that the police asked him for his ID. The officer is free to ask him for his ID, a blood sample or a candy bar, for that matter. The problem was that they told him he was REQUIRED to show it to them, which apparently is not the case under Virginia law (these requirements vary from state to state). Assuming Pete is a reliable reporter, then the officer was either lying to him or did not know the law, neither of which is acceptable.
As far as the reasonableness of the stop, you are correct that, at about an hour, it was “a little longer” than was reasonable–by about 59 minutes. There was no reason to believe, nor did the officers at any time indicate that they believed, that Pete had committed or was about to commit a crime. His legally carrying a weapon may have made them or others uncomfortable, but that’s not police business. One officer may find a slogan on a t-shirt you are wearing makes him uncomfortable; another may be uncomfortable with people drinking alcohol. That doesn’t allow them to detain people whose clothing they don’t like, or the patrons of a bar.
If the police think that the law should allow them to detain people for things that make them uncomfortable, then they need to become legislators. The police are only there to enforce the laws that already exist, not make them up as they go along.
Nando, you’re right–just because something is legal doesn’t make it right. But the police aren’t there to enforce “right”, they’re there to enforce “legal”. Many people do not think homosexuality is “right”; does it follow that the police should arrest two men holding hands in public?
IIRC, Radley has in the past shown disdain for Phillip Van Cleave and the Virginia Citizen’s Defense League, but Phil and the VCDL live for this sort of challenge. They routinely take on events such as this and get results. PVC is a pit bull when it comes to these open-carry fiascos, and he deals with them regularly.
I think it’s inexcusable for cops not to know the basics of the laws they enforce and if the law is too complicated for the cops to know it, then that ought to be the first indication that the laws need to thinned out and simplified.
Radley has in the past shown disdain for Phillip Van Cleave and the Virginia Citizen’s Defense League
Huh? Where have I ever shown “disdain” for Van Cleave or the VCDL?
So….did Pete get his gun back, or not?
Last I heard, ignorance of the law is not an excuse for breaking it. Personal experience, as well as personal experience of hundreds of others (documented nicely on COPS) shows that law enforcement is fond of using this. Apparently that only applies to those who are not charged with defending the law.
He should consider filing a complaint with the state police officer training commision and seeing if he can get the cop’s licenses revoked.
A state issued license is NOT required to openly carry a handgun in VA, only to carry concealed.
Since VA does not recognize my Georgia Firearms License, I carried my handgun openly when I was in VA on vacation last year. I carried around the Roanoke/Salem area and farther north in Lexington and the natural Bridge area as well.
Not once did I notice any reaction from anyone, positive or negative (police included).
Actually, I was relishing the experience. In GA a license is required to carry a pistol in any manner. Also, GA has more places off limits to lawful carry than any other state.
Walking around in VA with a gun on my hip, no license required and with almost nowhere off limits, I almost felt like a free man.
[...] a story about a man who was carrying a gun legal under Virginia’s “open carry” law. Nevertheless, someone called 911 on him, and the police detained him: Pete was stopped by police [...]
Andy Griffith taught this nation one hell of a lot about the hows of law enforcement.
Except for that whole “keeping Barney on as a deputy” thing. I love that old show, but Andy’s sole character flaw seemed to be his lack of desire to find a competent deputy. Of course, then we’d have been robbed of Don Knotts’ special genius, so I forgave him long ago.
But I find it totally acceptable for an officer to question anyone who’s been the subject of a 911 call.
I don’t think anyone’s objecting to his being asked a few questions and making sure that he had a permit. The problem was that the process should have taken no more than 3-5 minutes at most.
Agreed. Nando, no one argues with what you’ve stated, however your quick sumarization is not what happened is it? They didn’t just ask to see his ID, ask a few questions and moved on. And I’m sorry, but Greg (if not a cop than a pathetic supermarket security guard) is absolutely off his kilter when he says he’s not an apologist and people shouldn’t express ALL their rights. How about the police only enforce the laws that do exist? Jerkoff!!
“Except for that whole “keeping Barney on as a deputy” thing. I love that old show, but Andy’s sole character flaw seemed to be his lack of desire to find a competent deputy. Of course, then we’d have been robbed of Don Knotts’ special genius, so I forgave him long ago.”
I disagree, Barney Fife was a critical element in the lesson! And many of our current crop of officers obviously paid attention to his character and emulate him on so many levels today.
You caught me, Leshrac. I am, in fact, a police officer. I should have been more forthcoming.
“Asking questions is an essential part of police investigation. In the ordinary sense a police officer is free to ask a person for identification without implicating the Fourth Amendment.” (HIIBEL v. SIXTH JUDICIAL DISTRICT COURT OF
NEVADA, HUMBOLDT COUNTY, et. al.).
Hiibelonly established that state laws requiring individuals to show identification are not unconstitutional. Absent such a law, there is no requirement to show ID (Virginia has no such law).
This sounds like a run of the mill Terry stop that lasted a little longer than normal, and probably only because they received a call about it
It’s not a Terry stop, because the police had no reason to believe crime was afoot. See Florida v. J.L., 529 U.S. 266 (2000), where SCOTUS held that an anonymous report of a man with a gun is insufficient to invoke Terry.
“Virginia’s ‘open carry’ law, which allegedly allows citizens with a permit to carry an unconcealed handgun.”
Allegedly?
Virginia has no open carry law. It is not addressed by law, so not being illegal, it is legal. No permit is required.
In the first five minutes, Pete was subject to good police work. In the next ten minutes, Pete was subject to aggressive police work. After that, Pete was whacha call a “kidnap victim.”
It is simple: in a non-police state, police only have the power that I give to them. I have empowered police to act within the law. Within the law, police act on my behalf and with the consent of the governed. Outside of the law, police are on their own. Because police have a difficult job with “on the spot” judgement calls, I will give them every benefit of a doubt that I can (for example, I think Rodney King got what he deserved). My doubts ran out at thirty minutes. If Arlington cops don’t like Arlington law, they can go to work for the City of New York. If I don’t like New York laws, I can go live in Virginia. God bless America.
Radley,
A thousand pardons, please, about the VCDL post above. I had you confused with another blogger.
KB,
I was fortunate enough to spend a week with Florida’s Supreme Court Justices last year discussing this very case (and other 4th Amendment cases). If they are right, you are wrong.
In J.L., the call was anonymous, it gave very little detail, and cops found no hint of illegal activity that would corroborate the call. In Pete’s case, the call was not anonymous, and the caller gave sufficient detail to indicate who and where the subject was, which was then corroborated by the police, all amounting to the reasonable suspicion necessary to “stop and frisk.” Hence, Terry is justified (or, at least, J.L. is easily distinguished).
As to the “stop and identify” law, cf. Chapter 17, Section 13(c) of the Arlington County Code: “It shall be unlawful for any person at a public place or place open to the public to refuse to identify himself by name and address at the request of a uniformed police officer or of a properly identified police officer not in uniform, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety requires such identification.”
http://www.arlingtonva.us/departments/CountyBoard/CountyCode/default.aspx
It was an excellent effort, though. Kind of 1L, but a good try nonetheless.
Two quibbles, Greg:
First, you describe Pete as a “suspect”. Based on the transcript of the 911 call in Pete’s blog, what was he suspected of? The call merely states that he has a holstered gun, and the caller even points out that he knows that it’s not illegal. So what crime is he suspected of?
Second, it is one thing to say that one is required to identify himself, and another to say that that he is required to show identification. Based solely on the text of the above law, no “papers” are required to be shown, but one must state one’s name and address. After all, since he was not driving, he’s not required to carry ID, so how could he be required to show it? Pete appears to be aware of the law, as he says “they attempted to get more information than I was required to provide per the law, such as my social security number and my city of birth.” This implies that he gave them his name and address. But you haven’t shown any requirement for him to show them ID.
Apologies, Greg, you didn’t actually say “suspect”; but you did mention suspicion. So I suppose my comment is still applicable.
“Reasonable suspicion” is the legal standard used to justify Terry stops. One needn’t be a “suspect” per se to trigger that standard.
My guess is that the identification ordinance would be sufficiently similar to other ID statutes that the Hiibel ruling would govern here.
I’ve just been made aware of three awesome (imo) videos. I’d love to hear legal opinions on them.
http://www.youtube.com/watch?v=GxVXZqMN6XI
http://www.youtube.com/watch?v=uL0WRbPHPNo
http://www.youtube.com/watch?v=PHTtal_EK0A
First of all, there’s no such thing as an “open carry law” in Virginia and it doesn’t “allegedly” allow one to carry openly. There is no law regarding open carry, just as there’s no law regarding the wearing of red shirts. Not *ALL* of your actions must be authorized by our munificent babysitters in Richmond…yet.
Regarding Greg’s comments, the stop was illegal. Period. Detainments must be supported by reasonable suspicion of a crime and open carrying is not a crime, nor does this perfectly legal activity offer reasonable suspicion of a crime, according to both common sense and case law, anymore than driving a vehicle offer reasonable suspicion of vehicular homicide. Thousands of people open carry in Virginia every day and most police departments know better by now than to detain for such a non-crime (it’s taken quite a few incidents like Pete’s and quite a bit of paper pushing to make it that way, but we’ve done quite well).
So, Greg, NO this was not a “run of the mill Terry Stop.” It wasn’t a Terry Stop at all. Terry stops must be supported by Reasonable Suspicion and, as I said, carrying a gun, according to case law, is not that.
Second, no Greg, it didn’t last “a little longer than usual.” According to case law, it lasted long enough to become a “de facto arrest,” which means Pete was illegally detained AND illegally arrested for exercising a God-given right. Educate yourself, man.
United States v. Sharpe states that a detainment must last NO LONGER than the amount of time it takes to ensure that the crime for which the police had reasonable suspicion had not taken place. They have to let you go as soon as that happens. They did not. They continued to detain him after they concluded there was no crime in order to take his picture. That was an illegal arrest, not based on reasonable suspicion.
Non-cooperation in that situation is part of the training good citizens must do for their government. It makes it less likely to happen again, and, incidentally, Arlington PD has NOT detained any more people open carrying (and it’s not because no one is doing it
Nothing about being armed makes one an “old West gunslinger.” Save your biggoted ignorance, Greg.
Regarding your disgusting comment that if Pete allowed his rights to be trampled, he would’ve “gotten out of there much sooner,” first, if the police had followed the law and Constitution, he would’ve been out of there much sooner. Second, if your rights aren’t worth 20 minutes of your time, a boy like you would not understand why men like Pete do what they do.
“A fear of weapons is a sign of retarded sexual and emotional maturity.” — Sigmund Freud
“Let your gun therefore be the constant companion of your walks” — George Washington
My rights don’t stop when your emotionally-stunted fretting begins, and I’m not going to trade my rights to the people to whom you’ve delegated your responsibilities just so you can “feel safe.”
My biggoted (sic) ignorance and Freudian sexual hang-ups aside, I don’t think there’s enough here to say whether this was or was not justified by reasonable suspicion (the 911 call makes me think it might have been), or whether the detainment became a de facto “arrest”. Those are fact specific questions (e.g., would a reasonable person in Pete’s position have felt he was free to leave?). Hence, Josh’s citing of case law as though the facts are irrelevant is not very enlightening. Then again, maybe I’m just not educated (or maybe I’m just biggoted (sic)).
Again, I say the stop went on too long. But part of the reason it went on too long was because Pete wanted to make sure that every one of his rights was exercised to the fullest possible extent. Simply by asking, “Am I free to leave”? Pete probably could have shortened the whole affair.
Let’s everybody take a breath for a moment. First let’s deal with Virginia law not Alabama or anywhere else. Under Virginia law, in order to affect a Terry Stop the officer must have REASONABLE suspicion that a crime has been committed. These officers DID NOT. Second, under Virginia law the officers can ask all the questions they care to, you are under NO, I repeat, NO LEGAL obligation to answer them as long as you are open carrying and have committed no crime. That includes your name, address etc. Further, you need no license to open carry. They can threaten to arrest you for impeding an investigation and you should tell them that they can do what ever they choose to do but if they do you will be the one owning their houses when it’s all over. NEVER, under any circumstances, give up any of your rights. Carry a digital recorder and record everything. Let them arrest you. The longer you’re held the more money you’ll get in an out of court settlement and trust me that’s what it’ll be. They won’t want it going to a jury. In the end, 5 to 10 minutes is about all the time you should allow for this nonsense. After that you should announce that you have places to go and people to see. If they say you can’t go you’re next question should be “are you telling me I’m under arrest?”. Because detaining you and denying you your freedom IS a big deal. Walk away. Once they lay hands on you YOU ARE UNDER ARREST. Comply completely with everything they say and SMILE, you’re on your way to lots of money! And yes, I am an ex-cop.
That’s very valuable information, Vann. Thanks a lot for it.