Author Topic: Got busted on the motorcycle  (Read 23763 times)

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Offline EM87

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Re: Got busted on the motorcycle
« Reply #40 on: July 09, 2010, 11:37:34 AM »
SNIP

(2) Subject to section 5o and except as otherwise provided by law, a license to carry a concealed pistol issued by the county concealed weapon licensing board authorizes the licensee to do all of the following:

(a) Carry a pistol concealed on or about his or her person anywhere in this state.

(b) Carry a pistol in a vehicle, whether concealed or not concealed, anywhere in this state.

So we can't carry in a vehicle without a CPL due to the transport law, and we can't carry on a vehicle (motorcycle) without a CPL because I am assuming that is also unlawful due to the transport law.  This is how I understand it now.  Reading the above quote, MCL 28.425c (2) (b) allows a CPL holder to carry in a vehicle but not on.  Does that mean that even with a CPL, OC on a vehicle is not legal?
"You'll be walking along.. OC.. and you'll feel GREAT. You'll feel FREEEEE like 1776 kind of Free." -cscitney87 (from opencarry.org)

Offline autosurgeon

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Re: Got busted on the motorcycle
« Reply #41 on: July 09, 2010, 11:52:47 AM »
OC on a vehicle just plain isn't mentioned... so it would automatically be legal.
Anything I post may be my opinion and not the law... you are responsible to do your own verification.

Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer."

Offline chaneyd

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Re: Got busted on the motorcycle
« Reply #42 on: July 09, 2010, 12:01:56 PM »
Agreed. That is also the SP position. I have that in writing from them. They have a policy of NOT stopping OC on a bike.

Offline EM87

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Re: Got busted on the motorcycle
« Reply #43 on: July 09, 2010, 05:37:59 PM »
OC on a vehicle just plain isn't mentioned... so it would automatically be legal.

But wouldn't that violate the transport law?
"You'll be walking along.. OC.. and you'll feel GREAT. You'll feel FREEEEE like 1776 kind of Free." -cscitney87 (from opencarry.org)

Offline chaneyd

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Re: Got busted on the motorcycle
« Reply #44 on: July 09, 2010, 05:49:03 PM »
What transport law?

Offline autosurgeon

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Re: Got busted on the motorcycle
« Reply #45 on: July 09, 2010, 10:34:23 PM »
OC on a vehicle just plain isn't mentioned... so it would automatically be legal.

But wouldn't that violate the transport law?

What I meant was since OC on a vehicle is not mentioned even with a CPL it therefor must be legal with a CPL.

We already know that OC without a CPL on a motorcycle is at best a dark grey area.
Anything I post may be my opinion and not the law... you are responsible to do your own verification.

Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer."

Offline chaneyd

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Re: Got busted on the motorcycle
« Reply #46 on: July 09, 2010, 11:09:07 PM »
I don't even consider it a gray area. Neither does the SP.

Offline autosurgeon

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Re: Got busted on the motorcycle
« Reply #47 on: July 09, 2010, 11:36:19 PM »
I don't even consider it a gray area. Neither does the SP.

However their opinion is only binding on the SP. Therefore it is a grey area until there is case law.
Anything I post may be my opinion and not the law... you are responsible to do your own verification.

Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer."

Offline venator

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Re: Got busted on the motorcycle
« Reply #48 on: July 09, 2010, 11:43:51 PM »
Cite any cases specifically saying an officer seeing someone carry a pistol on a motorcycle doesn't have reasonable suspicion to stop and check to see if they have a CPL?   
RAS is often left up to the courts.  As I have argued the mere possesion of a firearm in/on a prohibitted or restricted area or vehicle is not in itself RAS (my opinion).

I use the analogy below and this topic has been discussed to death on both this site (http://forum.opencarry.org/forums/showthread.php?71621-LEO-encounter-at-a-hospital) and MGO.

A person with a CPL can carry openly in most of the places concealed carry is not allowed.  Also a person can receive permission from the owner/agent to carry.  That is, a CPL holder can carry in a School or a bar as long as it's openly as well as someone without a CPL with permission.  
 
As for RAS to detain someone for OCing in a prohibited place I'll compare it to stopping a person driving a car just see if they have a DL.  Because some people can lawfully drive so too can some people possess firearms in prohibited places (including in/on a vehicle). You can't just stop a driver to see if they have a DL (Upheld by US Supreme Court) you have to have some other reason that a law is being broken (i.e. driving without a taillight for example.).  So just because someone has a firearm in say a place that sells alcohol (or in/on a vehicle) and you know that some people are allowed to do that, unless you know that person doesn't have a CPL you can't ask for a CPL.  See the analogy?  

As for OC on a motorcycle the LEO would have to stop the rider for some reason other than the firearm.  
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Offline venator

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Re: Got busted on the motorcycle
« Reply #49 on: July 09, 2010, 11:46:18 PM »
A motorcycle is a motor vehicle. Therefore if the weapon is loaded, on your person you are required to have a cpl.

The State police's position is that OC without a CPL on a motorcycle is lawful as the officer can see the weapon.  So there is conflicting opinions on this topic...hence the gray area.
Family book on OPEN CARRY go to: http://www.myparentsopencarry.com/
Looking forward to having more smites than posts.  Thanks all.
The above are my opinions only.  Please seek an attorney concerning all questions of law.

Offline venator

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Re: Got busted on the motorcycle
« Reply #50 on: July 09, 2010, 11:49:04 PM »

You MUST disclose when OCing on a motorcycle if stopped however as you are doing so under the legal cover of your CPL.
Gray area.  Keep in mind the MSP position is it's not considered concealed on a motorcycle so no need to conceal.  But I would agree that it would be a question for the courts to decide OR for the legislature to clarify.  An AG opinion would be helpful as well.
« Last Edit: July 09, 2010, 11:51:43 PM by venator »
Family book on OPEN CARRY go to: http://www.myparentsopencarry.com/
Looking forward to having more smites than posts.  Thanks all.
The above are my opinions only.  Please seek an attorney concerning all questions of law.

Offline chaneyd

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Re: Got busted on the motorcycle
« Reply #51 on: July 10, 2010, 08:18:48 AM »
Quote from: venator
As for RAS to detain someone for OCing in a prohibited place I'll compare it to stopping a person driving a car just see if they have a DL.  Because some people can lawfully drive so too can some people possess firearms in prohibited places (including in/on a vehicle). You can't just stop a driver to see if they have a DL (Upheld by US Supreme Court) you have to have some other reason that a law is being broken (i.e. driving without a taillight for example.).  So just because someone has a firearm in say a place that sells alcohol (or in/on a vehicle) and you know that some people are allowed to do that, unless you know that person doesn't have a CPL you can't ask for a CPL.  See the analogy?  

As for OC on a motorcycle the LEO would have to stop the rider for some reason other than the firearm.  
I agree with you 100%. I used the same anology on the stop that was made on me to the BC police and they said it was different because it involved a firearm. Can't fix stupid I guess.
« Last Edit: July 10, 2010, 11:49:54 AM by Evil Creamsicle »

Offline chaneyd

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Re: Got busted on the motorcycle
« Reply #52 on: July 13, 2010, 02:30:31 PM »
BC city commissioners apologized for the incident. Have a meeting with the police Internal Affairs inspector tomorrow. Will update.

Offline FatboyCykes

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Re: Got busted on the motorcycle
« Reply #53 on: July 13, 2010, 03:18:32 PM »
BC city commissioners apologized for the incident. Have a meeting with the police Internal Affairs inspector tomorrow. Will update.

Very nice.

Offline drtodd

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Re: Got busted on the motorcycle
« Reply #54 on: July 16, 2010, 12:40:55 AM »
Quote from: venator
As for RAS to detain someone for OCing in a prohibited place I'll compare it to stopping a person driving a car just see if they have a DL.  Because some people can lawfully drive so too can some people possess firearms in prohibited places (including in/on a vehicle). You can't just stop a driver to see if they have a DL (Upheld by US Supreme Court) you have to have some other reason that a law is being broken (i.e. driving without a taillight for example.).  So just because someone has a firearm in say a place that sells alcohol (or in/on a vehicle) and you know that some people are allowed to do that, unless you know that person doesn't have a CPL you can't ask for a CPL.  See the analogy?  

As for OC on a motorcycle the LEO would have to stop the rider for some reason other than the firearm.  
I agree with you 100%. I used the same anology on the stop that was made on me to the BC police and they said it was different because it involved a firearm. Can't fix stupid I guess.

Assuming for argument's sake that, in general, OC on Motorcycle is illegal (not saying it is, just the argument)I would tend to disagree... and would only agree if the number of CPL holders surpassed 50% of the driving population.  Remember, it MAY not be a ticket-able offense if you have a tail-light out IF you have an RR that has not expired yet.  Using the logic you gave, a LEO could not pull the car over.  But, back OT, it does seem that they could run the plates and find out if you had a CPL.  It will be interesting to see what the PD Internal Affairs says.
"The claim and exercise of a constitutional right cannot be converted into a crime." Miller v. U.S. 230 F 486 at 489

"Where rights as secured by the Constitution are involved, there can be no rule making or legislation which will abrogate them." Miranda v. Ariz., 384 U.S. 436 at 491 (1966).

Offline chaneyd

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Re: Got busted on the motorcycle
« Reply #55 on: July 16, 2010, 08:32:40 AM »
I met with the BC Internal Affairs officer yesterday. Lenghty meeting. He was told by the city attorney to investigate this. He has determined that BC police will in all probability continue to stop anyone on a motorcycle that is OC. because that's the way the city attorney interprets it and they take her ruling on how they do police business. But..........what they did during the stop was wrong and he agreed with me that it shouldn't have lasted 45 minutes and involved 6 police officers. He indicated it will get straightened out when he talks to the officers this week and will be sending me a letter as to what is going to happen over this. Once they pulled me over and asked for my CPL that should have been the end of it. Instead, they chose to engage me in rhetoric that was uncalled for and demeaning. That in itself is not violating any sort of policy. To me that's bull***t. Show some respect for the people you stop. So, I guess my position on this is that next time they pull me over I'll refuse to show my CPL and see what they do. If they arrest me we'll have to do battle in a court room. I DO NOT believe you should get stopped on a motorcycle for OC when your firearm is in plain sight. The law is very clear to me. The law states 'IN' a vehicle, not 'ON' a vehicle. I know this is a gray area and has been kicked around forever. It needs to get addressed now.

Offline EM87

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Re: Got busted on the motorcycle
« Reply #56 on: July 16, 2010, 10:36:06 AM »
SNIP

So, I guess my position on this is that next time they pull me over I'll refuse to show my CPL and see what they do. If they arrest me we'll have to do battle in a court room. I DO NOT believe you should get stopped on a motorcycle for OC when your firearm is in plain sight. The law is very clear to me. The law states 'IN' a vehicle, not 'ON' a vehicle. I know this is a gray area and has been kicked around forever. It needs to get addressed now.

If you have the money to take this to court and feel you could win, by all means, do it!  If you're right, this would create case law and get rid of the gray area we've been plagued by for so long.
"You'll be walking along.. OC.. and you'll feel GREAT. You'll feel FREEEEE like 1776 kind of Free." -cscitney87 (from opencarry.org)

Offline drtodd

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Re: Got busted on the motorcycle
« Reply #57 on: July 16, 2010, 11:07:26 AM »
I met with the BC Internal Affairs officer yesterday. Lenghty meeting. He was told by the city attorney to investigate this. He has determined that BC police will in all probability continue to stop anyone on a motorcycle that is OC. because that's the way the city attorney interprets it and they take her ruling on how they do police business. But..........what they did during the stop was wrong and he agreed with me that it shouldn't have lasted 45 minutes and involved 6 police officers. He indicated it will get straightened out when he talks to the officers this week and will be sending me a letter as to what is going to happen over this. Once they pulled me over and asked for my CPL that should have been the end of it. Instead, they chose to engage me in rhetoric that was uncalled for and demeaning. That in itself is not violating any sort of policy. To me that's bull***t. Show some respect for the people you stop. So, I guess my position on this is that next time they pull me over I'll refuse to show my CPL and see what they do. If they arrest me we'll have to do battle in a court room. I DO NOT believe you should get stopped on a motorcycle for OC when your firearm is in plain sight. The law is very clear to me. The law states 'IN' a vehicle, not 'ON' a vehicle. I know this is a gray area and has been kicked around forever. It needs to get addressed now.

"lasted 45 minutes"....therein lies the crux of the issue.  The officers easily could have checked and verified that you have a CPL, thereby dispelling their belief that you were violating their interpretation of the law.

In fact, MCL28.425c specifically authorizes a CPL holder to carry "unconcealed" (openly) in a motor vehicle:

MCL 28.425c
License; form; authorized conduct.
Sec. 5c.
(2) Subject to section 5o and except as otherwise provided by law, a license to carry a concealed pistol
issued by the county concealed weapon licensing board authorizes the licensee to do all of the following:
(a) Carry a pistol concealed on or about his or her person anywhere in this state.
(b) Carry a pistol in a vehicle, whether concealed or not concealed, anywhere in this state.

As stated in Terry v. Ohio,: "The scope of the search must be strictly tied to and justified by' the circumstances which rendered its initiation permissible." 392 U.S. at 392 U. S. 19, quoting Warden v. Hayden, 387 U. S. 294, 387 U. S. 310 (1967) (Fortas, J., concurring). The reasonableness requirement of the Fourth Amendment requires no less when the police action is a seizure permitted on less than probable cause because of legitimate law enforcement interests. The scope of the detention must be carefully tailored to its underlying justification.
The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary, and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time. See, e.g., United States v. Brignoni-Ponce, supra, at 422 U. S. 881-882; Adams v. Williams, supra, at 407 U. S. 146.

Therefore, the Investigative stop, IMHO, was in actuality an illegal "arrest"--- I would definitely at least inform the PD that you are considering legal action.
"The claim and exercise of a constitutional right cannot be converted into a crime." Miller v. U.S. 230 F 486 at 489

"Where rights as secured by the Constitution are involved, there can be no rule making or legislation which will abrogate them." Miranda v. Ariz., 384 U.S. 436 at 491 (1966).

Offline drtodd

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Re: Got busted on the motorcycle
« Reply #58 on: July 16, 2010, 11:14:30 AM »
SNIP

So, I guess my position on this is that next time they pull me over I'll refuse to show my CPL and see what they do. If they arrest me we'll have to do battle in a court room. I DO NOT believe you should get stopped on a motorcycle for OC when your firearm is in plain sight. The law is very clear to me. The law states 'IN' a vehicle, not 'ON' a vehicle. I know this is a gray area and has been kicked around forever. It needs to get addressed now.

If you have the money to take this to court and feel you could win, by all means, do it!  If you're right, this would create case law and get rid of the gray area we've been plagued by for so long.

I am not an attorney but I think that in all probability they would throw it out as soon as they discover that you do have a CPL... ie it wouldn't get that far.  What it would take is someone without a CPL to push the "in" v "on" issue.  


Edited per posters request.
« Last Edit: July 16, 2010, 12:13:50 PM by autosurgeon »
"The claim and exercise of a constitutional right cannot be converted into a crime." Miller v. U.S. 230 F 486 at 489

"Where rights as secured by the Constitution are involved, there can be no rule making or legislation which will abrogate them." Miranda v. Ariz., 384 U.S. 436 at 491 (1966).

Offline chaneyd

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Re: Got busted on the motorcycle
« Reply #59 on: July 16, 2010, 12:57:04 PM »
SNIP

So, I guess my position on this is that next time they pull me over I'll refuse to show my CPL and see what they do. If they arrest me we'll have to do battle in a court room. I DO NOT believe you should get stopped on a motorcycle for OC when your firearm is in plain sight. The law is very clear to me. The law states 'IN' a vehicle, not 'ON' a vehicle. I know this is a gray area and has been kicked around forever. It needs to get addressed now.

If you have the money to take this to court and feel you could win, by all means, do it!  If you're right, this would create case law and get rid of the gray area we've been plagued by for so long.

I am not an attorney but I think that in all probability they would throw it out as soon as they discover that you do have a CPL... ie it wouldn't get that far.  What it would take is someone without a CPL to push the "in" v "on" issue.  


Edited per posters request.

I mentioned to the Inspector that I would be willing to do that to get the gray areas settled.