Michigan Open Carry, Inc.
Open Carry Specific => OC Experiences => Topic started by: chaneyd on July 06, 2010, 12:56:24 PM
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Hello all. New poster here and need help.
Was stopped OC on my motorcycle in Battle Creek over the weekend and it was pretty nasty. Cops in my face, etc. Filed a complaint this morning with the city attorney. She just called and stated that the law does not allow OC on a motorcycle, only while walking. What gives here? Is it specifically prohibited? New exact law and told her I would call her back. She stated this was HER interpretation of the law.
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Do you have a CPL? Contact an attorney. MOC.INC has several attorneys they can refer to you that might be able to help you out...
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Some discussion on this topic in this old thread from OCDO
http://forum.opencarry.org/forums/showthread.php?55656-OC-Allowed-on-Motorcycles-and-Bicycles&highlight=motorcycle (http://forum.opencarry.org/forums/showthread.php?55656-OC-Allowed-on-Motorcycles-and-Bicycles&highlight=motorcycle)
Bronson
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Yes, I have my CPL. City attorney said that they have 'reasonable suspicion' to make stops for OC on bikes, therefore I could be stopped any time in Battle Creek which I would think would be harrassment. I disagree with their position and so does the State Police.
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Ok cool on the cpl. Not sure if you were charged and/or if the charge was a felony or misdemeanor. If you were charged , which I am guessing your were. I would suggest keeping all details of the stop to yourself and your attorney until the final outcome. First and foremost contact an attorney ASAP. Someone within the MOC.INC should be able to refer an attorney. As I know they have several that can help. I do not have the specific information.
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Was not arrested or had gun removed. Simply stated that they make stops on OC. My position is that they are violating the law. City attorney stated 'reasonable suspicion' exists on OC on a bike. Crap!! it does. Need a legal opinion on that. It's considered a Terry Stop.
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Great so if no charges were filed. Give us the details! From what you have stated so far it would seem both need retraining...
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Went for an ice cream with the wife and friends on the motorcycles when I get pulled over for open carry. Next thing you know, there's 4 cars, 1 motorcycle cop, 6 cops altogther. Get the same rehetoric. I stopped you because you have a gun. Me - so? Him: It's illegal. Here we go again. I even had my trifold on gun laws with me. He looks at it and says I could have just made this up. Wanted to know where my 'CCW' was. I say, 'you mean CPL?' He says no, CCW. Those are two different things. I just laugh. Couldn't believe this *****. I'm not free to go he says and I say that I'm under arrest. He says no. I say, yes I am if I'm free to go. Finally another cop shows up, tells me I'm acting like John Wayne for carrying and that B.C. will stop anyone who does so. I get badge numbers, calling cards, etc. and told him I would be down next week to file a complaint. All this for an ice cream.
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That's an illegal stop if I've ever heard of one! Where do they get the idea that just because someone has a gun they can stop them??? The SUPREME COURT has ruled that POSSESSION OF A FIREARM IN AND OF ITSELF IS NOT REASONABLE ARTICULABLE SUSPICION FOR A STOP! This is exactly the same as if you're driving your car and get stopped "just to make sure you're licensed to drive". This is not legal. The cops need RAS to stop you, because some people are licensed to drive, and until they have RAS that you're not licensed, they can't legally stop you. The same is true for OC. Unless they have RAS that a crime has been (or is about to be) committed, they cannot stop you "just to see if you're licensed". Put the two together (driving/riding and OC) and it's no different. This was an illegal stop. Especially since they ADMITTED that they stopped you for OC! (according to your post)
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And I don't know where the city attorney gets this information, unless she's talking about OC without a CPL on a motorcycle. That is a gray area, so DON'T DO IT. However, OC WITH a CPL on a motorcycle is perfectly legal because you're covered under your CPL to carry any way you choose whether you're in (on) your private vehicle or not.
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The city attorney is only saying that a reasonable suspicion stop will occur in BC if seen OC on a bike. That's what I disagree with.
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As you should.. Seems that battle creek PD and its attorney may be operating under color of law. I have sent both the chief and attorney the open carry info packet's supplied by MOC.INC. These were not sent as a representative of MOC but as an individual. Looks like another event may be needed in BC.
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As you should.. Seems that battle creek PD and its attorney may be operating under color of law. I have sent both the chief and attorney the open carry info packet's supplied by MOC.INC. These were not sent as a representative of MOC but as an individual. Looks like another event may be needed in BC.
+1
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I'll be going to the BC city commission meeting tonight at 7. Will have documents with me and the items I've found regarding what is considered a 'reasonable suspicion'. We'll see what happens.
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The city attorney is only saying that a reasonable suspicion stop will occur in BC if seen OC on a bike. That's what I disagree with.
And the reasonable suspicion that a crime has been (is being) committed is.... ?
They have nothing. This is illegal. A OC ride may happen in the near future...
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I'll be going to the BC city commission meeting tonight at 7. Will have documents with me and the items I've found regarding what is considered a 'reasonable suspicion'. We'll see what happens.
Let us know how it goes!
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If potential Criminal Charges are involved, I wouldn't say another word here, to the city attorney, or the police. Contact a lawyer immediately. After that is cleared up, then address your civil/conduct concerns with the Police.
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City attorney says that's HER opinion on OC. Can't seem to find where a Terry Stop is prohibited for OC on a bike.
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If potential Criminal Charges are involved, I wouldn't say another word here, to the city attorney, or the police. Contact a lawyer immediately. After that is cleared up, then address your civil/conduct concerns with the Police.
No criminal charges. Just harrassment by the police and a misunderstanding of OC laws by the city attorney.
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After further review. I have know knowledge nor can find any case law in regards to OC on a motorcycle. In fact the officer could make a stop do to the fact that there is no case law. As he had reasonable suspision as to if you had a cpl.
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Horse$#!^......No law on the books......NO LAW BROKEN! This is something that is open to interpritation by every do-gooder that holds a public office and hold there own agenda!
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.
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After further review. I have know knowledge nor can find any case law in regards to OC on a motorcycle. In fact the officer could make a stop do to the fact that there is no case law. As he had reasonable suspision as to if you had a cpl.
But I disagree that 'reasonable suspicion' is in play merely for OC on a bike. Just the opposite. If I were a police officer I would NOT think that a crime was about to be committed or had been committed which is what reasonable suspicion must have. I would suspect the biker HAD a permit. Even OC on a bike is a gray area.
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After further review. I have know knowledge nor can find any case law in regards to OC on a motorcycle. In fact the officer could make a stop do to the fact that there is no case law. As he had reasonable suspision as to if you had a cpl.
As his suspision could have been wether you were commiting a 5 year felony of CCW.
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After further review. I have know knowledge nor can find any case law in regards to OC on a motorcycle. In fact the officer could make a stop do to the fact that there is no case law. As he had reasonable suspision as to if you had a cpl.
As his suspision could have been wether you were commiting a 5 year felony of CCW.
I disagree with the notion a crime is being committed merely by OC'ing on a bike. Do you stop someone to check if they have a license to drive their car? Is that reasonable suspicion?
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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?
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Back at you. Cite one that does. OC on a bike should be treated no different than OC on foot.
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A motorcycle is a motor vehicle. Therefore if the weapon is loaded, on your person you are required to have a cpl.
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Understood. But not detained for over an hour because of it. That no longer is a Terry Stop. That's pure harrassment.
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Agreed. Hopefully the recent emails to the chief and attorney will induce retraining. As the city attorney has replied to me in regards to the OC packet and was very thankful.
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They already have had several packets sent to them and even hand delivered. They claim ignorance when we know otherwise.
Mastiff has had issues with them before and they got themselves into a peck of trouble back in the winter when we had the OC march in BC. The problem is they feel they can stop anyone they see OCing in their city. However just because they don't know if you are licensed does NOT give them RAS to stop you and find out if you are.
You MUST disclose when OCing on a motorcycle if stopped however as you are doing so under the legal cover of your CPL.
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No criminal charges. Just harrassment by the police and a misunderstanding of OC laws by the city attorney.
I wasn't sure if you had done things like informed the Officer you have a CPL first thing when he approached you. Since you were carrying on the motor vehicle, as someone said earlier the question as to whether it was technically opened or concealed is a legal gray area at best.
In the mean time, I look forward to haring how this turns out.
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They already have had several packets sent to them and even hand delivered. They claim ignorance when we know otherwise.
Mastiff has had issues with them before and they got themselves into a peck of trouble back in the winter when we had the OC march in BC. The problem is they feel they can stop anyone they see OCing in their city. However just because they don't know if you are licensed does NOT give them RAS to stop you and find out if you are.
You MUST disclose when OCing on a motorcycle if stopped however as you are doing so under the legal cover of your CPL.
Mastiff and I both were at the City commission meeting tonight and voiced our issues with them. I hope they will listen. I had 2 commissioners come up to me after the meeting and apologized for the way the police acted. That was nice. Hopefully something will come of it.
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Good work guys!!
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A vehicle (Latin: vehiculum) is a device that is designed or used to transport people or cargo. Most often vehicles are manufactured (e.g. bicycles, cars, motorcycles, trains, ships, boats, and aircraft).[1]
Vehicles may be propelled or pulled by engines or animals including humans, for instance, a chariot, a stagecoach, a mule-drawn barge, an ox-cart or rickshaw. However, animals on their own, though used as a means of transport, are not called vehicles, but rather beasts of burden or draft animals. This distinction includes humans carrying another human, for example a child or a disabled person. Means of transport without a vehicle or animal would include walking, running, crawling, or swimming.
Vehicles that do not travel on land often are called craft, such as watercraft, sailcraft, aircraft, hovercraft, and spacecraft
Land vehicles are classified broadly by what is used to apply steering and drive forces against the ground: wheeled, tracked, railed, or skied.
I'm learning from this post that we are not out of the woods yet! I'm going to buy a recording device for the day I become baptized.
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28.425c License; form; authorized conduct.
Sec. 5c.
(1) A license to carry a concealed pistol shall be in a form, with the same dimensions as a Michigan operator license, prescribed by the department of state police. The license shall contain all of the following:
(a) The licensee's full name and date of birth.
(b) A photograph and a physical description of the licensee.
(c) A statement of the effective dates of the license.
(d) An indication of exceptions authorized by this act applicable to the licensee.
(e) An indication whether the license is a duplicate.
(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.
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A motorcycle is a motor vehicle. Therefore if the weapon is loaded, on your person you are required to have a cpl.
Just a question for you, with no hostility intended:
Would you, by that logic, say that a cop who sees a person printing should be able to stop them to see if they have a cpl?
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There are police out there that will stop if they suspect CC even though law forbids it.
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There are police out there that will stop if they suspect CC even though law forbids it.
I know and its not a practice I agree with, I'm just trying to better understand wardogs position.
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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?
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OC on a vehicle just plain isn't mentioned... so it would automatically be legal.
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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.
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OC on a vehicle just plain isn't mentioned... so it would automatically be legal.
But wouldn't that violate the transport law?
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What transport law?
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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.
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I don't even consider it a gray area. Neither does the SP.
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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.
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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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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.
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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.
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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.
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BC city commissioners apologized for the incident. Have a meeting with the police Internal Affairs inspector tomorrow. Will update.
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BC city commissioners apologized for the incident. Have a meeting with the police Internal Affairs inspector tomorrow. Will update.
Very nice.
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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.
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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.
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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.
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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.
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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.
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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.
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In my opinion, once the police verified your person and your plate, any future stops for carrying open would be an harassment. You've already been checked out previously.