Open carry and refusal to produce ID

[EthanAllen]

At first glance, I think the issue comes down is what, in NH, is 'reasonable suspicion'.  The ideal situation is to get a ruling, or otherwise legally binding opinion that says that legally open carrying a weapon is not grounds for reasonable suspicion absent other indicia of criminal activity.

Unfortunately if it hasnt been tested, in order to get in front of SCoNH, someone is going to have to refuse to identify himself at one of these stops, and get arrested. 

Do we know what kind of charges could reasonably stick from such a scenario?

I believe you are going to have to ask the arresting officer what exact "reasonable suspicion" they have for stopping you initially. Presuming you get a coherent answer, at that point you are going to have to make a very quick decision about whether or not you want to test the constitutionality of the stated probable cause for the stop.

In Dave's case as I recall, the officer claimed that "some citizens were concerned" or some such vague reasoning. That it seems to me would have been the perfect opportunity to test the constitutional legality of the "reasonable suspicion" as part of the probable cause requirement.

[mackler]

At first glance, I think the issue comes down is what, in NH, is 'reasonable suspicion'.  The ideal situation is to get a ruling, or otherwise legally binding opinion that says that legally open carrying a weapon is not grounds for reasonable suspicion absent other indicia of criminal activity.

That would be a fact-dependent analysis.  Just being in a "high crime" area could be an indicium of criminal activity.  Additionally, the police might just happen to be on the lookout for a criminal who matches your description.  That would definitely be reasonable suspicion.

Do we know what kind of charges could reasonably stick from such a scenario?

I would start with false imprisonment, if warranted add malicious prosecution, criminal restraint, and/or official oppression, and then maybe throw in some federal civil rights violations just for good measure.

[Russell Kanning]

Yeah, I was just thinking how much unrequired convo. Dave gave the LEO, such as "I don't mean any disrespect," and "actually the law doesn't require me to produce written identification."  I think if I ever had the balls to to try this sort of thing, the conversation would be something like:

It is easy to take a reservation .... the whole point is to hold a reservation.

Anyone can imagine the perfect way they will interact with the thugs when they finally stand up to them. Actually doing it is the important part.

Taking the next step is what it is all about.

[Dreepa]

It is easy to take a reservation .... the whole point is to hold a reservation.

The Seinfeld theory of Civil dis?

[Russell Kanning]

exactly ... also applicable to all of life

[mackler]

Anyone can imagine the perfect way they will interact with the thugs when they finally stand up to them.

I have to disagree with you there.  I have a pretty good imagination, yet even I would never have imagined waving my hand in front of a cop's face.  But I'm working on it.

[Checkpoint]

For those interested, The Hiibel case, complete with video and legal documentation, is available on the Identity Project's website at:

   http://papersplease.org/hiibel/

If you're not familiar with the Identity Project, it's an organization that provides advice, publicity and legal assistance to those who find their rights infringed, or their legitimate activities curtailed, by demands for identification.

You can find out more at:

  http://papersplease.org/who.html

The Hiibel case ended up going to the U.S. Supreme Court where Hiibel's conviction in the lower courts for failing to identify himself to a peace officer was upheld.

His defense primarily rested on the 4th Amendment and challenged the Constitutionality of a Nevada statute that requires an individual to provide their name to a peace officer upon request if the peace officer is conducting an investigation and has reasonable suspicion to believe the individual he/she is trying to identify has committed a crime.

The sheriff's deputy in this case had been notified by an anonymous caller that a man appeared to be hitting a woman sitting beside him in a truck being driven down the road. When the deputy arrived on scene, a truck matching the description was pulled off to the side of the road and Dudley Hiibel was standing outside the vehicle smoking a cigarette while his daughter was sitting in the cab.

While this wasn't discovered until later, Hiibel and his daughter had been arguing over whether or not she could continue to see her boyfriend and the daughter struck Hiibel in anger  - not the other way around. Hiibel demanded that the truck, being driven by his daughter, be pulled over so he could get out and let things cool down.

When the deputy arrived, he immediately demanded that Hiibel identify himself. Hiibel wanted to know why. The deputy stated he was "investigating an investigation" which wasn't good enough for Hiibel who refused to comply. Eventually the deputy arrested Hiibel for non-cooperation. Another officer in the meantime had thrown Hiibel's daughter to the ground and pinned her there after she began protesting her father's treatment and tried to get out of the truck.

In the end, the Supreme Court upheld the Constitutionality of the statute and Hiibel's conviction based upon the rational that the statute is narrowly tailored by requiring reasonable suspicion and that the deputy had reasonable suspicion based upon the anonymous phone call reporting a physical altercation.

While I think the court's logic was faulty in this case for several reasons, the court did make it clear that reasonable suspicion was necessary before a peace officer could legally demand someone's name. The court also hinted that there were 5th amendment issues at play but since they weren't adequately addressed at the trial court level, their decision did not include a 5th amendment analysis.

It should also be noted that Hiibel was not required to show an ID in this case because he was not driving at the time the deputy arrived onscene. As such, he would have no requirement to even have an ID on his person, let alone show it on demand. The statute in question only requires a name. 

I also have some experience with unreasonable identity demands by law enforcement.

I was stopped at a suspicionless joint task force roadblock in Southern Arizona in 2002 and was dragged out of my vehicle and arrested for failing to provide a drivers license on demand even though the cops admitted they had no reasonable suspicion of wrongdoing.

I fought the charges in court and they were dismissed with prejudice a year later.  Shortly thereafter, I turned around and filed a civil rights lawsuit against four of the police officers. That case is still working its way through the courts four years later. The next stop will be the 9th Circuit Court of Appeals. The Identity Project is providing legal assistance in the case.

For those interested, I've documented the entire case at:

   http://www.checkpointusa.org

Click on the TOPD Roadblock link on the left.

I was also stopped at a temporary Border Patrol Checkpoint two years ago. Learning from my first experience, I had a webcam setup on the dashboard this time around and recorded the entire encounter. It's available online at:

  http://checkpointusa.org/DHS/DHSroadblock.htm

Terry

[error]

Welcome to the Underground! Hopefully you'll decide to leave the Southwest to the Department of Homeland Insanity and join us here in the Free State.

[KBCraig]

Welcome to the forum, Terry! Great work!

CBP sets up those pesky checkpoints in NH from time to time. We could use you. 

[penguins4me]

Terry, I've just finished watching the video you'd made of the DHS checkpoint, and all I can say is, "bravo, you've inspired me!"

"Why?", "am I being detained", and "am I free to go?" - awesome. I'm going to buy and test a cheap audio recorder or two and keep one in the car in case I get stuck in such a situation.

I'll be forwarding your site's address off to friends, as well.

[mackler]

For those interested, The Hiibel case, complete with video and legal documentation, is available on the Identity Project's website at:
...
I was also stopped at a temporary Border Patrol Checkpoint two years ago. Learning from my first experience, I had a webcam setup on the dashboard this time around and recorded the entire encounter. It's available online at:

  http://checkpointusa.org/DHS/DHSroadblock.htm

Terry

Great post.  And the fact your name is Terry is not lost on me.  Coincidence...?

[mvpel]

"You're blocking traffic."

Uh, who set up the roadBLOCK in the first place, honey?  Hah!

[Checkpoint]

Welcome to the Underground! Hopefully you'll decide to leave the Southwest to the Department of Homeland Insanity and join us here in the Free State.

Thank you. I've been impressed with the activities of the Underground for a while now along with the philosophy employed in carrying them out. Since I grew up in New England, I've considered moving back in support of the free state and the Underground but nothing concrete at this stage.

"Why?", "am I being detained", and "am I free to go?" - awesome. I'm going to buy and test a cheap audio recorder or two and keep one in the car in case I get stuck in such a situation.

I'd recommend keeping at least two. If one is 'accidently' destroyed or malfunctions, there's probably not much you can do about it but if two show up with jack boot treads all over them, it's easier to make a case that the enforcement agents destroyed evidence... Of course with the Underground's porc411 system in place, having a cell phone ready to go with a hands free speaker system is probably just as good if not better.

I definitely need to setup a similar system in the Southwest. Would anyone be able to tell me the name of the organization providing the phone message to email attachment service?

Great post.  And the fact your name is Terry is not lost on me.  Coincidence...?

Purely.

----

Thanks for the positive feedback along with a great forum for sharing experiences of this nature....

Terry

[mackler]

I'd recommend keeping at least two. If one is 'accidently' destroyed or malfunctions, there's probably not much you can do about it but if two show up with jack boot treads all over them, it's easier to make a case that the enforcement agents destroyed evidence... Of course with the Underground's porc411 system in place, having a cell phone ready to go with a hands free speaker system is probably just as good if not better.

I think I see a business opportunity here.  I'd love to have a recording kit in my car with a couple hidden cameras and a mic.  Maybe some kind of wireless internet that would upload it to a server in real-time so the evidence can't be destroyed.

I definitely need to setup a similar system in the Southwest. Would anyone be able to tell me the name of the organization providing the phone message to email attachment service?

here's one:
https://www.j2.com/jconnect/twa/page/voicemail

[J’raxis 270145]

I'd recommend keeping at least two. If one is 'accidently' destroyed or malfunctions, there's probably not much you can do about it but if two show up with jack boot treads all over them, it's easier to make a case that the enforcement agents destroyed evidence... Of course with the Underground's porc411 system in place, having a cell phone ready to go with a hands free speaker system is probably just as good if not better.

I think I see a business opportunity here.  I'd love to have a recording kit in my car with a couple hidden cameras and a mic.  Maybe some kind of wireless internet that would upload it to a server in real-time so the evidence can't be destroyed.

I definitely need to setup a similar system in the Southwest. Would anyone be able to tell me the name of the organization providing the phone message to email attachment service?

here's one:
https://www.j2.com/jconnect/twa/page/voicemail

In some states you have to be careful, the cops are using wiretapping statutes against people who videotape or record in their car.  Yeah, I know... 

Some states such as New Hampshire.