Open carry and refusal to produce ID

[mackler]

I saw the video of Dave Ridley conversing with the cops who stopped him for carrying openly in Manchester.  (and BTW, awesome work!  Better than watching Cops.  I look forward to more such reporting.)

In the video Dave identifies himself by name to the LEO, but refuses to produce written ID.  I was curious as to whether this is really the law, so I looked into it a bit.  There are two statutes implicated:

• Questioning and detaining suspects
• Loitering and Prowling

First, I note the loitering statute says "Failure to identify or account for oneself, absent other circumstances, shall not be grounds for arrest."  From that, it doesn't sound like you have to even give your name to a LEO if there are no justifying "circumstances."

Next, I see that the circumstances in question are such as would warrant alarm for the safety of persons or property in the vicinity.  As you can read in the statute, one such circumstance is possessing property which would lead a reasonable person to believe a crime was about to be perpetrated.  Question: is it reasonable believe someone is about to perpetrate a crime simply because he's walking down the street with a pistol?

Turning next to the "stop and identify" statute, a LEO may demand your name, address, business abroad, and destination if the officer has reason to suspect you are committing, have committed or are about to commit a crime.  Question: Is walking down the street with a pistol reason to suspect you're involved in a crime?

Of course, we would answer these questions in the negative.  Now, I am in no position to give anyone advice nor criticism.  I don't know if I would be courageous enough to do what Dave did, and I have nothing but respect and awe for his refusing to provide ID to the officer.

That said, I have this question for Dave: why did you give him your name at all?  If you're going to make a point of asserting your rights in contradiction to a LEO's desire to obtain information about you, why not simply remain silent?  Of course it increases the likelihood of arrest, but it doesn't seem like you are overly fearful of that eventuality, otherwise you would have produced written ID.

Whether openly carrying gives rise to reasonable suspicion of criminal activity is a question we would like to have determined.  It may be that forcing the issue by being arrested and litigating it is the best way to settle it.  Of course there may be less extreme approaches, such as requesting an opinion from the city attorney, but a judicial precedent would really provide powerful legal support in the event of future police stops.

[Dave Ridley]

<<is it reasonable believe someone is about to perpetrate a crime simply because he's walking down the street with a pistol?>>

folks will claim it is if no one ever does it, and stop claiming it is once it becomes common.  So our job is to make it more common.
still, i only open carry when with friends or well dressed.   i will try to do that more often.  everyone else seems to be open carrying more often as well.

[d_goddard]

Question: is it reasonable believe someone is about to perpetrate a crime simply because he's walking down the street with a pistol?

First, +1 to you for excellent research!

http://freestateblogs.net/nhgunfaq

the New Hampshire Attorney General's office has made it clear that open carry is a right, and that another person's "annoyance and alarm" doesn't supersede that right.

[mvpel]

Indeed, open carry is required by law unless you have permission from government authority.

[Crocuta]

http://freestateblogs.net/nhgunfaq

the New Hampshire Attorney General's office has made it clear that open carry is a right, and that another person's "annoyance and alarm" doesn't supersede that right.

This may be well worth the effort to get an official published AG's opinion on the subject.  With the potential for increased stops of this type, it would be in the AG's interest to make an official declaration on the subject.  Someone like Dave who has been stopped more than once might have good standing to ask for this type of opinion.  Once established, it would be a powerful weapon to use during these confrontations.

Some AG's are funny, though and will only issue opinions on the request of a county or city prosecutor.

[EthanAllen]

Why would a criminal openly carry a weapon in a holster like Dave to bring attention to themselves? Wouldn't it be more reasonable to suspect a crime was about to possibly be committed if the weapon were drawn rather than holstered?

[mackler]

the New Hampshire Attorney General's office has made it clear that open carry is a right, and that another person's "annoyance and alarm" doesn't supersede that right.

I don't think that opinion is exactly on point.  The question is not whether you have a right to open carry, the question is whether you have to identify yourself.

Also, Sam Cohen's article doesn't provide a source for that claim about the AG.  Even if you think that opinion is what you need, you'll probably want to find out where, when, and exactly what the AG said.

[KBCraig]

Just for giggles, I earned some money for NHfree by clicking the top ad, which happened to be for policelink.com. 

[mackler]

mack,

Where you able to find any case law? which might answer that question, or have people genuinely just not pushed this issue?

Well, obviously I haven't found a case that exactly answers the question, otherwise it wouldn't be a question.  I have found a number of cases of interest, which I will describe here.

First, keep in mind that I just started looking into this yesterday, so this is only what I have found so far.  Second, understand that although these are cases, they all arise out of statutes.  Police cannot demand that you produce ID unless there's a statue allowing them to.  Even then, the statute may be unconstitutional, hence these cases.  With regard to the federal cases, keep in mind they are not from New Hampshire, so just because the statute in the case was unconstitutional doesn't mean the NH statute is also.

Federal Cases of Interest

Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637 (1979)
Findlaw link | Justia link | Cornell Link

In this 1979 case, the Supreme Court invalidated a conviction for violating a Texas stop and identify statute on Fourth Amendment grounds.  The Court ruled that the initial stop was not based on specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity.  Absent that factual basis for detaining the defendant, the risk of "arbitrary and abusive police practices" was too great and the stop was impermissible.

Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855 (1983)
Findlaw link | Justia link

In this 1983 case, the Supreme Court invalidated a modified stop and identify statute on vagueness grounds.  A California law required a suspect to give an officer "credible and reliable" identification when asked to identify himself.  The Court held that the statute was void because it provided no standard for determining what a suspect must do to comply with it, resulting in "virtually unrestrained power to arrest and charge persons with a violation." 

Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 124 S.Ct. 2451 (2004)
Findlaw link | Justia link | Cornell Link

New Hampshire Cases of Interest

State v. Dodier, 135 N.H. 134, 600 A.2d 913 (1991)
State v. Graca, 142 N.H. 670, 708 A.2d 393 (1998)
State v. Jaroma, 137 N.H. 562, 630 A.2d 1173 (1993)
State v. Licks, 154 N.H. 491, 914 A.2d 1246 (2006)
State v. White, 119 N.H. 567, 406 A.2d 291 (1979)
State v. Gosselin, 117 N.H. 115, 370 A.2d 264 (1977)
State v. Landry, 117 N.H. 115, 370 A.2d 264 (1976)
State v. Gilson,116 N.H. 230, 356 A.2d 689 (1976)
State v. Nelson, 105 N.H. 184, 196 A.2d 52 (1963)
State v. Lavallee, 104 N.H. 443, 189 A.2d 475 (1963)

I'm going to see if I can find these cases online for free somewhere.  I'll finish this post later...

[penguins4me]

The "papers please" problem of requiring an individual to identify him/herself has been upheld by the US supreme court in Nevada vs Hiibel.

It sucks, but the only thing the court said is required is to verbally state your name (not even sure place of residence is required).

Another thing to get stricken from the books eventually, but for now, that's what da law is. :/

[JonM]

The "papers please" problem of requiring an individual to identify him/herself has been upheld by the US supreme court in Nevada vs Hiibel.

It sucks, but the only thing the court said is required is to verbally state your name (not even sure place of residence is required).

Another thing to get stricken from the books eventually, but for now, that's what da law is. :/

Only if there is a state law requiring it, as there is in Nevada.  If NH lacks such a law, then you don't have to tell them.

[mackler]

Im thinking, there might be a distinction between asking for ID or asking for a name, but maybe not. 

Yes there is a distinction.  The NH statute permits the latter, not the former.

[Crocuta]

Police cannot ask you for ID unless there's a statue allowing them to. 

They can *ask* you anything they want to.  The real issue is if you are required under statute to answer or produce anything in response to that request.

[money dollars]

Im thinking, there might be a distinction between asking for ID or asking for a name, but maybe not. 

Yes there is a distinction.  The NH statute permits the latter, not the former.

I don't have a problem giving 'name, address, business abroad and where I am going', but that is it. I will even be nice about it, and follow it up with some questions of my own. Maybe even a "nice to meet you, officer x"

I think Liko Kenny made a video of what not to do. Saying "you can't do this to me" is one of the things you shouldn't do.

[mackler]

I don't have a problem giving 'name, address, business abroad and where I am going', but that is it. I will even be nice about it, and follow it up with some questions of my own. Maybe even a "nice to meet you, officer x"

I think Liko Kenny made a video of what not to do. Saying "you can't do this to me" is one of the things you shouldn't do.

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:

LEO: May I talk to you for a moment, Sir?
Me:  My name is Adam Mackler. I live at 123 Main Street.  I am on my way to Murphy's Tap room.
LEO:  I was just noticing you're carrying a firearm in public.  You know that might alarm some people?
Me:  My name is Adam Mackler. I live at 123 Main Street.  I am on my way to Murphy's Tap room.
LEO: Do you have some identification I could see?
Me:  My name is Adam Mackler. I live at 123 Main Street.  I am on my way to Murphy's Tap room.
LEO: I understand that.  I'm asking if you have a driver's license or some form of written ID so I can confirm what you're telling me.
Me:  My name is Adam Mackler. I live at 123 Main Street.  I am on my way to Murphy's Tap room.
etc.

The interaction might lead to my arrest, but (assuming an honest LEO) would result in a police report ideally suited to prevailing in court.