US v. Black 4th Circuit

[PJDiesel]

Not saying that it is a sweeping decision that will immediately nullify any laws.

Why not? They very specifically stated: "......that an individual carrying a handgun outside the home is “exercising his constitutional right to bear arms,”

Pretty cut and dried from what I am reading kinda like the Woollard decision.

 

[Elliotte]

It is relevant, just not dispositve because the issues are so different. The Rule 28j letter is entirely fair, I would have done the same. Remember, Moore recognized right outside the home and even Kachalsky said the right existed in some form. It all bears on the Maryland's point that there is NO right outside the home. Litigation is most often pawn moves. This was a pawn move. If you play chess, you will recall that pawn moves can be *very* important in the game.

Not true, MD said we have the right to long-gun open carry in the state.

 

[esqappellate]

The question was, I think, how would MSP know? I don't think that a SN on an AR is on open display, like one's license plate. The state has those data vacuums on the back of some police cars to scan and optically recognize all the plates the car passes.

Will the police be able to go to ranges and confiscate your rifle long enough to obtain and run the SN? If you have your AR in the trunk, and stupidly consent to a search after a traffic stop, can they remove the rifle and detain you long enough to run the SN? Most things are easily recognized as contraband or not. The exact same item will be either legal, or contraband, depending upon whether the SN exists on a list somewhere.

All true. But if they see the rifle it is an open question whether that is probable cause for an investigatory detention of the rifle long enough to run a check on the serial number (or you). Probable cause is easy to state but hard in its nusances. As you say, most contraband is obvious. Still, the rifle is contraband if it is not registered. So you can at least expect to be questioned by police if they see it. With the consent of the owner, the MSP will be able to post someone on private property (the range) and do the same. The point here is that we just don't know how aggressive the MSP or the County Police are going to be in enforcing the ban. As a rule, I don't like uncertainty so taking steps to protect yourself from stops by carrying the Form 77 just makes sense.

 

[esqappellate]

Not true, MD said we have the right to long-gun open carry in the state.

Yeah, that line got a big open laugh at yesterday's hearings at the House in Annapolis when one delegate told the committee that he didn't want to be a test case.

 

[Ab_Normal]

All true. But if they see the rifle it is an open question whether that is probable cause for an investigatory detention of the rifle long enough to run a check on the serial number (or you). Probable cause is easy to state but hard in its nusances. As you say, most contraband is obvious. Still, the rifle is contraband if it is not registered. So you can at least expect to be questioned by police if they see it. With the consent of the owner, the MSP will be able to post someone on private property (the range) and do the same. The point here is that we just don't know how aggressive the MSP or the County Police are going to be in enforcing the ban. As a rule, I don't like uncertainty so taking steps to protect yourself from stops by carrying the Form 77 just makes sense.

How are they going to find out it is NOT registered if they can't legally stop you? Or will they just go fishing?

 

[pilotguy]

All true. But if they see the rifle it is an open question whether that is probable cause for an investigatory detention of the rifle long enough to run a check on the serial number (or you). Probable cause is easy to state but hard in its nusances. As you say, most contraband is obvious. Still, the rifle is contraband if it is not registered. So you can at least expect to be questioned by police if they see it. With the consent of the owner, the MSP will be able to post someone on private property (the range) and do the same. The point here is that we just don't know how aggressive the MSP or the County Police are going to be in enforcing the ban. As a rule, I don't like uncertainty so taking steps to protect yourself from stops by carrying the Form 77 just makes sense.

I think this is the fine line between reasonable suspicion and probable cause and will still be a headache for some time to come. I read the Black decision (as a former police officer) to say that I needed actual probable cause to check the weapon. I could not just check the serial number because the default assumption is that it is legal.

 

[Les Gawlik]

And, I thought that was the import of Black. The mere utilization of one's Second Amendment right did not amount to probable cause or reasonable suspicion. Would probable cause be required to seize an AR long enough to obtain the SN? What if the owner refused to comply? Would that be a lawful order of a LEO? Interesting stuff.

 

[Les Gawlik]

I just figured out what they're going to do. It's not that hard. I don't want to post it in the clear, maybe over in WC.

 

[jonnyl]

The case mentioned "default position". It seems important to know what is used to determine where that line is drawn. If it was reasonable to assume that 95% of the AWs seen at a range are legally registered, wouldn't that have to be the default position? Meaning that they couldn't "run a check" without something more? (for example, maybe they're a gun guy and notice a handguard they know just came out 6 months after the effective date. That might make it reasonable to assume the whole gun is new. ??)

Note: I fully plan to make sure I have all documentation I'd likely need, but it's interesting to discuss how this case affects PC and future "man with a gun" calls.

 

[pilotguy]

The reason that I believe that it is a gray area is not because of the Black decision. I think Black was pretty clear that the gun alone is not probable cause for a stop. There are, however, a lot of other things that an officer could legitimately use for a stop and to check out a person, etc. Traffic laws, loitering, etc. It would really depend on how the officer legitimately articulated the reason for the stop or detention.

 

[Haides]

I just figured out what they're going to do. It's not that hard. I don't want to post it in the clear, maybe over in WC.

PM? Or did you post it somewhere?

 

[Dogabutila]

The case mentioned "default position". It seems important to know what is used to determine where that line is drawn. If it was reasonable to assume that 95% of the AWs seen at a range are legally registered, wouldn't that have to be the default position? Meaning that they couldn't "run a check" without something more? (for example, maybe they're a gun guy and notice a handguard they know just came out 6 months after the effective date. That might make it reasonable to assume the whole gun is new. ??)

Note: I fully plan to make sure I have all documentation I'd likely need, but it's interesting to discuss how this case affects PC and future "man with a gun" calls.

No, because I could put new handguards on an old firearm. The lower is what is considered the firearm so it doesn't matter what furniture I have on it.

 

[jonnyl]

No, because I could put new handguards on an old firearm. The lower is what is considered the firearm so it doesn't matter what furniture I have on it.

absolutely, just trying to think of an example where someone might have PC versus just deciding to run the s/n of every AW at the range... Another example might be seeing someone get out of a car with out of state plates with an AK. It may be a borrowed car from a buddy and a registered AK, but it might give PC..

 

[Dogabutila]

I would argue that the out of state plates does not in itself give probable cause (make it more likely than not) that a person is committing a crime. I could see out of state plates being part of a totality of circumstances justification for probable cause, but not by itself.

 

[jonnyl]

I would argue that the out of state plates does not in itself give probable cause (make it more likely than not) that a person is committing a crime. I could see out of state plates being part of a totality of circumstances justification for probable cause, but not by itself.

ok, but the real question is the other side of the equation. In the absence of anything at all, would the police be able to go to a range and start running serial #s. I don't think so regardless of what types of other things may give PC..

 

[esqappellate]

And, I thought that was the import of Black. The mere utilization of one's Second Amendment right did not amount to probable cause or reasonable suspicion. Would probable cause be required to seize an AR long enough to obtain the SN? What if the owner refused to comply? Would that be a lawful order of a LEO? Interesting stuff.

It is interesting stuff. Recall in Black, handguns were not contraband and open carry was perfectly legal. If SB 281 is enacted, an unregistered AW is specifically classified as contraband. The closest analogy might be controlled substances. With a prescription, the controlled substance would be legal. Without, it would be illegal and a felony. If the police caught you with a load of uppers, could they not investigate your claim that the medicine was prescribed?

 

[Les Gawlik]

If the police caught you with a load of uppers, could they not investigate your claim that the medicine was prescribed?

Here is where Black and the concept of "default position" might be of help. If it's a "load" or a number of pills that would be unusual to legitimately possess pursuant to a bona fide prescription, I would argue that might be reasonable suspicion to justify further investigation. But if the amount and prescription are not unusual, I would contend that further investigation based upon that alone would not be warranted. The "default position" for a person carrying an AR pursuant to his 2A rights cannot be "contraband".

 

[esqappellate]

Here is where Black and the concept of "default position" might be of help. If it's a "load" or a number of pills that would be unusual to legitimately possess pursuant to a bona fide prescription, I would argue that might be reasonable suspicion to justify further investigation. But if the amount and prescription are not unusual, I would contend that further investigation based upon that alone would not be warranted. The "default position" for a person carrying an AR pursuant to his 2A rights cannot be "contraband".

That"s a good argument The problem is that is arguable. I would not to have the argument at all

 

[Les Gawlik]

I agree. It's one thing to discuss academic points, it's quite another to have your freedom on the line.

 

[Dogabutila]

ok, but the real question is the other side of the equation. In the absence of anything at all, would the police be able to go to a range and start running serial #s. I don't think so regardless of what types of other things may give PC..

Would they be able to? Of course.
Would they be able to legally? Well..... The police can detain a law abiding citizen who has literally done nothing but OC, seize his firearm, refuse to return it on request, and people here will defend them. I don't think that it would be legal, but nobody seems to care. How much money do you have to spend fighting in court anyways?