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Probable cause and CCW with a permit
Licensed carrier carries concealed on Atlanta's MARTA mass transit, is detained for half an hour and released. A federal judge rules the detention was lawfully based on probable cause.
Here's the rub: if the offense of CCW were worded as "it is unlawful to carry a weapon concealed without a permit," then lack of a permit is part of the offense, and until there is reason to suspect that, there is no probable cause. But if it is worded as "It is unlawful to carry a weapon concealed. Exception for people having permits," then concealed carrying is the offense, and sufficient suspicion of that justifies an arrest or detention. Having the permit is a defense, and the officer doesn't have to rule that out, any more than he has to rule out insanity, justification, etc..
I think a separate question here is the length of the detention. Absent true arrest, the detention must be reasonable, and no more than is required for the proper purpose. Here, once the person shows his permit (and perhaps the officer verifies it is valid), the detention should end. I doubt suit would have been filed if the officer had asked for a permit, he'd shown it and matter had ended there.
Hat tip to readers Ryan Gill, Scott Nolde, and Ed Stone...
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This is another part of the (IMHO) unConstitutionally-vague "public gatherings" clause of Georgia's firearms laws. Exact wording of the section in question below (16-11-126 covers carrying a concealed weapon in general, 16-11-127 is the "public gatherings" clause):
O.C.G.A. § 16-11-127 (2009)
§ 16-11-127. Carrying deadly weapons to or at public gatherings; affirmative defenses
(a) Except as provided in Code Section 16-11-127.1, a person shall be guilty of a misdemeanor when he or she carries to or while at a public gathering any explosive compound, firearm, or knife designed for the purpose of offense and defense.
(b) For the purpose of this Code section, "public gathering" shall include, but shall not be limited to, athletic or sporting events, churches or church functions, political rallies or functions, publicly owned or operated buildings, or establishments at which alcoholic beverages are sold for consumption on the premises and which derive less than 50 percent of their total annual gross food and beverage sales from the sale of prepared meals or food. Nothing in this Code section shall otherwise prohibit the carrying of a firearm in any other public place by a person licensed or permitted to carry such firearm by this part.
(c) (1) This Code section shall not apply to competitors participating in organized sport shooting events.
(2) Law enforcement officers, peace officers retired from state, local, or federal law enforcement agencies, judges, magistrates, constables, solicitors-general, and district attorneys may carry pistols in publicly owned or operated buildings; provided, however, that a courthouse security plan adopted in accordance with paragraph (10) of subsection (a) of Code Section 15-16-10 may prohibit the carrying of a pistol.
(d) It shall be an affirmative defense to a violation of this Code section if a person notifies a law enforcement officer or other person employed to provide security for a public gathering of the presence of such item as soon as possible after learning of its presence and surrenders or secures such item as directed by such law enforcement officer or other person employed to provide security for such public gathering.
(e) A person licensed or permitted to carry a firearm by this part shall be permitted to carry such firearm, subject to the limitations of this part, in all parks, historic sites, and recreational areas, including all publicly owned buildings located in such parks, historic sites, and recreational areas and in wildlife management areas, notwithstanding Code Section 12-3-10, in wildlife management areas notwithstanding Code Section 27-3-1.1 and 27-3-6, and in public transportation notwithstanding Code Sections 16-12-122 through 16-12-127; provided, however, that a person shall not carry a firearm into a place prohibited by federal law.
(f) A person licensed or permitted to carry a firearm by this part shall not consume alcoholic beverages in a restaurant or other eating establishment while carrying a firearm. Any person violating this subsection shall be guilty of a misdemeanor.
Re-reading the above law, I believe the judge is completely incorrect in his reading of the law, section e) is NOT an affirmative defense, section d) is the only section labeled as an affirmative defense.
What a ridiculous ruling. "carrying a handgun openly [is] different from carrying concealed, as the officers seeing an open handgun bear the burden of having a reasonable suspicion that the person carrying openly does not have a firearms license."
So if the cop sees you carrying concealed, you've committed a crime, and can detain you and investigate, with any other articulable facts that give him any reason to believe you are engaging in illegal activity, and if you have a permit, it's an affirmative defense. But if you're carrying openly, the cop can't say anything without additional facts giving rise to probable cause.
Yeah, that's real smart right there.
This is simply intimidation of people who don't do what the police and certain judges want them to do. This wouldn't have gone any other way, these intimidators lost in the legislature and some of the courts and have since tried to make it too expensive and too troublesome for the citizen to exercise the rights that have been affirmed by legislators and courts. Because they can't dissuade them on legal grounds, they will do so using harrassment and economic punishment.
Is it Claire Wolfe time yet?
Remember the enforcement at the Atlanta airport that is proscribed by law? Didn't stop them. It can be beaten if one is arrested in areas where the law says he can carry, but only at great expense of disruption of life.
Never make the mistake that this judge or this cop simply made errors or misinterpreted the statutes. They did not. They know exactly what they are doing. They are the enemies of law and America.
Doesn't Supreme Court precedent require that every fact essential to guilt be proved by the Gov't beyond a reasonable doubt? If having a CCW permit is a fact upon which guilt depends, then the legislature may not shift the burden by making it an affirmative defense. In re Winship, I think.
I think that was the court's point - the elements of the supposed crime were complete when he carried a concealed handgun onto the train. Not having a concealed carry permit is not an element of the offense; rather, it is an affirmative defense to the offense of carrying concealed on the train.
Stupid, though, when all you have to do is carry openly.
Nope. NOTHING in the law distinguishes between open and concealed carry, read the above quotation of 16-11-127. And while section d) lists an affirmative defense against prosecution, subsection e) is NOT labeled as an affirmative defense.
Too many things wrong in this case.
Federal law prohibits asking for SSN. I have the section somewhere in my papers but even an MD can be fined for requesting your SSN. My SS card specifically states not for identification purposes and was issued without a BC. No BCs were required back in the 50s.
Splitting hairs concerning assumption of open carry = probable license and concealed = probable criminal is the type of BS one can expect from judges. Interestingly, I suggest that attorneys cannot serve in the legislative branches or executive branches of government because attorneys are members of the judicial branch and such service violates the separation of powers. Ifan attorney wishes to serve, the attorney needs to resign from the BAR so as not to violate separation of powers. Attorneys claim "we can't split hairs that finely" which is a lie. Check out how fine judges split things. Take partial birth abortion for instance.
probable cause uder the 4th is specific to and limited to getting warrants. It is not a clause that can be legitimately taken out of context and used a pretext to violate the People's law for government. The 4th DOES NOT say a cop can use probable cause to search and seize. The 4th DOES say probable cause is required to obtain a warrant and both the grammar and punctuation of the 4th support only the idea that reasonable searches and seizures REQUIRE a warrant.
But then under the doctrine of incorporation that the judges pulled out their arses, it is not really the 4th but some made up set of rules.
It's been bullshirt since that idiot Marshall incorrectly put down the Barron v Baltimore decision in 1833.
How does this square with JL v Florida?
JL v FLorida simply said that there wasn't a firearms exception to 4th amendment probable cause requirement. Here they saw the firearm but simply had no cause to believe he didn't have a license. In JL, the cops had an anonymous tip that someone of the negroid persuasion had a gun in a particular area. They drove through, frisked the first few individuals they came across and arrested one for having a gun. The supreme court went into detail about the specificity of the tip and the anonymity of it, etc. They (Justice Ginsburg, no less) basically said that there wasn't probable cause and saying "but we were looking for a gun" doesn't get around that.
That being said, even if the cops in this case had some justification for believing he didn't have a license (which I think most judges would go along with without much prodding), they would once again have no probable cause for a search or detention once the person says they have a license and produces it for them.
This whole case should have been over in like 30 seconds- cops spot gun, cops ask if he has a CCW, cops go on their way.
This is why there needs to be an UNlicensed option for national carry. Open Carry fits that bill and preserves the Right.
GA law codifies each affirmative defense. A court does not get to make them up as they go along.
That is yet another aspect of this all around bad ruling.
Only a lawyer could belive this is correct.Or a judge, apparently.
Judges have joined the rest of the government in violating citizens' rights, instead of protecting citizens from the rest of the government.
Concealed carry becomes a lience to be surounded by police and detained until the police don't want to bother you any more. Could this be any more stupid? Only a lawyer could belive this is correct.