Concealed Carry And Interacting With Law Enforcement

Posted: December 20, 2013 in Uncategorized

DISCLAIMER TO OUR LEO FRIENDS: This article is not meant to offend or insult anyone in law enforcement. It is meant to apprise the readers of their constitutional rights. Like all law enforcement, while in uniform you are an actor of the state. However, when you take off the uniform you are a citizen fully equipped with all the same constitutional liberties as those you interact with on your job. As such, this information should be appreciated by you in your individual capacity, and respected by you when acting on behalf of the state. The readers of this article are mainly concealed firearm permit holders. Meaning, they are exceptionally law abiding citizens. It is not our intent to help criminals conceal firearms during traffic stops, we simply want to help the law abiding remain law abiding. 

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Let’s have a very blunt conversation about interacting with law enforcement while in possession of a firearm. This article is not meant to focus on WHEN a police officer has a legal right to stop you (we’ve already covered that topic here) but instead is meant to cover the less analyzed issue of whether or not you should inform the officer that you are carrying a firearm? The simple answer (in our opinion) is no, unless you are required to do so by state law.

Let’s start at the beginning. There are a handful of states out there that have enacted a statutory “duty to inform”. Those states require you to disclose the fact that you are carrying a firearm whenever officially stopped by law enforcement. To my knowledge the duty to inform states are as follows:

  • Alaska (Alaska Stat. Ann. §11.61.220)
  • Arkansas (Ark Admin. Code 130.00.8-3-2(b)
  • Delaware (Griffen v. State, 47 A.3d 487)
  • Illinois (430 ILCS 66/10)
  • Louisiana
  • Michigan (MCL 28.425f(3))
  • Nebraska (Neb. Rev. Stat. §69-2440)
  • North Carolina (N.C. Gen. Stat. Ann. §14-415.11)
  • Ohio (Ohio Rev. Code Ann. §2923.16)
  • Oklahoma (Okla. Stat. Ann. tit. 21, §1290.8)
  • South Carolina (§23-31-215)
  • Texas (must provide permit when asked for ID, §411.205)

Some states have “Quasi Duty to Inform” laws that require a permit holder to have his/her permit in their possession and surrender it upon the request of an officer (see Iowa Code §724.5 for example) Being required to give an officer your permit and being required to tell an officer you have a firearm are two entirely different things.

TO FIND THE CONCEALED CARRY LAWS FOR ALL 50 STATES DOWNLOAD THE LEGAL HEAT APP!

Again, under the laws of the above states you would be required to inform an officer if you have a firearm. If I lived in any of the above listed states I would sue the state for violating the unconstitutional-conditions doctrine, as they cannot make you waive one right (privacy) in order to exercise another right (carrying a firearm). More on this later.

Granted that in most states you are not legally required to tell a police officer if you are carrying a firearm, but why would I tell you it’s a bad idea? There are 3 basic reasons.

REASON NUMBER 1: DON’T TALK TO STRANGERS. POLICE OFFICERS ARE STRANGERS. 

keep-calm-and-just-don-t-talk-to-strangersJustice Robert Jackson (U.S. Supreme Court Justice) once said, “any lawyer worth his salt will tell the suspect [his client], in no uncertain terms, to make no statement to the police, under no circumstances.” When interacting with law enforcement less is always more. When I was a child I was told to never talk to strangers. That was sage advice and I’ve utilized that wisdom my entire life. A police officer is a stranger. Not only is he or she a stranger, they are a stranger deputized with the authority to ruin your entire life. Make no mistake, a police officer’s job is to put people in jail.

BUT PHIL, POLICE OFFICERS ONLY PUT CRIMINALS IN JAIL, AND I’M NOT A CRIMINAL!!!

False, you are a criminal. Do you have any idea how many gun laws there are out there? No? Neither does our own department of justice. If you don’t even know how many gun laws there are, how can you possibly know you are abiding by all of them simultaneously?

Here’s a simple example of how the “I’ve got nothing to hide” mentality can land you in jail. Let’s imagine you’re driving through scenic Washington state and you stop to get gas. While filling up with gas you are approached by a friendly officer who compliments you on your car (you’re driving a Dodge), and then asks you where you are headed. You have nothing to hide (remember, you’re not a criminal) so before answering you politely inform the officer that you are a concealed permit holder and there is a handgun in your vehicle. No problem right? Make sure to tell the officer that when he arrests you. You see, unbeknownst to you Washington state has the following statute:

A person shall not carry or place a loaded pistol in any vehicle unless the person has a license to carry a concealed pistol and: (i) The pistol is on the licensee’s person, (ii) the licensee is within the vehicle at all times that the pistol is there, or (iii) the licensee is away from the vehicle and the pistol is locked within the vehicle and concealed from view from outside the vehicle. Wash. Rev. Code Ann. § 9.41.050

The law mandates that when you exit the vehicle the gun must be locked & out of view. You didn’t lock your vehicle because you simply stepped out for a moment to fill up with gas …aaaaaaannnnddd….now you’re a criminal. See how fun that is? Of course we would like to hope the officer wouldn’t be so overzealous, but sadly things sometimes get weird when dealing with law enforcement. Want to know a better way to handle that situation? Just don’t tell the officer there’s a gun in the vehicle at all.

It’s not about being disrespectful to the officer (I would never do that) and it’s not about you intentionally concealing a crime. It’s simply about you not going to jail because of some obscure gun law that you had never heard of. For more on this subject you should all watch this fantastic video.

As a final note on this topic, we’re often asked what someone should do if they are asked if a weapon is in the vehicle? In that situation the first thing to remember is never lie. Lying to a police officer is a crime. However, you are also not generally required to answer that question. Asking if there is a weapon in a vehicle (during a traffic stop) is an investigatory question. It is the same as an officer asking where you were on April 26th, 1992? (there was a riot on streets tell me where were you?) You are usually not required to answer these questions. You should simply ask the officer if that question pertains to the reason you were stopped, and if not, if you can go on your way? Granted, he or she is probably going to write you a speeding ticket but that’s a small price to pay for liberty, right?

REASON NUMBER 2: JUST SAY NO! CONSENTING TO ANYTHING CAN ONLY HURT YOU.

I challenge anyone reading this to think of any instance where someone consenting to a search or seizure has made their life better. Spoiler alert…it’s never happened. Nothing good can ever come from giving a police officer permission to look in your vehicle, come in your home, or look in your pockets. Nothing.

The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. Miranda v. Arizona, 384 U.S. 436, 469, 86 S. Ct. 1602, 1625, 16 L. Ed. 2d 694 (1966)

Can and will be used AGAINST you. Nothing that a police officer finds during a search will be used to prove your innocence. The only possible outcome of a search is bad. The best case scenario of a search is you get to go home. The worst case scenario is you go to prison for the rest of your life. Sounds like a simple decision right? But even knowing that I am continually amazed at the amount of people who consent to a search, especially a search of their vehicle. When a police officer begins a questions with “can I” or “may I” you should immediately respond with no. Can INO!…May INO!. Declining a search does not ever give an officer the probable cause needed to search a vehicle. Nothing bad can happen from refusing a search, everything bad can happen from consenting to a search.

REASON NUMBER 3: THE TERRY DOCTRINE

A potential outcome of informing an officer that you have a firearm in the vehicle (when not required to do so by state law) is that the officer might then have the ability to perform what is called a Terry Stop or a Terry Frisk. The Terry Doctrine stems from a 1968 Supreme Court case, Terry v. Ohio. In Terry, the United States Supreme Court held that an officer may perform a protective frisk and search pursuant to a lawful stop when the officer reasonably believes a person is “armed and presently dangerous to the officer or others.” (see: 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). This also gives the officer authority to temporarily disarm the permit holder “in the interest of officer safety.” The Court did caution that a search “is a serious intrusion upon the sanctity of the person” and should not be taken lightly. Still, the basis for the search itself is largely left up to the officer’s discretion once he is made aware of the presence of a weapon.

The sole purpose for allowing the frisk/search is to protect the officer and other prospective victims by neutralizing potential weapons. (see: Michigan v. Long, 463 U.S. 1032, 1049 n. 14, 103 S.Ct. 3469). Although it is unlikely to occur to a permit holder, a Terry Stop allows a police officer to remove you from your vehicle, pat down all occupants of the vehicle (using the sense of touch to determine if they are armed), as well as search the entire passenger compartment of the vehicle including any locked containers that might reasonably house a weapon. In other words, telling a police officer you have a firearm on you or in your vehicle can serve as a waiver of your 4th amendment rights. Since we’re not in the business of waiving rights, we recommend you revisit rules number 1 and 2. 

The Terry doctrine is why states with “duty to inform” laws create such a constitutional dilemma. If, as a condition to carrying a firearm, I am required by law to inform an officer that I have a firearm in my vehicle, then I am simultaneously required to waive my 4th amendment privacy rights. That is a violation of the unconstitutional-conditions doctrine and someone needs to challenge those laws in court.

As always, we encourage everyone to treat law enforcement with respect. Very little is accomplished in life by acting like a belligerent Neanderthal. Smile, thank them for what they do to better society, and emphatically stand up for your rights.

About the Author: Phil Nelsen is a Utah licensed attorney. He is not, however, your attorney. This article is intended for entertainment and educational purposes only and should not be treated as legal advice. Readers should retain an attorney in their respective state for legal advice on the topics discussed in this article. 

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Comments
  1. Mike in Texas says:

    “A person shall not carry or place a loaded pistol in any vehicle unless the person has a license to carry a concealed pistol and: (i) The pistol is on the licensee’s person, (ii) the licensee is within the vehicle at all times that the pistol is there, or (iii) the licensee is away from the vehicle and the pistol is locked within the vehicle and concealed from view from outside the vehicle. Wash. Rev. Code Ann. § 9.41.050

    The law says while in a vehicle the pistol must be ON your person. Your gun was in the glove box…aaaaaaannnnddd….now you’re a criminal.”

    See that little word OR before iii? It means (i), (ii), or (iii) must be true. In your scenario, (ii) was true – therefore the hypothetical driver is not breaking a law. In fact… (i), (ii), and (iii) could not possibly all be true at the same time.

    Reading is fundamental, people.

    • LH says:

      Dang it Mike, you got us. The scenario has been updated to reflect the statute.

    • Paul111 says:

      Well said.
      It’s fundamental knowledge that all firearms should not be easily accessible. Stepping outside your vehicle may or may not fill the requirement of (iii). If you are stepping out to fill your gas tank then you aren’t away from your vehicle if you are in a reasonable distance. Now, if you step inside the convenience store to use the restroom then you are away from your vehicle as it is out of sight. This article is nothing more than misleading information and ignorance from the author. You are responsible for your weapon and this article only promotes disregard for the statutory laws. If you purchase a weapon you must read and sign a legal document that states how you should store a weapon.

  2. Amanda says:

    Unless I’m mistaken, if the licensee doesn’t leave the vehicle or the console is locked if he or she does leave it, no law had been broken. There were three parts to that statute.

  3. Daniel says:

    My Utah concealed permit specifically indicated that a permit holder should disclose that they have a permit regardless of being in possession as the permit is specifically tied to the driver’s license. The class also instructed us to always disclose also. They will quickly see it and if wasn’t disclosed you could be found in a big pot of hot water. I can’t quote exact code, but that is not the point, not disclosing can get you in trouble whether or not it is required as they will see that you have a permit.

  4. Dennis Winter says:

    In Washington State, the fact that you have a concealed weapons permit will show when your drivers license is called in by the officer, so then they will ask if you have a weapon in your car.
    When I lived their, it had to be on your person, not in the glove box. I know of one person who had a concealed permit, voluntarily gave his pistol to and officer after a traffic stop, the pistol was tossed in the back of the patrol car, and he didn’t want to return it afterwards. All around its a sticky situation.

  5. randy crawford says:

    Example of how to successfully educate wayward delinquent policemen harassing you for open carry:
    https://www.facebook.com/#!/photo.php?v=635708399820955&set=vb.129396577118809&type=2&theater

  6. tgus59 says:

    On your app you suggest to always notify an officer you have a permit and are carrying a gun, this article seems contradictory. Which is it?

  7. james says:

    The Terry doctoring doctorine doesn’t necessarily apply to Oklahoma any longer. Even though you are required to inform, there is a statute that states that no peace officer can reveal (if carrying concealed) nor disarm a person carrying lawfully. Unless they are being charged with the commission of a crime and are being taken into custody that is.

  8. Kath says:

    In Texas CHL looks exactly like Texas Driver Lincense including same photo DL number listed below CHL #
    Law Enforcement Officer will know as soon as run “wants & Warrants” that you have a CHL and might ask if weapon is on you. My answer would be “yes” but anything other than that, subject closed. For the most part, dealings with local LEs has been cordial but once in a while have encountered jerks or near jerks. I’m polite in word & manner. In fact, everyday carry, I’m a whole lot more polite to everyone I encounter. No more editorial honking, flipping off or even the classic eye roll
    (that got me in trouble w/my mom, back in the day)

  9. Prepale087 says:

    Nice posting. Truly its a nice home picture. Thank you for sharing with us.
    utah concealed weapons permit class

  10. manny says:

    I Miami you tell a cop you have concealed weapons permit they drag you out at gun point

  11. What ever happened to “shall not be infringed”? I’m pretty sure that our Founding Fathers meant “shall not be infringed” in any way, shape or form. So called “gun laws” are an infringement, plain and simple. We The People have the right to bear arms. No restrictions, PERIOD!