CBS Sacramento: A federal court has rejected a challenge to California’s gun safety law, possibly paving the way for a requirement that new guns mark the bullets they fire so they can be traced. The ruling on Wednesday was a defeat for two gun rights groups that argued the Unsafe Handgun Act violated the constitutional right to bear arms. The law prohibits the manufacture or sale in California of any gun that doesn’t meet certain safety requirements. It was aimed at outlawing cheap [read more]
The video below is being bandied about over various internet forums, as well as via Bob Owens. Bob’s commenters are all confused and basically don’t know what they are talking about. Similarly, the comments over the YouTube video – some of which are supportive and some of which aren’t – point to a problem of understanding and confusion. Watch the video and then I’ll clear up that confusion for you.
He was just trying to tell if the person was a felon, or so the comment[s] at YouTube go. The cop clearly is in favor of gun rights, claiming (falsely) that he is a three percenter. “I’m sympathetic to the cop here,” says Uncle.
Now, take a deep breath, calm down and let’s clear up the confusion. The Fourth Circuit Court of Appeals issued a legendary body slam to the Charlotte-Mecklenburg Police Department for stopping a man for openly carrying a weapon in an open carry state (North Carolina), even when it was later determined that the man was a criminal. See Fourth Circuit Finds That Carrying A Firearm In An Open Carry State Does Not Create Reasonable Suspicion And Provides Thorough Analysis Of The “Free To Leave” Standard.
This was clearly not a so-called “Terry Stop” (the cop didn’t believe a law had been broken) and the LEO had no need or right to know whether the man was a felon. According to the court, it was none of his business. No demurral, case closed, end of discussion. Period. That’s all. You don’t need to know any more than that.
But since the bed wetters (who may be reading this) might need to know more, we’re going to help you.
OK, it is fairly simple. If you are under arrest refuse to provide your name, date of birth, or residence address, you commit a Class C misdemeanor unless you have warrants outstanding, when it is a Class B misdemeanor. If you are either under arrest or lawfully detained, it is an offense to provide a false name, date of birth or address. The later is a Class B or A misdemeanor, dependent on whether you have outstanding warrants.
What is not an offense is refusing to provide your name, date of birth, or residence address when you are lawfully detained. See Dutton v. Hayes-Pupko, No. 03-06-00438-CV, 2008 Tex. App. LEXIS 6030, 2008 WL 3166324 (Tex. App.–Austin 2008, no pet.). The court held that Deputy Derrick Dutton had arrested Sheryl Hayes-Pupko without probable cause since the law did not require her to identify herself while she was only being detained.. Dutton’s mistake of law did not provide a defense for the false arrest claim.
Unfortunately, this is not unusual for Texas. Police officers in this state have an idea that they have the right to identify anyone at anytime for any or no reason. The courts have repeatedly slapped them down on this.
- “The application of Tex. Penal Code Ann., Tit. 8, § 38.02 (1974), to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe appellant was engaged or had engaged in criminal conduct. Accordingly, appellant may not be punished for refusing to identify himself, and the conviction is Reversed.” Brown v. Texas, 443 U.S. 47 (1979).
- “It is clear petitioner was arrested and convicted for his refusal to answer Officer Jennings’ question requesting that petitioner identify himself. This is impermissible even in the context of a lawful investigatory stop.” Spring v. Caldwell, 516 F. Supp. 1223 (S.D. Tex. 1981), reversed on other grounds 692 F.2d 994 (5th Cir. 1982).
- “First, Officer Lowe obtained identification from each occupant of the automobile though he had no legal basis whatever for demanding them.” Lewis v. State, 664 S.W.2d 345 (Tex. Crim. App. 1984).
- “Moreover, the Supreme Court has previously dealt with a case in which Texas police officers demanded that an individual identify himself even though they had no reasonable suspicion that he had committed a crime. In Brown v. Texas, the Court  ruled that Texas Penal Code Ann. § 38.02 (a), as enacted by the Texas legislature in 1974, was unconstitutional because it allowed an officer to stop and demand identification of an individual without any specific basis or belief that he was involved in criminal activity.” Weddle v. Ferrell, No. 3:99-CV-0453-G, 2000 U.S. Dist. LEXIS 2659, 2000 WL 256891 (N.D. Tex. 2000).
- “Officers have the right to conduct an investigation of a driver following a traffic violation, but do not have authority to investigate a passenger without reasonable suspicion.” St. George v. State, 237 S.W.3d 720 (Tex. Crim. App. 2007) (holding that arrest of passenger for failure to identify not valid absent legal detention).
Yet we still see police officers demand identification in Texas and threaten arrest (or actually make arrest) on Failure to Identify when in fact, no offense has occurred.
Although oriented towards Texas law, this is true even in states that have stop and identify statutes if the stop isn’t a so-called “Terry Stop.” The officer has no need or right to know who the person is. Period. Do you understand now?
The officer was a jackass, but worse than that, he was wrong as to the details and application of the law, like many LEOs today are. Before the bed-wetters blow their bladders, they need to study the law a little bit. And Bob Owens needs to educate his readers rather than allowing the pooling of ignorance in comments over his web site. That is unseemly and undignified.