Nevada Carry: Gun Owner's Guide to Rights During Police Encounters

The goal of this article is to educate those who don’t know their rights when dealing with the police. The concern in the firearms community is when encountering officers (or agencies) that are ignorant of, or hostile to carry laws, who attempt to intimidate or lecture armed citizens. Bad officers preying on those ignorant of their rights can be stopped by citizens politely and knowledgeably asserting their rights.

Most cops won’t break the law, but they won’t avail you of your rights unless you actually know and use them. Cops take advantage of the fact people don’t assert their rights and are generally submissive to authority. Know the law and your rights.

This article is not what to do or say after a defensive gun use (shooting) or whether or not you should voluntarily inform an officer you’re armed when detained or pulled over.

The First Rule of Open (and Concealed) Carry Club

ALWAYS record AUDIO and VIDEO of ANY police encounter. It helps keep everyone honest. We’ll assume you already know the second rule.

Understanding the Basics

So, before we get into examples, we need to cover some basics that every American should really know. If you fancy yourself as any sort of activist, then this applies especially to you. But even the casual carrier would benefit from this knowledge, so listen up.

For the purposes of this article, everything said assumes that this is a contact on foot, and that no vehicles are involved. Vehicles change the situation a bit, and will addressed in a dedicated section at the end.

“Terry” Stops

What’s a “Terry Stop”? The term originates in reference to a Supreme Court case, Terry v. Ohio. The Cliff Notes version of that case basically states that an officer may not detain you unless he has Reasonable Suspicion Based on Articulable Facts that you have committed, are committing, or are about to commit a crime. (Hereafter, we’ll refer to this as RSBAF). What this means is that it’s not just enough that he had a “hunch”. He must be able to articulate, to a judge and jury of your peers, what the specific facts were that led him to conclude that you probably had committed, were committing, or were about to commit a crime.

The basic concept of a Terry Stop is COP 101. They know this stuff, for sure. No matter how rookie they might be. We’ll explain why this matters later.

Detention

Detention (aka Fourth Amendment Seizure) is the term used to describe when a police officer has stopped you, and you are not free to go.

For a Detention to be lawful, it must meet the requirements of a Terry Stop. Meaning that they MUST have that Reasonable Suspicion Based on Articulable Facts that we spoke of earlier.

Worth noting here: Detention is not necessarily Arrest. Detention may lead to arrest, or it may not. It all depends on what happens after you are detained. More on that later.

Consensual Encounter

A Consensual Encounter is just what it sounds like. It’s when you have contact with an officer, but you are not being detained. If an encounter is consensual, you are free to go at any time.

This may take the form of an Officer walking up to you and ‘striking up a conversation’. He may ask questions. Hey may give you instructions. He may quote Monty Python (not likely, but I hold out hope).

Walking over and asking “Are you carrying a firearm?” is not a detention. Just because a police officer has authority does not mean he is exerting authority by asking a question. More on that later.

Lawful Orders

A “Lawful Order” is an instruction from an officer that you are required by law to obey. This could be something as simple as “Sit down”, “Back up”, or “Go over there”. Of course there’s always the more obvious “Put your hands behind your back”, etc.

“Friendly Requests”

A “Friendly Request” is when an Officer gives you an instruction, but you are not required by law to obey it. You may choose to obey it, but you are not required to do so.

Examples would include “Do me a favor…”, “Go ahead and do X”. It also might take the form of something simple like “Sit down”, “Back up”, or “Go over there”.

Confused yet? Notice that some instructions by an officer could be construed as either a Friendly Request OR a Lawful Order. So how does one know the difference? We’ll get to that in a bit. For now, just understand the difference: A friendly request can be obeyed or ignored, at your discretion. A lawful order MUST be obeyed.

Consensual Encounter vs Detention

Now that you get the basics, you are probably starting to form a few questions in your head. The first of which is likely:

“How can I tell the difference between a Consensual Encounter and Detention?”

Good Question! The best answer is also the obvious one: ASK!

Seriously. Just ask “Am I being detained?”. The officer may try to dodge the question, not answer, or redirect with a question of his own. But you have basic civil liberties on your side here. Be insistent. If he refuses to answer, ask a different way “Am I Free To Go?” If he still refuses to answer, politely advise him that you are going to take his refusal to answer as a confirmation that you are free to go, and then slowly and deliberately, do so. WALK. DON’T RUN. Running from a cop is automatic RSBAF. It’s a free pass for them to detain you lawfully, and investigate to their hearts content.

There is another way to determine whether you are being detained, rooted in case law. The question to ask yourself in determining the two encounters apart is “Would a reasonable person feel free to leave?” (United States v. Mendenhall). If you are surrounded by cops, and they all have their guns drawn, you can reasonably conclude that you are being detained. If they place their hands on you, you are probably detained.

But what if you are told to “sit down”, or “stand over there”?

Well, this is where it can get a bit murky. See, unfortunately for you, unless it has been specifically established that you are being detained, the officer can later say that the contact was consensual, and that his requests to you were just that, requests, not orders.

This is why it is of the utmost importance that you establish, as soon as possible, whether you are being detained. Why? Well, remember, that for a detention to be lawful, it must qualify as a Terry Stop, meaning that the officer must ALREADY have Reasonable Suspicion Based on Articulable Facts that you have committed, are committing, or are about to commit a crime.

Why does this matter? Well, because establishing a checkpoint in the encounter of when you are officially detained means that the Officer can’t use anything that happens after that point as his Articulable Facts to justify the stop. If you are not being detained, you should be departing promptly. The longer you interact with an Officer, the more likely he is to stumble across something that DOES in fact give him RSBAF, like a non-compliant pocket knife, outstanding parking ticket, etc.

Additionally, if his basis for the stop (RSBAF) is faulty, it is entirely likely that anything found afterwards will be inadmissible in court.

A worthwhile aside here: If you are the mouthy type that likes to argue, here’s an assignment: Go watch this video: Don't Talk To Police. Every single red-blooded American needs to see this video. It is a real eye opener. It’s about 50m long, but it just might be the most informative 50m you ever spend on YouTube. It’s presented by a law school professor and former criminal defense attorney. He tells you why you should never agree to be interviewed by the police. Go watch it now. Then come back. Because that video is a perfect segue into…

Silence

You have the right to remain silent (Miranda v. Arizona). You must specifically invoke that right by saying so out loud, or your silence can be used against you, (Berghuls v. Thompkins). Many say “I don’t answer questions and I do not consent to searches.” Seriously be quiet once you’ve invoked your right except to answer the questions you legally must answer (see Hiibel, below) or to ask for an attorney. If you are, or think you may be in trouble, don’t say anything.

Hiibel (Nevada specific)

You do not have to identify yourself (or produce identification) unless you are actually being lawfully detained. (Hiibel v. Nevada), If you are being lawfully detained, then the Hiibel decision means that an Officer can give you a lawful order to identify yourself, and you must do so. Note that we said identify yourself, not produce identification. You have no obligation to produce ID. In other words, state your name, and STFU. No Social Security number, no date of birth, no home address, nothing.

The video of the incident that led to the Hiibel decision can be viewed on YouTube. Pay attention to Mr. Hiibel’s answers and also to his attitude versus that of the officer’s. Case decision aside, remain respectful and polite to de-escalate the situation. Your goal is to beat both the ride and the rap.

But but but, CCW? (NRS 202.3667)

There is a caveat to be aware of. Under Nevada law, a concealed carry permittee must produce their permit, and proper identification IF they are carrying concealed AND the officer instructs them to do so AND it’s a lawful Terry Stop (see below). This law is nice and short, so we’ll just post it here, for your convenience:

      NRS 202.3667 Permittee to carry permit and proper identification when in possession of concealed firearm; penalty.

      1. Each permittee shall carry the permit, or a duplicate issued pursuant to the provisions of NRS 202.367, together with proper identification whenever the permittee is in actual possession of a concealed firearm. Both the permit and proper identification must be presented if requested by a peace officer.

      2. A permittee who violates the provisions of this section is subject to a civil penalty of $25 for each violation.

Simply carrying a firearm, openly or concealed, when and where legal, is not legal grounds for a detention or search without suspicion of a crime, (Florida v. J. L.). Similar District Court of Appeals cases agree on this point, especially regarding open carry.

We are specifically pointing this out because it is a common tactic for officers to ask for your permit, even when Open Carrying (and no permit is even needed). They do this because they think it’s an end run around Terry and Hiibel. If your contact gets that far, you should have already determined if you were being detained. If you ARE being lawfully detained, AND you are carrying concealed, AND the officer demands it, you should produce your permit, and ID. While refusing to do so is only a Civil Penalty of $25, it would also give them further RSBAF to conduct further investigation.

This is a good opportunity to mention that Nevada has no ‘first duty to inform’ law. This means that you do not need to notify the officer that you are carrying. Whether it’s a good idea to do so or not is a topic for a dedicated article on the subject.

Hassled Because of Open Carry?

While it happens, it’s less likely nowadays that in Nevada a legally armed citizen will be approached simply because they are armed. It has happened in the past and continues to occur from time to time, whether it was on the officer’s own initiative or in response to a call. In this case, an officer approaching you may say something like “I’d like/need to talk to you about why you’re carrying that gun,”. It may be innocuous. They may be responding to a complaint. In such a situation, it is in your best interest to tread very carefully, and extricate yourself from the situation at your first opportunity. “Am I being detained?”

This may vary in other jurisdictions, but in the Greater Las Vegas area, our primary law enforcement agency is the Las Vegas Metropolitan Police Department (LVMPD). Several years back, an Open Carry advocate named Tim Farrell found himself at gunpoint on the Las Vegas strip for the outrageous non-crime of lawfully carrying a firearm, openly, in public. After pursuing Metro over this incident, he managed to convince the 5 member panel of the Citizens Review Board that mandatory retraining was the answer. All Metro officers were required to take a refresher course on how to handle (and not handle) Open Carriers. The summary was this: Open Carry is legal in Nevada, and is not reason, in and of itself, for a stop or detention. (more here)

For Open Carriers in Nevada, this was a landmark accomplishment. Prior to that incident, it was very common for Open Carriers to get hassled. Since then, not nearly so much. It still happens, but it’s uncommon. And usually, a quick reminder to the officer (if it’s LVMPD) that “You and I both know you’ve seen the Tim Farrell video, and that me open carrying is not justification for a lawful Terry Stop”. (Now you see why we had you learn all of the stuff leading up to this!)

Search and Seizure

You have the right to refuse consent to a search of yourself, your vehicle or home. And you always should do so. But you knew this, because you watched the 50m law professor video, right?

“The police are free to approach people to ask them questions, even without reasonable suspicion that the people are violating the law. They can order a person to stop for a short while if they have reasonable suspicion that the person is committing a crime or about to commit a crime. They can certainly disarm him and arrest him if they reasonably think that he’s about to shoot them…. But to coercively stop a person – and certain to handcuff the person – the police do have to have reasonable suspicion. (Eugene Volokh)”

You may only be searched (pat down), when you have not been arrested, when the officer has reasonable suspicion to believe that you are committing, or have committed, a crime, (Terry v. Ohio). A police officer can pat you down during a traffic stop for officer safety, (Pennsylvania v. Mimms).

Police may ask for consent to search you (pat down), your bag, your person, or your house. You have the right to refuse and this does not result in reasonable suspicion or probable cause, (United States v. Fuentes). Police are not required to tell you that you have the right to refuse a consent (Schneckloth v. Bustamonte), but an officer implying they will search or get a warrant anyway can be interpreted as coercion.

Some consent to searches because:

They mistakenly believe they are required to;
They accepted rides and candy from strangers as children;
They like cops and don’t want to make the officer’s job harder;
They just want to leave and they think this will make things go easier;
They don’t want to anger the officer and get a ticket;
They think the officer won’t find anything illegal (whether it’s there or not).

Even if the officer will search anyway, it is in your best interest to refuse, because if contraband or evidence is discovered, and the officer did not have probable cause, the evidence may be thrown out as inadmissible. Don’t participate in a ‘fishing expedition’ with either your answers or your consent. Consent to a search is never in your best interest, despite any promises made.

You have the right to a lawyer present during questioning and to consult with one after being arrested. You must unambiguously request an attorney, (Davis v. United States). This would include a public defender, if you cannot afford your own attorney (Miranda v. Arizona, Gideon v. Wainwright).

Traffic Stops

Traffic stops are special, to a certain extent. Laws vary in different states, but generally speaking, in Nevada, if you are pulled over, you are required to produce your license, registration, and proof of insurance. There are specific statutes that cover this (NRS 483.350). Since you are being pulled over with lights and siren, it is automatically presumed to be a Terry Stop, and Hiibel applies.

Being ordered out of the vehicle and patted down during a traffic stop without any particular suspicion of a crime related to a firearm, as long as the reason for the traffic stop is legal, (Pennsylvania v. Mimms). Interestingly, unlike Terry, where a robbery usually involves a weapon, this case’s detention was based upon expired registration. This is where the oft-cited ‘officer safety’ comes in.

A warrant to search a vehicle (i.e. at a traffic stop) when he has probable cause to believe there is contraband or evidence inside. In Carroll v. United States the Supreme Court held that since cars are so easily moved, obtaining a warrant would be impractical and pointless if the officer had probable cause. The Federal Law Enforcement Training Center produced this bulletin on warrantless vehicle searches.

Police can allow searches of glove boxes, center consoles, etc. as an extension of a ‘protective sweep’ of Terry pat down search based upon reasonable suspicion of a crime (Michigan v. Long). Note that in this case, the defendant was visibly under the influence and a plainly visible hunting knife lead to the concern for additional weapons inside the vehicle.

In Nevada, a plainly visible firearm inside a vehicle is not considered to be concealed if you can plainly see that the object is a firearm. See this attorney general’s opinion.

Running Serial Numbers

It is not (yet) considered an illegal search to run a serial number of a firearm when an officer takes a firearm during a traffic stop for officer safety. Many gun owners have stories of officers doing this to determine if the gun is stolen or in days past, if the gun was registered properly in Clark County. It’s not right, but it’s not unconstitutional (yet). There really isn’t much case law in this area because legal gun owners tend not to generate a case, like getting arrested, which creates a problem.

Remember, in Clark County, handgun registration (blue cards) is no longer required and the records destroyed, therefore it is impossible for a handgun to be registered in the state of Nevada.

In Arizona v. Hicks, the court found that manipulating a suspected stolen piece of stereo equipment inside a home to make the serial number visible to be run later was an unconstitutional search. However, this was inside a home and the officer had to physically move the object. A serial number would have to be in plain view (Horton v. California) for him to be able to freely run the number sans warrant.

Now an officer can legally seize a firearm for ‘officer safety.’ It is more a less given that he will see the serial number by innocently manipulating the weapon. This allows him to meet the plain view doctrine (see above). The officer can also deliberately look at the serial number and run it and still be well inside case law. The unasked question remains: Is it constitutional for the officer to ‘examine’ the serial number and run it at this point? Courts have not determined this to be an illegal search yet.

If an officer picked up a random piece of stereo equipment in your front seat and ran the serial number without probable cause, that likely would be found to be an unconstitutional search. Why the difference? Well, case law has found that an officer can temporarily seize or search for a firearm based on ‘officer safety,’ but there is no such issue with a non-weapon. Two, nothing specifically says he can’t run the serial number as it becomes visible to him (regardless of how). With the stereo example, the officer couldn’t touch/run it unless he had probable cause it was stolen or the serial number was facing up (in plain view). He has the right to possess the firearm, but not the stereo, without cause.

All things being equal, without probable cause that the weapon is stolen, an officer cannot run a serial number of a gun; he has no reason and he has no right. However, without case law prohibiting this, officers can get away with it because nothing says they shall not. If one presumably was arrested (say they bought the gun in a private sale without knowing it was stolen), the case might be challenged successfully on the grounds that officer safety ≠ need to run serials. So at this time: they can do it, but they really shouldn’t. You should file a complaint against the officer if this happens.

Should police be taking firearms from citizens during detentions for traffic violations or other minor infractions without reasonable, articulable suspicion of potential violence? Absolutely no. Can they do it? Under current law/rulings, yes.

With that said, in recent discussions, a local Las Vegas Attorney has expressed interest in pursuing such cases, to establish a precedent. So if this has happened to you, and you don’t know who else to call, maybe you can hire, the A-Team. Or Stephen Stubbs.

Police-Citizen Interactions

Many armed citizens have a fundamental lack of trust of police due to abuses, bad encounters with officers who were suspicious of an armed citizen/unsafe, or because they dislike police generally. While healthy skepticism of authorities is an American trait, invoking your rights doesn’t entitle you to be disrespectful to police or hateful of cops because they write you tickets.

Some officers will get nervous seeing a gun or knowing one has been injected into the situation. Some departments or individual officers have been infused with the perception that an armed citizen is just as bad as an armed criminal. Recent history in Nevada has made negative police reactions to open carry in particular largely a thing of the past. Most cops are even supportive of lawful carry.

There are different opinions on volunteering to the officer that you are armed. Those who do so as a practice recommend not using 'gun', as it is a loaded word that usually indicates the weapon is a threat, but say 'firearm' or 'pistol' instead. If the officer is aware that you are armed, follow their instructions explicitly, inform them of where your gun is and any movements (such as reaching for your wallet), and don't make furtive movements. Remember, you probably do not feel lucky, punk.

Cooperate with requests that are legal and reasonable, such as answering truthfully if you are carrying a concealed firearm and presenting your permit. Being antagonistic will only annoy the officer and further drag things out. Use your judgement in talking to the officer; you are a social creature and you can tell if you are being setup to talk your way into handcuffs or if falling on your sword is called for to avoid that ticket. For most legal gun owners, you’re not going to be in trouble. If all else fails or the potential charges are serious, then shut up.

Remain calm, polite, and respectful. Gun owners and liberty minded individuals sometimes constitute regular police work as harassment. In most cases, it's not. Do yourself a favor; follow the golden rule and you might get to drive away without a ticket. Not rolling down your window all the way and being an ass is a perfect way to extend your detention and talk yourself into a ticket. Politely ask why you were stopped if the officer doesn't say so. If the officer is trying to get you to admit to something you don't want to, politely say something to the effect of "I don't answer questions or consent to searches."

Police One has an article explaining the police perspective (positively) on dealing with armed citizens and how an officer can and should differentiate the legally armed from criminals without lumping everyone together.

Police Complaints

If you believe the officer did something illegal or unreasonable, was rude (not just stern), or exceeded their authority, file a complaint immediately. Ask for the officer's name and badge/identification number. With LVMPD, it’s called a P-Number. Just knowing to ask for it will often get them to back up a bit, as it makes them aware that you are an informed citizen. Call the watch commander/supervisor and file a written complaint. Problem officers or bad policies are not corrected if no one says anything to the department. Bitching on the internet changes nothing; call BS on the officer to his superiors. Contact the city/county/state elected representatives.

Activist Much?

So, most of what we’ve discussed here is targeted at your everyday carrier, whose goal is to not get hassled, and not spend a night in the grey bar motel.

However, there is another category of Carriers: The Activist. If this description fits you, then great! This little section is all about you.

As you’ve read, the Open Carry situation in Las Vegas was dramatically improved by just a couple of people who decided that enough is enough, and decided to go full activist. They donned their EDC gear, included video and audio recording equipment, and took to the streets. These folks have made the rest of our lives better because they were willing to push the issue, and fight back against unlawful enforcement. But they did so LEGALLY. That’s how they won.

If this sounds like something you want to do, bear this in mind: You may have to adjust your behavior a bit from this guide. But most importantly, always follow the first rule of Open (and Concealed) Carry Club.

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Thursday, August 25, 2016

Gun Owner's Guide to Rights During Police Encounters