The Oregon Supreme Court has ruled that generic "Officer Safety" is not sufficient to ask people if they are armed. In a ruling on July 9th, 2015, the court found that police officers may not simply ask someone if they have a weapon, if there is no good, specific reason. From State v. Jimenez(pdf):
In this criminal case, an Oregon state trooperHere is the Oregon Constitution:
stopped defendant for jaywalking and asked him if he had
any weapons on him. For the reasons that follow, we conclude
that Article I, section 9, of the Oregon Constitution1 does not
permit a law enforcement officer to make such an inquiry
as a matter of routine and in the absence of circumstances
that indicate danger to the officer or members of the public.
Article I, section 9, of the Oregon Constitution provides:The case is similar to one that was settled in the Arizona Supreme Court on August 7th, 2014. From a previous Gun Watch article:
“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”
In the case of State of Arizona v. Johnathon Bernard Serna, the court makes it clear that two criteria must be met for a forced stop and frisk. First, the officer must have a reasonably articulable suspicion of criminal activity. Then, they must also have reason to believe the person is armed and dangerous. Both conditions must be met. Officers may ask people to consent to be disarmed; but the stop is not consensual if a reasonable person would believe that they would be allowed to leave the scene.In the Oregon case, the officer stopped Jimenez for jaywalking, then asked if he had any weapons. The Court ruled that generic "officer safety" was insufficient for this query.
The Supreme Court has ruled that anonymous tips that someone is armed are not sufficient reason so stop and search them for weapons. From Florida v. J.L. (2000) 529 U.S. 266:
Finally, the Court dismissed the state’s argument for a blanket “firearm exception” to the Terry reasonable suspicion requirement. Under such an exception, an undetailed and uncorroborated “tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing.” (Id. at 272.) The Court reasoned that this would allow wrongdoers to engage in harassment of other individuals by falsely asserting that they were carrying firearms. (Ibid.) Moreover, there is no logical way to limit any such public policy exception merely to tips involving firearms; any exception would quickly be expanded to drug-related tips and beyond to any tip reporting dangerous or threatening criminal behavior. (Id. at 272-73.)Perhaps a slight gain in the restoration of Second Amendment rights is occurring in Fourth Amendment jurisprudence.
©2015 by Dean Weingarten: Permission to share is granted when this notice is included.
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4 comments:
Ya know, it is great that this decision comes to pass, however, I submit that we musn't cheer it too much. Here is why. True it is that 4th Amendment rights address possession, but arms aren't a fourth amendment issue. They are THEIR OWN issue, possession ITSELF is a right and that is where I urge caution in supporting this line of case law.
As arms are finally admitted a FUNDAMENTAL right, applying to all levels of government from smallest to biggest, it is NO LONGER PROPER (as if it ever was) to SUBJECT possession to REASONABLE scrutiny. That is what deciding THIS issue on Fourth Amendment grounds does, it buttresses the grabbers on the "reasonable" front. To them, this ambiguity afford ANY gun control measure to be "reasonable".
Fair enough, if the issue here was "do you have any bootleg RX in your pockets that you don't a script for?" would rightly be decided on fourth amendment grounds. AT BEST, a person could argue a possible 9th amendment right there, but, good luck with that on the drug possession front, but my point there is to say there isn't a enumerated right to "drugs". With arms, there is.
Now, if the Framers INTENDED arms to be subjected to the fourth amendment, then they would have not crafted a second amendment at all, or they would have simply added "arms" in along with papers and affects. But they DIDNT do that, instead, they chose to set arms STAND ALONE. Thus, it is PURE HOGWASH to claim that POSSESSION of ARMS and questions/charges regarding POSSESSION are to be decided via the fourth amendment.
Ok, I see the angle that the issue is about whether they can ask the question ITSELF, specifically speaking though, the question here is quite direct - it asks about GUNS. SO there are TWO points to be addressed - one, can they stop and ask/frisk but Two, can they ask/compel about ARMS.
I submit to my Second Amendment friends that while what they court did here was do some admitting on the Fourth Amendment front (even if it is the state level version of it) - THAT is in error because state level authority is trumped by the federal preemption called the Second Amendment. Because it is ARMS, the SECOND Amendment simply MUST control! It must control over the state law and state constitution (remember, its a second Amendment issue, not a tenth!) and it must control over the federal enumeration we refer to as the Fourth too (as I explained above, if the fourth is to control it makes the Second moot.....relegating it to "reasonable" forever thus obliterating SHALL NOT BE INFRINGED (as well as right of the PEOPLE - not right of the state).
All I am doing here is demonstrating the contrivance that has long dominated in the courts. They have ALWAYS settled second amendment issues on 4th grounds.....like I said, in order to steer clear of the Second. This was done, obviously for that reason but also because of the Doctrine of selective incorporation AND lack of admission of "fundamental" right status. Lets just say....the game has now changed. WIth Heller and Mcdonald, as contrived as THAT situation is, it comes down to this........
Even by their own standards, even in the corrupt "case law" arena, even within the context of all the creative lawyering, IT IS ABSOLUTELY OUT OF BOUNDS to decide a case regarding ARMS on anything other than the SPECIFIC ENUMERATION intended upon controlling legal decisions about ARMS. To continue to use "reasonable", to continue to use fourth amendment grounds and case law - even state versions - is 100 PERCENT intellectually dishonest. Indeed, it is outright treasonous, because it amounts to flatly IGNORING the plainest enumerations in the highest law of the land, pretending they aren't even there.
Actually the police have no authority to interrogate you without an attorney present, even for a traffic stop.
Study what the tenth amendment actually says. Is there anything in the federal constitution about having drugs in possession or about drugs in any context, remember the word drug or drugs or medicine has to be clearly written. Now remember the last part of the tenth amendment if it is not written in the federal constitution and not written in the state constitution it is left to the people. Without an amendment added to the federal or state constitutions the word drug, drugs or medicine can not exist in rulings. We have to start reading the constitution exactly the way the framers wrote it. Laws and acts are not ratified amendments. the tenth amendment requires the states to enforce everything in the federal constitution. the states can only address issues not covered in the federal constitution. the second amendment is in the federal constitution, therefore shall not infringe is something the states must honor. The tenth amendment forces the states to not have any authority to amend the federal constitution by passing state laws that conflict with the federal constitution.
It is the governments responsibility to prosecute law breakers, state or federal. the fourth and fifth amendments protect the individual by preventing the government any help to prosecute you. We are all sovereign citizens, thus the castle doctrine, we are the kings in our own castle. We are guaranteed privacy in our papers and records. the ways in which the fourth and fifth amendments have been misconstrued to assist the police or the prosecution are abominable. I truly believe the tenth amendment is the most important amendment. You must read it carefully until you completely understand what it actually says. It re enforces the entire rest of the constitution and protects its contents from individual state attacks on our bill of rights. No state gun law can be constitutional because the tenth amendment forces the states to comply with Shall Not Infringe. Shall not infringe is in the federal constitution and the tenth amendment forces states to honor that clause.
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