This rather spirited discussion on OpenCarry.org caught me a bit by surprise. The initial poster was carrying in a public place and had an interaction with a law enforcement officer (LEO). It was not a hostile interaction at all, but he berated himself for, upon polite request, giving the officer his name and date of birth–and so did many others in the forum. The general (though not total) consensus was that giving an officer any information not legally required was tantamount to setting fire to the Constitution.
A representative sample (with slight clarifying edits):
It sounds like you had a consensual encounter up until the time the cop asked you for ID. . . Since the cop already stated that he knew that [open carry] was legal and you provide no other information for him to develop [reasonable articulable suspicion] of a crime, you just got gamed into giving up your ID.
. . .
My gripe, even though I do not live where you do, is that now there is a cop who knows he can, some of the time with some of the people, get away with doing something he is [not] allowed by law to do. When he gets away with it and (as we know will eventually happen) some cop where I live learns about it, the cop local to me will begin to think he too can get away with it. And so on, and so on, and so on.
. . . But those who are not willing to stand up and tell the cop that they must follow the law need to know what they are doing to the rest of us. I’m hoping that you really were not intending to do that to me and everyone else. I’m hoping that this has opened your eyes or otherwise made you better understand why some of us get upset over what might seem like a “little thing” and that if there is a next time you will defend not only your rights but ours as well.
Paranoid, right? Well. Um. No. Maybe. Hell.
The problem is that the Open Carry (OC) community is not arguing from a position of historical strength; the feeling seems to be that no advantage can be given up. There are numerous documented cases in this state from not that long ago where law abiding citizens were bullied, arrested, and charged for exercising rights that are clearly established in law. The forum is full of stories of people freaking out over “guy with a gun.” The culture is slowly changing, and one of the goals of the OC community is to normalize public carry of firearms. I’m very much in favor of it; the only place I do not carry is work (because I can’t). [I usually concealed carry, but I’m looking into a good OC holster so I have more options.]
But even with this history, I have trouble swallowing the instinctive antipathy toward law enforcement that I see in a lot of people–at not just at OpenCarry.org, but also places like TheTruthAboutGuns.com and my not-crazy milvet blogs. Maybe it’s because I know a few law enforcement officers personally whom I like and respect and because I’ve not had anything I could call a really negative experience with others, but I don’t instinctively assume they’re on a power trip, looking for an excuse to violate my civil rights. Should I?
I’ve been carrying concealed for about a year now. As I contemplate open carrying more often, it becomes a virtual certainty that I will have a similar conversation at some point. Up until fairly recently, I would have thought very little of giving my name on the theory that there is zero harm in being polite. What harm in giving the same information to a law enforcement officer that I would freely give to a random, friendly stranger (assuming I ever talked to those willingly)?
But that’s the difference, isn’t it? Such a conversation would be my choice–that’s why it happens so rarely. If an officer of the law, however well-intentioned, is making conversation, it’s not the same power dynamic as two private citizens conversing. That, I think, is the root of the perceived harm in “friendly” questioning by an LEO.
I don’t have an answer just yet, but I do have more food for thought from later in that same discussion thread. This excerpt from the decision in Boyd v. US (1886) is referring to an even older case based on English common law [emphasis added]:
The principles laid down in this opinion affect the very essence of constitutional liberty and security. . . [T]hey apply to all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offence, but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offence — it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden’s judgment.
So what harm in simply asking? Is asking my name an “invasion?” If I’m not already inclined to share it, I’d actually have to go with “yes.” Is there pressure to be so inclined when it’s an agent of State power asking? Um. Yes, actually. That’s the potential harm.
One suggested response from a forum member: “Am I obligated by law to provide you with that information?” (Hint: the answer is “no.”) Having established that to our mutual satisfaction, would giving my name still be a surrender at that point, or merely being polite? I know what some would say.
Are they wrong? Another recent thread details how a Port Orchard LEO disarms a private citizen entirely; when the citizen volunteers the information that he is carrying, the LEO asks him to unload his pistol, and then ends up storing it in the trunk of his patrol car for the duration of their encounter. At no point was this legally compulsory, but solely in the interests of being cooperative, a private citizen (who feels strongly enough about the issue to carry) voluntarily disarmed. Being polite and cooperative is a powerful norm. This can be the result.
I’m an NCO in the WA Army National Guard–one of the proverbial jack-booted thugs, an agent of State power–and I think this is a bad thing. Law enforcement shouldn’t be your enemy, but neither can it ever really be your friend.
And obviously, this mindset and social more has implications far outside just the open carry community. If what you are doing can’t even be articulated as suspicious, what obligation do you have to cooperate with LEOs? To be polite? To even speak?
Again, I don’t have answers; I’m still trying to identify all of the questions. As always, more reading is probably in store.
- OpenCarry.org summary of WA State laws (with extensive linkage)
- Handgunlaw.us summary of WA concealed carry law
- Don’t Talk to Cops, Part 1 (and Part 2) on YouTube.
- Reasonable Suspicion at LegalUpdateOnline.com
- Nolo.com: Understanding Search and Seizure Laws