WTK: Open carry and ID in CO

[Seamonkey]

Didn't want to hijack the other thread on the open carry guy who informs the cops of his rights but that thread raises some questions for me.

How can cops not be allowed to ask for ID yet in AZ they are supposed to check for immigration status? How can you do that? Does it come back to state laws wither or not the cops can ask for ID?

If there's an incident at my house and the cops show up I'm assuming I'd have to prove that I'm the home owner/resident. How does that tie in with open carry and the cops checking to see if you're a wanted person or someone who should NOT be in possession of a gun? You're walking down the street with a side arm and I can understand exercising your right to open carry but how does the cop know/distinguish that you're not a whack job heading into a business to gun down people who've pissed you off?

I'm not understanding the fine line between LOE doing their job, checking up on potential problems and my rights as a private citizen in CO.

[hip55]

I looked the other day on the net and can't find a definitive answer myself.

Hopefully an experienced LEO or attorney could let us know?

Another option is the forum at OpenCarry.org -

http://forum.opencarry.org/forums/forumdisplay.php?89-Colorado&

[Mtn.man]

Ask an attorney, LEO's don't know.

[OneGuy67]

I wish this was an easy and clear situation where a one-size-fits-all answer could be used. I'm going to attempt to provide some of the statutes, case law and such regarding the issue, but it isn't clear cut nor easy. Please don't shoot the messenger; I'm only trying to provide what information I am aware of.


The Colorado Constitution
Section 13. Right to Bear Arms:

The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.

Case Law:
No absolute right to bear arms. The right to bear arms is not absolute, and it can be restricted by the state's valid exercise of its police power. People v. Garcia, 197 Colo. 550, 595 P.2d 228 (1979).

The conflicting rights of the individual's right to bear arms and the state's right, indeed its duty under its inherent police power, to make reasonable regulations for the purpose of protecting the health, safety, and welfare of the people prohibits granting an absolute right to bear arms under all situations. People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975).

The right to bear arms is not absolute as that right is limited to the defense of one's home, person, and property. People v. Ford, 193 Colo. 459, 568 P.2d 26 (1977).

Right to bear arms is not absolute. Douglass v. Kelton, 199 Colo. 446, 610 P.2d 1067 (1980); People v. Pflugbeil, 834 P.2d 843 (Colo. App. 1992).

Convicted felons' rights subject to limitation. Defendants cannot invoke the same constitutionally protected right to bear arms as could others where the right of a convicted felon to bear arms is subject to reasonable legislative regulation and limitation. People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975).

Affirmative defense. A defendant charged under section 18-12-108 who presents competent evidence showing that his purpose in possessing weapons was the defense of his home, person, and property as recognized by this section thereby raises an affirmative defense. People v. Ford, 193 Colo. 459, 568 P.2d (1977).

Trial court properly excluded affirmative defense based on this section and a proposed jury instruction where the defendant's offer of proof was insufficient to support the proposed affirmative defense. People v. Barger, 732 P.2d 1225 (Colo. App. 1986).

In considering a challenge to the validity of an ordinance regulating the exercise of the right to bear arms, a court need not determine the status of the right to bear arms under Article II, § 13. The trial court erred in reaching the question of the status of the right guaranteed under Article II, § 13, and in holding that the right is fundamental. Robertson v. City & County of Denver, 874 P.2d 325 (Colo. 1994).

Ordinance is related to a legitimate government interest and is a valid exercise of police power where assault weapons are weapons of choice for drug traffickers and other criminals and where they account for thirty percent of the weapons used by organized crime, gun trafficking, and terrorists and over twelve percent of drug-related crimes nationwide. Robertson v. City & County of Denver, 874 P.2d 325 (Colo. 1994).

Self-defense is not a valid defense to the crime of prohibited use of weapons. People v. Beckett, 782 P.2d 812 (Colo. App. 1989), aff'd, 800 P.2d 74 (Colo. 1990).[/font]

C.R.S. 16-3-103. Stopping of suspect:
(1) A peace officer may stop any person who he reasonably suspects is committing, has committed, or is about to commit a crime and may require him to give his name and address, identification if available, and an explanation of his actions. A peace officer shall not require any person who is stopped pursuant to this section to produce or divulge such person's social security number. The stopping shall not constitute an arrest.
(2) When a peace officer has stopped a person for questioning pursuant to this section and reasonably suspects that his personal safety requires it, he may conduct a pat-down search of that person for weapons.


Terry v. Ohio, 392 U.S. 1 (1968), was a decision by the United States Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and searches him without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime.


Case Law:

When detention by police permissible. The police may detain and require identification of a person if they have a reasonable suspicion, based on objective facts, that the person is involved in criminal conduct. People v. Archuleta, 616 P.2d 977 (Colo. 1980).

Limited, temporary detention permissible though no probable cause to arrest exists. A police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigation of possible criminal behavior even though there is no probable cause for arrest. People v. Lucero, 182 Colo. 39, 511 P.2d 468 (1973); People v. Martineau, 185 Colo. 194, 523 P.2d 126 (1974).

There is an area of proper police procedure in which an officer having less than probable cause to arrest may temporarily detain an individual for limited purposes. People v. Marquez, 183 Colo. 231, 516 P.2d 1134 (1973); People v. Schreyer, 640 P.2d 1147 (Colo. 1982).

A temporary police detention in the nature of "field investigation" can be justified by less than probable cause for arrest. People v. Stevens, 183 Colo. 399, 517 P.2d 1336 (1973).

Police officers may make a limited stop on less than probable cause. People v. Montoya, 185 Colo. 299, 524 P.2d 76 (1974).

In certain circumstances a police officer having less than probable cause to arrest may stop an individual for identification purposes and not violate the fourth amendment prohibition against unreasonable search and seizure. People v. Mascarenas, 726 P.2d 644 (Colo. 1986).

In order to lawfully detain an individual for questioning: (1) A police officer must have a reasonable suspicion that the individual has committed, or is about to commit, a crime; (2) the purpose of the detention must be reasonable; and (3) the character of the detention must be reasonable when considered in light of the purpose. People v. Stevens, 183 Colo. 399, 517 P.2d 1336 (1973); People v. Montoya, 185 Colo. 299, 524 P.2d 76 (1974); People v. Mascarenas, 726 P.2d 644 (Colo. 1986); People v. Ratcliff, 778 P.2d 1371 (Colo. 1989); People v. Wilson, 784 P.2d 325 (Colo. 1989); People v. Sutherland, 886 P.2d 681 (Colo. 1994); People v. Rodriguez, 924 P.2d 1100 (Colo. App. 1996), aff'd, 945 P.2d 1351 (Colo. 1997).

Permissible purposes for investigatory stops. Investigatory stops constitute an intermediate response by the police between nondetention and arrest. These procedures are permissible only for the purpose of questioning a suspect, who might otherwise escape, regarding his identity or observed behavior in order temporarily to maintain the status quo while seeking to procure more information regarding possible wrongdoing. People v. Severson, 39 Colo. App. 95, 561 P.2d 373 (1977).

Police may detain and require identification if reasonable suspicion of criminal conduct. The police may detain and require identification of a person if they have a reasonable suspicion, based on objective facts, that the person is involved in criminal conduct. People v. Archuleta, 616 P.2d 977 (Colo. 1980).

The reasonableness of an officer's suspicion is determined from the totality of the circumstances in which the suspicion arose. People v. Bell, 698 P.2d 269 (Colo. 1985); People v. Mascarenas, 726 P.2d 644 (Colo. 1986); People v. Coca, 829 P.2d 385 (Colo. 1992).

Investigatory stops. A police officer, lacking probable cause to arrest, may stop a person for investigatory purposes if the officer has a reasonable suspicion that the person stopped is involved in criminal activity. People v. Sosbe, 789 P.2d 1113 (Colo. 1990).

An investigatory stop implicates a seizure that is based on less than probable cause and so it must be brief in duration, limited in scope, and narrow in purpose. People v. Tottenhoff, 691 P.2d 340 (Colo. 1984); Outlaw v. People, 17 P.3d 150 (Colo. 2001).

Limited searches of a person for weapons during an investigative detention, when probable cause for arrest is lacking, is permissible, but there must be: (1) Some reason for the officer to confront the citizen in the first place; (2) something in the circumstances, including the citizen's reaction to the confrontation, must give the officer reason to suspect that the citizen may be armed and, thus, dangerous to the officer or others; and (3) the search must be limited to a frisk directed at discovery and appropriation of weapons and not at evidence in general. People v. Martineau, 185 Colo. 194, 523 P.2d 126 (1974); People v. Shackelford, 37 Colo. App. 317, 546 P.2d 964 (1976).

Based not on hunches and limited in scope. In order to uphold the stop and frisk as reasonable, both the initial confrontation and the subsequent search must have been prompted by the officers' reliance on particular facts, rather than on inarticulable hunches, and the scope of the frisk must be limited to that necessary for the discovery of weapons. People v. Shackelford, 37 Colo. App. 317, 546 P.2d 964 (1976).

Sufficient basis for weapons search to be excepted from warrant requirement. The reasonable apprehension of danger or injury to the police officers -- judged by objective standards -- provides a sufficient basis for a search to fall within the search for weapons exception to the fourth amendment's warrant requirement. People v. Burley, 185 Colo. 224, 523 P.2d 981 (1974).

[buffalobo]

More important are the laws/statutes in the town/city/municipality you happen to be in while carrying. IIRC towns/cities/muni is not supposed to have gun laws more restrictive than the state laws, but I do not open carry in Denver, Thornton or Boulder due to the fact that I believe you will be hassled, arrested and gun confiscated in those places, legal or not. They will make it illegal.

[OneGuy67]

Ask an attorney, LEO's don't know.

LEO's need to know the law and frankly, tend to know the law better than some attorneys.

[Elhuero]

The law in AZ is not a "papers please" law, though moonbats and la raza would like you to think it is. It does not give the police the ability to walk up to anyone who looks mexican and ask them to prove their citizenship.

The law simply requires police to check a person's immigration status while enforcing other laws.

Lets say an illegal, we'll call him paco, doesn't have car insurance and drives over to mariscos sabrosos to get a fish taco. He doesn't have to worry about a cop pulling him over for DWM. (driving while mexican) However if paco runs a stop sign and hits another car then he'd have to worry. Because the cop would see a guy who caused a wreck who no espeak english, and no has car insurance, and under the law would have to verify his status.

Ironically, the federal immigration laws (that are not enforced) require that legal residence keep their proof on them at all times and DO allow police or ICE to walk up to anyone they want and say "papers please"

The AZ law that everyone is bitching about is actually less restrictive than the federal law.

Colorado has a "papers please" law for everyone.

A police officer can stop you, ask you for id and if you refuse that is considered an obstruction and you can be arrested. Carrying or not.

With open carry, cops often use the "well we have to make sure you're allowed to carry" line. Open carriers don't like it because open carry is legal. To them, simply carrying a firearm is not probable cause and they feel harassed for exercising their rights.

If your walking down the street with a sidearm, be prepared for an encounter with police. They will ask for ID, and will most likely radio in to check for warrants. Be polite and honest and things should go fine.

With our laws, if the guy in the youtube vid had been in Colorado, he'd have been arrested for refusing to identify himself.

[Byte Stryke]

http://victimsoflaw.net/Stanley.htm

tell this guy that

[OgenRwot]

yet in AZ they are supposed to check for immigration status?

Wrong...
Research before posting

[hollohas]

If your walking down the street with a sidearm, be prepared for an encounter with police. They will ask for ID, and will most likely radio in to check for warrants. Be polite and honest and things should go fine.

With our laws, if the guy in the youtube vid had been in Colorado, he'd have been arrested for refusing to identify himself.

BIG +1