Disclaimer to Our Friends in Law Enforcement: This article is not meant to offend or insult anyone in law enforcement. It's meant to apprise the readers of their constitutional rights. While in uniform, you're an actor of the state. However, when you take off the uniform, you're also a citizen equipped with the same constitutional liberties as those you interact with on the job. As such, this information should be appreciated by you as a citizen, and when acting on behalf of the state.
Most readers of this article are concealed firearm permit holders who are law-abiding citizens. It's not our intent to help criminals conceal firearms during stops. We simply want to help law-abiding gun owners navigate complicated firearm laws.
A Legal Analysis of How Conceal Carriers Should Interact with Law Enforcement
By Phil Nelsen, Legal Heat
Let's have a frank conversation about interacting with law enforcement while in possession of a firearm. We don't want to focus on a police officer's legal right to stop you. Instead, let's focus on the less-analyzed issue of informing an officer that you're carrying.
This article is from a purely legal standpoint. There are many differing opinions about how you should handle police stops. My intent here is to only analyze the legal implications of informing an officer that you're armed.
Here are the three main legal categories related to police stops of concealed permit holders, which vary from state to state:
- Duty to Inform States: States where you're required by law to affirmatively disclose the presence of your firearm (e.g. Ohio, Michigan).
- Quasi Duty to Inform States: In these states, you don't have to affirmatively inform the officer of the presence of a firearm. But state law requires you to respond honestly when asked if you have a weapon on your person, or produce your permit if requested to do so. The range of requirements for these states can vary significantly (e.g. Iowa, Texas).
- No Duty to Inform States: In these states, you have no legal obligation to inform the officer that you're carrying a firearm. And you usually have no legal obligation to respond if asked (e.g. Utah, Georgia).
This article is not a state-by-state summary of all of the laws covering police stops and concealed permit holders. Legal Heat sells a book and mobile phone app that contains this information. Concealed Nation also has a great article on that topic, which you can find here.
The focus of this post is to walk you through the three basic legal implications of disclosing the presence of your weapon to a police officer.
1. Waiving Your Fourth Amendment Rights
One potential outcome of informing an officer that you have a firearm is that the officer might perform a Terry Stop or a Terry Frisk.
The Terry Doctrine stems from the 1968 Supreme Court case Terry v. Ohio. In Terry, the United States Supreme Court held that an officer may perform a protective frisk and search pursuant to a lawful stop when the officer reasonably believes a person is "armed and presently dangerous to the officer or others." (see 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889).
Terry Stops give the officer authority to temporarily disarm the permit holder "in the interest of officer safety." The Court did caution that a search "is a serious intrusion upon the sanctity of the person" and should not be taken lightly. Still, the basis for the search itself is left up to the officer's discretion, once he or she is made aware of the presence of a weapon.
The sole purpose of allowing a frisk or search is to protect the officer and other potential victims by neutralizing prospective weapons (see Michigan v. Long, 463 U.S. 1032, 1049 n. 14, 103 S.Ct. 3469). For example, a Terry Stop allows a police officer to remove you from your vehicle, pat down all occupants of the vehicle (using touch to determine if they're armed), as well as search the entire passenger compartment - including any locked containers - that might reasonably house a weapon.
In other words, telling a police officer you have a firearm on you or in your vehicle serves as a waiver of your Fourth Amendment rights, allowing the officer to conduct a warrantless search.
This issue was highlighted in the recent 4th Circuit Court of Appeals case United States v. Robinson. In Robinson, the Court extended the Terry Doctrine even further. In its ruling, the Court stated that because firearms are categorically dangerous…
"an officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile's occupants is armed may frisk that individual for the officer's protection and the safety of everyone on the scene."
As Judge Wynn ominously wrote in his concurring opinion, "Those who choose to carry firearms sacrifice certain constitutional protections afforded to individuals who elect not to carry firearms."
The waiver of Fourth Amendment rights is why states with "duty to inform" laws create such a constitutional dilemma. If, as a condition to carrying a firearm, I'm required by law to inform an officer that I have a firearm in my vehicle, then I am simultaneously required to waive my Fourth Amendment privacy rights. That's a violation of the unconstitutional-conditions doctrine and is long overdue for a legal challenge.
But you may be thinking right now, "I'm not a criminal. Why should I care if I ever get searched?"
2. You're Already a Criminal - You Just Don't Know It Yet
We're all criminals, to some small extent, from time to time. Do you have any idea how many gun laws are out there? Neither does the Department of Justice.
If you don't know how many gun laws exist, how can you know if you're abiding by all of them simultaneously? U.S. Supreme Justice Robert Jackson once said, "Any lawyer worth his salt will tell the suspect [his client], in no uncertain terms, to make no statement to the police, under [any] circumstances."
The reasoning behind Justice Jackson's quote isn't because police officers are bad, it's simply because the average civilian has no idea how many laws they might be breaking at any given time. As a prosecutor, and later as a defense attorney, I routinely encountered clients charged with crimes for which they had no idea they were committing.
Here's a simple example of how the "I have nothing to hide" mentality might land you in jail. Imagine you're a Utah resident and Utah concealed permit holder. Your Utah permit is valid in more than 30 states. You take a road trip with your firearm. While driving through Idaho (where your permit is valid) you get pulled over for speeding in a school zone. Because you're an upstanding citizen with nothing to hide, you tell the officer that you have a firearm in the vehicle…
And now you're a felon. Wait, what just happened? Let's review why you've unwittingly joined the ranks of the felon class.
Law 18 U.S.C.A. § 922(q)(2)(A), otherwise known as the Federal Gun-Free School Zones Act (GFSZA), states that:
"It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone."
The term "school zone" means in or on the grounds of a public, parochial or private school - or within 1,000 feet of the grounds of a public, parochial or private school. The term "school" means a school which provides elementary or secondary education, as determined under State law (see 18 U.S.C.A. § 921).
There are a few narrow exceptions to this law, one of which is:
If the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;" 18 U.S.C.A. § 922 (emphasis added)
You have a permit from Utah that is valid in Idaho but wasn't issued by Idaho, which means the federal law (waiving your Fourth Amendment rights) is against you. See how fun that was? But don't worry, the penalty for violating this law is only five years in prison and a $5,000 fine. (If you want more details about this law, read the ATF's analysis of it here.)
Of course, as is often the case, the Idaho police officer may sympathize with you, and realize that you didn't intend to violate the law. In this case, the officer in question may choose not to escalate the situation beyond a simple traffic stop. Millions of people violate the GFSZA every year, and very few are prosecuted. Given the harsh penalty, however, it's not a gamble I'd want to take.
3. Searches Are Almost Always a Bad Thing
I would challenge anyone reading this to think of any instance where someone waiving their rights, or consenting to a search and seizure, has improved their life. In my career, I've never seen it. I have, however, seen good people charged with serious crimes because they were overly generous with the amount of information they shared with law enforcement. It's my experience that nothing good can come from waiving your rights. Consider the wording of the often-cited Miranda warning:
The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. Miranda v. Arizona, 384 U.S. 436, 469, 86 S. Ct. 1602, 1625, 16 L. Ed. 2d 694 (1966) (emphasis added).
"Can and will be used against you." The best-case scenario of waiving your rights is you get to go home. The worst-case scenario is you go to prison.
Once again, it's not our intent to tell you how you should interact with law enforcement, or imply in any way that law enforcement is out to get you. As a prosecutor, I worked with law enforcement every day. As a firearm instructor over the past decade, I can say that some of the best people I know are police officers.
We encourage everyone to treat law enforcement with the utmost respect.
Phil Nelsen is a nationally recognized firearms law attorney, expert witness, college professor, author and co-founder of Legal Heat, the nation's largest firearms training firm.
Legal Heat offers CCW classes nationwide and publishes the industry-leading Legal Heat 50 State Guide to Firearm Laws and Regulations, which you can download on iTunes, Google Play and the Kindle App store. You can purchase the paperback version of the Legal Heat 50 State Guide, or sign up for a concealed carry class at www.mylegalheat.com