Reciprocity and Reciprocal Carry, Part 7 in a 9 Part Series:
Law Enforcement Encounters in Other States
In perhaps a controversial blog in this series on reciprocal carry, I put forth what most attorneys could indicate are general rules for law enforcement encounters in foreign states with reciprocal carry. This blog covers some common issues that may arise, such as identifying yourself to law enforcement officers, to what position a defense attorney, without knowing the specific facts of a case, would take with the use of deadly force.
You should know and understand such general rules, or majority rules, are always subject to exception and deviation. This topic could (and does) consume entire books on the subject (4th Amendment Searches and Seizures and 5th Amendment Privilege).
Notwithstanding, this blog post is designed to stimulate your thinking and discussion with your attorney, or group of individuals in which you objectively discuss firearms matters, about search and seizures and right against self-incrimination and legal issues that may immediately arise with law enforcement contact in a reciprocal state.
Ultimately, the central point to glean from this blog post is the first thought about law enforcement encounters should not be the instant following law enforcement contact or at the time of a defensive shooting.
Traffic Stops and Search and Seizures (Fourth Amendment).
This area of law is exceedingly complicated and has a constitutional dimension under the United States Constitution. State constitutions may provide you with more protections relating to searches and seizures and the privilege against self incrimination.
Most broadly, police officers may conduct a traffic stop with reasonable suspicion a crime is afoot(i) or search a home or dwelling with probable cause and a search warrant or exigent circumstances.
The key point to cull from this is two-fold with the myriad of situations which may arise with reciprocal carry. First, fully and completely comply with all law enforcement directions and commands. If you do not so, this may equate to resisting arrest.
Second, however, complying with law enforcement directives and commands is not the same as consenting to a search or seizure. If you consent, you waive 4th Amendment protections. You should not consent verbally or in writing to anything in most all civilian-police encounters. That does not mean you should be discourteous.
Identifying Yourself in Law Enforcement Encounters (Fifth Amendment).
A point that many criminal defense attorneys make, which is to not make statements following the use of deadly force, is sometimes equated to not identifying yourself to law enforcement officers in each and every situation. This is not the case as a general rule. Refusing to identify yourself and provide identification to law enforcement officers may itself be a crime.
The United States Supreme Court decided this precise legal issue in the Hiibel. The SCOTUS held that law requiring a suspect to identify himself or herself during a investigative stop did not violate the Fourth Amendment (search and seizure), nor did it necessarily violate the Fifth Amendment (privilege against self-incrimination)(ii).
Disclosing the Handgun Carried by Reciprocity.
There are multiple ways your carrying of a handgun may come up in reciprocal carry and a police encounter in a foreign state. The first is some states make it affirmative duty incumbent upon the person carrying the handgun (you) to disclose this to the police officer.
If this is the law in the reciprocal state you are carrying in, this law must be followed. It should not alarm you, some police departments unload handguns (and other firearms) during routine traffic stops. I strongly disagree with this as a SOP in the absence of other reason; manipulating a firearm at the side of the road adds more risk than it mitigates. Failure to disclose this is a penal act.
Where there is no such legal requirement (an affirmative duty to disclose that you are carrying a handgun by a reciprocity agreement), if asked you should or must disclose this in order to avoid obstructing justice, lying to a law enforcement officer, or committing a similar crime. A charge and conviction related to such, in turn, would probably constitute a basis to revoke your license to carry a handgun in your state of issuance.
Use of Force.
As a general rule, if you are involved in a deadly force encounter, presumably by self-defense, in a foreign jurisdiction (or in your state of residence), criminal defense attorneys would advise against making any statement about the situation until you have counsel.
Time and again, however, attorneys observe human nature, which embodies the desire to explain, and statements are given by even sophisticated legal consumers. As a general rule, albeit a strong one, this is a mistake.
There is scientific data to back up that a deadly force encounter impairs memory and an accurate recounting of the facts and should not occur at that time. In addition, with the right custodial interrogation techniques, which allow certain deceptions by law enforcement, innocent people have been known to confess to a crime they did not commit.
Thus, in the vast majority of cases, lawyering up is the prudent legal course.
These four points are generalities. There may be good and sound reasons to avoid following each and every one of them. However, they provide a lawful, defensive default position in most jurisdictions and should be a topic of discussion you have with your counsel of choice in advance.
This blog post is written for GST (www.gunshowstoday.com) by Bryan L. Ciyou, attorney at law, who practices in Indianapolis, Indiana. It is intended for general educational purposes. In Part VIII, I will address how meaning is given to reciprocity if there are states in between that are not reciprocal or where you will be transported to the foreign state by mass transportation.
Disclaimer/Warning: This Blog is not intended to provide legal advice nor a solicitation for legal representation. Specific questions relating to carrying a firearm should be directed to knowledgeable counsel in your state or the state of proposed carry.
(i) Terry v. Ohio, 392 U.S. 1 (1968).
(ii) Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004).