MTS840 said:
What law would the police have violated if they had acted the same as that scenario I described in your state?
At least two. First, the charge for threatening with a weapon (brandishing), in Washington is a gross misdemeanor:
RCW 9.41.270
Weapons apparently capable of producing bodily harm — Unlawful carrying or handling — Penalty — Exceptions.
(1) It shall be unlawful for any person to carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons.
(2) Any person violating the provisions of subsection (1) above shall be guilty of a gross misdemeanor. If any person is convicted of a violation of subsection (1) of this section, the person shall lose his or her concealed pistol license, if any. The court shall send notice of the revocation to the department of licensing, and the city, town, or county which issued the license.
RCW 10.31.100 makes it illegal for a police officer to arrest a person for a misdemeanor or gross misdemeanor which has not be committed in the officer's presence:
RCW 10.31.100
Arrest without warrant.
A police officer having probable cause to believe that a person has committed or is committing a felony shall have the authority to arrest the person without a warrant. A police officer may arrest a person without a warrant for committing a misdemeanor or gross misdemeanor only when the offense is committed in the presence of the officer, except as provided in subsections (1) through (10) of this section.
(1) Any police officer having probable cause to believe that a person has committed or is committing a misdemeanor or gross misdemeanor, involving physical harm or threats of harm to any person or property or the unlawful taking of property or involving the use or possession of cannabis, or involving the acquisition, possession, or consumption of alcohol by a person under the age of twenty-one years under RCW 66.44.270, or involving criminal trespass under RCW 9A.52.070 or 9A.52.080, shall have the authority to arrest the person.
Now I know that you are going to say, "But the exception of paragraph (1) would apply!" In order for that argument to apply, however, one must be familiar with case law regarding what a threat with a firearm is. In order to be guilty of 9.41.270, ALL the elements of the offense must be met: "in a manner", "under circumstances", "at a time and place", AND that "manifests an intent to intimidate" or "
WARRANTS alarm." Notice the statute does not say causes alarm.. it says warrants alarm.
In the scenario you described, NONE of the actions of the subject would meet the requirements of 9.41.270 until the gun actually was removed from the holster AND was accompanied by other threatening actions or statements such as pointing it at someone or making a verbal threat.
This has been decided by the Washington Supreme Court in numerous cases:
State v. Spencer
http://forum.nwcdl.org/index.php?action=downloads;sa=downfile;id=25
and
State v. Casad
http://forum.nwcdl.org/index.php?action=downloads;sa=downfile;id=9
The Washington Supreme court ruled in those cases that the mere carrying of a firearm did not meet the requirements of 9.41.270, and in Casad the firearms were even carried in the hand, on a public street, by a convicted felon!
Arrest is defined as:
Halsbury's Laws of England defines an arrest as:
"Arrest consists of the actual seizure or touching of a person’s body with a view to his detention. The mere pronouncing of words of arrest is not an arrest, unless the person sought to be arrested submits to the process and goes with the arresting officer."
These words were adopted in Canada in R v Whitfield (1970).
In the United States, the Supreme Court, in the 1968 case of Terry v Ohio, used these words:
"An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society's interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual's freedom of movement, whether or not trial or conviction ultimately follows."
The act of "faceplanting and handcuffing" is an arrest, and unless the offense is committed in the officer's presence, or the officer has PROBABLE CAUSE (notice it is probable cause and not reasonable suspicion. Probable cause requires more than a 911 call to establish) that ALL of the elements of 9.41.270 have been met, the arrest is illegal under 10.31.100.
In addition, if the officer uses such actions in an attempt to persuade the subject not to open carry the firearm, then the officer is guilty of coercion:
RCW 9A.36.070
Coercion.
(1) A person is guilty of coercion if by use of a threat he compels or induces a person to engage in conduct which the latter has a legal right to abstain from, or to abstain from conduct which he has a legal right to engage in.
(2) "Threat" as used in this section means:
(a) To communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time; or
(b) Threats as defined in *RCW 9A.04.110(25) (a), (b), or (c).
(3) Coercion is a gross misdemeanor.
RCW 9A.04.110(25) has been modified since 9A.36.070 was written and 9A.36.070 was never changed to reflect the modifications made to 9A.04.110(25). That is what the asterisk is for in the above statute. The definition of threat in 9A.04.110 is now in paragraph (27):
(27) "Threat" means to communicate, directly or indirectly the intent:
(a) To cause bodily injury in the future to the person threatened or to any other person; or
(b) To cause physical damage to the property of a person other than the actor; or
(c) To subject the person threatened or any other person to physical confinement or restraint; or
(d) To accuse any person of a crime or cause criminal charges to be instituted against any person; or
(e) To expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule; or
(f) To reveal any information sought to be concealed by the person threatened; or
(g) To testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or
(h) To take wrongful action as an official against anyone or anything, or wrongfully withhold official action, or cause such action or withholding; or
(i) To bring about or continue a strike, boycott, or other similar collective action to obtain property which is not demanded or received for the benefit of the group which the actor purports to represent; or
(j) To do any other act which is intended to harm substantially the person threatened or another with respect to his health, safety, business, financial condition, or personal relationships;
Because of these requirements, multiple training bulletins have been issued in various law enforcement agencies around Washington informing officers that open carry is a legal act and that no formal detainment of persons carrying firearms is legal unless probable cause exists that all the elements of 9.41.270 have been met.
http://forum.nwcdl.org/index.php?action=downloads;cat=1