This was posted to the Virginia Citizens Defense League mailing list and is therefore Virginia-specific, but the comments are still valid.
Member Russ Troxel has written a thought-provoking piece about armed citizens experiencing a police Terry Stop because of carrying a gun.
By way of background, a "Terry Stop" is a stop of a person by law enforcement officers based upon "reasonable suspicion" that a person may have been engaged in criminal activity, whereas an arrest requires "probable cause" that a suspect committed a criminal offense. The name comes from the standards established in a 1968 case, Terry v. Ohio. The issue in the case was whether police should be able to detain a person and subject him to a limited search for weapons without probable cause for arrest. The court held that police may conduct a limited search of a person for weapons that could endanger the officer or those nearby, even in the absence of probable cause for arrest and any weapons seized may be introduced in evidence.
Mr. Troxel wrote:
I am not a lawyer. The following are my personal observations based on my own research and discussion with others on the subject.
The following applies to foot encounters with police where there is a 911 call reporting a lawfully armed, law-abiding, peaceable citizen, the officer is Terry Stopping the citizen, and possibly seizing his gun. Driving or riding in a vehicle has rules that differ a lot on some points, including one big one about guns. Also, there are a number of angles and exceptions determined by the courts regarding the 4th Amendment (search and seizure). I mention none of these below; space does not allow it.
For the lawfully armed citizen who wishes to protect or exercise his rights during a Terry Stop, there are two problems. By creating barriers, these problems leave only a few options for protecting one's rights.
Problem number one is that the citizen will have no way of knowing for sure, at the time of the encounter, if the LEO has legitimate reasonable suspicion to make a Terry Stop, or whether the LEO has legitimate grounds to temporarily seize the citizen's gun.
All it takes is an embellished 911 call and the police may in fact have reasonable suspicion to detain (Terry Stop) the citizen, even if the citizen was doing nothing illegal and knows it. It's not so much what the citizen was actually doing, as it is what the police were told in the phone call.
The only way to know for sure whether the LEO had legitimate reasonable suspicion and authority for a detention (Terry Stop) and/or weapon seizure is to file a Freedom of Information Act (FOIA) request for the 911 call and radio traffic. Or get an attorney involved. But this can only happen after the stop.
Also, the police are under no obligation that I know of to tell me their reasonable suspicion. Even if one did, I would have to assume for my own legal safety that he was not telling me everything, or mis-stating it, or paraphrasing it.
So, the citizen can only know for sure whether the officer had legal authority for the detention AFTER the police encounter.
I give problem number two to show a legal barrier exists, not because something should be done about it during a police detention. Problem number two for the citizen who wants to protect or exercise his rights during a police encounter is a Virginia Supreme Court opinion expressly stating one may not use force to resist an unlawful detention. In Commonwealth vs Hill (2002) the court said, "Accordingly, we hold that a person in this Commonwealth does not have the right to resist an unlawful detention or 'pat down' search." The defendant's conviction of assault and battery on a police officer--for using force to resist an unlawful detention--was reinstated in this opinion.
Thus, a lawfully armed citizen who wants to protect or exercise his rights during a police encounter cannot know with certainty whether the LEO has legal authority to detain him, search him for a weapon, or seize his weapon. And even if he correctly knows it is not a lawful detention, he legally can do nothing physically to resist it.
I am convinced after much thought and research that it is best to comply during a police detention while verbally and politely refusing consent. This way, if it is found out by FOIA that the LEO in fact clearly did not have reasonable suspicion, he's actionable. By actionable, I mean a formal internal affairs complaint at a minimum. Also, it's a point of law that if I consent, I am waiving my 4th Amendment protections and thereby making legal a search or seizure that might have been unlawful had I refused consent.