has questions i have to answer them and one of the things i want to point out is that part of the jail which i think is really the case that terry and part of the jail really control this case says specifically that the reliability of the tip includes the assertion of illegality that's involved and this is where the tying in with the second amendment issue that i threw in to get your attention  illegality well that's what's missing the bare allegation that a person is in possession of a firearm depending on state law may or may not be illegal in fact under the law now we know you can never be illegal under all circumstances it is not contraband in the way that cocaine would be considered contraband under all circumstances and so that's a that's a relevant consideration what do we do with the fact and street legally carrying and see a weapon are very low well i would say one actually that the record doesn't support that we may be colloquially known but the record has no information about what percentage of people have concealed permit concealed carry permits but beyond that the allegation wasn't that there was a concealed weapon the allegation was that mr makki had a gun and well that's right and it was not visible therefore it was a concealed firearm well actually the officer county could only see mr makki from behind he couldn't see him from the front that was his testimony he didn't see where his hands were he didn't see what he was wearing so actually and i you may think that i'm slicing the apple thinly but that's what that's what's required here for the finding of you don't let's just get it yeah so there's there is really no allegation of a specific illegality he's got a concealed weapon i saw him brandish a weapon i saw him take a gun out of his pocket and put it into his car without being in a locked box all of these kinds of specific allegations that would automatically in that case i would say give rise to at least enough information for the officer by itself  to investigate further here we have the barest possible allegation you could have he's got a gun how do you know i don't know did you see it we don't know when did you see it i don't know where is the gun i don't know you're asking questions as if she's and i don't know i don't know know the officer and don't know that's right but she didn't say i don't know because they didn't ask right but if if you got if i'm the police chief and i've got a couple of officers were flagged down on the woman flagged me down tells me that guy has a gun yes the guy looks at me looks at the conversation i'm having with the woman and starts walking away rapidly if i the police officer said you know i'm busy i can look into this and i'm the police chief and i know that i'm about to put that guy i'm about to suspend that cop well let me let me let me take issue with these what the factual basis of that hypothetical which is that  there wasn't actually any factual finding about whether mr makki started to walk afterwards or was already walking and in fact the judge prior specifically said we don't know he may have already been walking to ok so i think that's a relevant consideration i think is will the government state that that's corroboration for the tip and there was no factual finding on that matter but to go to the heart of your question is what should an officer do or in this case two officers what should two officers do under those circumstances i think is perfectly reasonable to say ask at least one more question start off taking off after the suspect asked one question two more questions where did you see it did you see recently does he have it can take a picture of your i d in case we need to call you later great good bye and we're on our way ten seconds fifteen seconds all they need to do to establish a factual basis for reasonable suspicion that that's all that they're required to do and i don't think that that's asking a lot i think is asking them to do the amount of investigation that's necessary given the bare allegation that was made if it was in like many of the cases that are say throughout the briefs i saw the suspect on that address ten minutes ago putting drugs into his car i saw him dealing drugs this morning ok fine you've got enough you got enough to you've got enough to go on but that's not is it your position then that the officers were not allowed to investigate further on the basis of a harried woman who disappears and says i saw that man with a gun they don't ask her questions to assure her again what are they supposed to do faced he was walking they asked him to stop walking he didn't yes then they put their hand on him and said hey we want to talk to you what then are they supposed to do to read terry again and i read for florida the jail again and i thought justice harlan's concurrence in terry was very interesting and i think it's borne out in the court's later jurisprudence especially in florida v jail he says a police officer cannot walk up to someone insists on them for weapons if you reason believes the person is armed but does not reasonably suspect a crime so what's the what's the crime that he's being suspected of that the answer to that is the answer to your question if he is believed to be engaged in a crime or about to commit a crime or just having committed a crime so we like to talk to you do you have any weapons on you do you mind if we check for weapons that that's what they're supposed to do what you know that and that's not what they did instead they walked after him stop actually with the officer said was stop you're being detained that's what officer county said stop you're being detained as he was free to do mr makki continued walking because the officers as far as you concerned had no reasonable suspicion to detain him for a crime he's free to walk away and that choice in and of itself does not provide a basis for further suspicion particular because they had no basis for suspecting him of on yes it's a good question at the entire encounter took place over three minutes and what officer carney said was that mr makki was about fifteen feet away from him face to away from him at the time so they were fairly close by and it seems to me that it would not be impractical at all based on what we have in the record of course it's a fairly sparse record to take fifteen seconds to ask two more questions or even take a picture of the person's idea if they have id take jot down their note and follow along with your partner to assist in what might be a detention but might not be so i think it's on these facts it's entirely possible employable that that would be a legitimate thing for the police to do procedurally under those circumstances i see them running low on time so unless the court has other questions i'd like to reserve some time for a bottle to the other side you've got thank you very much me please the court my name is full of cops it's going to represent the united states problem a reasonable suspicion is a low threshold it is considerably less than probable cause and it is that way by design terry stops are an investigatory tool they are critical to police officers and their public safety function this court has commented on that most recently on bark in  cop was a big cop he observed these guys hanging on or under jewelry store so there was lot of indications that they may be about to break in that's it now was your response or what their crime is your honor the crime is any number of crimes of course as i'm sure you know under terry the court the supreme court has actually said that when a fine one p crime is not the question here it's rather is criminal activity afoot and that's a that's a little more general but any number of crimes here possession of a firearm it could be a shooting that's of course illegal it could possession in any number of ways under san francisco city and county law it is illegal to have a gun on county property that includes you in plaza so this incident took place  near there it is illegal to have a gun concealed without a permit is illegal to open carry period subject to a few exceptions that i think certainly wouldn't apply in downtown san francisco  the defense has mentioned the idea well maybe the gun is in the car well that's a legal too in less it's locked up in the proper way and unloaded california in san francisco in particular have extraordinarily restrictive gun laws that is a matter of public law that's not something that needs to be on the record san francisco's policy on granting concealed carry license is to some extent a factual issue but that's a public document that i suppose the court could take judicial notice of if it felt necessary but so much of this is public law that we don't think it's necessary this court has address these issues in a number of cases there was of course if i'm saying that right which you're on i know you wrote the opinion in that case that's a concealed carry case not specifically san francisco but that case among so many others talks about how california maybe leads the nation in terms of restrictive gun laws and so that distinguishes this case from so many others that the defendant cites so many of those other cases there's one out of puerto rico one i believe out of georgia other states other sets of laws in california and in san francisco in particular firearms are treated differently under the law that yes and judge prior thought about that issue here this happened so quickly the woman runs into the street into traffic that's the testimony in a high crime area in a high crime area one of the officers said that this stretch of golden gate is a quote highway of crime this woman runs into the street she's agitated and concerned that's the officer's testimony which judge wire says this quote entirely credible and she says that guy's got a gun and the testimony is that she is screaming that so judge bryer said he thought it was implicit in her statement as well as the circumstances the manner in which she says it that she had witnessed the gun and or knew something bad was about to happen or you are going out for an excited utterance judge pryor your honor it's funny you say that i actually thought about that issue and said if this was a trial this statement is admissible as an excited utterance and this court as well as the supreme court in several cases including navarrette has said that a tip made under the how in person is inherently more reliable because the police can lay eyes on the person and so here there was some sort of suggestion or argument from the defense in the district court that maybe this woman is there are mentally ill people in this neighborhood you know i've seen a few we all have including judge pryor of course he's from oh you're with the neighborhood too and the police officer said talked about that both of them they said any reason to think she's mentally ill no any reason to think she's on drugs no that's in the record at least a page of questioning with both officers so that's again central to what what officers are supposed to do when the circumstances judge her credibility and they both testified that they felt after hearing that tip they had two options they could stay and continue to question her and potentially a lot the suspect get away or they could pursue mr makki and they so both officers said on that point that when a gun and a potentially dangerous situation is involved they have to work in pairs as a matter of their own safety they did instruct the woman to stay put before they both left to go after mr makki they came back and she was gone but frankly that's not uncommon in these cases that's the same thing in sierra nando's it's the same thing in paolo's there's a third or eleventh circuit case so i believe that we cite in our papers heard states versus her that's a recent case where the tipster had disappeared that happens but it does not diminish the fact that this woman had to come face to face with the police face the potential of consequences if she was lying and allow the police to evaluate her credibility and they made a judgment to both pursue mr makki together a couple other quick points i do think it's worth remembering also that this case does not end with that tip these cases are always the tallahassee right there always the the whole picture so here the officers testimony which the district court says is entirely credible is that as the woman is reporting to them officer carney walks eyes with mr makki mr makki looks concerned and then walks briskly away now judge pryor did not make a finding about whether as that happens mr mack is standing put already moving nevertheless the officer said after they received the tip mr makki was clearly walking away briskly they follow mr makki they say stop mr makki looks over his shoulder and keeps going  said they believe it's certain that mr makki heard them yet he disregarded their order to stop those are all additional facts that can go into the mix this court and united states versus smith of course the supreme court and who had already d in other cases that they had reasonable suspicion to investigate and of course when they did their first i'm in found a loaded semiautomatic pistol if the court has no further questions we have to affirm thank you thank you very much but if you put a minute on the clock please granted just want to make a couple of points regarding the record and if a court has questions i'm happy to answer them officer county did mention that he had a lot of familiarity with people in the neighborhood acting nervous and panicky and running into the street and so that this was not an uncommon experience that he had and frankly walked around the neighborhood has that experience on a regular basis so i think that's relevant to his evaluation counts for the government so it could have been any number of crimes which is also what officer l in other words he had no idea he had no idea it's pure speculation it's a hunch which is exactly what is not permitted there has to be some amount of articulable facts agreed it doesn't have to be chat cited chapter and verse as to exactly what is being violated there has to be some sense of exactly what the legality is at large and then finally as i was not sure i understand that our human count so the fact that there may be  yes your honor and well through to two responses that one is that officer lucio said it could be a robbery it could be drug trafficking could be any number of things in other words nothing that was directly related to the possession of a gun necessarily because that's not on the record there was no testimony by the officers that that the drug dealing that occurred on this corner is armed drug dealing that drug dealers always have illegal weapons on them etc but the second part of your question or the second part of the answer to your question is what is the illegality if there's an allegation of a gun that's the problem is that we don't know which is why i raised the stepped up we did get an answer that was left kind of hanging if it's a concealed only alternative there is open carry for it which is even less likely to be legal assuming that the gun is on his physical person which was not established by the tip well the motive says he has a gun i take that to mean it's on his person i mean yes that's a reasonable interpretation it i one reasonable interpretation and but that's where state law comes into effect in the cases i cited from various other circuits where is there a presumption there isn't a presumption as opposed to other states that certain kinds of possession  illegal and has to be an affirmative defense under california law it's true that it is restrictive there's no question about it all the more reason to get one more piece of information did you see it on his person was he carrying it out in the open yes ok let's go get