Bad Plaintiff, but Good Law

[Al Norris]

To Quote from Pp. 13 and 14 of the recent opinion, U.S. v. Black (CA4), Reversed and Vacated:

The Government contends that because other laws prevent convicted felons from possessing guns, the officers could not know whether Troupe was lawfully in possession of the gun until they performed a records check. Additionally, the Government avers it would be "foolhardy" for the officers to "go about their business while allowing a stranger in their midst to possess a firearm." We are not persuaded.

Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states. United States v. King, 990 F.2d 1552, 1559 (10th Cir. 1993).

This is the 4th circuit agreeing with the 10th circuit (and a NM Federal District Court) that openly carrying a firearm, in those States that this is permitted, is not grounds for a reasonable and particularized suspicion that wrong doing is afoot. The police cannot proceed with a Terry Stop, without more.

Although the decision does let a felon in possession get "off the hook," as it were, the decision is a good one for maintaining the 4A as a valid restriction on the actions of the government.

Amidst all the fervor over encroachment on our rights, this is an excellent decision.

I would also add that Judge Davis, was also on the panel that heard the Woollard case. Does not mean that he agrees with Gura, but one can hope.

 

[Aguila Blanca]

Indeed, good law. And the decision supports the opinion I have expressed on a couple of other forums (usually in opposition to police officers who choose not to understand the guidelines established in Terry) that openly carrying a firearm in a jurisdiction where open carry is legal does not provide any basis on which an officer might form a suspicion "based on clearly articulable facts" that a crime is being committed."

"He was wearing a gun, your Honor."

"Isn't that legal?"

"Well, yes, but ..."

"If it's legal, what crime was suggested by his engaging in demonstrably legal activity?"

 

[press1280]

Additionally, even if the officers were justified in detaining
Troupe for exercising his constitutional right to bear arms,
reasonable suspicion as to Troupe does not amount to, and is
not particularized as to Black, and we refuse to find reasonable
suspicion merely by association.

Oh, and I thought you could only bear arms in the home
Wonder if we'll see this in a 28j in Wollard, Peruta/Richards, and the NJ carry lawsuits?

 

[basilisk4]

As an attorney who has practiced in the civil arena for the last six years but with some criminal law background before that, I have no idea how openly carrying, where it is legal, could constitute reasonable articulable suspicion that a crime was a foot or had reasonably been committed. "Out of the ordinary" does not cut it.

 

[Al Norris]

Wonder if we'll see this in a 28j in Wollard, Peruta/Richards, and the NJ carry lawsuits?

Since MD, CA and NJ are not open carry States, I doubt this ruling would have any value whatsoever.

That does not mean that there is no value in this decision. Just that it is inapplicable to those cases wherein a permit or license must be obtained to carry.

 

[Aguila Blanca]

That does not mean that there is no value in this decision. Just that it is inapplicable to those cases wherein a permit or license must be obtained to carry.

Not so fast.

Most of Pennsylvania allows unrestricted open carry, but within a "city of the first class" (Philadelphia), one needs a license in order to carry either openly or concealed. In Connecticut, despite the CT analog to the 2nd Amendment, one must have a permit to carry a handgun but, once you have the permit, open carry is legal (though frowned upon by the aw-thaw-ri-tays). There have been several cases discussed on PAFAO wherein people were stopped, and even arrested, for open carry in Philadelphia. One young man won an award of (IIRC) $25,000 against the Philadelphia PD for arresting him for open carry even though he had a license to carry.

So this case is relevant in such jurisdictions. The point being that, even if you need a license/permit to carry openly, the police cannot assume that every person they see carrying does NOT have a permit until proven otherwise.

 

[Al Norris]

In a jurisdiction where one must have a license/permit to carry (in any manner), I think we will find that the courts will allow an investigatory stop to determine if the citizen has the necessary license/permit. Once it has been determined that the license/permit is valid, no further investigation will be allowed.

The above scenario would comport with the CA4 and CA10 decisions.

The game changer would consist of two things, as I see it:

1. A SCOTUS decision that the Right to Carry exists outside the home.
2. Case law (at the circuit level) that shows that crooks do not openly carry but citizens do.​

Point 1 would narrow the focus and point 2 would be directly on target.

 

[maestro pistolero]

In a jurisdiction where one must have a license/permit to carry (in any manner), I think we will find that the courts will allow an investigatory stop to determine if the citizen has the necessary license/permit. Once it has been determined that the license/permit is valid, no further investigation will be allowed.

Once the right is established outside the home, how would that not be tantamount to stopping a motorist only for the purposes of verifying that his/her driver's license is valid? The public safety risk of unlicensed carrying a gun is not distinguishable from unlicensed operating of a motor vehicle. Guns and cars are the mechanisms of a comparable number of annual deaths.

In fact, one is a right (bearing), and the other is treated as a privilege (driving). If it is impermissible, absent more, to stop someone for a license-check who is exercising the licensed privilege of driving (which undeniably carries a significant public safety risk), how then could it be permissible, absent more, to stop someone merely to show his/her license to exercise a right?

 

[Brian Pfleuger]

Actually, cars kill about 3 times as many people as do guns.

 

[KyJim]

Yes, this is a good decision. Exercising a lawful right cannot justify a search or seizure. Glad to see this being recognized where open carry is recognized to be lawful.

Once the right is established outside the home, how would that not be tantamount to stopping a motorist only for the purposes of verifying that his/her driver's license is valid? The public safety risk of unlicensed carrying a gun is not distinguishable from unlicensed operating of a motor vehicle. Guns and cars are the mechanisms of a comparable number of annual deaths.

Police can set up road blocks to verify license, registration, and insurance so long as it is not based on factors particular to individual vehicles. In other words, you have to stop every car or every fourth car, etc. Perhaps police could use a "roaming roadblock" where they stop every person who openly carries to check for a license or permit. Of course, there can be no such "roaming roadblock" where the right to carry openly does not require a license.

 

[maestro pistolero]

KyJim, I thought the only purpose that the courts ok'd for random checks was DUI checkpoints. Can you please enlighten me as to what case law that supports random license, reg, and insurance checks?

Back on topic: It is rare that such a bad plaintiff leads to anything but bad law. Kudos to this court for its perspective here.

 

[Double Naught Spy]

So in the appropriate jurisdictions, the police aren't justified in a Terry stop for open carry. What are the repercussions for them doing so?

Don't get me wrong. I like where this is going. I just see the decision being easily overlooked for a while when it should not be overlooked by law enforcement.

 

[KyJim]

KyJim, I thought the only purpose that the courts ok'd for random checks was DUI checkpoints. Can you please enlighten me as to what case law that supports random license, reg, and insurance checks?

In Delaware v. Prouse, the officer had nothing to do and simply pulled over a driver to check to see if he was licensed. The court said it was unlawful but said checking all autos at a roadblock would be okay:

Accordingly, we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment. This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. fn26 Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers.

fn26 Nor does our holding today cast doubt on the permissibility of roadside truck weigh-stations and inspection checkpoints, at which some vehicles may be subject to further detention for safety and regulatory inspection than are others.

Delaware v. Prouse, 440 U.S. 648, 663 (1979) (emphasis added).

It is the standardless "spot check" that is illegal.

 

[KyJim]

So in the appropriate jurisdictions, the police aren't justified in a Terry stop for open carry. What are the repercussions for them doing so?

The most immediate repercussion is suppression of any evidence seized. It would also open them up to civil liability for violation of civil rights under 42 U.S.C. sec. 1983 and probably for common law false imprisonment/restraint. I suppose that there might be some possibility of disciplinary action in some jurisdictions under the right circumstances (e.g., repeated violations) but the officer might also get a pat on the back in other jurisdictions.

 

[Aguila Blanca]

So in the appropriate jurisdictions, the police aren't justified in a Terry stop for open carry. What are the repercussions for them doing so?

The most immediate repercussion is suppression of any evidence seized. It would also open them up to civil liability for violation of civil rights under 42 U.S.C. sec. 1983 and probably for common law false imprisonment/restraint. I suppose that there might be some possibility of disciplinary action in some jurisdictions under the right circumstances (e.g., repeated violations) but the officer might also get a pat on the back in other jurisdictions.

The immediate repercussion in Philadelphia was that the city (or its insurer) paid a young man $25,000, AND the city entered into a consent agreement to retrain ALL their officers on what the law says regarding open carry, and the standard that must be met before they are allowed to conduct an investigatory stop.

 

[2ndsojourn]

^^^ AB, are you sure that was an open carry case? PA is an open carry state but 'not in a city of the first class'. (ie: Philadelphia)

 

[basilisk4]

As KYJim said, police in any state can set up a roadblock and stop cars to check for essentially any violation of law. As I recall, they don't even have to check every single car, as long as there is standardization as to which cars they stop (e.g., every sixth car).

 

[MLeake]

2ndsojourn, incorrect.

PA is an open carry state for any non-prohibited person.

The one "City of the First Class" (an appellation I find offensive) has the exception, that open carry is only allowed for those who have valid concealed carry permits.

The case AB is referring to involved a licensed CCW who chose to open carry in Philly.

 

[ScottRiqui]

So would the logic behind this decision likely be applicable to concealed-carry as well?

Specifically, if the police officer becomes aware that a person has a concealed-carry permit, that alone does NOT provide justification for a "stop and frisk"?

 

[KyJim]

So would the logic behind this decision likely be applicable to concealed-carry as well?

Specifically, if the police officer becomes aware that a person has a concealed-carry permit, that alone does NOT provide justification for a "stop and frisk"?

That's the idea. If they are carrying lawfully, this does not create a suspicion of wrong doing as required by Terry. Also, keep in mind that police likely could temporarily seize a concealed firearm if the licensing statute so provides. That is one ramification of a constitutional right versus a license or permit.