Federal appeals court hands victory to open carry, Fourth Amendment :: 05/15/2015

The U.S. Sixth Circuit Court of Appeals yesterday handed down a victory for open carry advocates and the Fourth Amendment in a ruling that may give gun prohibitionists heartburn, but also should not be seen as a signal for open carriers to engage in deliberately provocative behavior for the benefit of video social media.

The appeals court ruled that Toledo resident Shawn Northrup can sue a city police officer for detaining him on June 16, 2010 because he was openly carrying a semiautomatic pistol while walking with his wife and their dog. Northrup was stopped, disarmed and handcuffed, and detained for about 30 minutes by Officer David Bright. The eight-page ruling may be read here.

Writing for the three-judge panel, Judge Jeffrey Sutton noted, “This requirement and the impropriety of Officer Bright’s demands are particularly acute in a State like Ohio. Not only has the State made open carry of a firearm legal, but it also does not require gun owners to produce or even carry their licenses for inquiring officers.”

“While open-carry laws may put police officers…in awkward situations from time to time, the Ohio legislature has decided its citizens may be entrusted with firearms on public streets,” the judge also observed. “The Toledo Police Department has no authority to disregard this decision—not to mention the protections of the Fourth Amendment—by detaining every “gunman” who lawfully possesses a firearm.

“And,” Judge Sutton added, “it has long been clearly established that an officer needs evidence of criminality or dangerousness before he may detain and disarm a law-abiding citizen. We thus affirm the district court’s conclusion that, after reading the factual inferences in the record in Northrup’s favor, Officer Bright could not reasonably suspect that Northrup needed to be disarmed.”

Writing yesterday for the Washington Post, Eugene Volokh noted: “The police are free to approach people to ask them questions, even without reasonable suspicion that the people are violating the law. They can order a person to stop for a short while if they have reasonable suspicion that the person is committing a crime or about to commit a crime. They can certainly disarm him and arrest him if they reasonably think that he’s about to shoot them, or if he is otherwise threatening them (something that the police alleged here, but that the court said is a fact question for the jury).

“But to coercively stop a person — and certainly to handcuff the person, which is what happened in this case — the police do have to have such reasonable suspicion,” Volokh admonished. “And if all they see is someone openly carrying a gun in a state in which such open carry is legal, the Fourth Amendment prevents them from ‘search[ing]’ or ‘seiz[ing]’ that person. One can support open carry or oppose it…but if open carry is legal, this result seems quite right under Fourth Amendment law.”

Now, a bit of caution might be in order. Judge Sutton’s opinion should not be considered a green light for every would-be social media star to walk around with pal carrying a smart phone with the camera set to record, in hopes of creating a confrontation with police.

This ruling does not directly affect open carry in Oregon or Washington, but circuit courts do pay attention to opinions from other circuits. In Washington, state statute clearly defines the parameters of open carry: “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.”

While Shannon Watts and her soulmates at Moms Demand Action can complain about open carry, it’s not illegal in many places. But always remember the three-word golden rule: “Time, place and manner.” A superb resource for information is OpenCarry.org.

Northrup’s attorney, Daniel T. Ellis, was quoted by the Toledo Blade today with an observation that just might apply to some cities in the Pacific Northwest. He also suggested Toledo isn’t an anomaly in his part of the country, either.

“Columbus is very restrictive,” Ellis contended. “Cleveland is kind of restrictive. Cincinnati is restrictive. I think Toledo is getting better. Police officers do not want people to carry firearms. They seem not to want to abide by the Constitution that allows people to do so.”

That may be an unfair blanket assessment of street cops, but it can certainly apply to some officials who cling to the debunked opinion that the Second Amendment applies only to state militia service. They seem to believe that gun ownership is not a right but should be a heavily-regulated government-controlled privilege. One can link to the ruling, above, and share copies.

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