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Thread: Great case for open carry rights from 4th Circuit

  1. #1
    Regular Member Thundar's Avatar
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    Great case for open carry rights from 4th Circuit

    http://www.ca4.uscourts.gov/Opinions...d/115084.P.pdf

    Open carry is not RAS

    Finally a court stands up for the 4th and the 2nd in the same decision!

    Live Free or Die,
    Thundar
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    there are many many precedents that support this already, but this is a very nice defense with proper case cites.

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    Regular Member TFred's Avatar
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    Ah, you beat me to it! I was going to post this as well. Excellent case to read!

    I saw one of the most absurd things I have ever read from a LEO in this one, if it weren't so disgusting what they were trying to get away with, it would be laughable. In trying to show he had reason to believe that a suspect was "nervous", a LEO actually testified to this version of events:

    Black stood up, said he was going home, and began walking
    towards the apartments. Officer Zastrow, who was
    approximately five feet from Black, walked in front of Black
    and told him that he was not free to leave and he should sit
    down. In response, Black said "I can’t go home?" or "I can’t
    leave?" and continued walking away.

    Officer Zastrow then grabbed Black’s left bicep with his
    left hand. According to Officer Zastrow, he could feel Black’s
    "extremely fast" pulse through Black’s t-shirt
    , which he
    believed was a sign of nervousness.

    Unbelievable! When was the last time someone took your pulse through a shirt, while squeezing your bicep!?

    Also, here is the slap-down on the legally carried, and properly holstered firearm by one of the gentlemen being used as RAS to detain the rest of them:

    Third, it is undisputed that under the laws of North Carolina,
    which permit its residents to openly carry firearms, see
    generally
    N.C. Gen. Stat. §§ 14-415.10 to 14-415.23,
    Troupe’s gun was legally possessed and displayed. 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). Here, Troupe’s
    lawful display of his lawfully possessed firearm cannot be the
    justification for Troupe’s detention. See St. John v. McColley,
    653 F. Supp. 2d 1155, 1161 (D.N.M. 2009) (finding no reasonable
    suspicion where the plaintiff arrived at a movie theater
    openly carrying a holstered handgun, an act which is
    legal in the State of New Mexico.) That the officer had never
    seen anyone in this particular division openly carry a weapon
    also fails to justify reasonable suspicion. From our understanding
    of the laws of North Carolina, its laws apply uniformly
    and without exception in every single division, and
    every part of the state. Thus, the officer’s observation is irrational
    and fails to give rise to reasonable suspicion. To hold
    otherwise would be to give the judicial imprimatur to the
    dichotomy in the intrusion of constitutional protections.

    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.

    Finally, at the end, the court tossed in this little jewel, which I find fascinating in and of itself:

    IV.

    The facts of this case give us cause to pause and ponder the
    slow systematic erosion of Fourth Amendment protections for
    a certain demographic. In the words of Dr. Martin Luther
    King, Jr., we are reminded that "we are tied together in a single
    garment of destiny, caught in an inescapable network of
    mutuality," that our individual freedom is inextricably bound
    to the freedom of others. Thus, we must ensure that the Fourth
    Amendment rights of all individuals are protected.

    Wow.

    I don't like felons carrying guns any more than the next guy, but these clown LEOs deserved to lose this one.

    TFred

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    well, it certainly puts guys on notice. This guy got l-u-c-k-y .. could have gotten 15 yrs

    hopefully he does not carry anymore and has a productive future

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    Regular Member paramedic70002's Avatar
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    The whole thing is a fascinating read.
    "Each worker carried his sword strapped to his side." Nehemiah 4:18

    Guns Save Lives. Paramedics Save Lives. But...
    Paramedics With Guns Scare People!

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    Quote Originally Posted by TFred View Post
    SNIP

    The facts of this case give us cause to pause and ponder the
    slow systematic erosion of Fourth Amendment protections for
    a certain demographic. In the words of Dr. Martin Luther
    King, Jr., we are reminded that "we are tied together in a single
    garment of destiny, caught in an inescapable network of
    mutuality," that our individual freedom is inextricably bound
    to the freedom of others. Thus, we must ensure that the Fourth
    Amendment rights of all individuals are protected.

    They can ponder a bit about their own systematic erosion of the 4th Amendment. They got this one right; perhaps by accident.
    Last edited by Citizen; 02-27-2013 at 12:36 AM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Quote Originally Posted by Thundar View Post
    http://www.ca4.uscourts.gov/Opinions...d/115084.P.pdf

    Open carry is not RAS

    Finally a court stands up for the 4th and the 2nd in the same decision!

    Live Free or Die,
    Thundar
    This was indeed a very interesting reading, full of some really nice statements that are well cited.

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    I thought that this particular quote was interesting in light of recent discussions regarding being compelled to produce an actual ID while OCing (referring to those localities that have stop/ID ordinances and who have also required someone to produce an actual ID rather than just give the information):

    "Additionally, we have noted that this type of argument - that cooperation [referring to Black volunteering his driver's license] is a justification for reasonable suspicion - actually places a defendant in a worse position than if he had simply refused to cooperate altogether because the Supreme Court has 'consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure' Powell 666 F.3d at 189 n.10"

  9. #9
    Regular Member TFred's Avatar
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    Quote Originally Posted by drdan01 View Post
    I thought that this particular quote was interesting in light of recent discussions regarding being compelled to produce an actual ID while OCing (referring to those localities that have stop/ID ordinances and who have also required someone to produce an actual ID rather than just give the information):

    "Additionally, we have noted that this type of argument - that cooperation [referring to Black volunteering his driver's license] is a justification for reasonable suspicion - actually places a defendant in a worse position than if he had simply refused to cooperate altogether because the Supreme Court has 'consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure' Powell 666 F.3d at 189 n.10"
    What this essentially says is that these LEOs suspect you of committing a crime, no matter what you do, or how you interact with them. Classic "Darned if you do, darned if you don't" mentality.

    If I were these LEO's supervisor, I would frame this opinion and hang it over their lockers!

    TFred

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    Quote Originally Posted by TFred View Post
    What this essentially says is that these LEOs suspect you of committing a crime, no matter what you do, or how you interact with them. Classic "Darned if you do, darned if you don't" mentality.

    If I were these LEO's supervisor, I would frame this opinion and hang it over their lockers!

    TFred
    And, some (most?) courts hear such arguments with a straight face, rather than tossing the whole case out based on friviolity. Toss a few cases out for such ridiculous arguments and the other branches might start being a little more careful about how much they try to get away with. That the courts don't laugh such arguments out of court (figuratively speaking) helps illustrate their complicity in the erosion of rights.
    Last edited by Citizen; 02-27-2013 at 10:46 AM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  11. #11
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    Quote Originally Posted by TFred View Post
    What this essentially says is that these LEOs suspect you of committing a crime, no matter what you do, or how you interact with them. Classic "Darned if you do, darned if you don't" mentality.
    Quote Originally Posted by Citizen View Post
    And, some (most?) courts hear such arguments with a straight face, rather than tossing the whole case out based on friviolity. Toss a few cases out for such ridiculous arguments and the other branches might start being a little more careful about how much they try to get away with. That the courts don't laugh such arguments out of court (figuratively speaking) helps illustrate their complicity in the erosion of rights.
    The Fourth Circuit has been doing better about properly analyzing such things, as alluded to by the opinion in Black:

    "At least four times in 2011, we admonished against the Government’s misuse of innocent facts as indicia of suspicious activity. See United States v. Powell, 666 F.3d 180 (4th Cir. 2011); Massenburg, 654 F.3d 480; United States v. Digiovanni, 650 F.3d 498 (4th Cir. 2011); and United States v. Foster, 634 F.3d 243 (4th Cir. 2011). [... Here], we encounter yet another situation where the Government attempts to meet its Terry burden by patching together a set of innocent, suspicion-free facts, which cannot rationally be relied on to establish reasonable suspicion."

    I recommend each of those opinions as well. They're good reading. Digiovanni is notable for how ridiculous the officer's argument was:

    "Trooper Conner's reliance on the hanging shirts borders on the absurd. He labeled them as suspicious because non-drug traffickers would pack the shirts in a clothing bag. [...] Equally absurd is Trooper Conner's reliance on the clean car and the hygiene bag on the back seat."
    Foster in particular has a lot of good quotes in it:

    "We also note our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity."

    "[A]n officer and the Government must do more than simply label a behavior as "suspicious" to make it so. The Government must also be able to either articulate why a particular behavior is suspicious or logically demonstrate, given the surrounding circumstances, that the behavior is likely to be indicative of some more sinister activity than may appear at first glance."

    "Moreover, we are deeply troubled by the way in which the Government attempts to spin these largely mundane acts into a web of deception."

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    Activist Member nuc65's Avatar
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    Have to say I am happy with Bob Goodlatte's message

    http://news.yahoo.com/house-chairman...150011320.html

    But Rep. Bob Goodlatte of Virginia said at a Christian Science Monitor breakfast with media that such a requirement could unnecessarily inconvenience law-abiding citizens and lead to the creation of a national gun registry — something Goodlatte and many other Republicans oppose.
    "It's not a very practical thing to do and you'll have a lot of inconvenience to law-abiding citizens at the same time you're not going to keep many weapons out of the hands of people who are misusing them," Goodlatte said. "I think there are better ways."

    I called his office as a constituent and am glad he was listening... I may vote for him again. But not for Warner and Kaine, both I think I will actually be helping their opponents.
    When I carry a gun, I don't do so because I am looking for a fight, but because I'm looking to be left alone. The gun at my side means that I cannot be forced, only persuaded. I don't carry it because I'm afraid, but because it enables me to be unafraid. It doesn't limit the actions of those who would interact with me through reason, only the actions of those who would do so by force.

    excerpt By Marko Kloos (http://munchkinwrangler.wordpress.com/?s=major+caudill)

  13. #13
    Regular Member OC for ME's Avatar
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    ^ ^ ^ ^

    What about the OP?
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

  14. #14
    Regular Member Repeater's Avatar
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    "We are not persuaded"

    I'm amazed no one has zeroed in on the take-away:
    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). Here, Troupe’s lawful display of his lawfully possessed firearm cannot be the justification for Troupe’s detention. See St. John v. McColley, 653 F. Supp. 2d 1155, 1161 (D.N.M. 2009) (finding no reasonable suspicion where the plaintiff arrived at a movie theater openly carrying a holstered handgun, an act which is legal in the State of New Mexico.) That the officer had never seen anyone in this particular division openly carry a weapon also fails to justify reasonable suspicion. From our understanding of the laws of North Carolina, its laws apply uniformly and without exception in every single division, and every part of the state. Thus, the officer’s observation is irrational and fails to give rise to reasonable suspicion. To hold otherwise would be to give the judicial imprimatur to the dichotomy in the intrusion of constitutional protections.
    The court will not allow a cop who is either ignorant or stupid to eviscerate Fourth Amendment protections for lawfully armed individuals in Virginia.

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