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Thread: Toledo: The Fourth Amendment PROTECTS open carry of guns (6th Circuit)

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    Toledo: The Fourth Amendment PROTECTS open carry of guns (6th Circuit)

    The victim of a false arrest, Shawn Northrup, may proceed with a Section 1983 lawsuit.

    Analysis by Eugene Volokh:

    The Fourth Amendment and open carry of guns (where such open carry is legal)
    From the Sixth Circuit federal court of appeals decision today in Northrup v. Toledo Police Dept.:

    ...

    While open-carry laws may put police officers (and some motorcyclists) in awkward situations from time to time, the Ohio legislature has decided its citizens may be entrusted with firearms on public streets. Ohio Rev. Code §§ 9.68, 2923.125. 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 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.
    As Eugene says of the opinion above:
    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. 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 (some states ban open carry of guns but broadly offer licenses to carry concealed), but if open carry is legal, this result seems quite right under Fourth Amendment law.
    The Toledo blade has more:

    Appeals court clears way for Toledoan to sue police
    A federal appeals court today cleared the way for a Toledo resident to sue a city police officer for allegedly detaining him illegally for openly carrying a semi-automatic handgun.

    “The Fourth Amendment no doubt permitted (Officer David) Bright to approach Northrup and to ask him questions,” wrote Circuit Judge Jeffrey Sutton. “But that is not what he did. He relied on these facts to stop (Shawn) Northrup, disarm him, and handcuff him.

    “Ohio law permits the open carry of firearms …, and thus permitted Northrup to do exactly what he was doing,” he wrote. “While the dispatcher and motorcyclist may not have known the details of Ohio’s open-carry firearm law, the police officer had no basis for such uncertainty.”

    ...

    The officer claimed Mr. Northrup removed his cellphone and then moved his hand back toward the gun where the phone had been, which the officer saw as a “furtive movement.”

    Mr. Northrup said he removed his phone to record the interaction. He kept asking questions rather than comply with the officer’s demand that he turn around and raise his hands above his head.
    Cops use that “furtive movement” excuse way too often to justify disarming and handcuffing law-abiding citizens.

    And if OC could be construed to 'inducing panic' like the old "Yelling fire in a crowded theater" then we are all doomed.
    Last edited by Repeater; 05-13-2015 at 07:07 PM. Reason: Added Toledo Blade

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    Most interesting. This makes me rather hopeful.
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    Quote Originally Posted by Repeater View Post
    SNIP Cops use that “furtive movement” excuse way too often to justify disarming and handcuffing law-abiding citizens.
    +1

    We just have to recognize the insidious nature of the statement. Its a sneaky attempt to usurp the judge's function. Here is what I mean by that.

    A movement is just a movement. Whether it is furtive or not is an evaluation about the movement.

    Stating the facts is the witness's job. Evaluating those facts is the judges' job, or the jury's.

    I'll bet that if every defense counsel started objecting to the term "furtive movement" from a cop during a pre-trial (suppression) hearing, demanding only the actual motion, then it wouldn't take long for this furtive movement nonsense to disappear.
    Last edited by Citizen; 05-14-2015 at 12:04 AM.
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    Quote Originally Posted by Citizen View Post
    We just have to recognize the insidious nature of the statement. Its a sneaky attempt to usurp the judge's function. Here is what I mean by that.

    A movement is just a movement. Whether it is furtive or not is an evaluation about the movement.

    Stating the facts is the witness's job. Evaluating those facts is the judges' job, or the jury's.

    I'll bet that if every defense counsel started objecting to the term "furtive movement" from a cop during a pre-trial (suppression) hearing, demanding only the actual motion, then it wouldn't take long for this furtive movement nonsense to disappear.
    Very insightful.

    Does this same logic apply to other subjective terms like "wielding" a gun or "acting erratically?"

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    As posted by Repeater in post number 1 of this thread-----
    [QUOTE
    The Fourth Amendment and open carry of guns (where such open carry is legal)
    From the Sixth Circuit federal court of appeals decision today in Northrup v. Toledo Police Dept.:

    ...

    While open-carry laws may put police officers (and some motorcyclists) in awkward situations from time to time, the Ohio legislature has decided its citizens may be entrusted with firearms on public streets. Ohio Rev. Code §§ 9.68, 2923.125. 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 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.


    [/QUOTE]

    So, where does the practice of disarming one for "officer safety" stand where so many of us have been disarmed and / or had our firearms unloaded/disassembled and/or the serial numbers run?
    Last edited by JoeSparky; 05-14-2015 at 12:20 AM.
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    But please note one caveat, largely due to the antics of Leonard Embody:

    What about the possibility that Northrup was carrying a firearm not covered by the Ohio law? Had Northrup been carrying a gun that looked like an assault rifle or some other illicit firearm, that might have justified the officer’s conduct. Northrup v. City of Toledo Police Dep’t, et al., No. 14-4050 (6th Cir. May 13, 2015), citing Embody v. Ward, 695 F.3d 577, 580–81 (6th Cir. 2012).
    A word of caution to those who like to openly carry firearms styled on the AR and AK platforms: the court does not consider them to be the same as a handgun when it comes to reasonable suspicion.

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    Quote Originally Posted by Citizen View Post
    I'll bet that if every defense counsel started objecting to the term "furtive movement" from a cop during a pre-trial (suppression) hearing, demanding only the actual motion, then it wouldn't take long for this furtive movement nonsense to disappear.
    Objection would not be the best tactic; it might prompt the officer to articulate the nature of the movement. It would be safer to let it pass and argue the conclusory nature of the statement.

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    In one sense, this case is just following on dicta mentioned in an earlier case: Florida vs JL.

    JL was a minor, thus only his initials. Somebody reported him as having a gun under his shirt at a bus stop. The case was actually about the reliability of an anonymous tip.

    But, in the dicta, the court recounted the government's argument that guns should have a special exception to the Fourth Amendment. And, then the court expressly declined to adopt the government's recommendation to carve out a special Fourth Amendment exception for guns.
    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.

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    Will we finally have a case that addresses the 'armed and dangerous' requirement of Terry?

    For so long cops have disarmed simply because someone is carrying, the justice here specifically mentions that a cop must have reason to believe Northrup was posing a danger to lawfully disarm him...
    "A Right Un-exercised is a Right Lost"

    "According to the law, [openly carrying] in a vehicle is against the law if the weapon is concealed" -Flamethrower (think about it....)

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    Quote Originally Posted by Citizen View Post
    In one sense, this case is just following on dicta mentioned in an earlier case: Florida vs JL.

    JL was a minor, thus only his initials. Somebody reported him as having a gun under his shirt at a bus stop. The case was actually about the reliability of an anonymous tip.

    But, in the dicta, the court recounted the government's argument that guns should have a special exception to the Fourth Amendment. And, then the court expressly declined to adopt the government's recommendation to carve out a special Fourth Amendment exception for guns.
    That brings up another area where over-interpretation should be avoided. Firearm carry which does not require licensure is presumptively lawful, and it does not constitute grounds for detention and/or questioning. Firearm carry which requires licensure is presumptively unlawful until the person carrying the firearm establishes possession of a license or permit. In Ohio, open carry does not require licensure; concealed carry does. Therefore, in Ohio, if a police officer acquires knowledge that a person is carrying a concealed firearm, he can still detain that person to determine licensure.

    This is a good decision, but I want to people to understand that there are still circumstances to which it may not apply.

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    Quote Originally Posted by Werz View Post
    That brings up another area where over-interpretation should be avoided. Firearm carry which does not require licensure is presumptively lawful, and it does not constitute grounds for detention and/or questioning. Firearm carry which requires licensure is presumptively unlawful until the person carrying the firearm establishes possession of a license or permit. In Ohio, open carry does not require licensure; concealed carry does. Therefore, in Ohio, if a police officer acquires knowledge that a person is carrying a concealed firearm, he can still detain that person to determine licensure.

    This is a good decision, but I want to people to understand that there are still circumstances to which it may not apply.

    Wisely noted. This ruling gave me grist for my Thursday Examiner column. It's a victory, for sure, but your observations are "cautiously proper."

    Federal appeals court hands victory to open carry, Fourth Amendment

    The U.S. Sixth Circuit Court of Appeals yesterday handed down a significant 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.

    http://www.examiner.com/article/fede...urth-amendment

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    Quote Originally Posted by Baked on Grease View Post
    Will we finally have a case that addresses the 'armed and presently dangerous' requirement of Terry?

    For so long cops have disarmed simply because someone is carrying, the justice here specifically mentions that a cop must have reason to believe Northrup was posing a danger to lawfully disarm him...
    The key word is the adverb presently, found in Terry.

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    Remember United States v. Black

    Quote Originally Posted by Dave Workman View Post
    Wisely noted. This ruling gave me grist for my Thursday Examiner column. It's a victory, for sure, but your observations are "cautiously proper."

    Federal appeals court hands victory to open carry, Fourth Amendment

    The U.S. Sixth Circuit Court of Appeals yesterday handed down a significant 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.

    http://www.examiner.com/article/fede...urth-amendment
    I would remind you that United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013) set an important precedent, and it was cited in the Toledo case.

    More and more, it it the Fourth Amendment that has come to the rescue. Bear that in mind.

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    Quote Originally Posted by Werz View Post
    Objection would not be the best tactic; it might prompt the officer to articulate the nature of the movement. It would be safer to let it pass and argue the conclusory nature of the statement.
    I'll take your word for it. I know nothing about trial tactics (except Perry Mason and Matlock )
    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 Repeater View Post
    I would remind you that United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013) set an important precedent, and it was cited in the Toledo case.

    More and more, it it the Fourth Amendment that has come to the rescue. Bear that in mind.
    While a good decision, we have to remember the court is only acknowledging OH's law. Case in point, the 4th Circuit decided US v. Black then promptly turns around and hands down Woollard, which says public carry can be restricted to those who satisfy a "special need".

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    Quote Originally Posted by press1280 View Post
    While a good decision, we have to remember the court is only acknowledging OH's law. Case in point, the 4th Circuit decided US v. Black then promptly turns around and hands down Woollard, which says public carry can be restricted to those who satisfy a "special need".
    I see you're from the land of 'Constitutional Carry' -- Would you all care to be annexed by Virginia?

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    Quote Originally Posted by Repeater View Post
    I see you're from the land of 'Constitutional Carry' -- Would you all care to be annexed by Virginia?
    I'd rather be annexed by them. That way they could draw lines* around certain places and leave them to the diminished Commonwealth.

    stay safe.

    * - The Ni River being one of the natural boundaries to seriously consider.
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    4th amendment and open carry

    The 6th circuit has made a great decision today in the open carry of firearms and what police can and cannot do

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    Very surprising to me. I would expect the judge to acknowledge the illegality of the detention but am very surprised the judge didn't let the worm off the hook with qualified immunity.
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    Quote Originally Posted by Werz View Post
    That brings up another area where over-interpretation should be avoided. Firearm carry which does not require licensure is presumptively lawful, and it does not constitute grounds for detention and/or questioning. Firearm carry which requires licensure is presumptively unlawful until the person carrying the firearm establishes possession of a license or permit. In Ohio, open carry does not require licensure; concealed carry does. Therefore, in Ohio, if a police officer acquires knowledge that a person is carrying a concealed firearm, he can still detain that person to determine licensure.

    This is a good decision, but I want to people to understand that there are still circumstances to which it may not apply.
    I disagree. To drive a vehicle on public roads one needs a license as well, but that doesn't give cops the ability to pull you over and check to see if you have a driver's license without some other offense being committed. Why should they be able to stop you and check for a weapon's permit when no other issue/crime has been committed?

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    Quote Originally Posted by Aknazer View Post
    I disagree. To drive a vehicle on public roads one needs a license as well, but that doesn't give cops the ability to pull you over and check to see if you have a driver's license without some other offense being committed. Why should they be able to stop you and check for a weapon's permit when no other issue/crime has been committed?
    We don't need a license.

    There are court cases that agree with you unless Ohio law is written in a certain way. Washington state recently had one, Florida vs Regalado is worded very well in its opinion that since an officer cannot glean by mere observation whether someone has their papers or not so it does not rise to the level of authority for asking for those papers because they happened to see the weapon.
    I am not anti Cop I am just pro Citizen.

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    National Committee on Uniform Traffic Laws and Ordinances - NCUTLO

    www.ncutlo.org

    Y'alls frequent analogies between gun law and traffic law has occasionally taken me back to the NCUTLO source of the Uniform Vehicle Code, but where I was frustrated for not having privileges there as I did as a bicyclist advocate.

    By chance today I did an external site search for firearms - "firearms site: www.ncutlo.org" - and got a bit deeper into their site, to PDF's. The firearms search produced a trivial response, but someone else might benefit from their proposed changes to vehicle codes and from their state-by-state compendium of some enacted vehicle code statutes.

    Wisconsin has statutory law on Officers Authority to Arrest Without Warrant, and Officer's Action after Arrest Without Warrant. Also in the CWL subsection of Miscellaneous Police Provisions Ch. 175 is the requirement for an officer to be acting in his official capacity AND with lawful authority.
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    To be fair, there are often analogies that may be perfectly fitting to the situation. Neither firearms nor driving are inherently evil or criminal activities. Both can require licensing and it's been ruled by the courts that there is no 'firearms exemption to the Fourth Amendment'.
    Frequently officers possess the authority to demand a motorist display a license, I suspect that many get the idea that if one licensed activity requires a license be produced than that likely applies to any other licensed activity.

    Georgia (the state I'm most familiar with) provides a good example.
    A Georgia driver must have his/her license in their immediate possession whenever driving on public roads. OCGA 40-5-29
    A Georgia weapons carrier must have his/her license in their immediate possession whenever carrying a weapon away from home, car or work. OCGA 16-11-137

    Failure to have a driving license in one's possession when stopped but producing a license valid at the time in court is a $10 fine. OCGA 40-5-29
    Failure to have a weapons license in one's possession but producing a license valid at the time in court is a $10 fine. OCGA 16-11-137

    An officer has the authority to demand a motorist display his license, but ONLY when the condition of sub-paragraph (a) has been met. OCGA 40-5-29
    An officer does Not have the authority to demand the display of a license and is prohibited from detaining a person merely to ascertain licensing status. 16-11-137

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    Regular Member The Truth's Avatar
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    Quote Originally Posted by Repeater View Post
    I would remind you that United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013) set an important precedent, and it was cited in the Toledo case.

    More and more, it it the Fourth Amendment that has come to the rescue. Bear that in mind.
    I was just going to make this post...sounds like the 6th circuit now has their own Black v. US !
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    So in actuality you have no evidence that anything wrong took place, you only believe that it could be spun to appear wrong. But it hasn't been. The truth has a funny way of coming out with persistence, even if it was spun negatively the truth would find its way because these people will not accept less.
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    Quote Originally Posted by Aknazer View Post
    Quote Originally Posted by Werz View Post
    That brings up another area where over-interpretation should be avoided. Firearm carry which does not require licensure is presumptively lawful, and it does not constitute grounds for detention and/or questioning. Firearm carry which requires licensure is presumptively unlawful until the person carrying the firearm establishes possession of a license or permit. In Ohio, open carry does not require licensure; concealed carry does. Therefore, in Ohio, if a police officer acquires knowledge that a person is carrying a concealed firearm, he can still detain that person to determine licensure.

    This is a good decision, but I want to people to understand that there are still circumstances to which it may not apply.
    I disagree. To drive a vehicle on public roads one needs a license as well, but that doesn't give cops the ability to pull you over and check to see if you have a driver's license without some other offense being committed. Why should they be able to stop you and check for a weapon's permit when no other issue/crime has been committed?
    Folks are free to form their beliefs on the basis of feelings and analogies, but when it comes to beliefs regarding the law, I prefer to base mine on precedent.

    Federal:

    “Based on McRae's admission that he was carrying a handgun in his waistband, the officers had reasonable suspicion to believe that McRae was committing a crime under Florida law— carrying a concealed weapon. *** Under Florida law, " [a] person who carries a concealed firearm on or about his person commits a felony of the third degree." *** Notably, the possession of a valid permit for a concealed weapon is not related to the elements of the crime, but rather is an affirmative defense.

    “Moreover, because reasonable suspicion analysis is not concerned with "hard certainties, but with probabilities," *** McRae's admission to carrying a concealed weapon was sufficient to justify briefly stopping him before inquiring further about whether he had an affirmative defense in the form of a valid concealed-weapons permit.” (Citations and footnotes omitted.) United States v. Lewis, 674 F.3d 1298, 1304 (11th Cir. 2012).

    Now that's nothing new; I discussed this more than a year ago in the Ohio subforum. However, more recently, and with specific application to my state ...

    Ohio:

    " A person accused of violating a penal statute which contains an exemption has the burden of proving, by a preponderance of the evidence, that he is within such exemption. *** [W]e hold it was Meyers' burden to establish that he had his license with him at the time he was stopped." State v. Meyers, 2014-Ohio-1357, at ¶41, 43 (11th Dist.).

    I stand by my earlier assertion.
    Open carry is a First Amendment exercise.

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