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

sudden valley gunner

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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.
 

Fallschirjmäger

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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
 

The Truth

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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 !
 

Werz

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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.
 

markm

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It only takes criminal conviction of a cop doing what Bright did for cops everywhere to get the message.

Hello OC for ME:

Under what legal theory are you referring? Kidnapping?

The only recourse against the cop that I am aware of is 42 USC § 1983 and 1989 which is a civil remedy and not a criminal remedy.

thanks,

markm
 

markm

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Hello All,

I have a question for all and here it is:

We know from the undisputed facts of the case that the "furtive" movement as alleged by LEO Bright was after the illegal detention had begun, wouldn't this claim now be "fruit of the forbidden tree" and grounds for dismissal of the LEO Bright's "furtive" movement claim?

It is my feeling (which can be backed-up by documented history) that LEOs use tactics to confuse suspected perps. Could LEO Bright have used tactics to "create a furtive movement" by telling Northrup to put his "hands up" and then to order Northrup to hand off the dog leash to his wife, "which Shawn did. Id. at 37."

Leo Bright either isn't terribly bright, or he is a crooked cop who uses his uniform, badge, and gun to entrap innocent people. After all, arresting Northrup is much safer than actually hunting down real criminals.

markm
 

notalawyer

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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.

That was true then, but we just changed it. As of May 21, 2105, the absence of a CWFL is now an element of the crime. :banana:

This requires that a LEO have RS of criminal activity - irrespective of the mere presence of a concealed firearm [or knowledge (PC) that the individual does not have a CWFL) - before a detainment is authorized.
 
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RANDYT

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Hello OC for ME:

Under what legal theory are you referring? Kidnapping?

The only recourse against the cop that I am aware of is 42 USC § 1983 and 1989 which is a civil remedy and not a criminal remedy.

thanks,

markm

18 USC 242 violations of constitutional rights under color or law 1 year federal prison sentence
18 USC 241 conspiracy to commit violations of constitutional rights under color of law 10 year prison sentence


life for violations that resulted in personal injuries, and the death penalty for violations of rights resulting in death.

Now getting the FBI civil rights division and the DOJ to pursue is another story.
 

Werz

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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.
That was true then, but we just changed it. As of May 21, 2105, the absence of a CWFL is now an element of the crime. :banana:

This requires that a LEO have RS of criminal activity - irrespective of the mere presence of a concealed firearm [or knowledge (PC) that the individual does not have a CWFL) - before a detainment is authorized.
Nevertheless, the rationale in Lewis is still valid, and Ohio retains the affirmative defense provision under its statutes. I just don't want anyone from Ohio to think that a change in Florida statute will change the circumstances in Ohio. At this point, Ohio has an unlicensed concealed carry statute introduced and currently under debate, and if that passes, the rule for concealed carry will be that of Northrup and Black. The likelihood of passage is not strong, but you never know. However, given the reference to Embody v. Ward, it will still be more risky to openly carry firearms which look similar to NFA firearms.
 

Werz

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Hello OC for ME:

Under what legal theory are you referring? Kidnapping?

The only recourse against the cop that I am aware of is 42 USC § 1983 and 1989 which is a civil remedy and not a criminal remedy.
18 USC 242 violations of constitutional rights under color or law 1 year federal prison sentence
18 U.S.C. § 242 requires a willful deprivation of rights. That's a lot harder to prove than it looks.
 

markm

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18 U.S.C. § 242 requires a willful deprivation of rights. That's a lot harder to prove than it looks.

Hi Werz,

I agree with you. The bar is extremely high to prove willful deprivation (IANAL). And a Conspiracy (241) to deprive rights requires a prosecutor to have evidence of planning with forethought amongst more than one person to deprive rights-- this would have to occur before Northrup left his house for the walk in question.

The thin-blue-line knows to shut-up and to not self-incriminate, that is, if they had committed a conspiracy.

thanks,

markm
 
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Werz

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18 U.S.C. § 242 requires a willful deprivation of rights. That's a lot harder to prove than it looks.
Hi Werz,

I agree with you. The bar is extremely high to prove willful deprivation (IANAL). And a Conspiracy (241) to deprive rights requires a prosecutor to have evidence of planning with forethought amongst more that one person to deprive rights-- this would have to occur before Northrup left his house for the walk in question.

The thin-blue-line knows to shut-up and to not self-incriminate, that is, if they had committed a conspiracy.
Any conspiracy theory would probably be in terms of "unwritten policy," either within the department as a whole, or under a specific supervisor. Hard to prove, although sometimes things will slip through on dispatch recordings. One example would be the "retroactive justification" discussed between a detective and his captain in this recording. In the long run, the case was dismissed after the stop and detention were suppressed; the only charges, after all was said and done, were the M1 Carrying Concealed Weapons for the knife, plus MM Jaywalking as the reasonable suspicion to detain. The reasonable suspicion to detain failed after it was clear that his actions in crossing the street did not constitute Jaywalking as per statute.
 
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markm

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Any conspiracy theory would probably be in terms of "unwritten policy," either within the department as a whole, or under a specific supervisor. Hard to prove, although sometimes things will slip through on dispatch recordings. One example would be the "retroactive justification" discussed between a detective and his lieutenant in this recording. In the long run, the case was dismissed after the stop and detention were suppressed; the only charges, after all was said and done, were the M1 Carrying Concealed Weapons for the knife, plus MM Jaywalking as the reasonable suspicion to detain. The reasonable suspicion to detain failed after it was clear that his actions in crossing the street did not constitute Jaywalking as per statute.

Hi Werz,

Thanks for your response. I listened to the recording that you linked. I don't think the conversation between the cop and the detective is a conspiracy. What we have in that example are two incompetent LEOs "winging" the application of criminal law and ruining someone's evening (and short-term life) based on their feelings. The example in the recording cries out for a 42 USC section 1983. LEOs should know the law that they are using against a law abiding citizen.

Retroactive justification is another term for ignorance of the law. An appropriate fine for both of the LEOs involved should be about $50,000.00 each (IMHO). Where is the DA and police supervisors who are supposed to guard against "retroactive justification" and an otherwise blatant disregard for the law?

I know my questions are not answerable by you as you are not part of the Police org that perpetrated this civil rights violation.

Thanks,
markm
 

OC for ME

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Hello OC for ME:

Under what legal theory are you referring? Kidnapping?

The only recourse against the cop that I am aware of is 42 USC § 1983 and 1989 which is a civil remedy and not a criminal remedy.

thanks,

markm
Please research your state's statutes. For Missouri:

http://moga.mo.gov/mostatutes/stathtml/57500000801.html?&me=false report
http://moga.mo.gov/mostatutes/stathtml/57500000501.html?&me=false statement
http://moga.mo.gov/mostatutes/stathtml/56500001302.html?&me=false imprisonment

Read the opinion of the court.

http://www.ca6.uscourts.gov/opinions.pdf/15a0092p-06.pdf

There may be many criminal acts committed by the cop depending on applicable state laws. Charge (Northrup lodge criminal complaints) the cop with as many criminal violations as possible. The prosecutor is on the hook to either investigate, or not.

As mentioned earlier, getting a prosecutor to pursue charges is very unlikely. Though, the publicity, especially these days, could motivate a prosecutor to actually walk the walk re "holding cops accountable."

...holding cops accountable...:rolleyes:
 

Werz

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There may be many criminal acts committed by the cop depending on applicable state laws. Charge (Northrup lodge criminal complaints) the cop with as many criminal violations as possible. The prosecutor is on the hook to either investigate, or not.

As mentioned earlier, getting a prosecutor to pursue charges is very unlikely. Though, the publicity, especially these days, could motivate a prosecutor to actually walk the walk re "holding cops accountable."
Any prosecutor who charges without regard to the provable evidence, but primarily to curry favor with those who hold a specific ideology, is not ethical. North Carolina District Attorney Michael Nifong learned that lesson at the cost of his license to practice law. A recent example of overcharging should be explicitly clear from the charges which State's Attorney Marilyn Mosby originally filed against six Baltimore police officers, as opposed to the charges upon which the grand jury actually returned an indictment.

Just because criminal prosecution will make a certain demographic feel all warm and fuzzy inside does not mean that it should be done.
 

OC for ME

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Any prosecutor who charges without regard to the provable evidence, but primarily to curry favor with those who hold a specific ideology, is not ethical. North Carolina District Attorney Michael Nifong learned that lesson at the cost of his license to practice law. A recent example of overcharging should be explicitly clear from the charges which State's Attorney Marilyn Mosby originally filed against six Baltimore police officers, as opposed to the charges upon which the grand jury actually returned an indictment.

Just because criminal prosecution will make a certain demographic feel all warm and fuzzy inside does not mean that it should be done.
True.

It would not be a prosecutor filing charges, per se, it would the citizen who was victimized by the crimes committed against him by a cop. The prosecutor has a choice to make regarding the potential for success.

Again, check the laws of your state...no law against filing charges against a cop who seems to have broken the law...cops do it all the time.
 

Werz

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Any prosecutor who charges without regard to the provable evidence, but primarily to curry favor with those who hold a specific ideology, is not ethical. North Carolina District Attorney Michael Nifong learned that lesson at the cost of his license to practice law. A recent example of overcharging should be explicitly clear from the charges which State's Attorney Marilyn Mosby originally filed against six Baltimore police officers, as opposed to the charges upon which the grand jury actually returned an indictment.

Just because criminal prosecution will make a certain demographic feel all warm and fuzzy inside does not mean that it should be done.
True.

It would not be a prosecutor filing charges, per se, it would the citizen who was victimized by the crimes committed against him by a cop. The prosecutor has a choice to make regarding the potential for success.

Again, check the laws of your state...no law against filing charges against a cop who seems to have broken the law...cops do it all the time.
First of all, in Ohio, a citizen can file an affidavit with the court, and the prosecutor can decide whether to file an actual complaint. Most citizens who go that path are perpetual malcontents with an axe to grind. That doesn't mean they never have a legitimate complaint, but statistically, the likelihood is pretty low.

Second, Ohio does have a statute for civil rights violations. It is R.C. 2921.45(A):

No public servant, under color of his office, employment, or authority, shall knowingly deprive, or conspire or attempt to deprive any person of a constitutional or statutory right.
The trick is to prove the mens rea, that the officer knowingly deprived the person of his or her civil rights. In open carry cases, most officers don't actually know that. They are sure that the person must be committing a crime by openly carry a firearm and causing distress and concern to the more sensitive members of the public, but they can't put their finger on the proper violation, so they figure they will simply detain the person until they can figure that out. Of course, they are wrong, but they rarely know that. Being wrong about law which the officer should know is good enough for a lawsuit, as was established in Northrup, but that's a far cry from acting knowingly.

Third, not all jurisdictions allow police officers to file any charges they want. Where I live, police officers can only file traffic offenses and minor misdemeanor citations. Everything else is filed by the prosecutor. The officer can still arrest, but that does not mean a complaint will be filed, and it is not uncommon for someone to be released the next day when the prosecutor declines to charge. That does not mean the person will never be charged, but sometimes it's better to have a grand jury consider the evidence from the very beginning, and sometimes there is evidence important to establishing guilt which the police officer did not know was needed (or did not bother to acquire).
 
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OC for ME

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First of all, in Ohio, a citizen can file an affidavit with the court, and the prosecutor can decide whether to file an actual complaint. Most citizens who go that path are perpetual malcontents with an axe to grind. That doesn't mean they never have a legitimate complaint, but statistically, the likelihood is pretty low.
The details of the OH process do not invalidate my premise. Not sure what your point is.

Second, Ohio does have a statute for civil rights violations. It is R.C. 2921.45(A):
Non sequitur. I am discussing criminal charges. The Northrup case (opinion) clearly provides a avenue to charge the cop with criminal violations if state law was violated by his acts. His QI was revoked, if I read the opinion correctly.

The trick is to prove the mens rea, that the officer knowingly deprived the person of his or her civil rights. In open carry cases, most officers don't actually know that. ...
First of all, in Missouri, arrest is clearly defined.
Arrest.

544.180. An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer, under authority of a warrant or otherwise. The officer must inform the defendant by what authority he acts, and must also show the warrant if required.
Now, OH may not clearly define what a arrest is, maybe they do.

The trick is to determine whether or not a Missouri cop is "aware" of what a arrest is as defined in state law. If a cop does not know what a arrest is, under state statute, then mens rea would never apply to a cop...no?

So, since cops do arrest folks, as defined in the above statute, they must know what statute (authority) they are acting under...no?

Ohio may not place such a burden, as Missouri does, on cops.
 
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