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

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.

Click to expand...

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.

Click to expand...

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.

Click to expand...

Repeater said:

SNIP Cops use that “furtive movement” excuse way too often to justify disarming and handcuffing law-abiding citizens.

Click to expand...

Citizen said:

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.

Click to expand...

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.

Click to expand...

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).

Click to expand...

Citizen said:

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.

Click to expand...

Citizen said:

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.

Click to expand...

Werz said:

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.

Click to expand...

Baked on Grease said:

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...

Click to expand...

Dave Workman said:

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/federal-appeals-court-hands-victory-to-open-carry-fourth-amendment

Click to expand...

Werz said:

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.

Click to expand...

Repeater said:

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.

Click to expand...

press1280 said:

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".

Click to expand...

Repeater said:

I see you're from the land of 'Constitutional Carry' -- Would you all care to be annexed by Virginia?

Click to expand...

Werz said:

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.

Click to expand...