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Thread: Arrested for Conceal Carry while Open Carrying - Federal Ruling

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    http://www.examiner.com/x-5619-Atlanta-Gun-Rights-Examiner~y2009m7d24-Federal-court-rules-no-probable-cause-in-arrest-for-openly-carried-firearm


    Georgia resident Luke Woodard ended up in the Paulding County jail for purchasing lottery tickets while carrying a handgun openly. He was charged with carrying a concealed weapon, even though hewas carrying openly, anddisorderly conduct. As reported in these pages previously, Luke Woodard sued the two Paulding County Sheriff's Deputies involved. Federal Judge Harold Murphy, Northern District of Georgia, recently ruled that the officers had no probable cause to arrest Mr. Woodard on either charge, and that therefore, his arrest was illegal.

    The analysis does not end there, however, as the court decided to go further and argue that the two deputies had something called "arguable" probable cause relating to one of the criminal charges. The result of a finding of "arguable" probable cause wasthatthe officers were immune from damages in a lawsuit.

    On the concealed carry charge, the court held that there was not even arguable probable cause.


    The Court concludes that a reasonable officer with an adequate understanding of the law would not have concluded that Plaintiff had violated O.C.G.A. 16-11-126(a) (the concealed carry statute).
    On the disorderly conduct charge, however, the court came to a startlingly different conclusion.Although the officers did not have facts to support the necessary elements of a disorderly conduct claim, the court was willing to accept that the officers may have had facts to support two of the three elements, and "a reasonable officer could have concluded" that the missing element was present. In order to reach this conclusion, the court had to makethree conclusions. First, it had to find thatMr. Woodard was "acting in a state of violent agitation." The sole factusedto support this findingwas the undisputed and admitted fact that Mr.Woodard checked his gun more than once to see if it was secure on his belt.Second, the court had to conclude that a reasonable (even though mistaken) officer could have concluded that Mr. Woodard's "violent and tumultuous" action of checking his gun wasaimed at certain people. Third, the court had to find that those people were placed in reasonable fear of their safety.

    Officers who spot people openly carrying should not, however, believe that the result of this case would be the same for them should they detain a person merely for legally carrying a gun openly and exposed. The court emphasizedthat merely carrying a gun is not"violent and tumultuous." The court held:


    Likewise, if Plaintiff had merely entered the store while legally carrying a gun in the small of his back, he would not have acted in a tumultuous way.
    The lesson from this case is probably not to "fidget" with your gun or check it when people are watching.

    Finding that the officers unlawfully arrested Mr. Woodard with a lack of probable cause while also finding that the officers had "arguable" probable cause results in the conclusionthat Mr. Woodard wins but cannot recover damages from the officers. Thelegal doctrineof qualified immunity protects officers who were "reasonable but mistaken." Only one mistaken charge needs to be reasonable for the entire damages claim to be thrown out, so the fact that the concealed carry charge was unreasonable for any officer "with an adequate understanding of the law" ends up meaning nothing in terms of damages.

    Although the officers are immune from damages, the case is still alive on the issues ofseeking an injunction and declaratory relief. Roswell attorney John Monroe, who represents Luke Woodard, said, “We will examine the order and determine what further relief from the court appears appropriate based on the court’s rulings."

    For more info:You may read Judge Murphy's ruling for yourself by clicking here and visiting GeorgiaCarry.Org.

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    Please do not post the whole thing. That does not give people much of a reason to go to the link!

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    Regular Member Decoligny's Avatar
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    Malum Prohibitum wrote:
    Please do not post the whole thing. That does not give people much of a reason to go to the link!
    It does however give those of us who can't always get to the links (employer firewalls) a way to see what the post is about.

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    Decoligny wrote:
    Malum Prohibitum wrote:
    Please do not post the whole thing. That does not give people much of a reason to go to the link!
    It does however give those of us who can't always get to the links (employer firewalls) a way to see what the post is about.
    well Malum is the examiner and im sure he want his' examiner page to get hits:P

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    I've oftened wondered, what if you were minding your own business whilst open carrying and uninformed LEO's harrass you and run your gun and yourself and it was found that you cannot legally possess a firearm. Will the charges be dropped eventually because they should not have run your name in the first place because you were doing nothing illegal?

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    Carondalet wrote:
    I've oftened wondered, what if you were minding your own business whilst open carrying and uninformed LEO's harrass you and run your gun and yourself and it was found that you cannot legally possess a firearm.* Will the charges be dropped eventually because they should not have run your name in the first place because you were doing nothing illegal?
    That is a possible outcome of a motion to suppress.

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    Regular Member Springfield Smitty's Avatar
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    But, in GA you need to have the GFL even to OC, right?
    -U.S. Army Veteran (2002-2005) 11BVB4 (Infantry, Airborne, Ranger, some other stuff) SGT (E-5)
    -Public Service Professional - I've done it all: LEO, FF, and EMT
    -Certified NRA Instructor
    -CPL / CCW (whatever other acronym you can think of for carrying a concealed pistol) Instructor
    -Co-founder of OKOCA

    I am not an attorney. None of my statements should be accepted, nor are they intended to be offered, as legal advice or fact of law.

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    Springfield Smitty wrote:
    But, in GA you need to have the GFL even to OC, right?
    If you are outside of your home, vehicle, place of business and are not currently hunting with a valid hunting license - yes, a GFL is required to OC a handgun.

    The statute that makes it a crime to carry a pistol without a license is OCGA 16-11-128, which provides thusly:

    O.C.G.A. § 16-11-128
    Carrying pistol without license

    (a) A person commits the offense of carrying a pistol without a license when he has or carries on or about his person, outside of his home, motor vehicle, or place of business, any pistol or revolver without having on his person a valid license issued by the judge of the probate court of the county in which he resides, provided that no permit shall be required for persons with a valid hunting or fishing license on their person or for persons not required by law to have hunting licenses who are engaged in legal hunting, fishing, or sport shooting when the persons have the permission of the owner of the land on which the activities are being conducted; provided, further, that the pistol or revolver, whenever loaded, shall be carried only in an open and fully exposed manner.

    (b) Upon conviction of the offense of carrying a pistol without a license, a person shall be punished as follows:

    (1) For the first offense, he shall be guilty of a misdemeanor; and

    (2) For the second offense, and for any subsequent offense, he is guilty of a felony, and, upon conviction thereof, shall be imprisoned for not less than one year nor more than five years.

    (c) On and after October 1, 1996, a person licensed to carry a handgun in any state whose laws recognize and give effect within such state to a license issued pursuant to this part shall be authorized to carry a handgun in this state, but only while the licensee is not a resident of this state; provided, however, that such license holder shall carry the handgun in compliance with the laws of this state.

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