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Thread: Stop of a man in a hoodie for carrying a weapon lacked reasonable suspicion

  1. #1
    Regular Member Repeater's Avatar
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    From FourthAmendment:

    The officer suspected that defendant was carrying a gun in the pocket of his hoodie, but it was based on his experience as an officer and no other facts about the hands or what he might be holding. The Eighth Circuit [surprise!] finds this not enough for reasonable suspicion under Terry and Arvizu. United States v. Jones, 09-1731 (8th Cir. June 8, 2010).

    The opinion, to be published. Excerpts:
    Given the deference we must accord both Hasiak’s training and experience and the inferences drawn by a resident district judge, this is a close question.

    We find it remarkable that nowhere in the district court record did the government identify what criminal activity Officer Hasiak suspected. Rather, the government leaped to the officer safety rationale for a protective frisk for weapons, ignoring the mandate in Terry that there must be reasonable suspicion of on-going criminal activity justifying a stop before a coercive frisk may be constitutionally employed.

    We suspect that nearly every person has, at one time or another, walked in public using one hand to “clutch” a perishable or valuable or fragile item being lawfully carried in a jacket or sweatshirt pocket in order to protect it from falling to the ground or suffering other damage. With only this circumstance to support Officer Hasiak’s suspicion, though we are mindful of the need to credit law enforcement officers who draw on their experience and specialized training, we conclude that “too many people fit this description for it to justify a reasonable suspicion of criminal activity.”

    We do not underestimate the importance of ferreting out violent offenders who unlawfully carry firearms in public, and the value of protective frisks in guarding the safety of law enforcement officers and others who may be in harm’s way. See Terry, 392 U.S. at 23-24. But as we noted in Hughes, 517 F.3d at 1018, “Being stopped and frisked on the street is a substantial invasion of an individual’s interest to be free from arbitrary interference by police,” and the police have “less invasive options” for “identifying the perpetrators of crime.” Most obviously, Officer Hasiak could have initiated a consensual encounter, for which no articulable suspicion is required, and which “may both crystallize previously unconfirmed suspicions of criminal activity and give rise to legitimate concerns for officer safety.”
    When a court finds the issue to be a "close question" it almost always decides in favor of the government. This is a very rare exception in favor of liberty that benefits all persons, not just American gun owners.

    For those interested, please read the whole opinion.

  2. #2
    Regular Member TFred's Avatar
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    Repeater wrote:
    The opinion, to be published. Excerpts:
    I think I have a pretty good grasp of what the significance of a "published opinion" means, but could someone tell us who gets to decide, or upon what basis it is decided, whether an opinion is published or not published?

    Thanks,

    TFred

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    It depends on the jurisdiction. Here in Wisconsin, there are statutory guidelines and a committee.

    http://www.ca8.uscourts.gov/newrules/coa/IOP.pdf

    B. PUBLICATIONS OF OPINIONS The panel determines whether the opinion in the case is to be published or unpublished. Unpublished opinions may be cited only in accordance with FRAP 32.1 and 8th Cir. R. 32.1A. Counsel may request, by motion or letter to the clerk, that an unpublished opinion be published.

  4. #4
    Regular Member TFred's Avatar
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    I read through the opinion. Interesting, it references the Nebraska Constitution, in which:
    ... the people of Nebraska in the 1988 general election, some years after the enactment of § 28-1202 [the concealed carry law], amended Article I, § 1 of the Nebraska Constitution to provide that their “inherent and inalienable rights” include the right “to keep and bear arms for security or defense of self, family, home, and others . . . and all other lawful purposes.”
    Yet another case where bearing arms for self-defense is explicitly declared to be a lawful purpose. Yet the Feds universally claim that carrying for self-defense in a Federal building (such as a Post Office or National Park facility) is not covered by that same "lawful purpose" exception in Federal law.

    When will this contradiction ever be resolved?

    TFred


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