• We are now running on a new, and hopefully much-improved, server. In addition we are also on new forum software. Any move entails a lot of technical details and I suspect we will encounter a few issues as the new server goes live. Please be patient with us. It will be worth it! :) Please help by posting all issues here.
  • The forum will be down for about an hour this weekend for maintenance. I apologize for the inconvenience.
  • If you are having trouble seeing the forum then you may need to clear your browser's DNS cache. Click here for instructions on how to do that
  • Please review the Forum Rules frequently as we are constantly trying to improve the forum for our members and visitors.

Does Having a Gun Make a Person Suspicious? Courts Aren’t Sure Now. NYT H/T John Wesley Hall

Doug_Nightmare

Active member
Joined
Nov 21, 2018
Messages
723
Location
Washington Island, WISCONSIN. Out in Lake Michigan

A U.S. Supreme Court ruling that could allow more New Yorkers to carry guns is raising thorny questions and has jeopardized at least one case so far.

The case is now in jeopardy after a federal judge in Brooklyn ruled on Feb. 5 that the police did not have probable cause to stop Mr. Homer. In the ruling, the judge, Nicholas G. Garaufis, cited a 2022 Supreme Court decision that found U.S. citizens have a broad right to carry concealed firearms, overturning longstanding New York regulations. The case involving Mr. Homer is the latest test of gun laws in the state, where officials continue to grapple with how to square a legacy of strong gun control with the 2022 ruling.
 

color of law

Accomplished Advocate
Joined
Oct 7, 2007
Messages
5,964
Location
Cincinnati, Ohio, USA
Per the above case what did Terry v. Ohio, 392 US 1 - Supreme Court (1968) actually hold?

“We conclude that the revolver seized from Terry was properly admitted in evidence against him. At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.”

Terry was only charged and convicted of carrying a concealed weapon and nothing else. In Ohio and many other states (constitutional carry) carrying openly or concealed can no longer can be considered an unlawful act and fall within the totally of "probable cause."

A "search" and "seizure" can NOT be constitutional by Fourth Amendment standards, unless there was "probable cause" (1) to believe that a crime had been committed or (2) a crime was in the process of being committed or (3) a crime was about to be committed. Brandishing a weapon falls outside the mere carrying a weapon, in effect, being within the probable cause realm.

In other words, under Bruen the carrying a firearm cannot fall within the “probable cause inquiry” when determining the totality of the circumstances.

I see Terry being challenged down the road, and at the very least pared back.
 

KBCraig

Regular Member
Joined
Aug 7, 2007
Messages
4,887
Location
Granite State of Mind
Per the above case what did Terry v. Ohio, 392 US 1 - Supreme Court (1968) actually hold?

“We conclude that the revolver seized from Terry was properly admitted in evidence against him. At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.”

Terry was only charged and convicted of carrying a concealed weapon and nothing else. In Ohio and many other states (constitutional carry) carrying openly or concealed can no longer can be considered an unlawful act and fall within the totally of "probable cause."

A "search" and "seizure" can NOT be constitutional by Fourth Amendment standards, unless there was "probable cause" (1) to believe that a crime had been committed or (2) a crime was in the process of being committed or (3) a crime was about to be committed. Brandishing a weapon falls outside the mere carrying a weapon, in effect, being within the probable cause realm.

In other words, under Bruen the carrying a firearm cannot fall within the “probable cause inquiry” when determining the totality of the circumstances.

I see Terry being challenged down the road, and at the very least pared back.
Terry should be tossed on the ash heap of bad prior rulings. It created an exception to 4A that sounds reasonable on its face, but in practice has turned into "stop and search" based on mere hunches. The limit of patting down external clothing to find weapons is ignored, as officers dive right into pockets for drugs (which do not feel like weapons).
 

color of law

Accomplished Advocate
Joined
Oct 7, 2007
Messages
5,964
Location
Cincinnati, Ohio, USA
Terry should be tossed on the ash heap of bad prior rulings. It created an exception to 4A that sounds reasonable on its face, but in practice has turned into "stop and search" based on mere hunches. The limit of patting down external clothing to find weapons is ignored, as officers dive right into pockets for drugs (which do not feel like weapons).
Absolutely! A number a years ago the 6th circuit ruled that open carry was not grounds to stop and detain a person for questioning. Northrup v. City of Toledo Police Div., 58 F. Supp. 3d 842 (N.D. Ohio 2014).

What amazes me is police officers will continue to lie after being confronted with their bodycam video showing the complete opposite happened. There is a court doctrine that says that testimony that contradicts an exhibit, the exhibit prevails. But judges like to ignore that rule.
 
Top