6th Circuit COA ruling on Open Carry

[Utah Bob #35998]

Didn't see it posted here yet.

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

SUTTON, Circuit Judge. On a midsummer evening, Shawn and Denise Northrup went
for a neighborhood walk with their daughter, grandson, and dog. Apparently in a happy-golucky
mood, Shawn wore a t-shirt reading, “This Is The Shirt I Wear When I Don’t Care.” R. 28
at 7–8. Shawn carried a cell phone, which he holstered on his hip—next to a black
semiautomatic handgun.

911 was called and Officer David Bright with the message that
someone was “walking his dog on Rochelle [Road] carrying a handgun out in the open.

Officer Bright walked up with “his hand on his firearm,” announced that if Shawn “go[es] for the weapon, he’s
going to shoot,” and refused to answer any of Shawn’s questions, such as: “[W]hat was going
on?” “[A]m I free to go?” “[A]m I under arrest here?” R. 28 at 33–35. After Bright disarmed
Shawn and explained he was responding to a call, Bright demanded Shawn’s driver’s license and concealed-carry permit.

Shawn Northrup sued Officer Bright, Sergeant Ray, and other members of the Toledo
Police Department in federal court, alleging violations of his rights under the First, Second,
Fourth (and Fourteenth) Amendments as well as state law. The district court granted the
officers’ summary judgment motion in part, rejecting Northrup’s First and Second Amendment
claims as a matter of law. But it permitted his Fourth Amendment and state-law claims against
Bright and Ray to go to trial.

Officer Bright claims that he had a “reasonable suspicion” that Northrup was engaged in
criminal activity based on two undisputed facts: (1) Northrup was visibly carrying a gun on his
holster, and (2) Bright was responding to a 911 call. That reasonable suspicion, Bright claims,
justified his disarmament, detention, and citation of Northrup.

The Fourth Amendment protects “the people” from “unreasonable searches and
seizures.” U.S. Const. amend. IV. The guarantee does not prevent the police from initiating “consensual encounter” with individuals—from approaching them on public streets and in
other public places and asking them questions. United States v. Drayton, 536 U.S. 194, 200–01
(2002). But it does prevent the police from stopping and frisking individuals in the absence of
“reasonable suspicion” that the individual has committed, or is about to commit, a crime. Terry
v. Ohio, 392 U.S. 1, 21, 27 (1968). More than an “inchoate and unparticularized suspicion or
‘hunch’” is needed to stop and frisk an individual; the officer must identify “specific and
articulable facts” of criminality. Id. at 27.

In today’s case, Officer Bright relies on two “specific and articulable facts”: Northrup’s
open possession of a firearm and the 911 call about what Northrup was doing. The Fourth
Amendment no doubt permitted Bright to approach Northrup and to ask him questions. But that
is not what he did. He relied on these facts to stop Northrup, disarm him, and handcuff him.
Ohio law permits the open carry of firearms, Ohio Rev. Code § 9.68©(1), and thus permitted
Northrup to do exactly what he was doing. 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. If it is appropriate to presume that citizens know the parameters of the criminal
laws, it is surely appropriate to expect the same of law enforcement officers—at least with regard
to unambiguous statutes. Heien v. North Carolina, 135 S. Ct. 530, 540 (2014).

Clearly established law required Bright to point to evidence that Northrup may have been
“armed and dangerous.” Sibron v. New York, 392 U.S. 40, 64 (1968) (emphasis added). Yet all
he ever saw was that Northrup was armed—and legally so. To allow stops in this setting “would
effectively eliminate Fourth Amendment protections for lawfully armed persons.” United States
v. King, 990 F.2d 1552, 1559 (10th Cir. 1993); accord United States v. Ubiles, 224 F.3d 213, 218
(3d Cir. 2000); United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013); United States v. Roch,
5 F.3d 894, 899 (5th Cir. 1993).

 

 

[Dubious Don #56333]

"Terry"searches (Terry V Ohio) have changed since the 1980's and the officers in question should have known that. It is no longer acceptable to frisk for weapons everyone you meet. Period.

 

In this case, Mr Northrup was legally armed. There were NO alleged crimes. None. Nada. Zip Zero. The Officer had ZERO reasons to frisk, much less disarm Mr Northrup.

 

The disarming part would be in dispute depending on the jurisdiction/officer but I'm not going to delve into local policies, etc. The bottom line is the officer was wrong.