“The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” —Fourth Amendment to the United States Constitution
The Free Stater’s advocacy for open carry forced the issue of police agencies to be educated on what the law has to say about open carry. Such advocacy also served to set clear boundaries upon which Law enforcement acts regarding open carry.
Despite this uptick in recent years toward open carry, there still remain those who reject it, regardless of legality. These people, armed with the full knowledge that open carrying is legal, have subsequently resorted to swatting in some instances. Breaking one law because one does not like the open carry law.
And every so often we hear of the activist police officer who disarms a citizen for no other reason than the citizen has a firearm holstered at his side. When a police officer disarms a person for no other reason than the person is in possession of a holstered firearm, that Police Officer has violated the constitutional protections of the fourth Amendment of the United States Constitution.
The United States Court of Appeals for the Sixth Circuit rendered an opinion on May 13, 2015 in the matter of Shawn Northrup v. City of Toledo Police Department; David R. Bright; Daniel Ray. No. 14-4050. The decision makes very clear and unambiguous corrections to the officers involved.
Shawn Northrup, his wife, daughter and grandson and the family dog went out for a stroll in the neighborhood where they live. Shawn had on his hip, a holstered pistol and a cell phone. A motorcyclist passing by stops and verbally confronts Northrup saying, “You can’t walk around with gun like that!”and he calls the Police. Despite being told by the dispatcher that (open carrying) a gun is legal, she dispatched a Toledo Officer….David Bright.
Officer Bright shows up, has Northrup raise his hands, and removes his firearm from his holster. He subsequently handcuffs Northrup and places him in the back of the police cruiser for up to thirty minutes. Northrup was ticketed for, “inducing panic…” Which was later dropped. Upon Brights legal attempt to get the case dismissed on summary judgement, under the foil of sovereign immunity, he failed and this appeal followed….
The court opines,
“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…”
Moreover,
“Clearly established law required Bright to point to evidence that Northrup may have been ‘armed and dangerous.'[…] 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.”
The court unambiguously states the officer had no basis for probable cause where the Mr. Northrup was engaging in a lawful activity. The court then clearly states the effect of allowing such stops as elimination of a citizens fourth amendment right when carrying firearms.
This eight-page decision sets precedents for engagement by law enforcement with persons who open carry.
Open Carry of a firearm itself, where to do so is legal without license, does not give rise to reasonable suspicion by the mere visibility of a holstered firearm. “If an officer engages in a conversation with a person who is carrying a gun openly, but otherwise is not committing a crime, the person cannot be required to produce identification.”- Officers who take you down at gunpoint, cuff you and take your gun for no other reason that you had one holstered on you are violating your fourth amendment rights. “Law enforcement, to be sure, is not an easy job, and it often puts officers to difficult choices. But this was not one of them. The argument(having a gun means the person may start shooting) indeed presents a false dichotomy.”
If this happens to you, be cooperative and do not escalate the situation. But do seek an attorney immediately after.
