Fourth Circuit Finds That Carrying a Firearm in an Open-Carry State Does Not Create R

4977 Views 61 Replies 25 Participants Last post by StardogChampion, Mar 23, 2013

Aceoky

Discussion Starter · Mar 20, 2013

Fourth Circuit Finds That Carrying a Firearm in an Open-Carry State Does Not Create Reasonable Suspicion and Provides Thorough Analysis of the "Free to Leave" Standard of Seizure

Fourth Circuit Finds That Carrying a Firearm in an Open-Carry State Does Not Create Reasonable Suspicion and Provides Thorough Analysis of the "Free to Leave" Standard of Seizure

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ccw9mm

· #2 · Mar 20, 2013

Reasonable suspicion ... of criminality, merely by having a firearm?

From the article said:
... who local police officers suspected might be engaged in criminal activity.

Apparently so. One would think, um, criminality would be required for reasonable suspicion, or at least furtive behavior strongly indicating a desire to slip a fast one. Hard to believe that openly carrying a firearm would pass as doing that. More like, they were trying to slip a fast one on the citizen, there.

And the court is issuing a sensible decision on the question? Wow. Impressive.

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GraySkies

· #3 · Mar 20, 2013

This is a much better outcome than you would have gotten in the 9th circus here.

This fellow was a felon in possession of a firearm, which is not cool, but I think the decision is an important and valuable one for upholding our rights.

Maybe we should mail a copy of this decision to the cops and child services people in New Jersey.

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OldVet

· #4 · Mar 20, 2013

Rights are rights, which shall not be violated on a whim, even for those who may be guilty.

I also noted that in many discussions the uncertainty of whether in NC OC is actually legal. Apparently the 4th circuit court feels it is:
“Third, it is undisputed that under the laws of North Carolina, which permit its residents to openly carry firearms . . . Troupe’s gun was legally possessed and displayed..."

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Ghost1958

· #5 · Mar 20, 2013

It took a court to figure out that doing something legal doesnt give LE the right to stop a person for doing that legal thing.:blink:

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SmokinFool

· #6 · Mar 20, 2013

I'm glad the fourth circuit court overturned the case. It does bother me though that criminals are catching on to the ability of law abiding citizen's rights to open carry where legal, and trying to mask their illegal activities by doing something that, on the surface (not knowing their illegal status) seems legal. Hopefully this doesn't catch on with the majority of criminals.

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Jemsaal

· #7 · Mar 20, 2013

ccw9mm said:
Reasonable suspicion ... of criminality, merely by having a firearm?

Apparently so. One would think, um, criminality would be required for reasonable suspicion, or at least furtive behavior strongly indicating a desire to slip a fast one. Hard to believe that openly carrying a firearm would pass as doing that. More like, they were trying to slip a fast one on the citizen, there.

And the court is issuing a sensible decision on the question? Wow. Impressive.

No, it was actually reasonable suspicion, so the story went, because they were in a high crime area, sitting in a car in the parking lot of a gas station, but not getting out to pump gas or go into the gas station, and in general, were doing the same things that drug dealers in the area did.

I agree that their methods were wrong concerning having a weapon and that being reasonable suspicion to search someone, but there was more to it than that. Either way, I'm glad the precedent was set by the courts.

DaveH

· #8 · Mar 20, 2013

Good Federal precedent!

However, nothing new here in Virginia -- save reinforcing GOODMAN v. COMMONWEALTH.

See:http://www.courts.state.va.us/opinions/opncavwp/1971061.pdf

SNIP

Although the informant’s information provided Officer Ingram with reasonable suspicion to believe appellant possessed a firearm, nothing in the record provided reasonable suspicion for the belief that this possession was illegal. “Absent some disqualifying status (being a felon, juvenile, or drug possessor) or situs (being in a place where weapons are forbidden), it is not a crime to possess a weapon.” Jackson v. Commonwealth, 41 Va. App. 211, 231, 583 S.E.2d 780, 790 (2003) (en banc), rev’d on other grounds, 267 Va. 666, 594 S.E.2d 595 (2004).

Further, nothing in the record indicated appellant was carrying the firearm in a legally proscribed manner, such as in a concealed fashion without a permit. See Code § 18.2-308. The Commonwealth also concedes that appellant’s attempts to sell the handgun were not illegal and, thus, that information about his sales efforts, standing alone, was insufficient to justify a Terry stop.

SNIP

ccw9mm

· #9 · Mar 20, 2013

“Absent some disqualifying status (being a felon, juvenile, or drug possessor) or situs (being in a place where weapons are forbidden), it is not a crime to possess a weapon.”

That's pretty straightforward, right there.

k:

Now, if only New Jersey could take that sort of thing to heart: As in the Moore case, that the mere sight of an AR-15 in a state where such things are legal presumes a crime to possess, simply because an 8yr old child had a family photo taken of him holding his prized .22LR rifle after a session. One can hope.

Reactions: 2

oldman45

· #10 · Mar 20, 2013

I am the odd man out here. The officers had reasonable beliefs that a crime was being committed based on behavior. They did not arrest all the individuals but detained them, as is the right of a LEO, and was questioning them.

One left the scene before he was searched and after being told he could not leave. It was found after a chase and not by notification of the subject, that he was carrying a firearm while being a convicted felon. That is against the law. Simple enough.

The gun was found wihtout a search but during an arrest for fleeing. This is no different from taking a suspect in after a car chase and seeing drugs on the car seat.

Courts often make bad decisions and I feel this was one. Now there will follow a lot of "violation of petitioners rights" lawsuits in attempts to get released.

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OldVet

· #11 · Mar 20, 2013 (Edited)

I'm in a high crime area and I have a concealed weapon. Does that give an LEO "articularable reasonable suspicion" to detain me and search me? No.

I think you fail to understand the court's statement that this was an improper detainment and search. Cop "hunches" are not grounds, and that's exactly what the LEO based his detainment and search on. He made an "assumption" based on his experience and it resulted in any otherwise good conviction being tossed.

Reactions: 2

bigmacque

· #12 · Mar 20, 2013

Ghost1958 said:
It took a court to figure out that doing something legal doesnt give LE the right to stop a person for doing that legal thing.:blink:

Ghost, I appreciate what you're saying and I also fear the rogue cop, but we do need to balance that with the job the cops are tasked to do. Very often a street situation calls for a split second decision, and I'd rather err on the side of caution. I am NOT saying cops should have the right to illegally hold someone or stop them or anything like that; I am saying that in the current climate, with the extremists that exist on both sides of the gun rights fence, that cops have an extremely difficult job right now.

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Ogre

· #13 · Mar 20, 2013

I agree with oldman45. Good ruling, bad case example. The BG was a felon in possession of a firearm. Evidently from my reading it was NOT OC but in his hand when found. The BG fled police, to me that IS RAS.

Now, did they have RAS for the original stop? Perhaps , as one of the other "gentlemen" was known to have been arrested before. The detainment may be questionable but is certainly reasonable-control of the situation.

IMHO, it was the wording of the report itself that led to the ruling. The LEOs should have stated that their suspicions against the parties was based on actions other than merely the presence of the gun. Emphasized that Mr. Gates was known to have been involved in drug related offense hence the frisk. Thus they were not searching for guns but drugs and the BG Fled providing RAS for a apprehending him and the discovery of the firearm, again IN HIS HAND not OC in a holster.

Posted from the outer reaches of the universe via my Star Fleet communicator! Live long & prosper.

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bigmacque

· #14 · Mar 20, 2013

Yeah, if I'm a cop and I'm attempting to talk to someone, that someone flees, and when I catch him he has a gun in his hand, it's not going to be a pretty sight. I'm going to arrest him. I'd rather sort it out and be chastised later than not make it home to dinner.

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dling

· #15 · Mar 20, 2013

OldVet said:
Rights are rights, which shall not be violated on a whim, even for those who may be guilty.

:hand2:

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nathanjns

· #16 · Mar 20, 2013

For the protection of the rights of society as a whole, the standard of behavior and action for police should not be based on a presumption of guilt. The cops in this case had a lot of things to make them suspicious, and probably rightfully so. But if the same things had happened in a middle class, low crime ( Our ) neighborhood, I'll bet some of us would think we were being unreasonably detained and searched. I hate to see the BG get off without punishment. But for everyone's protection, the police have to honor the rights of suspected BGs also. Otherwise we can all be considered BGs and treated accordingly. LEOs, because they have authority over the rest of us, should be held to strict standards. The fact that it sometimes works to the BGs advantage is the price we pay for that.

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gasmitty

· #17 · Mar 20, 2013

I found this to be particularly valuable:

The Government contends that because other laws prevent convicted felons from possessing guns, the officers could not know whether Troupe was lawfully in possession of the gun until they performed a records check. . . . We are not persuaded. Being a felon in possession of a firearm is not the default status.

Seems to me that reaffirms the "innocent until proven guilty" foundation of our laws.

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oldman45

· #18 · Mar 20, 2013

SImply put so all can understand law enforcement.

1. There were a group of men in an unusual manner in a high crime area at a time known for illegal activity.
2.Nobody was being arrested but just identified. This happens daily across the US.
3.Then you have a man acting strange and giving incorrect information. He then asks if he can leave. He is told no. That does not mean he was arrested but only detained
At this time, I do not see any laws being broken other than giving incorrect information about where he lives but the officers did not know that at the time. Suddenly he bolts and runs. That becomes a crime called "Fleeing." Once he was caught, he was caught, he put up a fight. That is called Resisting Arrest. When going to the ground, a gun is felt so that changes things greatly. It is later learned he is a felon with a gun.

The court ruled he should not have been charged. That is a bad ruling. He was charged correctly. Now we have to ask why he had the gun and associating with others in a questionable manner. Felons do not carry guns foir righteous reasons.

I bet if he is stopped today, he will be armed again. The officers did not force him to run. Had he remained, he would have walked just like everyone else and not had any charges. A man with something to hide always panics and shows his hand.

LEO often stops people to ID when they are acting strangely. Many of those stops end in a foot chase has something to hide, be it drugs, guns, warrants or etc. Yet the only reason this man is walking the streets is because of a liberal court ruling. He will be arrested again and the next time, it may be for injuring or killing an innocent citizen.

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suntzu

· #19 · Mar 20, 2013

bigmacque said:
Yeah, if I'm a cop and I'm attempting to talk to someone, that someone flees, and when I catch him he has a gun in his hand, it's not going to be a pretty sight. I'm going to arrest him. I'd rather sort it out and be chastised later than not make it home to dinner.

The point is it sounds like the LEO did not lawfully detain them in the first place.

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oldman45

· #20 · Mar 20, 2013

suntzu said:
The point is it sounds like the LEO did not lawfully detain them in the first place.

Just curious. How does one lawfully detain someone? Generally, a person is free to go unless told otherwise. The person does not have to be arrested, Marandaed or cuffed but they also do not have to answer questions. When an officer stops someone and begins questioning them, the best thing they can do is answer the questions and not take off running.

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