Open Carry Law Clarification

I'm not a lawyer and not a law enforcement officer. Agree that it really depends on the locally applicable laws, so you would be best off asking a local attorney/expert, though keep in mind that attorneys are paid to disagree with one another so the answer you receive may still not be entirely accurate. Laws were designed to be argued over and their application to vary with time and changes in society, sometimes known as judicial whimsy. That said, while it is probably not "legal" or appropriate for law enforcement to disarm and/or detain a person solely for carrying in an apparently legal manner, it is also probably not "legal" or appropriate to disobey an officer who makes noises about ensuring his safety while he talks to you. But it can be a tough point, because if you agree to turn over your weapon when you don't "have" to there is always that tiny chance they decline to return it back to you; officers can and will sometimes play games with words just like lawyers will, because frankly lawyers have forced them to. I get officers wanting to have control of any known firearms when they're talking to someone, when they don't really know the situation or the person they're dealing with and they were possibly given some histrionic story about someone with a gun -- they don't know if you're a docile law abiding carrier or a ***** looking for trouble, just like you don't know if the officer is just somebody trying to get through their day without getting shot or having to do any more paperwork, or they're looking for someone to take out their frustrations/personal biases/whatever on. Generally speaking I suspect you're probably best off playing nice and, if worse comes to worse, let your attorney take it out on them/their office later; even if you're right, it rarely helps your case to be argumentative with an officer. That's not to say you can't politely disagree, though.

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

At that point, according to Officer Bright, Shawn pulled out his cell phone, then “moved
his hands back toward his weapon”—where his cell phone had been—“in what [Officer Bright]
believed to be furtive movement.” Id. Bright asked Shawn to turn around with his hands over
his head. Id. at 38. Rather than comply, Shawn “kept asking” why Bright was there. Id. And
rather than answer, Bright “walked up and unsnapped and temporarily took possession of his
firearm.” Id.

...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.

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(C)(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).


While open-carry laws may put police officers (and some motorcyclists) in awkward
situations from time to time, the Ohio legislature has decided its citizens may be entrusted with
firearms on public streets. Ohio Rev. Code §§ 9.68, 2923.125. The Toledo Police Department
has no authority to disregard this decision—not to mention the protections of the Fourth
Amendment—by detaining every “gunman” who lawfully possesses a firearm. See Ohioans for
Concealed Carry, Inc. v. Clyde, 896 N.E.2d 967, 976 (Ohio 2008) (holding that Ohio’s statewide
handgun policy preempts contrary exercises of a local government’s police power).

PewPewPewClick said:

My question is... can a law enforcement officer legally disarm you if you are open carrying & that's what you are being stopped for??

This is my understanding:
US v. Deberry--legal firearms cannot be used as the only reason for stopping a person.
Delaware v. Prouse--you cannot be detained without suspicion of criminal activity.
Terry v. Ohio----leo's cannot legally seize a weapon without reasonable suspicion.

I don't believe this is the case in Kansas, as we have free range of open and concealed carry & the firearms can be loaded.
Now I guess back to my question: If a cop wants to detain you for open carrying... are they lawfully allowed to disarm you if you refuse any seizure of personal property?

Click to expand...

I deleted some wording .... that is your answer ; in Kansas ..... they should NOT be stopping you purely because you have a weapon on, and all LEO's I know of have been told that in their training, etc...... not unless you are suspected of committing a crime or about to commit a crime.

However, how do YOU know they don't ? I wouldn't argue the point with them, other than to clarify why I was being stopped , etc. If he wants my gun, I'm not going to debate it with them .... as there is more than likely a LOT more going on then I 'm aware of at that point. IF they admit that they are stopping you ONLY because you are open carrying .... then you have some cause for them to recheck with their Supervision, and ask for a Supervisor ... who will help educate them.

I do NOT think most LEO's in Kansas are going to stop you just because you are carrying ..... maybe Emporia, Salina, Lawrence, Ks City and Ottawa..... Maybe. As it seems those Police Chiefs are rather anti-open carry. However, in one of those up by Ottawa, they stopped a 19 yr old female purely because she was open carrying and got into a debate with her that she could NOT be open carry and it was NOT legal ..... the Police Dept got an education, a lawsuit on them, and got to write a check ... which I'm sure paid for the young girls college. And her attorney retrieved her gun from the police. She was cooperative with them when they wanted her gun, and just kept informing them that she felt she was "legal" and would pursue it. It was legal for her to be carrying it.

Examples ..... you may fit the description of someone who just committed a crime, and they may not tell you that ................

1. One of my best friends and his brother were at a fast food place eating, and suddenly they realized there were police officers who had came up behind each of them, had guns to their heads and told them NOT to move. They were arrested , taken to the police station , and questioned over and over and over for HOURS about where they were at this time, that time, etc.

After hours of this, someone walked into the room (each in different rooms) and told ... "it's not them, we have the guys, we're letting them go".
As they started to leave and were being walked down the hallway out ...... in came the officers "with the guys" , and they even said ..... they fit their descriptions, size, etc. perfectly. They also drove exactly the same model, year and color of car as them... they were told. The two real criminals, had raped and killed a woman in a park that day. It was a very brutal and ugly killing. ...

The entire time they were being questioned, they never knew any of that and were never told any of that.

2.) When I go out to go to work, I notice my license tag on my car is gone .... and has been stolen. I called police and reported it. Then , I'm driving to work in that car (they told me to go ahead) into a different larger city for work and hear on the public radio station ..... they are looking for a Black Camaro with a stolen license tag, and give a description of the man they are looking for. I fit the description perfectly, driving a Black Camaro .... and ooops ... no tag at all. I was glad I got to work. Now, what IF ..... some officer pulled me over thinking I might be THAT GUY.
He would have been totally justified to stop me, check me out and disarm me ..... and I am sure he never would have told me why... until it was all said and done.

So, I'm just saying ... he may suspect of you as being someone they are looking for , and you may have NO clue what-so-ever at that point. Not the time and place to argue with the Officer about it , if they want to disarm you ... best to cooperate and work it all out later. Common sense rules, and the law protects you, but don't make too many assumptions either.

You probably wouldn't be the last guy shot and it be said .... I suspected him as being the man who just robbed the bank, he fit the description, he was also was resistive and appeared to be going for his gun when I shot him.

98% of Kansas has been legal to open carry forever ... it was only some cities that made it illegal. Constitutional Carry just told the cities for once and all two things 1) not only did someone NOT need a license to conceal carry , but 2) Cities could no longer make open carry illegal in their cities.

Topeka made open carry long before Constitutional carry was passed.

Spark456 said:

Same here in Ohio one time I was disarmed but it was also a traffic stop. But after he was dome he handed right back to me. Two other times I was not disarm was just told to keep my hands away from it

Click to expand...

Note the court case posted above is, Ohio.


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

Officer cannot disarm without RS.

What about the possibility that Northrup was not licensed to carry a gun or that he was a
felon prohibited from possessing a gun? Where it is lawful to possess a firearm, unlawful
possession “is not the default status.” Black, 707 F.3d at 540; Ubiles, 224 F.3d at 217. There is
no “automatic firearm exception” to the Terry rule. Florida v. J.L., 529 U.S. 266, 272 (2000). In
Ublies, the Third Circuit showed why. There, police responded to an anonymous tip that Ubiles
was carrying a gun while attending a crowded street festival in the Virgin Islands—which on its
face was a legal activity. 224 F.3d at 214. The police nevertheless detained Ubiles even though
they were unaware of “any articulable facts suggesting that the gun Ubiles possessed was
defaced or unlicensed, [or] that Ubiles posed a safety risk.” Id. at 218. In rejecting the officers’
argument that Ubiles’s possession might have been illegal, the court treated the situation as “no
different” from a setting in which the officers suspected “that Ubiles possessed a wallet, a
perfectly legal act in the Virgin Islands, and the authorities stopped him for this reason. Though
a search of that wallet may have revealed counterfeit bills—the possession of which is a crime
under United States law—the officers would have had no justification to stop Ubiles based
merely on information that he possessed a wallet.”