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From the NRA-ILA -- The Fourth Amendment and open carry of guns (where such open carry is legal)

Discussion in 'Legal & Political Archive' started by U201491, May 15, 2015.

  1. U201491

    U201491 Well-Known Member

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    The Fourth Amendment and open carry of guns (where such open carry is legal)

    http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/13/the-fourth-amendment-and-open-carry-of-guns-where-such-open-carry-is-legal/


    By Eugene Volokh May 13
    From the Sixth Circuit federal court of appeals decision today in Northrup v. Toledo Police Dept.:

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

    A passing motorcyclist stopped to complain about Shawn’s visible firearm. The stranger, Alan Rose, yelled, “[Y]ou can’t walk around with a gun like that!” But “[O]pen carry is legal in Ohio!” Denise responded. As the Northrups walked away, Denise and Rose exchanged increasingly unprintable words until he was out of view (and earshot).

    Rose called 911, reporting that “a guy walking down the street” with his dog was “carrying a gun out in the open.”

    The police eventually arrived, ordered Northrup to stop, demanded that he turn over the gun, handcuffed him, and kept him handcuffed in a police car for 30 minutes. Eventually, they let him go, and all charges were dropped. Northrup sued, and the Sixth Circuit allowed the case to go forward:

    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. And it has long been clearly established that an officer needs evidence of criminality or dangerousness before he may detain and disarm a law-abiding citizen. We thus affirm the district court’s conclusion that, after reading the factual inferences in the record in Northrup’s favor, Officer Bright could not reasonably suspect that Northrup needed to be disarmed.

    The police had also initially suggested that Northrup was guilty of the Ohio crime of “causing panic,” but the court pointed out this wasn’t so (at least under Northrup’s version of the facts). Indeed, the Ohio “causing panic” statute provides,

    No person shall cause the evacuation of any public place, or otherwise cause serious public inconvenience or alarm, by doing any of the following:

    (1) Initiating or circulating a report or warning of an alleged or impending fire, explosion, crime, or other catastrophe, knowing that such report or warning is false;

    (2) Threatening to commit any offense of violence;

    (3) Committing any offense, with reckless disregard of the likelihood that its commission will cause serious public inconvenience or alarm.

    None of these was present here, and even if one thinks that open carry — though allowed by Ohio law — is likely to “cause serious public inconvenience or alarm,” that is not enough under the statute: The police also have to have evidence that the person filed a false report, threatened to commit an offense, or committed some other offense.

    The police are free to approach people to ask them questions, even without reasonable suspicion that the people are violating the law. They can order a person to stop for a short while if they have reasonable suspicion that the person is committing a crime or about to commit a crime. They can certainly disarm him and arrest him if they reasonably think that he’s about to shoot them, or if he is otherwise threatening them (something that the police alleged here, but that the court said is a fact question for the jury).

    But to coercively stop a person — and certainly to handcuff the person, which is what happened in this case — the police do have to have such reasonable suspicion. And if all they see is someone openly carrying a gun in a state in which such open carry is legal, the Fourth Amendment prevents them from “search[ing]” or “seiz[ing]” that person. One can support open carry or oppose it (some states ban open carry of guns but broadly offer licenses to carry concealed), but if open carry is legal, this result seems quite right under Fourth Amendment law.
     
  2. winchester270

    winchester270 Lafayette Active Member

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    I often contemplate open carrying to remind people that it is legal and guns are not evil. But I do realize it makes a lot of gun haters uncomfortable. And I also have come to the conclusion that they can not comprehend how to except this and will just push and push until everyone conforms to their way of life.
    at least that is what they would like.
     
    Idaho44 and forefathersrback like this.
  3. U201491

    U201491 Well-Known Member

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    There are some hardheads that just have to open carry. Their reasons are their own.
    I have many times, mostly in central and eastern Oregon and usually on hunting and fishing trips, but every damned encounter in cities was a Bullcrap session. I got my first carry permit when I turned 21 and it was when it was gun specific. Also a pain to get them then. I have carried concealed ever since. Then we began working on the current carry system we now have. I have never had any problems with that and only had a couple LE ask what I carried. More out of curiosity than anything else. For those that like going through the BS sessions and the potential crap they encounter, so be it. It is their choice. I also think it only incites and causes dirty diapers with the liberals which 98% of are a lot cause, and will always be the enemy anyway. I figure what they don't know is just better for all of us.
     
    Koda and Idaho44 like this.
  4. forefathersrback

    forefathersrback Central Oregon Well-Known Member

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    I choose not to open carry. Just my personal preference. If someone chooses to open carry, I'm ok with that. I feel it's OUR right. Most law makers seem HELL bent on taking our constitutional rights. Whether we conceal carry, open carry, or leave our firearms at home. Maybe it's time for us ALL to open carry to send that message. That message would be, we will not compromise on our constitutional rights. NONE OF THEM.
     
  5. FortRock

    FortRock Bend/Salem, OR Bronze Supporter Bronze Supporter

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    I have had CHL since 1988 but lately I have open carried at times when it was just too inconvenient to conceal. Regardless of what we do, the diapered ones will never be satisfied and never stop whining for their way. I am considering open carry routinely because it is time to claim our ground. I have been told that people in Salem are being harassed in Costco and actually told to leave and being "trespassed" if store security confirms that you are carrying concealed. I have searched for signs there but found none.
     
    Dyjital and forefathersrback like this.
  6. KTM530XCW

    KTM530XCW Vancouver, WA Well-Known Member

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    When people say that we shouldn't open carry because it's unnecessary and causes anti gunners to panic, i get irritated.

    Because what they're actually saying is "we should let liberals bully is into not exercising our constitutional and supreme court defended rights"

    I say shame on them!
     
    decklin, tunus, Idaho44 and 2 others like this.
  7. Koda

    Koda Oregon Bronze Supporter Bronze Supporter 2016 Volunteer

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    Im curious how anyone would know someone was carrying concealed let alone "confirm" it?
     
  8. Koda

    Koda Oregon Bronze Supporter Bronze Supporter 2016 Volunteer

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    IMO its not the anti gunners we should be respectful to its the middle grounders. In my experience the middle grounders are those that generally support guns wheither or not they actually own a gun. These are the people that get my respect.
     
  9. tunus

    tunus PDX, United States Active Member

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    I open carry when I'm out hiking, sometimes even on popular trails. I have never had a problem with anyone, but have been on the receiving end of some odd looks. I think it comes down to perception and your overall demeanor. I'm usually with my wife and our dog, always polite and greet other hikers as they approach. Most times they don't even notice it until after the initial nod/hello and wishing them a pleasant day. My goal is to be a positive ambassador of open carry and that mindset projects in your demeanor and how you interact with others. I've had some people ask me questions out of curiosity and have corrected some who thought walking around with a gun on your hip is illegal or difficult to do. Having said that, I avoid open carry when it's prudent like walking around in downtown.
     
  10. Pittsmaster

    Pittsmaster Oregon City Life Member NRA, Former USMC, MBA, GOP, W7RWP Silver Supporter

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    Most of the folks I run into when I open carry I get to educate. Most think its illegal. I love correcting or informing folks on gun laws. I know a lot of city slickers that think guns are illegal to own period. A lot of that is the bias in the media. I like to contact media folks via email and twitter and call them on their BS. They leave out details like saying "Multnomah county outlawed open carry" but they fail to mention anything about how folks with licenses can still do it. So then the viewers think its illegal no matter what and call 911 at any sight of gun, legally carried or not. Stuff like that.

    On a separate note, I have listened to some 911 calls where the operators are asking questions when folks call about guns. They ask "are they pointing it at anyone", "are they waving it around"..."they may be legal but we will send an officer to verify". I wish more operators educated folks like that.
     
  11. ZA_Survivalist

    ZA_Survivalist Oregon AK's all day.

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    At least the courts recognized it.

    FILM EVERY ENCOUNTER WITH POLICE!

    Its good proof for BOTH parties.
     
    decklin likes this.