Wednesday, May 15, 2013

Open Carry is not grounds for a non voluntary police encounter.

The Fourth Circuit court of appeals has agreed with me:  Open carry, in a state where legal, is not in and of itself grounds for a non voluntary police encounter.   The court covered every issue raised by the state and offered as a defense in a line by line review.

The "old standby" aka "Terry stop" that seems to the catch all for police encounters when they have no actual reasonable suspicion was shot down and the Fourth Amendment was upheld.   I'll highlight three of them but you can read the full decision HERE.

The court found that an officer making an assumption that because one gun is present, there must be more is not legal.  Interestingly enough the court made no distinction between legally or illegally possessed.  It was a blanket statement:

“would abdicate [its] judicial role if [it] took law enforcement-created rules as sufficient to establish reasonable suspicion. . . .  Such a rule subjects to seizure or search anyone who actively or passively associates with a gun carrier.  The seizure has no connection with the individual seized, the activity they are involved in, their mannerisms, or their suspiciousness; rather, the seizure is a mere happenstance of geography.”

The court issued several scathing breakdowns in this decision, such as when a "Terry" stop is lawful:

 “[t]o be lawful, a Terry stop ‘must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.’ Reid v. Georgia, 448 U.S. 438, 440 (1980). The level of suspicion must be a ‘particularized and objective basis for suspecting the particular person stopped of criminal activity.’ United States v.
Griffin, 589 F.3d 148, 152 (4th Cir. 2009). As such, ‘the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ Terry, 392 U.S. at 21.”

The court upheld the Fourth Amendment and being presumed innocent: [bold emphasis is mine]

“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.  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.  More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.  Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.

The court went even further:

"From our under-standing of the laws of North Carolina, its laws apply uniformly and without exception in every single division, and every part of the state. Thus, the officer’s observation is irrational and fails to give rise to reasonable suspicion. To hold otherwise would be to give the judicial imprimatur to the
dichotomy in the intrusion of constitutional protections"
This decision is technically only binding for the Fourth Circuit but if it is appealed and upheld by the USSC it would cover the entire nation.

Whether or not you open carry or ever plan to, this is a huge victory for the Right to Keep and Bear Arms as well as Freedom and Liberty in general.

We will keep you up to date on this and similar future court decisions at:

©2013 - 13C

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