Fourth Circuit Finds That Carrying a Firearm in an....

[JJVP]

.... Open-Carry State Does Not Create Reasonable Suspicion and Provides Thorough Analysis of the "Free to Leave" Standard of Seizure

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.”

http://www.fedagent.com/columns/case-la ... of-seizure" onclick="window.open(this.href);return false;

[jimlongley]

Funny, this is what all those You Tube video encounters seem to be attempting to accomplish, and one felon in possession does it without even trying.

[Jumping Frog]

Nice analysis.

The reasonable suspicion analysis can also be extended to realize there is a critical difference in 4th Amendment protection between states that have unlicensed open carry versus licensed open carry.

“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. 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.”

If Texas passes licensed open carry, that would not meet this standard, in that open carry would not be the "default status". Thus an officer could claim that the Terry stop was reasonable because open carry would be illegal unless the person was licensed.

[RHenriksen]

Exactly why licensed open carry should be at most a very short period on the way to unlicensed OC, then constitutional carry.

[The Annoyed Man]

Exactly why licensed open carry should be at most a very short period on the way to unlicensed OC, then constitutional carry.

I've always maintained that this has to be an incremental process, with Constitutional Carry as the end goal. It's not that I prefer licensed open carry, it's that I prefer it to NO open carry, and that I recognize the political reality that getting to Constitutional Carry incrementally is what it is going to take to get there. Wishful thinking alone isn't going to get it done.

[stevie_d_64]

Getting this accomplished in Texas is, and has been very difficult to do, both politically, and it will be hard to get it to be socially acceptable...

Even though I would like the option to open carry, as many would like as well...I have tempered my passion on the issue, because of what I have learned in what it is going to take to accomplish this goal...It ain't going to be easy!!!

The hardest part will be getting the public to accept it in this state...Sure, there are legal hurdles and risks to the whole concept of carrying a firearm for lawful, self-defensive purposes in this state...Sections of our penal code will have to be modified, and CLEARLY interpreted and training will HAVE to be ingrained in the membrane of Law Enforcement that this is going to be seen, and quite frequently if it ever does come to fruition in the state of Texas...

So, for the sake of argument, I am glad where we are in Texas...I like our track record on the concealed side of the issue...It works in our favor to a certain point...But as some may say, be careful what you wish for...And be ready for scrutiny, the likes no one here is anywhere near prepared for...I can guarantee you that!!!

I have open carried in states that allow it...It is no big deal...I was thinking I was going to have police all over me when I did...Like in sooooo many videos we have seen over the years...

Funny encounter on a particular trip...I walked into a Denny's for breakfast one morning, and a local cop asked me as they were leaving the place, "Why are you carrying?" I said in response, (just a knee-jerk one as well...) "How much do you weight?" (I really thought I stepped in it!!!)...

His partner (female) just laughed almost all the way out the door...He got the joke right off, and no hard feelings at all were to be had...

I left the Denny's and got in the truck to go fill up and get back on my way...The same officers saw me filling up, pulled by and saw I was from Texas...They commented as much and we all had a good time talking shop...At the end I thought to tell them, that maybe some day Texas might grow up and allow its citizens to carry in the same manner...

"Be careful what you wish for, be safe!" is what I heard as they left...

The irony of this trip/encounter is...

When I got to Mile Marker 1 in Yuma, Arizona...Heading west into California...You know what I had to do then...Right???

Funny how things change, when you have to cross a line, on some map...Think about it...Be grateful for what you have...

Off my soapbox now...

[MeMelYup]

Nice analysis.

The reasonable suspicion analysis can also be extended to realize there is a critical difference in 4th Amendment protection between states that have unlicensed open carry versus licensed open carry.

“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. 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.”

If Texas passes licensed open carry, that would not meet this standard, in that open carry would not be the "default status". Thus an officer could claim that the Terry stop was reasonable because open carry would be illegal unless the person was licensed.

What had the person done that would raise doubt with the officer indicating the carry might be illegal.

[anygunanywhere]

Off my soapbox now...

That was a powerful big soapbpox post!

Anygunanywhere

[stevie_d_64]

I endeavor to persevere...

I also don't spit into the wind...

[baldeagle]

Funny, this is what all those You Tube video encounters seem to be attempting to accomplish, and one felon in possession does it without even trying.

That's because felons have more rights and are more carefully protected than law abiding citizens.

[cb1000rider]

Let's be honest - Texas is an open carry state for rifles and clearly local law enforcement seems to think that open carry provides enough culpable suspicion (surely not probable cause) to effect a stop and detain.

If you think I'm kidding: http://news.yahoo.com/arrest-texas-sold ... 00913.html" onclick="window.open(this.href);return false;

I've seen the youtube videos and most LEOs don't back down when asking to see ID for someone open carrying... I can tell you that I qualify it this way - in an open carry state, with reciprocity, I'll open carry if I've got the time and inclination to go
to jail that day, as that's likely to happen if approached by a LEO and asked for ID.

It's unfortunate that this case is backed by criminals.. IE - the LEO was trying to effect an illegal stop and a criminal who had a firearm illegaly... Essentially upon appeal the evidence is suppressed, which is good news for the bad guy.


We call these "test cases". Some of you look down your noses at test cases, but until many things are tested we don't get judicial (and associated LEO) clarity on the subject. I'll sign my butt to the silver-handcuffs for a case that is already tested, as I know without a doubt that the issue has already been ruled on and that it's going to work out badly for the PD.. but otherwise, better have some deep pockets and time if you want to assert your rights... It's just the world we live in.

[bizarrenormality]

Funny, this is what all those You Tube video encounters seem to be attempting to accomplish, and one felon in possession does it without even trying.

That's because felons have more rights and are more carefully protected than law abiding citizens.

Sad but true. CHL have to hand cops a card that says we're armed so they can arbitrarily and capriciously run the serial numbers if they're in the mood, but convicted felons can lie and say they don't have any guns. Citizens summoned for jury duty have to answer a slew of personal questions in Tyrant county, but criminals have the right to remain silent.

[cb1000rider]

CHL have to hand cops a card that says we're armed so they can arbitrarily and capriciously run the serial numbers if they're in the mood, but convicted felons can lie and say they don't have any guns. Citizens summoned for jury duty have to answer a slew of personal questions in Tyrant county, but criminals have the right to remain silent.

This is how things get bent from reasonable and become irrational arguments... The facts are:
1) PD cannot stop you for no reason, find that you have a gun, and run the serial numbers without enough cause (probable cause) to effect a search. The court has ruled on this.
2) Convicted felons can lie about not carrying a firearm. CHL holders can lie and say that we're not carrying a firearm and/or not disclose that we have a license. The difference is if the felon gets caught he/she gets jail time. Currently there is no penalty in Texas for a CHL holder if he/she was caught, although I wouldn't suggest that someone try it.
3) It's jury "duty". You can refuse to answer questions, you just can't refuse to show up if you're called. It's not called jury if you feel like it. Think of it as part of the price for our wonderful justice system. It's also an opportunity to make sure that the public, the police, and the courts have their ducks in a row as you're deciding someone's fate.
4) Both parties - criminal and non-criminal have the right to remain silent. However, the supreme court just ruled that silence before invoking miranda, can be used against you. Reference: http://www.chron.com/news/texas/article ... 604784.php" onclick="window.open(this.href);return false;

[2firfun50]

cb1000rider wrote,

If that happened to me, I'd be filing a complaint immediately with a copy of the caselaw on the issue.

Do happen to have some links to the case law you would reference?

Thanks

[cb1000rider]

Do happen to have some links to the case law you would reference?

Thanks

I don't because it doesn't exist. It's untested.... Thanks for the correction. I corrected my post.