6th Circuit opinion re: Ohio open carry

[sodbuster95]

The 6th Circuit Court of Appeals issued an opinion today in a case out of Toledo (Northrup v. City of Toledo Police Dept.). Those here that enjoy and/or support open carry should be pleased by the outcome.

Long story short; the Court affirmed as we all know that, 1) yes, open carry of a firearm in Ohio is a facially lawful activity; 2) the default presumption (absent other evidence of a crime) is that the possession of a firearm by a person is presumptively lawful (versus assuming it's unlawful until proven otherwise); 3) no, openly carrying a firearm, in and of itself, does NOT give rise to "reasonable, articulable suspicion," pursuant to Terry v. Ohio, that a crime "has been, is being, or is about to be committed" and, as such; 4) a police officer detaining an individual on these facts may be held individually liable for a tort under Ohio law.

The decision can be found at the 6th Circuit's website here. At a mere 8 pages, it's actually not a bad read and contains a number of noteworthy points (plus, arguably, some nits to pick). Most notable to me is this (bottom of page 4):

"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."

[Tweed Ring]

Interesting quote - thank you.

[BobK]

This case also illustrates an important distinction that will affect Texas if the current open carry bill(s) are reconciled and become law. Open carry that does not require a license is presumptively legal, so there needs to be some other reasonably articulable suspicion to support a Terry stop.

If Texas becomes a state with licensed open carry, then it is not presumptively legal: open carry is illegal unless the exception applies (i.e., a license). Therefore, any cop can witness behavior that is illegal and thus demand to see the license.

Huge difference.

[Chuck]

Good reading,
Thank for posting it

I like this part:

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). 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

[Werz]

A very favorable decision, but citing the litigation of everyone's pal, Leonard Embody:

What about the possibility that Northrup was carrying a firearm not covered by the Ohio law? Had Northrup been carrying a gun that looked like an assault rifle or some other illicit firearm, that might have justified the officer’s conduct. Northrup v. City of Toledo Police Dep’t, et al., No. 14-4050 (6th Cir. May 13, 2015), citing Embody v. Ward, 695 F.3d 577, 580–81 (6th Cir. 2012).

A word of caution to those who like to openly carry firearms styled on the AR and AK platforms: the court does not consider them to be the same as a handgun when it comes to reasonable suspicion.

[schmieg]

This case also illustrates an important distinction that will affect Texas if the current open carry bill(s) are reconciled and become law. Open carry that does not require a license is presumptively legal, so there needs to be some other reasonably articulable suspicion to support a Terry stop.

If Texas becomes a state with licensed open carry, then it is not presumptively legal: open carry is illegal unless the exception applies (i.e., a license). Therefore, any cop can witness behavior that is illegal and thus demand to see the license.

Huge difference.

One argument there is that it is illegal to drive without a license, but the act of driving a car on the highway does not create RAS to stop and verify the driver is licensed.

[catfish86]

What is interesting here is the assumption that there is a "gunman" who must be arrested to protect the general public. Compare this scenario to the Dayton Walmart shooting and the Cleveland Tamir Rice shooting where police showed up in response to a 911 call and eliminated the threat.

[Werz]

What is interesting here is the assumption that there is a "gunman" who must be arrested to protect the general public. Compare this scenario to the Dayton Walmart shooting and the Cleveland Tamir Rice shooting where police showed up in response to a 911 call and eliminated the threat.

You can debate all day whether they should have known that Tamir Rice's "gun" was not a real firearm, but waving it around and pointing it at others is nothing like carrying it holstered while walking the dog. To pretend otherwise is a load of crap.

Edit: And in case folks have forgotten, that is what was on the 9-1-1 audio.

[catfish86]

This still goes to the mindset of police that a man with a gun is committing a crime. In the description at one point the cop claimed the MWAG was making a "furtive movement" and reached out and grabbed the citizen's gun. The important point to this is that the mindset of a gun being present is a crime in and of itself, anything even slightly threatening gives the police the authority to shoot the MWAG. This case sets the police straight in a non-lethal encounter. Same mindset with the CCW on a Costco in I think it was Utah with a MWAG 911 call gave the police the green light to shoot him.

[sodbuster95]

A very favorable decision, but citing the litigation of everyone's pal, Leonard Embody:

What about the possibility that Northrup was carrying a firearm not covered by the Ohio law? Had Northrup been carrying a gun that looked like an assault rifle or some other illicit firearm, that might have justified the officer’s conduct. Northrup v. City of Toledo Police Dep’t, et al., No. 14-4050 (6th Cir. May 13, 2015), citing Embody v. Ward, 695 F.3d 577, 580–81 (6th Cir. 2012).

A word of caution to those who like to openly carry firearms styled on the AR and AK platforms: the court does not consider them to be the same as a handgun when it comes to reasonable suspicion.

That was the one part that I disliked. The Court is essentially doing here exactly what they chastise the officer for doing - making a presumption that simply isn't true. The Court should pay attention to its own argument and note that the "right" to openly carry firearms is not "granted" by the State but instead exists as a default and, absent evidence to the contrary, that gun that "looks like an assault rifle or other illicit firearm" should be presumed lawful.

Thinking that through for a minute - anyone with even a passing familiarity with firearms should recognize that it's virtually impossible, upon simply seeing a firearm, to distinguish an "assault" rifle** or "illicit" firearm** from any other firearm. If we give the police RAS to detain someone to determine the lawfulness of an "assault" rifle or "illicit" firearm, because these are such non-specific categories, then we essentially upend the entire holding of this decision.

**By "assuault," I assume the Court means a fully automatic firearm since I can think of no other characteristic to apply to that category. By "illicit," I assume they mean stolen or otherwise rendered unlawful pursuant to some statutory definition.

[Werz]

Thinking that through for a minute - anyone with even a passing familiarity with firearms should recognize that it's virtually impossible, upon simply seeing a firearm, to distinguish an "assault" rifle** or "illicit" firearm** from any other firearm. If we give the police RAS to detain someone to determine the lawfulness of an "assault" rifle or "illicit" firearm, because these are such non-specific categories, then we essentially upend the entire holding of this decision.

**By "assuault," I assume the Court means a fully automatic firearm since I can think of no other characteristic to apply to that category. By "illicit," I assume they mean stolen or otherwise rendered unlawful pursuant to some statutory definition.

I think "illicit" means sawed-off shotguns and similar items. If I recall correctly, Leonard Embody was carrying a Draco. "Assault rifle" was the term used by the complainant in that case.

[djthomas]

Reading that whole paragraph in context I think by "assault rifle or some other illicit firearm" what they meant to say, in Ohio terms is dangerous ordnance, which would include your SBS/R, anything full go, or something with a suppressor hanging off the end. Reason being one must have a permit (or be exempted from the permit requirement) to merely possess such items, thus they are illicit by default.

When the stop involves an AR/AK (as Werz suggested) it seems that there might be some room for fact-dependent analysis because you'll have the officer's perception of barrel length, possibility of full-auto, etc.

[Werz]

Reading that whole paragraph in context I think by "assault rifle or some other illicit firearm" what they meant to say, in Ohio terms is dangerous ordnance, which would include your SBS/R, anything full go, or something with a suppressor hanging off the end.

I think the take-home lesson is:

• If you're openly carrying a holstered handgun, you should be left alone.
• If you're openly carrying something else, hoping to draw negative attention, you probably will.

[djthomas]

• If you're openly carrying a holstered handgun, you should be left alone.
• If you're openly carrying something else, hoping to draw negative attention, you probably will.

There's also a subtle distinction going on in so far as the purpose of the suit. In this case it's not about trying to get evidence tossed by claiming that there was a lack of reasonable suspicion. This is going a step further and saying that not only was there no reasonable suspicion but in this case, that should have been clearly known to the officer in question, hence the plaintiff can defeat qualified immunity and sue for damages.

There's a big difference between having charged dropped and/or a conviction overturned based on police actions and actually being able to collect for damages.

[catfish86]

Dj has a good point. It is important to remember that public officials have a special immunity in their official duties because you can't have every crackpot suing the mayor for every decision they don't like. It is significant for the trial court to say and the appeals court to rubber stamp that stopping and searching a man simply for having a gun is so out of bounds in violation of the fourth amendment that the officer can be sued.

That is significant because in most cases it is formality that the officer is immune. It is more common that the city might be liable but the officer himself is being sued here. That REALLY will have a chilling effect on officers when someone spots a concealed carry or someone is simply walking down the street with a pistol in a holster, as it should. We either have the RIGHT to bear arms or we don't.