Fourth Circuit gets it right on Open Carry

Does Open Carry, in an Open Carry state, give police a reasonable articulable suspicion that a crime is occurring?

Cops can’t just stop you, frisk you, or demand identification from you. Terry v. Ohio decided that a police officer must have “reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person “may be armed and presently dangerous” before he can detain you. But does that change if you’re hanging out with a person who openly carries a firearm?

Nathaniel Black was part of a group of men in Charlotte, North Carolina who local police officers suspected might be engaged in criminal activity. In particular, Officers suspected that after seeing one of the men openly carrying a firearm – which was legal in North Carolina – that there was most likely another firearm present. When police began frisking the men one by one, Mr. Black wished to leave, but was told he was not free to leave. Officers chased Mr. Black and discovered that he possessed a firearm; it was later discovered that he was a previously convicted felon. Mr. Black was charged with being a felon in possession of a firearm. Before the United States District Court for the Western District of North Carolina, Mr. Black moved to suppress the evidence against him. His suppression motion was denied, he entered a guilty plea preserving a right to appeal the denial of the suppression motion, and he was sentenced to fifteen (15) years imprisonment. The United States Court of Appeals for the Fourth Circuit, however, determined that the officers had improperly seized Mr. Black, suppressed the evidence against him, and vacated his sentence.

Read the whole thing.

The long and short of it is that doing something legal, like openly carrying a firearm, can’t be used to justify a detention and a search. We can agree that Black was breaking the law. But we can’t allow the police to decide that my carrying a gun permits him to search all my friends.

Great decision by the Fourth Circuit.

Takeaway from this? Insist on your rights. When the cops try to detain you, say that you want to leave. Try to leave. Force them to prevent your departure. I wouldn’t go so far as to run and make them tackle me, but by trying to leave he was able to prove in court that his stop wasn’t a consensual encounter.