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.

35 responses to “Fourth Circuit gets it right on Open Carry

  1. Pingback: Instapundit » Blog Archive » FOURTH CIRCUIT: Open carry of a handgun not grounds for “reasonable suspicion” to detain. Where op…

  2. I’m not sure I’d go so far as to try to leave. That’s pretty close to “fleeing.”

    But the only thing you should ever say to a police officer are “Am I being detained?” “am I free to go?” or “I’d like an attorney.”

  3. I believe the proper phrase is “Am I under arrest or am I free to go?”

  4. Of course the thing is, most people can’t afford a lawyer when they are arrested. I guess this guy got a court appointed one, but how much jail time did he see? Probably a year or more.

  5. The article says its legal in NC to open carry. Its legal everywhere to open carry. Unless the constitution doesn’t apply in some states.

  6. Thomas Hazlewood

    I see no problem with a cop wanting to see your permit to legally carry. That small importunity should be considered the price we pay to keep ILLEGAL carry weapons off our streets. The approach suggested by the author INVITES a confrontation with a dutiful officer. Making cops fret about a court case may make the author happy but it will not (and did not) keep that ex-con from carrying, right? If a game warden asks to see your hunting license, you show it, because HE is just doing his job, and doing it right. Why make the cop out to be a bad guy for, RIGHTLY, suspecting something was amiss?

  7. You don’t need a permit to legally open carry. The permit is called the constitution of the United States. And having police illegaly searching law abiding citizens is a violation of the consitution. Or do we need to start carrying our papers with us now?

  8. In Connecticut, straight from a cop: yep, open carry is legal, but if you open carry, you will be arrested and charged with breach of the peace and the firearm confiscated.

    Then you’ll spend the next year or so getting the charge overturned and your firearm returned. In other words, the open carry statute is honored “more in the breach than the observance.”

  9. Then in Conneticut, there is no law, and the cops are just gangs in different colors. Simple.

  10. Charlie Delta

    Good article. This is great news.

    Asking to leave is fine, trying to leave can get you some kind of “resisting arrest” or “obstruction” charge.

    xbradtc has it right with the list of three: “What’s this about, am I free to leave and (if not free to leave) I want an attorney.” That’s all you should ever say to a cop unless you are a victim of crime. “I know you have a job to do, officer, but I won’t answer any questions” is very useful. Note the “will not” in that statement–you must be unequivocal when asserting your rights. BTW, If you never agree to talk, never consent to a search of your house or car, you will be in a much stronger position legally,

    John–I wouldn’t get into semantics over arrest/detention. Especially with a cop. He/she will likely use “detained” even where a court would find the suspect is really under arrest. The cops know there is a difference but if you are the subject of the arrest/detention, the goal is to force the officer to justify the action, not argue about how to characterize the stop..

    Dan, open carry is NOT legal everywhere. Make sure you know the local law. You might mean that it should be legal everywhere based on the 2nd, but the SCOTUS has approved many limits in 2nd Amendment rights.

    Hazelwood, No one is making the cops out to be the bad guy. (Although many of them are–see Cato’s The story, and the court decision, are about limits on the power of police to detain citizens. This is not about permits or keeping illegal guns off the street. (In fact the story doesn’t say that the cops ever asked for a permit. Open carry might even be legal without a permit in NC.) This case is about what is an unreasonable seizure of a person under the constitution. Doing something legal is not a reason for the cops to detain you, ever.

    In this case, it looks like the guy with the open carry gun actually did what he was supposed to do–he told the officers about it and let them disarm him during the encounter. If you have a permit, you might be required by law to show it on request as you are with your drivers license during a traffic stop or a hunting license while you are hunting. So that’s what you should do. It doesn’t look like that’s what was going on here. The cops were looking for a reason to roust a bunch of guys that might be up to something, but they had no reasonable suspicion or probable cause to detain, and that means any evidence gained is obtained illegally. Sweet.

  11. The police said the same thing in Wisconsin. A few years and a few judgements later, they are singing a different tune.

    Be sure to carry a recorder, better yet, have a friend record the encounter. Form up an open carry Connecticut group, and get active.

  12. Open carry is legal everywhere. If I carried a rifle on my back, I would be within my constituional rights. They have limitations on the type of weapons you can carry. Some cities have limited the type of firearms and the need to have handguns registered. But Scotus has severly limited the cities ability to do that. You should know your laws, and then be ready to defend them in court. Any constitutional right you willingly give up is one you will never get back. As for the police that illegally detain and deprive you of your rightfull earnings, that is why their is civil action against police and cities and their misuse of power. Again, exercise your liberties or they will atrophy. I have had police tell me on two different occasions that I could not carry because of city ordinance. One in chicago, and one in a small town in NC. I gladly showed them my permit, the constitution pocket version. One escorted me out of town. The other said he would turn a blind eye.

  13. I didn’t say that you should run away. Just announce your intention to leave and then walk away slowly. Make them physically restrain you. Don’t fight, don’t struggle, just say “So, I’m under arrest then.”

    No “Permit” is required in North Carolina to exercise your common law right to carry a firearm openly. You need a Concealed Handgun Permit to carry concealed, that’s it.

    Define “confrontation.” Now recognize that the confrontation already exists. The cops confronted this group of people for no reason other than they were black and in a high crime area at night. The Terry Stop was bad from the absolute beginning. Then they compounded their error by conducting an illegal search based upon the fact that one person was carrying a firearm openly and legally. Cops have to follow the rules. When cops can violate the rules without consequences then we have no law at all.

    As an open carrier, I would not have justified anything to the cop. I would not have offered my ID. I would also not have handed over my firearm. I would have told him that he could either leave it where it was or he could arrest me and sieze it. An arrest without probable cause is grounds for a federal lawsuit, and I would have sued him. Cops mostly know this and will back down. The ones that push the issue end up in court facing a judgement that forces their entire police force to accept that Open Carry is legal and not some sort of “get out of jail free” card for cops who can’t remember the 4th Amendment when a gun is involved.

  14. More below from an article: (but I take issue with the last line based on my discussions with several cops. They know the law, but you’ll get taken down anyway.)

    An aside: Connecticut is on the verge of requiring that ALL firearms be registered, including the .22 that was passed down to you by your grandfather.


    Ignorance of the Law Is No Excuse (Unless You’re in Law Enforcement)
    Saturday, August 27th, 2011

    Mike Lawlor, undersecretary for criminal justice policy and planning for the state of Connecticut, joins the ranks of other public officials who are choosing to simply ignore those rights they don’t believe citizens should have.

    “In almost every situation you can imagine this happening in, it qualifies as breach of peace,” he said. “If you walk into a restaurant with a gun it’s almost by definition a breach of peace.”

    That results in an arrest and sets in motion a chain of events that usually results in the revocation of an issued pistol permit, he said. And that’s the way it should be, Lawlor said. Anyone who walks into a McDonalds plainly carrying a firearm either intends to alarm people or is irresponsible, he said.

    Here’s the problem: If you have a permit, it’s perfectly legal to walk into a McDonalds in Connecticut while plainly carrying a firearm . . . . the problem is that too many cops in Connecticut simply don’t know the law.

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  16. Dan, it is NOT legal to open carry in the People’s Socialist Republik of New York, with a pistol permit or not.

  17. Dan – I agree that the 2A allows you to bear arms, but the 10th Amendment allows the States to make their own rules. This is why AZ and Alaska and Vermont are very tolerant towards weapons owners but IL will not allow its citizens the right of self defense.

  18. Open carry is NOT legal everywhere. It varies state-to-state. Even though Texas issues CHLs, it is not legal to open carry in Texas unless you are on your own property, and a few other exceptions.

  19. Sir, I’m not sure I’d agree with that representation of the 10th. Only those “powers not delegated to the United States by the Constitution” are left to the states. The recent 7th circuit ruling about Denver implies that they can’t both ban open and concealed carry, but since the plaintiff didn’t bring up that issue, it wasn’t specifically ruled on.

  20. Correction: it was the 10th Circuit in the Denver ruling, but the 7th Circuit ruled in December that the state of Illinois’ concealed carry ban is unconstitutional.

  21. CA prohibits Open Carry, even of unloaded firearms (with a few notable exceptions, that generally would not apply in urban areas).

  22. Pingback: Fourth Circuit gets it right on Open Carry - INGunOwners

  23. Texas, almost the definition of a Wild West state, does not allow open carry of a handgun (except for hunting and in certain sporting firearm events), and a Concealed Handgun License is required to carry concealed here.

  24. In Connecticut, if a police officer sworn to uphold the law is not reprimanded for making an arrest in a given situation, then that would constitute a reasonable belief that the arrest was proper. If the prosecutor files charges rather than simply ordering the person released, that would further support the reasonable belief.

    If open carry is a breach of the peace, results in an arrest and being jailed and being tried, then there is your reasonable belief that open carry is a crime. So go to a place where the local cops make breach of peace arrests for open carry, and arrest the first cop you see for breaching the peace.

    The nifty thing about the law in the United States, is that everybody has to follow it.

  25. Pingback: Open Carry in Open Carry State No Pretext for Stop | Shall Not Be Questioned

  26. TheButterZone

    I was about to say “walk away slowly” too!

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  28. Pingback: The Right to Open Carry Guns: Use It or Lose It -

  29. Supreme Court Ruling –
    Nunn v. State, 1 Ga. (1 Kel.) 243 (1846)

    “The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such as are used by the militia, shall not be infringed.”

    Ruling –
    The Nunn court ruled that while the legislature could prohibit the concealed carry of weapons, it could not prohibit the open carry of weapons. To do so would be a violation of the Second Amendment right to carry weapons for self-defense. As there was no proof that Nunn had been carrying his pistol concealed, the conviction was overturned.

    Conclusion –
    No matter what State you live in they can’t stop you from carrying your gun openly!! They can only make you get a permit to have a CCW permit. Cops hate open carry but love CCW. Why!?!? If I was a cop and coming up to someone I’d sure like to see and know he is armed before I interact with him. That way I know right away that I could get shot. If they CCW I have no idea that they do have a gun and can shoot me anytime! I also wouldn’t know they had a gun before I start interacting with the person. Is it better to KNOW someone has a grenade and has pulled the pin or is it better for me to NOT KNOW someone has a grenade and has pulled the pin?

    Cops have a tough job and I feel for them in a way. If they only would do more protecting and detecting rather than fines/fees, I think people would think that the cops are there to help protect the public. Also if cops actually started treating people kindly and not infringing on there rights the only people out in the world that would hate them would be the bad guys.

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  33. So an ex-con were to live in Alaska, he is breaking the law if he were to processed any kind of weapon for survival or self-defense?

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  35. James Machie

    Laws are written to protect the citizens of the United States from each other and from the established LEO. When one or the other breaks those laws, some one loses rights. I am protected by the 4th amendment against illegal search and seizure and my right to feel safe in secure in and of myself at home and in public. If a LEO can walk up to me without Reasonable Articulable Suspicion that I have committed or am about to commit a crime and demand of me to identify myself or remove my legally carried gun. My 4th amendment rights are being violated. If I comply with an illegal search and or seizure I have become complacent and allowed this to happen. Becoming complacent just because it’s easier and faster to move on, it only serves to allow LEO do as they please when they want to. That is not how the country works. Giving up even just a small bit of your rights enables them to pick away at other parts of your rights. I’m not willing to give up any of my Constitutional rights…none!