Open Carry And Constitutional Rights
By Robert Merting, The Shooting Channel
If you want to open carry a firearm, you best be polite. It also helps to know the law, your rights, and what to expect. To that end, we discuss Constitutional limitations on police actions where open carrying is legal.
(NOTE: Not every police officer will know, recognize, and respect your Constitutional Rights. We all know the saying about being dead right. Use your discretion and be polite. Things can be sorted out in court later, even if you must bring a Federal case to do it.)
What is Open Carry?
This is carrying in public a firearm, or other weapon, in plain sight. Carrying does not include brandishing: the act of waving a weapon to intimidate. Open does not include a concealed firearm that is ‘printing’ on the clothing covering it. And finally, open carry on your private property may come under different laws depending on your state. Our open carry discussion is limited to where both the action and the weapon are legal.
Constitution: You mean the Second Amendment Right?
Do your Second Amendment protected rights allow you to ‘Constitutionally Carry,’ guarantee you the ‘Right to Bear Arms,’ or in some other way protect your right to carry a gun? Maybe. The Supreme Court hasn’t ruled on that and lower level Courts are reluctant to draw lines. There are a lot of arguments regarding the aforementioned ideas, and none of them are addressed here. This article covers where the open carry of firearms is clearly legal.
Why all of the disclaimers? Because this is a passionate subject, a subject you must know carefully before taking action, and a subject prone to less than logical interpretations on both sides. This article is not legal advice for any particular scenario. If you want legal advice, click here to visit my website contact information.
The Fourth Amendment
So what Constitutional Rights are we talking about? The Fourth Amendment:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Amendment that secures your house. The amendment that protects your privacy. That amendment that prevents unlawful seizures and detentions. So how does this apply?
It’s a midsummer Friday afternoon: it’s hot, you’ve been inside all day, and it’s time to take the dog for a walk. You grab a hat, a leash, and sling your favorite AR over your shoulder as you head out to stroll around the neighborhood. (The sagacity of this selection is up to you!)
While out, a passing motorist notices the firearm, panics, and calls 911. A deputy is dispatched. He arrives on the scene and . . . A) Casually asks what is going on?, B) Observes no laws are being broken and leaves, C) Comes out of the car with hand on gun, shouting obscenities, and threatening to shoot if you “go for the weapon?” Northrup v. City of Toledo Police Department, No. 14-4050, 2 (6th Cir. 2015).
If, like the John Boy and Billy Big Show, you ‘just choose C’ you’d be correct in the Northrup v. City of Toledo case. Though fortunately this is not always the case, and for reasons we see, it should not be the case.
In Northrup, the cases namesake was walking his dog while carrying a pistol on his side. An officer arrived and immediately used force to disarm Northrup, and then handcuffed and detained him for about 30 minutes. Eventually all charges were dismissed and the pistol returned. Northrup then brought suit against the police for the violation of his rights. This case, and other similar ones, show the limits and protections of our constitutional rights, and it is these we examine.
Scenario B is unlikely but technically correct. Where no crime has been or can be observed stopping to interrogate someone is unnecessary.
Scenario A is more likely, especially when the action occurs during daylight hours in an area not prone to high crime. The key in Scenario A is a consensual encounter that does not spill over into an investigatory detention like scenario C. (Consensual means you can walk away. If an Officer ever tells you that you cannot leave, or he holds onto your belongings such as an ID, then the stop has become a non-consensual investigatory detention.)
In Scenario C the officer immediately treats the open carrier as a ‘suspect’ and disarms him. This action however is unconstitutional and the officer should not have arrested nor disarmed the open carrier.
To treat a person as a ‘suspect’ there must be some supporting evidence of crime. “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.” Id at 7. It is not enough that a citizen be armed, he must be “armed and dangerous” before the police may disarm him. Sibron v. New York, 392 US 40, 64 (1968).
Courts have admonished police that “to allow stops [where the citizen is legally armed] ‘would effectively eliminate Fourth Amendment Protections for lawfully armed persons.’” Northrup No. 14-4050, 5 quoting United States v. King, 990 F.2d 1552, 1559 (10th Cir. 1993).
The Courts are clear, where carrying the firearm is legal, that alone cannot be reason to seize the person and the firearm. Such action is a violation of the Fourth Amendment. A further element of criminality or dangerousness is required to justify a search and seizure of the person and firearm.
But What of Felons in Possession?
Police commonly claim that an open carrier may be a “felon in possession” of a firearm as justification for the search and seizure, but Courts quickly dismiss this argument noting that “where it is lawful to possess a firearm, unlawful possession ‘is not the default status’.” Id at 6, quoting Florida v. J.L., 529 US 266, 272 (2000). To drive the point home, the Court in Northrup offers this analogy rejecting the argument that possession might be illegal:
“The situation [is] ‘no different’ from a setting in which the officers suspected “that [Defendant] possessed a wallet, a perfectly legal act in the Virgin Islands, and the authorities stopped him for this reason. Though a search of that wallet may have revealed counterfeit bills – the possession of which is a crime under the United States law – the officers would have had no justification to stop [Defendant] based merely on information that he possessed a wallet.” Id at 6, quoting United States v. Ubiles, 224 F.3d 213, 218 (3d Cir. 2000).
Well, Officer Security!
In United States v. Nathaniel Black a group of seven police officers disarmed Dior Troupe. No. 11-5084 (4th Cir. 2013). Mr. Troupe was legally carrying a pistol in the open and upon being approached by the police politely pointed it out to them. (No accusations were made that Troupe’s motions were anything other than alerting the police to the presence of his firearm.) The officers proceeded to disarm Troupe claiming “it would be ‘foolhardy’ for the officers to ‘go about their business while allowing a stranger in their midst to possess a firearm.” Black No. 11-5084, 13. The Court, “not persuaded” by the Government’s argument, admonished that “permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals.” Id.
Officer safety alone is not justification to disarm law abiding citizens. The Courts are reminding the police that these are citizens with rights and not subjects that simply obey.
In short, where an officer has “no reason to stop and frisk” it is a violation of “clearly established law” to handcuff and seize a person and/or his arms.” Northrup No. 14-4050, 7. Merely carrying a firearm in a legal manner is not reason enough to stop and frisk a person, and the routine seizure of a firearm for officer safety without individualized assessment is unjustified. Officers must show some other criminal conduct or indication that the person is dangerous. Absent such evidence, detainment and / or seizure of a person openly carrying a firearm is not justified.
What is Protected?
The Fourth Amendment doesn’t specifically protect your right to carry a firearm. Rather it protects your right to peacefully conduct your life free from government intrusion. Where the police cannot show an individualized suspicion of criminal activity or dangerousness, a low bar in reality, they cannot stop, seize, and search you. This was the basic standard established in Terry v. Ohio 392 U.S. 1 (1968), and the mere presence of a legal firearm does not form an exception to this rule. Northrup No. 14-4050, 6 (“There is no ‘automatic firearm exception’ to the Terry rule. quoting Florida v. J.L. 529 US 266, 272 (2000)).
Where an action is legal, such as the carrying of a firearm, the police cannot seize and search you based off of that activity. They cannot harass you for participating in that activity.
Some things to consider that may affect our analysis above. If you have been pulled over, even for a traffic violation, then the officer has some individualized suspicion of criminal activity. (We’ll look at traffic stops later). If you’re threatening to use the firearm or gesturing to it you have introduced an element of danger. And brandishing a firearm is normally a crime in and of itself.
The Bottom Line
Be a responsible gun owner. Be polite. Carry your firearm where appropriate and in a manner that is appropriate. If you carry your firearm in the open in places where this is not the norm you can likely expect the attention of police. While the police shouldn’t bother you, and they definitely shouldn’t disarm you, some will. If the police action becomes unconstitutional, you can always bring a case in Federal Court for damages and to make a point about your rights.
This article is for informational purposes only, does not constitute legal advice, and does not create or rise to the level of an attorney-client relationship. Readers should used caution and preferably seek professional legal counsel before acting.
Robert Merting, a SC licensed attorney, is an avid hunter, shooting sports enthusiast and outdoorsman. Robert built his law practice with a focus on firearms law and the legal structures required for the purchase and protection of firearms, and he is always happy to assist clients with South Carolina state law issues and Federal Regulations. Click here to visit his site.
Thanks to The Shooting Channel for this contribution. Click here to go to TheShootingChannel.com.