US v. Black: Open Carry Isn't PC (4th Circuit)

[d38runner]

A nice decision that Todd mentioned in his 5/6 update. From the U.S. Court of Appeals for the Fourth Circuit, US v. Black rules that open carry of a firearm (which is legal in North Carolina) does not give police officers' a "reasonable and articulable suspicion that the person seized is engaged in criminal activity."

 

In other words, if police officers see a person openly carrying a firearm on their person, this fact alone does not give the police a reasonable and articulable suspicion that criminal activity is afoot. That is, they will need more to search you than just this fact alone.

 

Here is a decent summary of the decision: http://www.fedagent....dard-of-seizure

 

PS - In case you're interested, here is a little bit about probable cause. If I recall correctly, probable cause is what's needed for the police to search or arrest you (the "probable cause standard"). There is also something called a Terry stop, in which the police can briefly detain you if they think criminal activity is afoot (but if their suspicions do not yet rise to the level of probable case). If the police think you are dangerous, then they can to a quick patdown of you for safety reasons, which is called a Terry stop and frisk. The Terry standard and the probable cause standard differ; the police need to more to justify an arrest or full search based on probable cause versus a quick Terry stop, which is based on a reasonable and articulable suspicion. In this case, the Fourth Circuit held that open carry of a firearm alone does not give rise to the Terry standard. So the title to this post is probably a bit of a misnomer. Regardless, the decision is a good one because if I read it correctly, the police cannot perform a Terry stop or Terry stop-and-frisk of you for simply open carrying.

US v. Black.pdf

[TyGuy]

We dealt a LOT with this during the heyday of Open Carry in Wisconsin. I find this quote most interesting:

 

“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.”

[TyGuy]

It stinks to let a felon with a gun go free, but it's not worth the cost of ALL of our rights to keep him locked up. Freedom is dangerous, but worth the risk.

[skinnyb82]

This was CA4 it's not binding here but if there's a circuit split and there could be if an attorney wants to create one by defending a gangbanger OC'ing, could go to SCOTUS.

 

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[TyGuy]

This was CA4 it's not binding here but if there's a circuit split and there could be if an attorney wants to create one by defending a gangbanger OC'ing, could go to SCOTUS.

 

Sent from my SCH-R530U using Tapatalk 2

I've heard that the CA4 decision isn't even binding in Charlotte. That's what the Cook County SA told me.

[skinnyb82]

Hahaha don't you know that Chicago/Cook County reserves that right? No other city. Just Chicago and Cook.

 

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[d38runner]

This was CA4 it's not binding here but if there's a circuit split and there could be if an attorney wants to create one by defending a gangbanger OC'ing, could go to SCOTUS.

 

Sent from my SCH-R530U using Tapatalk 2

I've heard that the CA4 decision isn't even binding in Charlotte. That's what the Cook County SA told me.

 

LOL!

[lockman]

It stinks to let a felon with a gun go free, but it's not worth the cost of ALL of our rights to keep him locked up. Freedom is dangerous, but worth the risk.

 

If they know you are a felon, then they have their probable cause This is why felons don't OC!

[d38runner]

It stinks to let a felon with a gun go free, but it's not worth the cost of ALL of our rights to keep him locked up. Freedom is dangerous, but worth the risk.

 

If they know you are a felon, then they have their probable cause This is why felons don't OC!

 

The interesting thing here was that the criminal defendant in the case (Nathaniel Black) was not the one who was OC-ing. It was some other guy in the group who was legally OC-ing, which triggered (in part) the cops securing the scene and essentially ordering no one to leave. And that's when Mr. Black tried to leave, was eventually patted down, and a gun was found.