People v Dorsey - Firearm possession is not evidence of criminal activity

[Euler]

On March 31, a three-judge panel of the First District Illinois Appellate Court issued its unanimous opinion.

Opinion said:

As defendant Gerald Dorsey packed some personal items into the trunk of an SUV on a residential street, a police officer saw what appeared to be a gun. In short order, police detained and handcuffed defendant, recovered a gun from a tote box in the SUV, and learned from defendant that he did not have a valid firearms license.
...
[Chicago Police Officer Ronald] Kaczmarek testified that defendant was handcuffed for two reasons. For one, there was a gun within "arm's reach" of defendant. That is obvious enough from the BWC. For another, when the officers grabbed defendant and pulled him away from the SUV, "it felt like he was trying to resist." The trial court did not believe this second basis. After viewing the BWC footage, the court found that defendant did not resist the officers.

For what it's worth, Kaczmarek did not consider defendant to be under arrest at this time. He was seized, to be sure, as he was not free to leave, but the seizure was a Terry detention, in his view, not an arrest. As Kaczmarek put it, defendant was "being detained for further investigation," namely, to determine whether he was licensed to carry a gun.
...
The case law recognizing the constitutional right to carry firearms in public informs the standards for both probable cause (to arrest) and reasonable suspicion (to conduct a Terry stop).
...
The State first claims that the officer had reasonable suspicion for a Terry stop and, for that matter, probable cause to arrest, regardless of whether defendant had a CCL. As the State interprets the statute governing unlawful possession of weapons, defendant was in violation of the law even if he had a CCL, so Officer Kaczmarek had at least reasonable suspicion, if not probable cause, without needing to know whether defendant was the holder of a CCL.
...
But given the constitutional protections now recognized for gun possession and carriage, the relevant statute governing unlawful possession of weapons, section 24-1, recognizes various exceptions. The exception relevant here is for holders of a CCL. The State says this exception doesn't apply, but it clearly does.
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So defendant's conduct, insofar as Officer Kaczmarek witnessed it, was not illegal on its face. Nor did Kaczmarek testify to anything else about defendant's behavior or other circumstances warranting suspicion. He did not flee. He made no furtive movements. He did not try to hide or dispose of the weapon. He did not reach for the weapon at all....

The BWC confirms this ...

Simply put, the only basis for suspecting that defendant might be committing a crime required the answer to a question the officer did not know: whether defendant had a valid CCL.
...
Because the underlying purpose of a Terry stop is to resolve the ambiguity in observed conduct, it follows that that the police are not required to rule out all innocent explanations for the conduct before initiating a stop. The Terry rule necessarily accepts some risk that innocent people will be stopped from time to time.
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That said, the mere possibility of criminal activity is not enough to create a reasonable suspicion, for that possibility is virtually always present, no matter what the observed conduct may be....

Anyone carrying a gun in public in Illinois might not have a CCL and thus might be guilty of unlawful possession. A justification based on that sole fact thus lacks any "particularized and objective basis for suspecting the particular person stopped of criminal activity." ... It would allow the police to stop, in an indiscriminate or wholesale fashion, "a very large category of presumably innocent [people], who would be subject to virtually random seizures." ... The rule sweeps too broadly to be reasonable under the fourth amendment. And that is doubly true, given that the conduct the officer observed here was not only law-abiding (on its face, at least) but constitutionally protected.
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Conduct that, on its face, is nothing more than the exercise of a protected constitutional right cannot automatically subject a citizen to police detention. Because this right is subject to reasonable regulation, however, nothing prevents the police from inquiring, in a consensual encounter, into the status of the citizen's licensure. Or if the police have a valid, independent basis for an investigatory stop, the police may ask the individual if he or she possesses a CCL, and the license holder is required to disclose that he or she possesses a concealed firearm, present his or her license, and identify the firearm's location.
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The seizure here, even granting that it was a Terry stop, was not based on reasonable suspicion and thus violated the fourth amendment. We uphold the court's suppression order.

TL;DR:

• Dorsey was "stopped," because the police assumed his firearm was illegal.
• The prosecution asserted that carrying a firearm in public is illegal, thus probable cause for arrest, even if the person has a valid CCL.
• Police can ask on a consensual basis if a person has a CCL and/or a firearm. (Consent means the person can decline to answer.)
• If police have reasonable suspicion for a stop (which didn't apply in this case), they can require a person to inform them of a CCL and/or a firearm.

Except for the fact that the firearm was illegal, this case reminds me of Soukarieh v Andrzejewski.

[solareclipse2]

So now the police cannot assert that carrying a firearm in public is illegal?

 

What constitutes a reasonable suspicion for a stop again? 

 

How do I reconcile reasonable suspicion or lack thereof and the police asking "on a consensual basis" if I have a CCL and/or a firearm?

 

More directly, if it's "consensual" and I decline to answer are the police still going to "stop" me, and probably kill me, plant a gun and sprinkle some crack on me?

[mab22]

This I don't understand. 

Quote

In short order, police detained and handcuffed defendant, recovered a gun from a tote box in the SUV, and learned from defendant that he did not have a valid firearms license.

Are they talking FOID or CCL license?
If no CCL AND it was in a "tote box", then that is just transporting isn't it? 

At best if there was no FOID then it's just possession. 

And then there is the tote, was it clear? Did they see him put it in there?
Has to be more to the background here.

 

This is just the awsome sauce!
"The prosecution asserted that carrying a firearm in public is illegal, thus probable cause for arrest, even if the person has a valid CCL."

So what the point to the CCL FFS!?

And this is and oldy but a goodie! ""it felt like he was trying to resist.""
 

 

[Euler]

If you're not under arrest and you're free to go, then talking to a cop (or a cop talking to you) is consensual.

The firearm was partially concealed by the tote, thus partially not concealed. If he had had a CCL, then he would have been legal. The prosecution's assertion is that cops can arrest anyone for firearm possession and figure out later if they have a valid CCL. The firearm alone is probable cause for the arrest.

[gunuser17]

On 4/4/2025 at 4:35 PM, Euler said:

If you're not under arrest and you're free to go, then talking to a cop (or a cop talking to you) is consensual.

The firearm was partially concealed by the tote, thus partially not concealed. If he had had a CCL, then he would have been legal. The prosecution's assertion is that cops can arrest anyone for firearm possession and figure out later if they have a valid CCL. The firearm alone is probable cause for the arrest.
 

I don't believe that the question is whether they can arrest them.  The initial question is whether police can detain a person because of observance of a weapon such that upon further investigation, they can then arrest that person based developing additional evidence such as lack of a FOID.  If they can't detain you to begin with (which is not technically an arrest), they can't determine whether you lack a FOID.

[mab22]

On 4/4/2025 at 3:35 PM, Euler said:

If you're not under arrest and you're free to go, then talking to a cop (or a cop talking to you) is consensual.

The firearm was partially concealed by the tote, thus partially not concealed. If he had had a CCL, then he would have been legal. The prosecution's assertion is that cops can arrest anyone for firearm possession and figure out later if they have a valid CCL. The firearm alone is probable cause for the arrest.
 

I forgot!
"You must read the opinion.... " Rule, now I have to go read this to get the full details....

[Euler]

On April 4, 2025 at 04:07 PM CDT, gunuser17 said:→

I don't believe that the question is whether they can arrest them. The initial question is whether police can detain a person because of observance of a weapon such that upon further investigation, they can then arrest that person based developing additional evidence such as lack of a FOID. If they can't detain you to begin with (which is not technically an arrest), they can't determine whether you lack a FOID.

Yes, the issue is whether the cops could stop and detain him, but the prosecution asserted that they could arrest him, not just detain him, merely for the presence of the firearm before knowing whether he had a valid CCL. In other words, the prosecution was making the argument that if an arrest is justified, surely a stop is justified.

The court disagreed.

[Tvandermyde]

Euler --

 

there was a case out of wisconsin from the 7th where a guy had  a gun, was carrying and walked away when cops showed up and they ruled possession of a gun was not enough I recall it may have been posted here at some point 

 

Any chance you can help find it for me?

[davel501]

On 4/4/2025 at 6:42 PM, Tvandermyde said:

Euler --

 

there was a case out of wisconsin from the 7th where a guy had  a gun, was carrying and walked away when cops showed up and they ruled possession of a gun was not enough I recall it may have been posted here at some point 

 

Any chance you can help find it for me?

 

I just popped that into Copilot to see what it came up with. This is wild:

 

"Yes, there was a notable case from the Seventh Circuit involving Wisconsin where the court ruled that mere possession of a firearm was not sufficient to establish probable cause for a stop or arrest. In *United States v. Watson*, the court addressed a situation where an individual legally carrying a firearm walked away when police arrived. The court emphasized that lawful possession of a firearm, without additional suspicious behavior or evidence of criminal activity, does not justify a stop under the Fourth Amendment.

 

This case highlights the importance of distinguishing between lawful conduct and actions that might reasonably indicate criminal activity. If you'd like, I can help you explore more details about this case or similar rulings!"

[ealcala31]

On 4/4/2025 at 10:45 PM, davel501 said:

The court emphasized that lawful possession of a firearm, without additional suspicious behavior or evidence of criminal activity, does not justify a stop under the Fourth Amendment.

I've watched a few YT videos of cops trying to stop someone who is open carrying. Most of the videos, the open carrier asks if its a crime to open carry. When the cop says no, he asks if he's being detained, if not, he'll walk away. Seen a few of those videos in Michigan.

[Euler]

I copied the case of US v David Watson (2018) in the 7th Circuit from the Northern District of Indiana into CourtListener. (The opinion written by Judge Barrett was already there as a scanned PDF.)

Opinion said:

... In contrast, the caller's report in this case about the presence of guns did not create a reasonable suspicion of an ongoing crime, because carrying a firearm in public is permitted with a license in Indiana. ...

But "a mere possibility of unlawful use" of a gun is not sufficient to establish reasonable suspicion. ...

... Watson's case presents a close call. But this one falls on the wrong side of the Fourth Amendment.

Note that US v Watson was a federal case. People v Dorsey is an Illinois case. (At least Barrett capitalized "Fourth Amendment.")

I also found a case of State v Nimmer (2022) in the Wisconsin State Supreme Court, which more accurately matches Todd's recollection, but with the opposite result.

Opinion said:

This case concerns police officers' ability to respond to concededly reliable reports of gunfire generated in near real-time. Two Milwaukee officers received such a report via a technology known as ShotSpotter. ... After noticing the squad car, [Avan R.] Nimmer accelerated his pace away from it. ... Officer Anthony Milone stepped out of the squad car and walked toward Nimmer, who "bladed" his left side away from Milone while continuing to dig around his left side. The officers considered these movements suspicious because they were consistent with actions a person may take in attempting to conceal a weapon. The officers stopped Nimmer to investigate whether he was involved in the shooting. Concerned for their safety, Milone frisked Nimmer and found a handgun.
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We hold the officers had reasonable suspicion, based on the totality of the circumstances, to believe Nimmer was involved in criminal activity. ...

In this case, it wasn't so much that the suspect walked away from cops. It's that he was the only person at the location of a shooting reported by ShotSpotter, which the state considers to be a reliable reporter.

[JTHunter]

On 4/4/2025 at 10:45 PM, davel501 said:

I just popped that into Copilot to see what it came up with. This is wild:

 

"Yes, there was a notable case from the Seventh Circuit involving Wisconsin where the court ruled that mere possession of a firearm was not sufficient to establish probable cause for a stop or arrest. In *United States v. Watson*, the court addressed a situation where an individual legally carrying a firearm walked away when police arrived. The court emphasized that lawful possession of a firearm, without additional suspicious behavior or evidence of criminal activity, does not justify a stop under the Fourth Amendment.

 

This case highlights the importance of distinguishing between lawful conduct and actions that might reasonably indicate criminal activity. If you'd like, I can help you explore more details about this case or similar rulings!"

 

IIRC, Wisconsin does NOT have a FOID or anything like it, so simple possession there should be covered and OK.  I don't believe they have OC however, so correct me if I'm wrong on that.

[davel501]

On 4/6/2025 at 3:29 PM, JTHunter said:

 

IIRC, Wisconsin does NOT have a FOID or anything like it, so simple possession there should be covered and OK.  I don't believe they have OC however, so correct me if I'm wrong on that.

 

Illinois cannot force you to ID unless they have suspicion of a crime. Having a firearm is not enough to meet that bar. 

[Tvandermyde]

Euler --

 

that is close, very close but not the case. 

 

I am 99% sure it was the 7th and I think Judge Hamilton had a role in it. Group of young men reports of some sort of activity, cops role up crowd start to disperse, they follow a guy and hes a felon carrying a gun. And the ruling said that as carry guns is more common, its not enough to justify a terry -- my paraphrasing. I thought I saved it at one time but can't find it

 

[Yeti]

On 4/6/2025 at 3:29 PM, JTHunter said:

IIRC, Wisconsin does NOT have a FOID or anything like it, so simple possession there should be covered and OK.  I don't believe they have OC however, so correct me if I'm wrong on that.

To clarify, Wisconsin does have open carry, with some clarification made in recent decades to prevent OC from being charged as disorderly conduct.  There has been additional clarification after WI added concealed carry.

Wisconsin Laws

 

 

[Hatchet]

On 4/7/2025 at 8:58 AM, Tvandermyde said:

Euler --

 

that is close, very close but not the case. 

 

I am 99% sure it was the 7th and I think Judge Hamilton had a role in it. Group of young men reports of some sort of activity, cops role up crowd start to disperse, they follow a guy and hes a felon carrying a gun. And the ruling said that as carry guns is more common, its not enough to justify a terry -- my paraphrasing. I thought I saved it at one time but can't find it

 

Todd, this one by chance?

 

United States v. Williams, 731 F.3d 678, 691 (7th Cir. 2013) (Hamilton, J., concurring)

 

https://www.casemine.com/judgement/us/59145eaaadd7b0493420cf56

[Tvandermyde]

On 4/7/2025 at 12:08 PM, Hatchet said:

Todd, this one by chance?

 

United States v. Williams, 731 F.3d 678, 691 (7th Cir. 2013) (Hamilton, J., concurring)

 

https://www.casemine.com/judgement/us/59145eaaadd7b0493420cf56

that be the one Glad to know the Altheimer's isn't winning