Saturday, April 2, 2016

Felon is not the default position in this country

A few years ago I was pulled over on the way home from a hockey game.  I had only had one drink but hadn't used a restroom in several hours so stopped on the side of an on-ramp to relieve myself.  Looking back, a tactical error, but at the time it seemed reasonable.  I was very tired and still twenty minutes from home.  A quick stop and I'd be on my way.  Unfortunately a sheriff happened to be nearby and decided that I might be DUI.  I don't blame him for that.

As he pulled up I notified him that I had my .45 on my hip and a permit in my wallet.  He disarmed me, cuffed me in the back of his cruiser, and checked my ID.  None of this was, in my opinion, unreasonable, given the late night circumstances and the possibility that I had been drinking.  However, there is one part to this story that really bothered me.  He ran the serial number of my gun through dispatch.  I verbally objected and he told me that he had to make sure it wasn't stolen.

What?  Given the requirement that an officer have what is called "reasonable, articulable suspicion" that a crime has been committed prior to detaining or searching an individual (other than what is necessary for "officer safety", a problematic term in and of itself), what possible suspicion could the officer have had that an individual in a legally registered car with no wants or warrants on his license and a valid concealed carry permit would be carrying a stolen firearm?

Which brings us to The United States of America Vs Nathanial Black.  Black was hanging out with some friends in the parking lot of their apartment complex in North Carolina.  Police officers decided that hanging out in a parking lot was suspicious and seven officers stopped to investigate.  One of the men notified the officers that he had a firearm openly carried on his hip, an action that is legal in North Carolina, as in Washington state.  The officers then disarmed that man and started frisking the rest and asking for identification.  Black attempted to leave and it was then discovered that he was illegally in possession of a firearm as he had prior criminal record.

The police  justification at trial for the search was that they had no way to know whether the first man, who was openly carrying his firearm, was legally allowed to own a firearm unless they checked his record by obtaining his identification and running a check.

In other words, the police presumption in this case, as in mine, was that a man carrying a gun was a criminal unless it could be proved that he was not.  Anyone see anything wrong with that presumption?

Fortunately the Fourth Circuit Court of Appeals recognized that this goes against everything our legal system is designed to accomplish.  They made the following statement in their decision:

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.  Additionally,  the  Government  avers  it  would  be  "foolhardy"  for  the  officers  to  "go about their business while allowing a stranger in their midst
to possess a firearm." 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.

Emphasis mine.  This is the exact argument that has been made about friends of mine here in Washington when they were stopped for carrying a firearm.  The police cannot assume that just because you are carrying that you might be committing a crime.  Carrying alone does not rise to the level of reasonable articulable suspicion of a crime.  Good news even though only applicable to the Fourth Circuit, these cases can and are often used to create case law in other districts.

Someone will probably come along and make the argument that you shouldn't open carry, and that you are just asking to be harassed by the police if you do so I will address it pre facto.  That is irrelevant.  The law allows  you to open carry in my state, as in North Carolina, as in many other states.  In fact open carry is the norm when it comes to law.  Only six states prohibit open carry of a firearm although some do require that you have a carry permit in order to openly carry.  Since the law allows it, the presumption is therefore that if you are openly carrying, or if you are carrying concealed but the firearm becomes visible due to any one of a number of circumstances (printing on your shirt, the wind lifting your jacket, changing from a heavy jacket to a light one, reaching for your wallet, etc) the police still do not have probably cause to stop you and determine if you are "legally carrying" unless they see some evidence of another crime.

Good news for those of us interested in a freer state, one where the government is less intrusive and the police don't routinely violate our right of free passage through the use of pretextual stops.

You can read the opinion here.  It does date back to 2013 so is a couple years old, but worth having in your repertoire of useful case law.


Kim Hunter said...

After reading your post, I think I have more questions than before we started. The law is so fuzzy that I can see where you would think one thing and then find out the courts see it another way. I don't know if I were going to open carry considering all that mess, but like you said, you do have that right.

Kim Hunter @ KHunter Law

heresolong said...

Thanks for stopping by Kim. What questions do you have? I have been actively involved in this area for quite a few years and can probably answer many of them for you.

Eliseo Weinstein said...

I have a question too. I understand that there is an open carry law in North Carolina, but should that law alone deter criminals from wanting to mess with anyone in public. If I was a thief, the last thing I would want to do would be mess with anyone who might be carrying. Why do you carry? Protection or intervention?