Federal appeals court hands victory to open carry, Fourth Amendment

[Mark 1911]

Searched and did not see this posted yet. Good news. Good read!

“While open-carry laws may put police officers…in awkward situations from time to time, the Ohio legislature has decided its citizens may be entrusted with firearms on public streets,” the judge also observed. “The Toledo Police Department has no authority to disregard this decision—not to mention the protections of the Fourth Amendment—by detaining every “gunman” who lawfully possesses a firearm.

Federal appeals court hands victory to open carry, Fourth Amendment - Seattle gun rights | Examiner.com

 

[GodFearinGunTotin]

Searched and did not see this posted yet. Good news. Good read!



Federal appeals court hands victory to open carry, Fourth Amendment - Seattle gun rights | Examiner.com

I saw that on Facebook yesterday. That is good.

 

[MPD742]

It should have never been an issue in the first place.

 

[Mark 1911]

It should have never been an issue in the first place.

Agreed. That's we have courts. And sometimes they work as intended.

 

[T.Lex]

Dam, this is a well-written opinion.

Great line:

Law enforcement, to be sure, is not an easy job, and it often puts officers to difficult choices. But this was not one of them.

A good signal for other jurisdictions that allow open carry.

ETA linkification:
http://www.ca6.uscourts.gov/opinions.pdf/15a0092p-06.pdf

 

[SteveM4A1]

Dam, this is a well-written opinion.

Great line:


A good signal for other jurisdictions that allow open carry.

Now if we could get open carry in Indiana without a license

 

[T.Lex]

Now if we could get open carry in Indiana without a license

I'm not following. In terms of OC legalities, Ohio's approach is basically the same as Indiana's (for purposes of this case). Different circuits, so this is not directly applicable precedent, but I could totally see the 7th Circuit following the same logic if presented a case from Indiana (particularly in light of Indiana's state court cases on the subject).

Part of the court's reasoning is that a "license check" for a Larry is no more credible under the 4th Amendment than randomly stopping someone with a wallet to make sure they don't have counterfeit bills. (Personally, a better analogy is randomly stopping a car to make sure the driver has license, but that's neither here nor there.) That part of the opinion delivers solid rhetoric that there is no "automatic" exemption from Terry for firearms. Officers still need to articulate reasonable suspicion of criminal activity to stop someone to determine if there's criminal activity.

 

[SteveM4A1]

I'm not following. In terms of OC legalities, Ohio's approach is basically the same as Indiana's (for purposes of this case). Different circuits, so this is not directly applicable precedent, but I could totally see the 7th Circuit following the same logic if presented a case from Indiana (particularly in light of Indiana's state court cases on the subject).

Part of the court's reasoning is that a "license check" for a Larry is no more credible under the 4th Amendment than randomly stopping someone with a wallet to make sure they don't have counterfeit bills. (Personally, a better analogy is randomly stopping a car to make sure the driver has license, but that's neither here nor there.) That part of the opinion delivers solid rhetoric that there is no "automatic" exemption from Terry for firearms. Officers still need to articulate reasonable suspicion of criminal activity to stop someone to determine if there's criminal activity.

See, I haven't read the article yet, so that makes sense

 

[T.Lex]

You know, in thinking about your point more, there might be a narrow kind of logic that would be impacted by constitutional carry. (I'm lookin' at you Freeman.)

That same part of the opinion talks about how, where it is lawful to possess something, lawful possession is the "default" status. That's a crucial point.

Some point out that in Indiana, the default is "unlawful" possession. It is lawful only if you have Larry. A court could seize on that to turn that part of the paradigm around.

In that case, a legislative fix - like constitutional carry - would be necessary to make lawful possession the default.

 

[SteveM4A1]

You know, in thinking about your point more, there might be a narrow kind of logic that would be impacted by constitutional carry. (I'm lookin' at you Freeman.)

That same part of the opinion talks about how, where it is lawful to possess something, lawful possession is the "default" status. That's a crucial point.

Some point out that in Indiana, the default is "unlawful" possession. It is lawful only if you have Larry. A court could seize on that to turn that part of the paradigm around.

In that case, a legislative fix - like constitutional carry - would be necessary to make lawful possession the default.

I saw that in the opinion and was going to point it out as well. Definitely interesting.

 

[Kirk Freeman]

In that case, a legislative fix - like constitutional carry - would be necessary to make lawful possession the default.

Right. Remember that carrying a handgun in Indiana is a crime. The Larry is only an affirmative defense.

This case would come out like the Georgia MARTA case applying Indiana/Georgia law.

 

[T.Lex]

Right. Remember that carrying a handgun in Indiana is a crime. The Larry is only an affirmative defense.

This case would come out like the Georgia MARTA case applying Indiana/Georgia law.

Really? I thought - and I'm open to correction - that any kind of carrying on MARTA was illegal at that time. So, it was unlawful for the dude to have it in that place. The corollary would be a school in Indiana.

I think carrying in bars (or is it churches? I get those confused.) in Ohio is illegal. If this guy had been in a GFZ, this case would have been bounced, because there WOULD have been RAS.

I still believe that the 7s would be sympathetic to an Indiana case where the analogy is made to randomly stopping drivers to check if they have a license. If LEOs can't do that, then they can't stop an OCer to check the license, either.

Unless its rhino. Then all bets are off.

 

[Woobie]

Really? I thought - and I'm open to correction - that any kind of carrying on MARTA was illegal at that time. So, it was unlawful for the dude to have it in that place. The corollary would be a school in Indiana.

I think carrying in bars (or is it churches? I get those confused.) in Ohio is illegal. If this guy had been in a GFZ, this case would have been bounced, because there WOULD have been RAS.

I still believe that the 7s would be sympathetic to an Indiana case where the analogy is made to randomly stopping drivers to check if they have a license. If LEOs can't do that, then they can't stop an OCer to check the license, either.

Unless its rhino. Then all bets are off.

Theyd probably just check him for knives. They have a reasonable suspicion that he is a danger to himself when in posession of a blade.

 

[T.Lex]

Right. Remember that carrying a handgun in Indiana is a crime. The Larry is only an affirmative defense.

Just figured out another counter-strategy for that: Excepted Persons.

In essence, the Terry stop is to check: a) Larry or b) if the carrier is an excepted person. Unless there's something that makes it clear that the carrier is not an excepted person, then there is no RAS. Or something like that.

 

[Kirk Freeman]

Really? I thought - and I'm open to correction - that any kind of carrying on MARTA was illegal at that time. So, it was unlawful for the dude to have it in that place. The corollary would be a school in Indiana.

His name was Chris Riassi. The District Court said fine to stop him because of the open carry (like Indiana) but violation of his privacy to ask for SSN.

GeorgiaCarry.Org Inc. v. MARTA

 

[2A_Tom]

I hate to say this but I strenuously object to Kirk's line of thought.

Councilor if a similar case were to be tried in Indiana I would expect the prosecutor to cite the Georgia case. I would expect you as my mouthpiece to cite the 5th circuit court.

I firmly believe and always have that unless there is RAS or PC that the default must be lawful. The standard is innocent until proven guilty.

 

[ModernGunner]

One step at a time. One step at a time.

 

[cobber]

Has this actually gone to trial? It seems the opinion is simply that the plaintiff can proceed against the officer. While the general principle is established, never underestimate the stupidity of juries.

If something like this were to go to the 7th Cir., hope that Greg "Right to Feel Safe" Easterbrook doesn't pen the opinion...

 

[halfmileharry]

Agreed. That's we have courts. And sometimes they work as intended.

And make sure you can afford freedom and justice that others want regulate and inhibit

 

[T.Lex]

If something like this were to go to the 7th Cir., hope that Greg "Right to Feel Safe" Easterbrook doesn't pen the opinion...

Does Judge Frank Easterbrook have a brother or something?

In some casual research, there isn't anything really on point. But, there is this footnote, which is somewhat helpful:

Accordingly, because Officer DeJong knew that Atkins lived at 192 North Sixth Street, Atkins’ possession of a handgun while on his own property did not provide Officer DeJong with reasonable suspicion to justify an investigatory stop.

http://www.state.in.us/judiciary/opinions/pdf/09290501ewn.pdf