[scampbell3]

New Fourth Circuit ruling addresses open carry:

This is a fascinating case on reasonable suspicion calculus and what an appellate court is expected to do in judicial review, rather than rubber stamping the trial court’s conclusion reasonable suspicion existed. Two guys standing around, one with a prior, doesn’t support a stop of both, let alone the other. Seeing a gun is not reasonable suspicion in an open carry state. United States v. Black, 2013 U.S. App. LEXIS 4251 (4th Cir. February 25, 2013):

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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. ...

United States v. Black, http://www.ca4.uscourts.gov/Opinions/Pu ... 5084.P.pdf

Added this to Delaware Law Discussion under "Cases to Know"

Chip

[David]

Another important case in the "can I see your ID series".

From the Kansas Supreme Court

State v. Moralez, 102342 (Kan. May 17, 2013)
http://www.kscourts.org/Cases-and-Opini ... 102342.pdf

During what began as a voluntary encounter, two law enforcement officers retained Joseph Moralez' identification card and detained him while conducting a warrants check, all without any reasonable suspicion of criminal activity by Moralez. After discovering an outstanding warrant for Moralez, officers arrested Moralez and seized marijuana from his pocket. The State charged Moralez with felony possession of marijuana, and Moralez sought to suppress the marijuana as the fruit of an unlawful detention. The district court denied the motion and subsequently convicted Moralez as charged. On direct appeal, a divided panel of the Court of Appeals affirmed the district court's suppression ruling and Moralez' conviction.

We conclude the officers unlawfully detained Moralez when they retained his identification card and ran a warrants check without reasonable suspicion of his involvement in criminal activity. Further, we clarify our opinion in State v. Martin, 285 Kan. 994, 179 P.3d 457, cert. denied 555 U.S. 880 (2008), regarding the effect of the discovery of an outstanding arrest warrant during an unlawful detention. Ultimately, we hold that under the facts of this case, the officers' discovery of Moralez' outstanding arrest warrant did not sufficiently purge the taint of his unlawful detention. Accordingly, we reverse the Court of Appeals' decision affirming the suppression ruling, reverse the district court's suppression ruling, reverse Moralez' conviction, and remand for further proceedings.

We have recognized that a law enforcement officer's mere request for identification or identifying information generally will not constitute a seizure. See Pollman, 286 Kan. at 888; State v. McKeown, 249 Kan. 506, 509, 819 P.2d 644 (1991) (recognizing generally that an officer may, without reasonable suspicion, approach an individual on the street and "request identification but cannot force the individual to answer").

In contrast, we have held that an officer's retention of an individual's identification "may, absent offsetting circumstances, mean a reasonable person would not feel free to leave without his or her license (noting that mere examination of one's driver's license does not constitute detention, but "once the officers take possession of that license, the encounter morphs into a detention"); United States v. Lopez, 443 F.3d 1280, 1285-86 (10th Cir. 2006)

[David]

A new 3rd District Court of Appeals (Eastern PA) decision: United States v. Garvin, 2013 U.S. App. LEXIS 24944 (3d Cir. December 17, 2013)

Officers had a tip that defendant had a gun on him, but the existence of a concealed carry law did not make that an offense so more was needed. That was provided by defendant’s evasive conduct when he saw the police, so the stop was supported by reasonable suspicion and more than just having a gun.

http://www2.ca3.uscourts.gov/opinarch/124375np.pdf

A quote from the order: The District Court denied Garvin’s motion to suppress in a detailed opinion. United States v. Garvin, No. 11-480-01, 2012 WL 1970 385 (E.D. Pa. May 31, 2012).
The District Court found that, because Appellant’s gun was concealed in his waistband, the anonymous tip was credible because such “information was not available to any observer but indicated that the informant had personal knowledge that [Appellant] was armed.” (App. 17.) Nonetheless, “the tip alone was not sufficient to support an investigatory stop” because “some individuals are legally permitted to carry guns . . . .”(Id.) Therefore, reasonable suspicion that an individual is carrying a gun, without more, is not evidence of criminal activity afoot. (Id.) The District Court then appropriately proceeded to consider whether the stop was supported by other factors.

[David]

Interesting new case from the 10th Circuit (New Mexico) which leans heavily on the 3rd Circuit decision of US V Gatlin (from the mean streets of Wilmington).

For those of you who remember Gatlin, the 3rd Circuit ruled that "under Delaware law, carrying a concealed handgun is a crime to which possessing a valid license is an affirmative defense, and an officer can presume a subject's possession is not lawful until proven otherwise." In other words, simply carrying a concealed firearm, licensed or not, is RS for a Terry stop in DE.

There is no mention in the 10th Circuit of the latest 3rd Circuit decision (US v Garvin, posted above), in which the court agreed with the District Courts decision which "stated that Nonetheless, “the tip alone was not sufficient to support an investigatory stop” because “some individuals are legally permitted to carry guns. . ..”(Id.) Therefore, reasonable suspicion that an individual is carrying a gun, without more, is not evidence of criminal activity afoot."

The new 10th Circuit case does, interestingly enough, highlight the legality of open carry (legal in New Mexico). The defendant in the case compared stopping everyone with a concealed firearm to check for license to stopping every car on the road to check for valid drivers license. The court responded "Driving a car, however, is not like carrying a concealed handgun. Driving a vehicle is an open activity; concealing a handgun is a clandestine act." and that "Randomly stopping a vehicle to check the driver’s license and registration is more comparable to randomly stopping an individual openly carrying a handgun (which incidentally is lawful in New Mexico). The Supreme Court held the former unconstitutional. Whether the latter is constitutionally suspect is a question for another day."

Cases:

10th Circuit (US v Rodriguez): http://www.ca10.uscourts.gov/opinions/12/12-2203.pdf

3rd Circuit (US V Garvin): http://www2.ca3.uscourts.gov/opinarch/124375np.pdf

and for those who missed Gatlin: https://casetext.com/case/united-states-v-gatlin/

[pick_six]

David, this is very interesting. When viewed in conjunction with the post on the previous page, out of North Carolina, where open carry is ruled to NOT be sufficient cause, there appears to be no, or limited, consistency across the federal system.

If NC and NM are open carry states and in NC, open carry is not RS, but in NM it is, something is cooking at the judicial level. It is just interesting that 2 sets of members from the same judiciary, though different districts, come to different conclusions. or MAYBE the NM law for open carry = RS hasn't been challenged. ??? i am not a lawyer, but as someone interested in the issue, it is confusing.

Interesting new case from the 10th Circuit (New Mexico) which leans heavily on the 3rd Circuit decision of US V Gatlin (from the mean streets of Wilmington).

For those of you who remember Gatlin, the 3rd Circuit ruled that "under Delaware law, carrying a concealed handgun is a crime to which possessing a valid license is an affirmative defense, and an officer can presume a subject's possession is not lawful until proven otherwise." In other words, simply carrying a concealed firearm, licensed or not, is RS for a Terry stop in DE.

There is no mention in the 10th Circuit of the latest 3rd Circuit decision (US v Garvin, posted above), in which the court agreed with the District Courts decision which "stated that Nonetheless, “the tip alone was not sufficient to support an investigatory stop” because “some individuals are legally permitted to carry guns. . ..”(Id.) Therefore, reasonable suspicion that an individual is carrying a gun, without more, is not evidence of criminal activity afoot."

The new 10th Circuit case does, interestingly enough, highlight the legality of open carry (legal in New Mexico). The defendant in the case compared stopping everyone with a concealed firearm to check for license to stopping every car on the road to check for valid drivers license. The court responded "Driving a car, however, is not like carrying a concealed handgun. Driving a vehicle is an open activity; concealing a handgun is a clandestine act." and that "Randomly stopping a vehicle to check the driver’s license and registration is more comparable to randomly stopping an individual openly carrying a handgun (which incidentally is lawful in New Mexico). The Supreme Court held the former unconstitutional. Whether the latter is constitutionally suspect is a question for another day."

Cases:

10th Circuit (US v Rodriguez): http://www.ca10.uscourts.gov/opinions/12/12-2203.pdf

3rd Circuit (US V Garvin): http://www2.ca3.uscourts.gov/opinarch/124375np.pdf

and for those who missed Gatlin: https://casetext.com/case/united-states-v-gatlin/

[David]

Reread the NM decision. The judge states that open carry, as it is legal in NM, is not RS for a Terry stop. This is consistent with the US v Black decision posted a few months ago. What the judge in the NM case says is that the Supreme Court has clearly decided that stopping a vehicle just to check the drivers license and registration, without other conditions, is not constitutional (see US v Prouse). But, that stopping someone open carrying, in an open carry legal state, without other conditions, has not yet been challenged in the Supreme Court.

The inconsistencies, both within and between the courts, are strictly related to concealed carry which the 3rd Circuit has said is (US v Gatlin) and is not (US v Gavin) RS and the 10th has now said is RS.

There are actually many inconsistencies across districts on many legal decisions.

[spillanej]

Reread the NM decision. The judge states that open carry, as it is legal in NM, is not RS for a Terry stop. This is consistent with the US v Black decision posted a few months ago. What the judge in the NM case says is that the Supreme Court has clearly decided that stopping a vehicle just to check the drivers license and registration, without other conditions, is not constitutional (see US v Prouse). But, that stopping someone open carrying, in an open carry legal state, without other conditions, has not yet been challenged in the Supreme Court.

The inconsistencies, both within and between the courts, are strictly related to concealed carry which the 3rd Circuit has said is (US v Gatlin) and is not (US v Gavin) RS and the 10th has now said is RS.

There are actually many inconsistencies across districts on many legal decisions.

And I'm afraid an ultimate clarifying decision may be followed by a lot of issues. Similar to the laws passed by NRA lobbyists. Perhaps a wide spread adaptation of stop and frisk policies regardless of law. Already does happen right?

[DragonJames]

And I'm afraid an ultimate clarifying decision may be followed by a lot of issues. Similar to the laws passed by NRA lobbyists. Perhaps a wide spread adaptation of stop and frisk policies regardless of law. Already does happen right?

After having seen a few instances of the NRA working to appease both sides, and compromise away our rights slowly, I'm hoping to see GOA get more involved than the NRA, and see their numbers swell.

I have a feeling, if I'm reading your post correctly, that you may be right and the NRA may back stop and frisk if the situation came to it....

James

[spillanej]

And I'm afraid an ultimate clarifying decision may be followed by a lot of issues. Similar to the laws passed by NRA lobbyists. Perhaps a wide spread adaptation of stop and frisk policies regardless of law. Already does happen right?

After having seen a few instances of the NRA working to appease both sides, and compromise away our rights slowly, I'm hoping to see GOA get more involved than the NRA, and see their numbers swell.

I have a feeling, if I'm reading your post correctly, that you may be right and the NRA may back stop and frisk if the situation came to it....

James

I think you did understand my post. Let's hope and fight for a better future than that.

[David]

Given the current state of mind of the judicial system, and the growing use of stop and frisk by PD's, I can't imagine why anyone would conceal when they could OC (and I say that as a guy who frequently conceals). Courts are clearly divided on conceal as RS for Terry Stop, but at the same time, notably excusing OC from RS where legal without a permit/license.