Lawful Open Carry In Ohio
BY Herschel Smith
10 years, 2 months ago
Via Eugene Volokh, here is Northrup v. City of Toledo Police Div., 2014 WL 4925052 (N.D. Ohio Sept. 30, 2014). I’ll cite extensively, but not as extensively as Eugene.
On the evening of June 16, 2010, Northrup was walking down a street in his neighborhood, with his wife, daughter, grandson, and their Yorkshire terrier, and a handgun holstered on his right hip, when Alan Rose drove by on a motorcycle. Northrup and Rose did not know each other, but Rose stopped his motorcycle and began telling Northrup that he could not walk around in public while openly carrying a handgun. Northrup and his wife told Rose that open carry of a firearm is legal in Ohio, but the conversation quickly devolved into an argument. After a few minutes, Northrup and his family continued walking while Rose called 911. A dispatcher with the Toledo, Ohio Police Division sent Officers Comes and Bright, as well as Sergeant Ray, to investigate.
Officer Bright arrived first. He stopped and exited his car and approached Northrup and his family from behind, while on foot. The parties dispute the exact sequence of the events that took place next. Northrup testified his daughter informed him when she saw Officer Bright’s car driving down the street. Northrup’s cell phone was clipped to his belt, next to his holster. He took his cell phone off of his belt and accessed the camera feature in order to record the impending encounter with the officer. When Officer Bright approached, he said “excuse me” to get Northrup’s attention. Northrup then turned toward Officer Bright with his cell phone in one hand and the dog’s leash in the other.
Officer Bright testified he said excuse me and asked Northrup to hand the dog leash to his wife. At this point, Officer Bright states Northrup reached back to remove his cell phone. Officer Bright thought Northrup had made a “furtive movement” toward his handgun. Officer Bright then placed his hand on his holstered weapon and ordered Northrup to hand his cell phone and the dog leash to his wife. He ordered Northrup to turn around and place his hands above his head while he removed Northrup’s gun from the holster.
Officer Bright asked for and received Northrup’s driver’s license, before handcuffing Northrup and placing him in the back seat of his police cruiser. While Officer Bright entered Northrup’s personal information into the computer in his cruiser, Sergeant Ray arrived. Sergeant Ray and Officer Bright discussed the situation before Sergeant Ray contacted the Detective Bureau to determine if Northrup could be charged with committing an offense. Following this phone call, Officer Bright issued Northrup a citation for failure to disclose personal information; this charge ultimately was dismissed following the request of a City of Toledo prosecutor.
So Northrup sued the Toledo Police. First of all, I observed that Northrup was acting within the boundaries of the law. The Judge says the same thing.
While Ohio law forbids individuals from carrying a concealed weapon without a license, there is no prohibition against the open carry of handguns. Northrup was acting within the bounds of Ohio law at the time a then-anonymous person called 911.
My second reaction was to note that Ohio has a stop and identify statute, but it has to be a legitimate “Terry Stop.” This wasn’t. The Judge concludes by saying:
I concluded above that there is a genuine dispute of material fact as to whether the Defendants had reasonable suspicion to support a Terry stop or probable cause to support an arrest. If a jury concluded the Defendants lacked a reasonable suspicion or probable cause, they may draw the inference that the Defendants’ actions were motivated by malice. Therefore, statutory immunity does not apply to Northrup’s state law claims against Officer Bright and Sergeant Ray [including the punitive damages claims -EV].
And thus it is important that “statutory immunity” doesn’t apply. Unfortunately, if Northrup wins the case it will redound to more monetary damages to the city, while the police will walk away unaffected by any of this – and they will have been the perpetrators of the crime.
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On October 9, 2014 at 8:30 am, Paul B said:
Cops need to learn the first rule of law enforcement.
It kind of follows the old saw that if you are in a bar and a guy wants to bet you he can bounce a quarter off the floor into a shot glass on the bar don’t take the bet.
We also need to remove qualified immunity. That allow the most egerious behavior we could ever see.
Oh, and the first rule of law enforcement is know the law your are enforcing.
On October 9, 2014 at 12:17 pm, Archer said:
“We also need to remove qualified immunity. That allow the most egerious [sic] behavior we could ever see.”
We need to remove qualified immunity as practiced, but not as intended. We’ll need to keep some semblance of immunity, or police work in general becomes nearly impossible.
QI is intended to protect the department and officers from criminal and civil charges stemming from the course of normal police work. Without QI, if a LEO arrests a suspect for a crime, the suspect’s family can sue the officer and department for wrongful arrest and imprisonment. It doesn’t matter that the suspect is guilty, or the evidence the LEOs have, or how the eventual trial ends; the department and officer will still have to spend time and money defending this lawsuit. Multiply by the number of suspects, and you very quickly don’t have time for anything BUT defending proper arrests in court. And that’s not even counting the occasional instance where the suspects’ families win and are awarded damages.
That’s why QI was put in place. What we don’t need is the QI-as-applied like we have now, that approaches dangerously close to absolute immunity for any/all conduct while in uniform, no matter how egregious or abusive. What needs to happen is to develop and define that very fine line between “good police work” and “abuse of authority”, expect the officers to “toe the line”, but come down hard on any that go over it by even an inch.
Relatedly, LEOs need to be painfully aware that cameras are everywhere and it’s perfectly legal to film police in public areas, and conduct themselves accordingly. Seizing cameras is, to me, the same as confiscating guns from lawful citizens: the only logical reason for it is that you intend to do something that’ll make people want to use them against you.
On October 31, 2014 at 9:38 am, chrismalllory said:
The line between good police work and abuse of authority should be wide and clear. Any action which would be illegal for a citizen should also be illegal for a government employee.
On October 31, 2014 at 1:55 pm, Archer said:
“The line between good police work and abuse of authority should be wide and clear.”
I agree in principle, but in practice it’s more complicated. I’ll get to that.
“Any action which would be illegal for a citizen should also be illegal for a government employee.”
Absolutely agreed. In fact, in most areas the “rules of engagement” using lethal force are technically stricter for LEOs than they are for non-LEOs. Non-LEOs are supposed to be given more benefit of doubt, while LEOs are to be held to a higher standard. The problem is that despite the “higher standard”, LEOs face reduced (or zero) consequences for violating the rules due to “qualified immunity”, but the same can’t be said for non-LEOs.
That said, back to the line between good police work and abuse of authority: it’s a fine line, and will always be a fine line, because behavior is not dichotomous – it’s a spectrum that runs from “good police work” through “questionable tactics” to “abuse of authority”. The same spectrum governs non-LEOs: “law-abiding” through “legal grey area / unenforceable” to “illegal”. There’s no wide and clear gap, so we’re stuck with fine lines. What we need, therefore, is two-fold: to clearly and unambiguously define where that line is, and to bring the hammer down hard on LEOs who step over it. Qualified immunity is (usually) appropriate for those “questionable” or “grey area” tactics – when performed in good faith along with good police work – but should be withdrawn entirely for “abuse of authority”.
On October 9, 2014 at 8:31 pm, Miles said:
Northrup also needs to have had his lawyer figure out some way to have sued Rose.
On October 10, 2014 at 7:38 pm, FrozenPatriot said:
So much for the constitution… don’t these thugs understand they’re usurping the very foundation of the institution that affords their livelihood — government? Talk about biting the hand that feeds you…