TechDirt:
The Ninth Circuit Court of Appeals has just handed down a refresher [PDF] on a few legal issues, most notably what is or isn’t “reasonable” when it comes to suspicion. Police officers thought an anonymous tip about a man carrying a gun and someone running away from them created enough suspicion to chase down Daniel Brown, stop him at gunpoint, and search him for contraband.
Contraband was found, leading to Brown’s motion to suppress. The lower court said this combination — an anonymous report of a gun and Brown’s decision to run when he saw the police cruiser — was reasonable enough. Not so, says the Ninth Circuit, pointing out the obvious fact that a person carrying a gun can’t be inherently suspicious in a state where carrying a gun in public is permitted.
In Washington State, it is presumptively lawful to carry a gun. It is true that carrying a concealed pistol without a license is a misdemeanor offense in Washington. See RCW §§ 9.41.050(1)(a) (“[A] person shall not carry a pistol concealed on his or her person without a license to carry a concealed pistol . . . .”), 9.41.810 (explaining that any violation of the subchapter is a misdemeanor “except as otherwise provided”). However, the failure to carry the license is simply a civil infraction.
There was no reason for officers to assume Brown’s gun was unlicensed. Since carrying a gun in Washington is “presumptively legal,” the officers would have needed more info than they had to perform a stop to just to ask Brown for his carry license. The anonymous tip officers received said only that a YWCA resident had approached the desk and said they’d seen a man with a gun. No further information was given by the tipster.
Faced with the weakness of the tip and the presumptive legality of gun ownership, the police then argued Brown might have been illegally “displaying” his gun to “cause alarm.” But the court denies this argument — first raised on appeal — as being no better than assuming Brown’s mere gun possession was enough to justify a stop.
Faced with this reality, the government now argues that the officers suspected that the manner in which Brown was carrying his gun was unlawful: it is “unlawful for any person to carry, exhibit, display, or draw any firearm . . . in a manner, under circumstances, . . . that warrants alarm for the safety of other persons.” RCW § 9.41.270. Never mind that nothing in the record could support such a finding. No evidence shows that the resident was alarmed at the time she reported seeing the gun. There is no report that she yelled, screamed, ran, was upset, or otherwise acted as though she was distressed. Instead, the 911 call reported only that the resident “walked in” and stated “that guy has a gun.”
Finally, the government argued that Brown’s decision to flee when he saw police officers was inherently suspicious. Again, the court says this is wrong. While fleeing officers can be suggestive of wrongdoing, it is only one factor and it’s one heavily influenced by the deteriorated relationships many law enforcement agencies have with the communities they serve.
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The public isn’t obligated to stop just because an officer says, “Stop.” … If law enforcement doesn’t like the way this decision breaks, it really can’t blame anyone else for the public’s reaction to the unexpected presence of officers.
Good for them, and I’m extremely surprised to see this come from the Ninth Circuit. LEOS have to be told, and told, and told again the same thing, and they never learn, or just don’t want to. The problem is, of course, that there are no repercussions from ignoring the court’s opinion because the courts and LEOs are all on the same side. They are one and the same, even if one is technically the executive and the other technically the judiciary.
This is very similar to a decision by the Fourth Circuit concerning Mr. Nathanial Black.
Nathaniel Black was part of a group of men in Charlotte, North Carolina who local police officers suspected might be engaged in criminal activity. In particular, Officers suspected that after seeing one of the men openly carrying a firearm – which was legal in North Carolina – that there was most likely another firearm present. When police began frisking the men one by one, Mr. Black wished to leave, but was told he was not free to leave. Officers chased Mr. Black and discovered that he possessed a firearm; it was later discovered that he was a previously convicted felon. Mr. Black was charged with being a felon in possession of a firearm. Before the United States District Court for the Western District of North Carolina, Mr. Black moved to suppress the evidence against him. His suppression motion was denied, he entered a guilty plea preserving a right to appeal the denial of the suppression motion, and he was sentenced to fifteen (15) years imprisonment. The United States Court of Appeals for the Fourth Circuit, however, determined that the officers had improperly seized Mr. Black, suppressed the evidence against him, and vacated his sentence.
Because open carry is legal in North Carolina. See, carrying a weapon isn’t a valid reason to stop people, innocent or not. Black was in fact a felon in possession of a firearm and the Fourth Circuit let him go and vacated his sentence, as they should have. Innocence or guilt has nothing whatsoever to do with anything concerning rights, the behavior of the police, and precedent.
But LEOs don’t learn the law these days, so sadly, I know more about it than most cops do. And you do too.