Ninth Circuit: There’s Nothing Inherently Suspicious About Running From The Police Or Carrying A Gun
BY Herschel Smith
5 years, 5 months ago
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.
On June 20, 2019 at 1:25 am, DAN III said:
ALCON,
“LEOs….”; Law ENFORCEMENT Officer(s). Therein lies the problem. They are no longer “Peace Officers”. They are no less than badged enforcers for the scum one calls “government”.
Hemp and lead, it is the only solution.
On June 20, 2019 at 6:16 am, Mark Matis said:
They exist to:
1. Protect their Masters.
2. Protect their bruthas and sistas in Blue.
3. Generate revenue.
Anything else they do is coincidental.
On June 20, 2019 at 7:27 am, Fred said:
“Brown might have been illegally “displaying” his gun to “cause alarm.””
He might have been a kangaroo flying a kite. What difference does it make what a “suspect” might have been doing? But, this is quickly becoming a new standard as you might be a threat and therefor must be Red Flag SWAT’ed and have your weapons seized for your own safety.
On June 20, 2019 at 7:33 am, Fergus said:
Rather interesting considering said justices will not permit arms anywhere near them and employ numerous measures to protect themselves against people who have no reason to be considered suspicious. The judiciary would rather see 999 innocent people be harmed or killed rather than have one guilty person be sent to jail for reasons they do not consider worthy due to their vast experience battling crime in the hostile jungles that exist in the teeming halls of law school faculty lounge.
Does there exist one soul who does bless Earl Warren and his posse of public defenders from insuring good god fearing folk like the Central Park five don’t get railroaded by fascist cops that live and breathe to oppress poor black felons who just happen to have illegal weapons on their person?
God bless the judiciary for making sure that law abiding citizens can walk the streets without fear. Everyone knows the men in blue are the agents of a police state and they are who the citizenry must dread when they appear. We must emulate the good citizens of Memphis and the media when another good, god fearing citizen was gunned down by these self appointed thugs, who live only to put notches on their guns.
On June 20, 2019 at 8:39 am, George said:
The running from LEOs as a reason for detention was also decided a long time ago. LEOs should be well aware of this. I guess the 4th Amendment is unknown to police today.
There should be a law that when a judgement against an LEOs’ actions lead to awarding monetary damages, the funds for that should come from the LEOs collective retirement funds.
That would give a good incentive for cops to learn about the 4th amendment and other matters. It might also make some of them less tolerant of the illegal actions of their colleagues.
On June 20, 2019 at 11:06 am, Whoopie said:
There was a recent ruling by the PA Supreme Court along the same lines. Simply having a gun isn’t grounds for suspicion of criminal behavior.
On June 20, 2019 at 6:32 pm, Chris Mallory said:
Fergus, that you use the term “illegal weapons” shows you don’t understand the 2nd Amendment. The only weapon that should be illegal is one that is stolen. All other gun laws are unconstitutional.
God knows the cops and courts don’t have enough power now. We should follow your plan and just ignore the 4th, 5th, 6th, and 8th Amendments. That will fix things, right Fergus?
As for walking the streets, I only feel fear when I see an armed government employee. I can defend myself against any other threat, but the gang of blue is off limits, for now.
George, we need a law that when cops violate a citizen’s rights they do jail time.
On June 21, 2019 at 1:16 pm, Tionico said:
This issue was settled many years ago when coppers did this sort of “assuming” business on a regular basis..”,am with a gun” detentions were rampant, citizens unjustly charged on a regular basis. The then AtG, made of VERY different stuff than the dirtbag filling that seat today, wearied of all the complaints and court action. He composed a letter and sent it to EVERY law enforcement agency in the state, making it crystal clear that UNLESS the MWAG was calling attention to the hardware or displaying it in such a way as to engender real fear in those round about him, in other words, the GUN was being used as a means to threaten or instill REAL fear in those in the area, they are NOT to take any action against the MWAG.
All deartments statewide were to immediately retrain their officers in view of these facts and the laws of WA State.
FUrther all 911 and mergency dispatch operators were to receive training on how to handle MWAG calls. Ask a series of questions to determine whether the panic is rooted in a fearful member of the public seeing a gun for the first time, or whether the MWAG was actually waving it about, threatening folks, creaming and yelling pointing it at people, chasing them about, etc.
The problem magically vanished within a few weeks, and most current cases of “brandising” were dismissed.
Seems a new such advisement needs to be promulgated, but our current sorry excuse of an AtG would prefer to have innocents arrested and charged. Gets more guns out of the hands of the law abiding, for some reason a strong motivating factor fir this dirtbag.
On June 22, 2019 at 5:08 am, Dan said:
Yet again we see badgemonkeys doing whatever the hell they want for the simple reason that AFTER THE FACT the courts may not agree with them but THEY PERSONALLY suffer NO CONSEQUENCES for their misconduct. And until that basic fact changes they have zero incentive to alter their abusive behavior.
On June 23, 2019 at 10:42 am, revjen45 said:
So, they got what they wanted. Make We the Peons fear the cops, then make fear of the cops inculpatory. Voila! The dialectic in action.
Fear is a satisfactory substitute for respect.