Dean Weingarten on a recent Eighth Circuit decision:
The 8th U.S. Circuit Court of Appeals in August reversed that decision and ruled Officers Nathan Kaiser, Tobias Hite and Shane Jensen violated his Fourth Amendment protection from unreasonable search and seizure.
The judges took issue with the reason for the stop, saying a report of a person with a handgun isn’t enough to create a reasonable suspicion of a crime, and in Nebraska and Lincoln people can openly carry handguns.
[ … ]
Officer Kaiser relied on an incident report that did not contain information sufficient to create reasonable suspicion that Duffie had already, was, or was about to commit a crime. See United States v. Hensley, 469 U.S. 221, 227 (1985) (extending Terry to the investigation of completed crimes). Nebraska law permits individuals who are at least 18 years old to open carry handguns in public. See Neb. Rev. Stat. §§ 28-1202, 28-1204 (2009). The City of Lincoln does not restrict an individual’s right to open carry except in certain locations. See Lincoln, Neb., Mun. Ordinances § 9.36.130. Moreover, the mere report of a person with a handgun is insufficient to create reasonable suspicion. See Florida v. J.L., 529 U.S. 266, 272 (2000)
I thought I found all of the articles on and instances of open carry, but I missed this one. I’m glad that Dean wrote on this. It adds to our collected wisdom and information concerning what the courts think of this kind of behavior by the police – at least, some courts, even if they refuse to do anything about it.
For God’s sake. The 58-year-old black pastor is a double amputee. He fell all over the place trying to comply with the idiot’s command. He injured himself and under other circumstances I can see death resulting from his fall (if he had landed differently).
The only disappointing thing about this judgment is that the cops weren’t fired and put in prison. The circumstances are not necessarily similar to but dovetail with the decision by the Fourth Circuit Court of Appeals, where they found that the Charlotte-Mecklenburg Police violated the rights of Nathaniel Black, even though Black was apparently a criminal and did indeed break the law.
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.
This was the right decision. Open carry is legal in North Carolina, and without this being a “Terry Stop” – and it most certainly wasn’t – Mr. Black should not even have been detained.
If you are a CLEO or a Chief of Police reading this, listen to me well. If open carry is legal in your state, you cannot stop someone for open carry. I know it sounds so obvious and common-sense that this shouldn’t have to be said. But apparently with the police it does indeed have to be pointed out – again, and again, and again.
Only an idiot doesn’t understand this, or if you understand and refuse to implement and comply, you’re just a criminal with a badge.
