A raging debate nearly derailed the new Open Carry law in Texas (which will take effect on January 1). It centered around the so-called “Dutton Amendment” or “Dutton/Huffines Amendment.” Briefly stated, the amendment forbid police officers from stopping and detaining an open-carrier to check them for possessing a handgun license – if their suspicion that a crime is being committed is solely based on the evidence that they were carrying a gun. This amendment was excoriated by Austin Police Chief Acevedo when it was first adopted . . .
Representative Dutton introduced the amendment as a measure to prevent police from using the new Open Carry law being used to racially profile and harass minorities. It was passed by the House by an overwhelming margin (133-10), but stripped out of the bill by the Senate. Senator Huffines re-added the amendment to the bill as a necessary protection against hassle and police abuse of power.The bill’s author (Senator Estes) and committee chair (Senator Huffman) both argued against adoption of the amendment, stating it was “unnecessary.”
The amendment created some strange bedfellows: a coalition of left-wing Democrats and tea-party Republicans, both concerned about potential 4th Amendment violations. They banded together to overrule the more centrist Republican majority and add the amendment back in to the bill.
That’s when all hell broke loose.Police unions and associations (e.g., the Combined Law Enforcement Association of Texas or CLEAT) inundated the legislators with calls, Tweets, in-person meetings and emails objecting to the amendment. They told senators saying that officers had told them that the amendment would put officers’ lives in danger, neighbors’ lives in danger, friends’ lives in danger, childrens’ lives in danger. The amendment was stripped from the bill in conference committee, after testimony on the Senate floor went hyperbolic.The bill passed without the amendment.
When the dust cleared, Senators Estes and his colleague reverted to the argument that the prohibition against stopping open carriers merely because they are open carriers is “settled Constitutional law.” True?Maybe. Maybe not. Contrary to Estes’ public statements, the law isn’t definitively settled. I’m not a lawyer, but I have stayed at Holiday Inn Expresses and I’ve done a little digging. So let’s examine what the question and the case law say.
First, the question: is it legal under the 4th Amendment to the US Constitution for a law enforcement officer to ask a person carrying an openly carried handgun (where carrying such handgun is legal with a permit) to see that person’s permit? The answer is, unquestionably, yes. It is currently legal for a police officer to engage in a “consensual interaction” with any citizen and ask them any question that they want. There are three general levels of police interaction with citizens: a consensual interaction, a Terry stop (see: below) and an arrest.
An officer may ask an Open Carrier to “show me your papers” in a consensual scenario. The key word being “consensual.” The officer may ask to see a Concealed Handgun License, but the citizen does not have to agree to show the permit. In fact, the citizen have to agree to the interaction with the officer. This is why so many “open carry” YouTube videos feature the open carriers saying “am I being detained?” and “am I free to go?” A consensual interaction is not a detainment. An officer is free to ask you a question and you are free to answer or choose not to answer. You may choose to show him your permit, or you may choose to ignore the interaction.
What if the open carrier does not consent? Here’s where it gets tricky . . .
According to Senator Estes, the officer cannot detain you or arrest you for failing to produce your license, under protections granted by the US Constitution’s 4th Amendment protection against unreasonable searches and seizures. Estes asserted that there had been two Court rulings on this subject that clearly established the law. He didn’t specify what the Court rulings were. In researching this subject, I’ve found four rulings frequently cited as precedent for the licensed open carry situation.
First is the well-known US Supreme Court ruling on “Terry stops‘ as determined in Terry vs. Ohio. This ruling established that police officers are entitled to “stop and frisk” someone when they have reasonable suspicion that person may be committing or about to commit a crime.
In Texas, openly carrying a handgun has been a crime since 1872. Anyone openly carrying a handgun today (prior to HB910 being signed into law and taking effect) would be committing a crime. After the law goes into effect, it would still be a crime for approximately 97 percent of the adults in Texas (only about three percent of the adult population of Texas have the Concealed Handgun License that will make open carry legal).
So it could potentially be argued that 97 percent of the time, someone observed openly carrying a handgun would be committing a crime. Right? Not necessarily.
That brings us to Delaware v. Prouse. In that case, the United States Supreme Court held that police officers cannot stop a driver merely to check if that driver has a license. Doesn’t this apply to guns too? Again, maybe, maybe not. While it looks promising, a gun is not a car. There is no restriction on who may or may not own a car. Convicted felons, for example, can own cars. But not guns. Whether the legal-with-a-license provisions apply equally to open carriers as they do to car drivers is not an area that the Supreme Court has clarified.
That brings us to case #3, the 6th Circuit Court ruling in Northrup vs. Toledo Police Dept. In it, Northrup was walking his dog, with an openly and legally carried firearm on his hip. A passing car called in a “man with a gun. An officer detained Northrup for 90 minutes, threatened him with arrest for “inducing panic”, etc. The ruling from the three-judge panel: that this was a clear violation of Northrup’s 4th Amendment rights. It’s a superb ruling, and well worth a read (or, if you want the highlights, see Greg Ellifritz’s commentary on the case).
Surely Northrup settles the matter, right? Well… no.
First, this wasn’t a complete hearing in front of the entire 6th Circuit; it was a three-judge panel. Potentially it could be appealed to the entire Circuit Court “en banc,” where it might be overturned. Secondly, and more importantly, this was a ruling from the 6th Circuit Court of Appeals, not the US Supreme Court. The ruling is binding only on those states over which the 6th Circuit has jurisdiction.
Texas is in the 5th Circuit, not the 6th. While the Justices of the 5th Circuit could look to the decisions of the 6th Circuit for guidance they are under no obligation to do so; rulings in the 6th Circuit are not binding on the 5th Circuit. So while it may be a matter of settled Constitutional law in the States that are under the 6th Circuit, that doesn’t necessarily make it a matter of settled Constitutional law in Texas, yet.
The fourth case that I found of interest is from the 4th Circuit Court of Appeals: Nathaniel Black. In that case, a man (Dior Troupe) was openly carrying a firearm, which is legal in North Carolina. Officers suspected that Troupe and his associates might be engaged in criminal activity. If one firearm was present, well, maybe there were more (as per their training).
With no other evidence, they decided to frisk the men one by one. Nathaniel Black tried to leave, but they prevented him. He ran. When they searched Black they found a concealed firearm. As a felon, he was charged. Eventually he sued. The court made several interesting observations. The case is well worth a read. Here’s the part of most interest to the firearms community:
“. . . it is undisputed that under the laws of North Carolina, which permit its residents to openly carry firearms . . . Troupe’s gun was legally possessed and displayed. 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. . . .
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. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.”
Now, that’s compelling and good news, surely. Note, however, that the case wasn’t about Troupe and his handgun. It was principally about Black. The case revolved around whether the presence of Troupe’s openly-carried handgun justified the officers to detain and search his friends. The plaintiff in this case was not openly carrying a handgun, nor was he stopped to check for a handgun license. And, finally, this ruling is from the 4th Circuit, not from the US Supreme Court. Again, it would be helpful as a starting point for Texas courts to look for guidance but I don’t believe it could be considered binding.
Returning to the initial question then — is it lawful for an officer to stop an open-carrier to check for a license? Sometimes the courts have ruled no. Sometimes they’ve ruled yes. Check out this case from this week, Deffert vs. Moe.
Johann Deffert strapped on a tactical pistol with a tactical light and laser into a tactical thigh holster, put on his camos, and hung around outside a church while belting out “Hakuna Matata” loudly (loud enough that the officer in the case could clearly hear it from inside his patrol car). In this case, a citizen found the behavior alarming enough to call 911. The responding officer felt that there could be questions about Deffert’s mental stability. Michigan law says that mental illness may prevent issuing of a firearms license. The officer detained Deffert long enough to run a Law Enforcement Information Network (LEIN) check.
Deffert sued. The Court ruled that the officer had enough reasonable suspicion, and that the officer detained Deffert the minimal amount of time necessary to verify his concerns and validate his license.
Another example (also from the 6th Court) is Embody vs. Ward.
In this case, Leonard Embody strapped an AK-47 pistol across his chest, put on his camos, and went to a State Park. He expected to be stopped, and he was. Note: he wasn’t doing anything illegal. What he did was legal by Tennessee law. Handguns, as defined as having a barrel length less than 12″ and designed to be operated by one hand, are legal in Tennessee parks. A Park Ranger disarmed and detained Embody while he took the time to determine whether the pistol was legal under Tennessee law. Embody sued him, claiming violations of his 2nd, 4th, and 14th Amendment rights. The court ruled against Embody.
This case is interesting in that Embody had two encounters with Park Rangers. In the first, the Ranger asked to see his license, which he produced. However, the Ranger wasn’t sure that an AK47 (with 11.5″ barrel) qualified as a “handgun”, so he called his supervisor, who ordered a “felony takedown” to disarm Embody and check the weapon. Embody was ordered to the ground at gunpoint and disarmed and patted down. He wasn’t arrested but he was detained.
The Judges found this situation reasonable, in that the pistol (with attached 30-round magazine) certainly looked like a rifle, was carried like a rifle, and Embody had gone so far as to paint the tip of it orange, which an officer could reasonably suspect was an attempt to disguise a weapon as a toy. Cumulatively, the Justices felt that this all added up to sufficient reasonable suspicion to detain and disarm Embody. This case isn’t directly related to the issue of whether an officer can check someone for a license, but it is a case of where an officer can detain someone that they suspect of doing something illegally, even though in the end it turned out to be entirely legal.
As far as I can tell, this matter is not settled and probably won’t be settled until the US Supreme Court rules on it. What does seem clear is that if you act in a way that is considered provocative, you can expect more police attention and perhaps less leeway from the courts. One thing we can be sure of: the Dutton/Huffines amendment would have clarified this scenario for Texas CHL holders who want to exercise their right to open carry.
Given the vehement opposition from the police associations to the Dutton/Huffines amendment, one would perhaps infer that the police intend to check open carriers for handgun licenses. One can presume that some of these interactions may be consensual, but some may certainly not be. It may be that there will be instances, there will be detainments, there will be arrests, and there may need to be lawsuits before this issue is finally clarified in Texas. Or at the Supreme Court.