There are folks who are so opposed to the right of an ordinary citizen to openly carry a firearm while they peacefully go about their business that they’ve taken to calling the police at the sight of a safely holstered firearm, unreasonably claiming fear for their lives with the intent on the part of the gun owner to sow panic. The practice – another variation of “SWAT-ing” – has caused a few issues for innocent people in the past. Several have chronicled this practice, including Charles C.W. Cooke at National Review Online, Chuck Ross at dailycaller.com, and our own Dean Weingarten and Nick Leghorn . . .
Last year, a somewhat analogous event took place in Toledo, Ohio. It might not have been a truly malicious case of “SWAT-ing”, because the “SWAT-er” apparently didn’t understand that open carriage of a firearm is perfectly legal in the Buckeye State, but the end result was that the police wrongly arrested a man who was walking down the street with his wife and pet dog while wearing his sidearm.
The resulting case is Northrup v. City of Toledo Police Department, and Judge Jeffrey Sutton, writing for the U.S. Sixth Circuit Court of Appeals, describes the situation…
On a midsummer evening, Shawn and Denise Northrup went for a neighborhood walk with their daughter, grandson, and dog. Apparently in a happy-go-lucky mood, Shawn wore a t-shirt reading, “This Is The Shirt I Wear When I Don’t Care.” Shawn carried a cell phone, which he holstered on his hip — next to a black semiautomatic handgun.
A passing motorcyclist stopped to complain about Shawn’s visible firearm. The stranger, Alan Rose, yelled, “[Y]ou can’t walk around with a gun like that!” But “[O]pen carry is legal in Ohio!” Denise responded. As the Northrups walked away, Denise and Rose exchanged increasingly unprintable words until he was out of view (and earshot).
Rose called 911, reporting that “a guy walking down the street” with his dog was “carrying a gun out in the open.”
When asked what type of gun the guy was carrying, Rose replied, “A handgun, and he’s telling me it’s legal to carry out in the open.” That’s right, the dispatcher responded, it’s legal “[i]f you have a CCW”—a concealed-carry weapon permit. “I’ll get a crew out though.” The legality of Northrup’s behavior threw Rose for a loop, prompting him to add: “I’m not going to call a crew out if it’s legal to carry a gun out in the open.”
Despite Rose’s change of heart, the dispatcher sent an officer to the scene anyway. “I’m not an officer,” she worried. She dispatched Officer David Bright with the message that someone was “walking his dog on Rochelle [Road] carrying a handgun out in the open.” Ten minutes later, Bright spotted the Northrups, their dog, and the “gun on [Shawn’s] hip.” He got out of his vehicle, said “excuse me, sir,” and asked Shawn to hand the dog’s leash to his wife, which Shawn did.
At that point, according to Officer Bright, Shawn pulled out his cell phone, then “moved his hands back toward his weapon”—where his cell phone had been—“in what [Officer Bright] believed to be furtive movement.” Bright asked Shawn to turn around with his hands over his head. Rather than comply, Shawn “kept asking” why Bright was there. And rather than answer, Bright “walked up and unsnapped and temporarily took possession of his firearm.”
Shawn adds these details. Before Officer Bright emerged from his car, Shawn began holding his phone (and leash and arms) out in front of him to record the interaction. Bright walked up with “his hand on his firearm,” announced that if Shawn “go[es] for the weapon, he’s going to shoot,” and refused to answer any of Shawn’s questions, such as: “[W]hat was going on?” “[A]m I free to go?” “[A]m I under arrest here?” R. 28 at 33–35. After Bright disarmed Shawn and explained he was responding to a call, Bright demanded Shawn’s driver’s license and concealed-carry permit. Shawn gave Bright his license, but Denise told Bright to look up the permit himself, prompting Bright to threaten to “arrest [Shawn] for inducing panic right now.”
At that point, Bright placed Shawn in handcuffs and put him in the squad car.
(Legal citations omitted.)
Officer Bright detained Mr. Northrup for thirty minutes, before releasing him and issuing a citation for the offense of “inducing panic” under Ohio Revised Code sec. 2917.31:
2917.31 Inducing panic.
(A) No person shall cause the evacuation of any public place, or otherwise cause serious public inconvenience or alarm, by doing any of the following:(1) Initiating or circulating a report or warning of an alleged or impending fire, explosion, crime, or other catastrophe, knowing that such report or warning is false;
(2) Threatening to commit any offense of violence;
(3) Committing any offense, with reckless disregard of the likelihood that its commission will cause serious public inconvenience or alarm….
Unsurprisingly, the inducing panic charge was later dropped because Mr. Northrup hadn’t actually committed any of the elements of the offense. (In fact, if one were being ungenerous, one might suggest that Mr. Rose might have come closer to a violation of the statute by calling the police on someone who wasn’t breaking a law — although based on the court documents it appears that he was unaware that openly carrying a firearm is not, in fact, illegal in Ohio.) Northrup later filed suit against the Toledo Police. A lower court allowed Northrup’s claim that the cops violated his Fourth Amendment right against unreasonable searches and seizures to proceed.
The Toledo Five-O appealed that decision to the Sixth Circuit…and were told to go pound sand.
While open-carry laws may put police officers (and some motorcyclists) in awkward situations from time to time, the Ohio legislature has decided its citizens may be entrusted with firearms on public streets. Ohio Rev. Code §§ 9.68, 2923.125. The Toledo Police Department has no authority to disregard this decision — not to mention the protections of the Fourth Amendment — by detaining every “gunman” who lawfully possesses a firearm. And it has long been clearly established that an officer needs evidence of criminality or dangerousness before he may detain and disarm a law-abiding citizen. We thus affirm the district court’s conclusion that, after reading the factual inferences in the record in Northrup’s favor, Officer Bright could not reasonably suspect that Northrup needed to be disarmed.
Professor Eugene Volokh offers the following analysis of the decision, which I think is right on the money:
The police are free to approach people to ask them questions, even without reasonable suspicion that the people are violating the law. They can order a person to stop for a short while if they have reasonable suspicion that the person is committing a crime or about to commit a crime. They can certainly disarm him and arrest him if they reasonably think that he’s about to shoot them, or if he is otherwise threatening them (something that the police alleged here, but that the court said is a fact question for the jury).
But to coercively stop a person — and certainly to handcuff the person, which is what happened in this case — the police do have to have such reasonable suspicion. And if all they see is someone openly carrying a gun in a state in which such open carry is legal, the Fourth Amendment prevents them from “search[ing]” or “seiz[ing]” that person. One can support open carry or oppose it (some states ban open carry of guns but broadly offer licenses to carry concealed), but if open carry is legal, this result seems quite right under Fourth Amendment law.
Of course, this decision just means that Mr. Northrup’s case can proceed at the District Court level; he hasn’t won yet. But the Sixth Circuit’s decision is a salutary reminder to the watchmen of Toledo that someone is guarding against the guards themselves.
DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my firm or clients.