Wednesday, May 15, 2013

"Man With A Gun"

By Dave Dargo

It's an interesting radio-call to police officers on patrol, "Man With A Gun."  What does it mean and what should a police officer do?

In most areas of the country it is perfectly legal to openly carry a gun.  In fact, only five states and the District of Columbia actually have blanket prohibitions on the open carrying of firearms.

This is not to say that it's normal to see someone with a holstered pistol walking down the street or pumping gas at the gas station.  In many states it's so unusual, even if perfectly legal, that when some people see another with a holster on their hip they call the police and complain about a person with a gun.

What should the police do when they receive such a call?  Should they roll out in force and make sure the person is not a felon?  Should they remind the caller that it's perfectly legal to carry a firearm and to call back if the person does something nefarious?

Different states have different policies depending on their political leanings towards guns.  However, some of those anti-gun states may have to start re-thinking their policies of investigating every person who's sauntering down the street while carrying a firearm.

The United States Court of Appeals for the Fourth Circuit handed down a decision on February 25 of this year giving more "advice" to the police on what constitutes an unreasonable seizure.  The concept of being seized by the police is an interesting one.  Essentially, if you are not free to go you have been seized.  You may not be under arrest, yet, but you aren't going anywhere of your own free will.  Until you are seized, either detained or arrested, any interaction you have with a law enforcement officer is entirely voluntary and you are free to end the interaction at any point.  Once you are seized, however, you ain't going anywhere.

So, what does it take for the police to be able to seize you?  In 1968, in a U.S. Supreme Court case known by virtually every police officer, Terry v. Ohio, Chief Justice Earl Warren recognized that police officers need discretion to perform their investigative duties but the latitude afforded by that discretion is limited in a way that protects against unreasonable searches and seizures.  So what makes a seizure reasonable?  It's when the police officer has reasonable articulable suspicion that the individual is engaged in criminal activity.

So what happens when someone free of a criminal record is innocently walking down the street with a firearm on their hip in a state where it is legal to do so?  Can the police stop and question that person?  Of course they can.  But, just as importantly as being able to question that person is that person's right to end the voluntary interaction at any time they so choose.

Here's where things got sticky for the police in North Carolina.  The police noticed a man carrying a gun on his hip.  In a chain of inferences and justifications the court said "border[ed] on absurd" and "defie[d] reason", the police officers chose to seize a certain Mr. Black and a number of other people.  The court noted that Mr. Black attempted to terminate an illegal seizure and was arrested at that point, was found to be a prohibited person in possession of a gun and was subsequently convicted of that crime.  The Fourth Circuit vacated that conviction.

One passage from the decision states, "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."

There are huge issues with this case.  I have no sympathy for Mr. Black, a convicted felon in possession of a firearm.  However, as the court said, "The pertinent facts remaining in the reasonable suspicion analysis are that the men were in a high crime area at night.  These facts, even when coupled with the officers' irrational assumptions based on innocent facts, fail to support the conclusion that Officer Zastrow had reasonable suspicion that Black was engaging in criminal activity....In our present society, the demographics of those who reside in high crime neighborhoods often consist of racial minorities and individuals disadvantaged by their social and economic circumstances.  To conclude that mere presence in a high crime area at night is sufficient justification for detention by law enforcement is to accept carte blanche the implicit assertion that Fourth Amendment protections are reserved only for a certain race or class of people.  We denounce such an assertion."

So, how can I, a law-and-order conservative possibly be in favor of allowing a felon in possession of a gun to go unpunished?  That's an easy question.  I think it would be a larger injustice to allow government agents to freely break the restrictions on their activities that are designed to allow all of us to enjoy that most precious commodity of liberty.

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