Headline: Advocates put police, gun laws to the test

by Chad D. Baus

WHIO-TV (CBS Dayton) is reporting on a lawsuit that has been filed against the City of Riverside after an incident involving the arrest of a man who was open carrying a firearm.

From the article:

Advocates of "open carry" of weapons are testing police on their knowledge of state laws and then posting the results on the internet.

The most recent case involved a Tipp City man, Roy Call, who walked into a Speedway gas station at 3201 Valley Pike in Riverside at 4:30 am on August 28, 2012 with a gun holstered on his hip in full view by anyone in the store. A customer alerted a police officer who happened to be in the store parking lot. When the officer asked Call who he was and what he was doing, Call said he was exercising his Second Amendment rights and initially declined to identify himself. The officer arrested Call and charged him with obstructing official business.

Call eventually produced identification and was released. Later, the charge against him was dropped but Call filed a lawsuit in federal court alleging his rights were violated and demanded $3.6 million.

Larry Moore, a leader of the Buckeye Firearms Association, said Call was within his rights to openly carry a weapon. The store does not have a sign telling customers that guns are not allowed. "Open carry is legal. It's constitutional under our Ohio constitution but a lot of people don't understand that and maybe our law enforcement community is not as well educated about it as they should be," Moore said.

The article goes on to say that the City of Riverside, whose mayor Bill Flaute is a member of the anti-gun group Mayors Against Illegal Guns, is supporting its officers and their handling of the incident.

Police Chief Mark Reiss told the I-Team that officers make decisions in the field every day that have to balance people's rights and public safety. "Given the circumstances that existed that evening, the time of day, the type of establishment and given the fact that convenience stores are often targets for robberies, I think it was reasonable for the officers to make that approach and ask that person for that identity," Reiss said.

Moore said though the officers overreacted and should not have detained Call. "We understand that law enforcement officers have a very difficult and dangerous job on the street," Moore said. Still, Moore added that people have the right to carry their weapons openly without a license. He described the situation as a thin double-sided coin of rights and responsibilities. "A little respect on both sides will go a long way," Moore said.

The suit in federal court was not the only response from Call after the incident. He obtained a copy of the police dash-cam video of the incident through a public records request and posted it on YouTube. He added quotes from sections of Ohio Law on when people must identify themselves to police officers. The internet posting is among many others from around the country showing how local police react to "open carry" situations.

In the July 3, 2012 Cincinnati Police Department Staff Notes, CPD Chief James E. Craig took the opportunity to inform his department on the law regarding open carry of a firearm in Ohio. The chief paid particular attention to the issue at question in this case - when do officers have a right to stop a person who is open carrying?

From the document:

3. LAW DEPARTMENT MEMO ON OPEN CARRY OF A FIREARM IN OHIO

Ohio law permits the open carry of a firearm with few exceptions. Citizens may openly carry firearms in public places unless there is a specific prohibition against carrying a firearm in that place (police station, school safety zone, courthouse, etc.).

Since Cleveland v. State of Ohio, 2010-Ohio-6318, regulation of the "ownership, possession, purchase, other acquisition, transport, storage, carrying, sale, or other transfer of firearms, their components, and their ammunition" is only done by state and federal law. Local municipal laws may only regulate the discharge of firearms. Therefore, officers should not charge individuals with violations of the Cincinnati Municipal Code unless the ordinance deals with the discharge of a firearm.

Many people worry when they see someone openly carrying a gun. Officers can expect to receive calls when this happens. But, openly carrying a firearm, by itself, is not illegal. The fact that someone has called 911 or flagged down an officer about seeing someone with a gun in public is probably not enough to support an investigative detention. In such situations, an officer must observe the subject and evaluate the totality of circumstances to determine whether reasonable suspicion exists to justify detaining the individual. If the individual is doing nothing else that arouses suspicion, simply wearing a gun will not justify a detention.

It is important to note, open carry by itself also would not support a charge of Disorderly Conduct or Inducing Panic. There must be additional facts to support these offenses. If someone is lawfully carrying a firearm—and doing nothing else— the fact that it causes alarm to others does not support a charge.

Equally important, before you charge someone with a violation of Ohio Revised Code (ORC) 2921.29, Failure to Disclose Personal Information (also referred to as the "Stop and I.D." law), you first must have reasonable suspicion that person has, is, or is about to commit a criminal offense. The "Stop and I.D." law does not apply unless you already have a valid investigative detention of the person – and open carry by itself is not enough. Citizens may ignore your request for information during a consensual encounter, so you may only charge a citizen with a violation of ORC 2921.29 when they are legally detained.

Private businesses or property owners may prohibit all firearms on their property. They may post signs prohibiting firearms or they may order a person to leave for such behavior. Criminal Trespass is the appropriate charge if a person is on private property in violation of such a prohibition.

Direct any questions regarding this issue to Mr. Peter Stackpole, or Mr. Charlie Rubenstein, Law Department, at 352-3334.

At the time this was published, Buckeye Firearms Association expressed that we were pleased to see this accurate analysis of the legality of open carry and issues regarding law enforcement interaction with a person who is openly carrying a firearm. We recommended that police chiefs across the Buckeye state would do well to distribute this among their staff far and wide. Unfortunately, it seems pretty clear the memo wasn't read in Riverside.

Chad D. Baus is the Buckeye Firearms Association Vice Chairman.

Additional Information:
Man sues Riverside in open carry handgun case