Appeals Court: Arrest for open carry violated Ohioan's 4th Amendment rights

A three-judge panel of the Cincinnati-based federal 6th Circuit Court of Appeals has upheld a district court's ruling allowing a lawsuit against a City of Toledo police officer to proceed. The suit claims that TPD officer David Bright illegally detained Shawn Northrup for openly carrying a semi-automatic handgun.

From the Northrup v. City of Toledo Police Dept. ruling:

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.”

According to the ruling, after being detained for 90 minutes, threatened with arrest for inducing panic, as well as being charged with “failure to disclose personal information” (that charge was later dropped), Northrup sued Officer Bright, Sergeant Ray, and other members of the Toledo Police Department in federal court. The district court permitted his Fourth Amendment and state-law claims against Bright and Ray to go to trial. The officers filed an appeal, which has now been rejected.

The ruling also documents the fact that even many police officers have not been properly trained on Ohio law when it comes to openly-carried firearms. At one point on the 911 call, the dispatcher falsely told the caller that open carry is legal “[i]f you have a CCW”—a concealed-carry weapon permit. (Ohio actually issues concealed handgun licenses (CHL), not CCWs, which in some states authorize the legal carry of other self-defense tools, such as knives). But in its the ruling, the court allows no room for a law enforcement officer to be unfamiliar with the law.

Again, from the ruling:

The Fourth Amendment protects “the people” from “unreasonable searches and seizures.” U.S. Const. amend. IV. The guarantee does not prevent the police from initiating “consensual encounter[s]” with individuals—from approaching them on public streets and in other public places and asking them questions. United States v. Drayton, 536 U.S. 194, 200–01 (2002). But it does prevent the police from stopping and frisking individuals in the absence of “reasonable suspicion” that the individual has committed, or is about to commit, a crime. Terry v. Ohio, 392 U.S. 1, 21, 27 (1968).

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In today’s case, Officer Bright relies on two “specific and articulable facts”: Northrup’s open possession of a firearm and the 911 call about what Northrup was doing. The Fourth Amendment no doubt permitted Bright to approach Northrup and to ask him questions. But that is not what he did. He relied on these facts to stop Northrup, disarm him, and handcuff him. Ohio law permits the open carry of firearms, Ohio Rev. Code § 9.68(C)(1), and thus permitted Northrup to do exactly what he was doing. While the dispatcher and motorcyclist may not have known the details of Ohio’s open-carry firearm law, the police officer had no basis for such uncertainty. If it is appropriate to presume that citizens know the parameters of the criminal laws, it is surely appropriate to expect the same of law enforcement officers—at least with regard to unambiguous statutes. Heien v. North Carolina, 135 S. Ct. 530, 540 (2014).

Clearly established law required Bright to point to evidence that Northrup may have been “armed and dangerous.” Sibron v. New York, 392 U.S. 40, 64 (1968) (emphasis added). Yet all he ever saw was that Northrup was armed—and legally so. To allow stops in this setting “would effectively eliminate Fourth Amendment protections for lawfully armed persons.”

The court further addresses the assertion that openly carrying a firearm in Ohio "includes panic:"

Not only has the State made open carry of a firearm legal, but it also does not require gun owners to produce or even carry their licenses for inquiring officers. See Ohio Rev. Code §§ 9.68(C)(1), 2923.12; Mike DeWine, Ohio Att’y Gen., Ohio’s Concealed Carry Laws and License Application 15 (2015) (“Ohio’s concealed carry laws do not regulate ‘open’ carry of firearms. If you openly carry, use caution. The open carry of firearms is a legal activity in Ohio.”); R. 26 at 121 (“If an officer engages in a conversation with a person who is carrying a gun openly, but otherwise is not committing a crime, the person cannot be required to produce identification.”).

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Under Ohio law, “inducing panic” applies to circulating a false warning of an impending “catastrophe,” threatening to commit an “offense of violence,” or committing an offense with “reckless disregard of the likelihood” that it will cause “serious public inconvenience or alarm,” Ohio Rev. Code § 2917.31. Carrying a handgun out in the open is not an “offense” in Ohio and thus does not fall within any of these proscribed activities.

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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. See Ohioans for Concealed Carry, Inc. v. Clyde, 896 N.E.2d 967, 976 (Ohio 2008) (holding that Ohio’s statewide handgun policy preempts contrary exercises of a local government’s police power). 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.

The ability to openly carry a firearm in the state of Ohio has always been legal. In fact, during debate on Ohio's original concealed carry law, the ability to open carry was used by opponents to claim that there was no need for a concealed carry law.

While this ruling has established beyond any doubt that open carry in Ohio does not meet the definition of "inducing panic" or provide probable cause that would superscede citizen's Fourth Amendment right to be secure against unreasonable searches and seizures, the problem is that law enforcement officers know statute, not current case law. So until and unless the Ohio legislature acts to make this clear in the Ohio Revised Code, there will continue to be instances where people are detained, or worse, by uninformed, poorly-trained officers.

Chad D. Baus is the Buckeye Firearms Association Secretary, BFA PAC Vice Chairman, and an NRA-certified firearms instructor. He is the editor of BuckeyeFirearms.org, which received the Outdoor Writers of Ohio 2013 Supporting Member Award for Best Website.