Police, lawyers decry 'unknowns' of open carry law

[hovercat]

In my legal uninformed opinion, this could be solved by an open letter from the state prosecutor office. This is a state law without local preemption. Tell the people where the lines are so that we do not cross them, and we can make sure that others stay on their side.

[denwego]

I think this is "old news" (June 1, 2015), but bears repeating:

According to the court documents, the legality of open carry in the state was never in question, only if law enforcement had the authority to detain an individual simply because they were open carrying a firearm.

U.S. District Judge Janet Neff determined that yes, officers do have that authority.

Federal court says police can stop open carriers

I retort with this ruling which says they can't, and which, incidentally, is from the 6th Cir. Court of Appeals, the court of appeal directly above the district in Michigan quoted above:

http://www.ca6.uscourts.gov/opinions.pd ... 92p-06.pdf

Split precedential decisions within a circuit just reveal the individual judge's bias. Anti-gun partisans are gonna hold their breath and stamp their feet at every opportunity no matter what laws, higher courts, or society may say.

[srothstein]

According to the court documents, the legality of open carry in the state was never in question, only if law enforcement had the authority to detain an individual simply because they were open carrying a firearm.

U.S. District Judge Janet Neff determined that yes, officers do have that authority.

I read this case as saying that the officers can stop someone who is openly carrying a weapon AND behaving in such a manner as to cause alarm. In this case, the officer stated extra reasons that made him think there was a potential problem, specifically talking to no one. While the man was just singing, walking around and talking to no one is generally regarded, rightly or wrongly, as a sign of mental illness. I believe that might be the trigger to give the officer grounds for a stop.

I will say that I think, from the judge's order, that she made the right decision on summary judgement, even if for the wrong reasons. The officer was wrong, in my opinion, and did violate the Fourth Amendment. But, there was no evidence that this was due to lack of training or failure to supervise properly, and even some evidence of what I would call reasonable effort to train and supervise. Thus the city had no liability, even if the individual officer did. This is a case where the person should have sued just the individual officer but went for the deeper pockets of the department and it cost him. With the singing, the officer might have been able to beat it anyway, but the city surely had it won.

[AJSully421]

According to the court documents, the legality of open carry in the state was never in question, only if law enforcement had the authority to detain an individual simply because they were open carrying a firearm.

U.S. District Judge Janet Neff determined that yes, officers do have that authority.

I read this case as saying that the officers can stop someone who is openly carrying a weapon AND behaving in such a manner as to cause alarm. In this case, the officer stated extra reasons that made him think there was a potential problem, specifically talking to no one. While the man was just singing, walking around and talking to no one is generally regarded, rightly or wrongly, as a sign of mental illness. I believe that might be the trigger to give the officer grounds for a stop.

I will say that I think, from the judge's order, that she made the right decision on summary judgement, even if for the wrong reasons. The officer was wrong, in my opinion, and did violate the Fourth Amendment. But, there was no evidence that this was due to lack of training or failure to supervise properly, and even some evidence of what I would call reasonable effort to train and supervise. Thus the city had no liability, even if the individual officer did. This is a case where the person should have sued just the individual officer but went for the deeper pockets of the department and it cost him. With the singing, the officer might have been able to beat it anyway, but the city surely had it won.

Having read over the case briefly... it seems to me too that this was more than an officer driving along observed someone engaging in legal OC and decided to stop them. Seems that the content of the RP's call to 911 is that made this ruling go the way it did.

Still does not directly apply to Texas.

[Armybrat]

According to the court documents, the legality of open carry in the state was never in question, only if law enforcement had the authority to detain an individual simply because they were open carrying a firearm.

U.S. District Judge Janet Neff determined that yes, officers do have that authority.

I read this case as saying that the officers can stop someone who is openly carrying a weapon AND behaving in such a manner as to cause alarm. In this case, the officer stated extra reasons that made him think there was a potential problem, specifically talking to no one. While the man was just singing, walking around and talking to no one is generally regarded, rightly or wrongly, as a sign of mental illness. I believe that might be the trigger to give the officer grounds for a stop.

So Roy Rogers & Gene Autry were nutcases?

[mojo84]

Especially when singing and dancing in the rain.

[BigGuy]

Honestly, I'm a big enough coward or financial conservative (take your pick) to do nothing come January and let this all get sorted out in the courts.....

That's my plan.

[MeMelYup]

Especially when singing and dancing in the rain.

That was Gene Kelly, not Roy Rogers or Gene Autry.

[mojo84]

Especially when singing and dancing in the rain.

That was Gene Kelly, not Roy Rogers or Gene Autry.

Oops

[TexasCajun]

That all sounds like a pretty fair assessment. It might be a problem and it might not. The biggest impact will be decided in how LE departments react.

IMO it will be more about how the Open Carriers act.

Actually, both sides are going to have to give a wide berth and cut the other some slack.

[WildBill]

That all sounds like a pretty fair assessment. It might be a problem and it might not. The biggest impact will be decided in how LE departments react.

IMO it will be more about how the Open Carriers act.

Actually, both sides are going to have to give a wide berth and cut the other some slack.

I truly hope that both sides give a wide berth and cut the other some slack.

[srothstein]

According to the court documents, the legality of open carry in the state was never in question, only if law enforcement had the authority to detain an individual simply because they were open carrying a firearm.

U.S. District Judge Janet Neff determined that yes, officers do have that authority.

I read this case as saying that the officers can stop someone who is openly carrying a weapon AND behaving in such a manner as to cause alarm. In this case, the officer stated extra reasons that made him think there was a potential problem, specifically talking to no one. While the man was just singing, walking around and talking to no one is generally regarded, rightly or wrongly, as a sign of mental illness. I believe that might be the trigger to give the officer grounds for a stop.

So Roy Rogers & Gene Autry were nutcases?

While I like both, I have quite a few relatives who think they were both nuts (especially about buying the Dodgers).

But, if they had not been in the movies at the time, do you honestly think they could have just broken out in a song like that and not been regarded as crazy?

[The Annoyed Man]

Good thread... many excellent points. I too think that the frequency of open carry will decline after an initial splash. Personally, I think that we should have un-licensed open carry like many, many other states do, but I'm happy to see the progress that was made. We've taken step forward in gun rights. That in itself is a big thing, IMO.

It will be interesting to see how the various jurisdictions and agencies deal with OC. I hope anyone that receives unwarranted attention remains calm, cool and collected, allowing de-escalating any situation and giving the anti's grist for their propaganda mill. I'm a believer that differences with the law need to be settled after the fact through administrative and possibly civil avenues. Considering that the vast majority of the law officers out there are A-OK, I'm hoping we don't see any serious confrontations or bad press for OC.

Jeff B.

"Many, many" other states have unlicensed OC? Can you list them?

From Wikipedia (OK, not a prefect source, but OK for a quick reply);

Today in the United States, the laws vary from state to state regarding open carry of firearms. The categories are defined as follows:

Permissive open carry states A state has passed full preemption of all firearms laws. They do not prohibit open carry for all non-prohibited citizens and do not require a permit or license to open carry. Open carry is lawful on foot and in a motor vehicle. It must be noted that while open carry may be legal in such jurisdictions per se, persons openly carrying firearms may be detained and cited by law enforcement officials for disorderly conduct or disturbing the peace in certain locations and circumstances where openly carrying could cause public alarm.

Licensed open carry states A state has passed full preemption of all firearms laws. They permit open carry of a handgun to all non-prohibited citizens once they have been issued a permit or license. Open carry of a handgun is lawful on foot and in a motor vehicle. In practice however, some of these states that have May-Issue licensing laws can be regarded as Non-Permissive for open carry, as issuing authorities rarely or never grant licenses to ordinary citizens.

Anomalous open carry states The legality of open carry varies within state, based on local policies. In such states, some local jurisdictions may permit open carry while others may impose varying degrees of restrictions or prohibit open carry entirely.

Non-permissive open carry states In these states, open carry of a handgun is not lawful, or is only lawful under such a limited set of circumstances that public carry is effectively prohibited. Such limited circumstances may include when hunting, or while traveling to/from hunting locations, while on property controlled by the person carrying, or for lawful self-defense. Additionally, some states with May-Issue licensing laws are Non-Permissive when issuing authorities are highly restrictive in the issuance of licenses allowing open carry.

Rural open carry states In these states, open carry is generally prohibited, except in unincorporated areas of counties where population densities are below statutorily-defined thresholds, and local authorities have enacted legislation to not prohibit open carry in such jurisdictions (California). As such, these states are also regarded as Anomalous open carry states.

Permissive States: AL, AK, AZ, CO, DE, ID, KS, KY, LA, ME, MI, MS, MT, NV, NM, NC, OH, SD, VT, VA, WA, WV, WI, WY.

24, maybe not many, many, but alot!

Regards,

Jeff B.

Looking at actual state laws I count 20, however 11 of those states allow local governments to restrict open carry or their open carry has restrictions that make OC impractical.
So that leaves about 9 states where you can walk the streets anywhere in the state OCing unlicensed.
BTW, La is listed as an OC state. I lived there almost 4 decades and never saw a single person OC. Just for kicks visit New Orleans with a gun strapped to your hip and see how many teeth you leave in the concrete.
And you can list CO unless you are in Denver - that would be illegal.

Jmra beat me to it. NV may have OC, but you better not OC in Clark County. They kill CHLs who haven't done anything wrong down there, for lawfully carrying concealed. Other states have local preemption, even though the state says IT has preemption. Things are not quite as crystal clear as some people say.

[XinTX]

I too wish they'd have left the "no stop" amendment in there. But it is what it is. The article in the OP seemed like one of those "this time it's different, there WILL be blood in the streets this time!" articles. Given the lack of the no stop amendment, it's going to take some time before this all sorts out. I do think there will be a rash of OC BBQ's right when this takes effect in January. But after that it will likely die down. And I doubt I'd OC until this does get settled. I'm too old to go kissing the concrete.