Volokh Conspiracy: Lawful open carry and the First, Second, and Fourth Amendments

On the evening of June 16, 2010, Northrup was walking down a street in his neighborhood, with his wife, daughter, grandson, and their Yorkshire terrier, and a handgun holstered on his right hip, when Alan Rose drove by on a motorcycle. Northrup and Rose did not know each other, but Rose stopped his motorcycle and began telling Northrup that he could not walk around in public while openly carrying a handgun. Northrup and his wife told Rose that open carry of a firearm is legal in Ohio, but the conversation quickly devolved into an argument. After a few minutes, Northrup and his family continued walking while Rose called 911. A dispatcher with the Toledo, Ohio Police Division sent Officers Comes and Bright, as well as Sergeant Ray, to investigate.

Officer Bright arrived first. He stopped and exited his car and approached Northrup and his family from behind, while on foot. The parties dispute the exact sequence of the events that took place next. Northrup testified his daughter informed him when she saw Officer Brights car driving down the street. Northrups cell phone was clipped to his belt, next to his holster. He took his cell phone off of his belt and accessed the camera feature in order to record the impending encounter with the officer. When Officer Bright approached, he said excuse me to get Northrups attention. Northrup then turned toward Officer Bright with his cell phone in one hand and the dogs leash in the other.

Officer Bright testified he said excuse me and asked Northrup to hand the dog leash to his wife. At this point, Officer Bright states Northrup reached back to remove his cell phone. Officer Bright thought Northrup had made a furtive movement toward his handgun. Officer Bright then placed his hand on his holstered weapon and ordered Northrup to hand his cell phone and the dog leash to his wife. He ordered Northrup to turn around and place his hands above his head while he removed Northrups gun from the holster.

Officer Bright asked for and received Northrups drivers license, before handcuffing Northrup and placing him in the back seat of his police cruiser. While Officer Bright entered Northrups personal information into the computer in his cruiser, Sergeant Ray arrived. Sergeant Ray and Officer Bright discussed the situation before Sergeant Ray contacted the Detective Bureau to determine if Northrup could be charged with committing an offense. Following this phone call, Officer Bright issued Northrup a citation for failure to disclose personal information; this charge ultimately was dismissed following the request of a City of Toledo prosecutor.

[First Amendment:] Northrup alleges the Defendants violated his right to symbolic speech when Officer Bright seized and harassed Mr. Northrup without probable cause and based solely upon his openly carrying a holstered firearm. He contends he was engaged in symbolic speech by openly carrying a firearm in a holster and that this expressed his opinion that Ohioans should exercise their fundamental right to bear arms and educate[d] the public that open carry is permissible in Ohio.

[U]nder Spence [v. Washington], the relevant inquiry is whether there is a great likelihood that those who observed the plaintiffs would understand the message they attempted to convey. Here, it is clear Northrup did not convey his intended message simply by openly carrying a handgun, as he and Rose argued about whether Northrup legally could carry a handgun in that manner. The fact that Northrup had to explain the message he intended to convey undermines the argument that observers would likely understand the message. [Rumsfeld v. FAIR (2000) also supports this conclusion on the courts part. -EV]

Northrup also fails to identify any case in which a court concluded that gun possession alone conveys any message at all. Moreover, the surrounding circumstances on June 16 offer no support to Northrups intended message. As he notes, he simply was walking on a public sidewalk in his neighborhood with his wife, daughter, grandchild, and dog. Northrup fails to show his action of openly carrying a handgun is sufficiently imbued with elements of communication or that the likelihood was great that the message would be understood by those who viewed it. Spence. Defendants are entitled to summary judgment on Northrups First Amendment claim on the basis of qualified immunity.

[Second Amendment:] [McDonald v. City of Chicago] was not issued until after the events at issue in this case took place. Prior to McDonald, the Supreme Court had expressly held that the Second Amendment prohibited only Congress from infringing on the right to bear arms and left the states free to restrict or protect the right under their police powers. [Moreover, n]either the parties nor my own research has identified any case in which the Second Amendment was held to cover [a right to openly carry a gun outside the home]. Instead, several appellate courts have expressly declined to hold this right exists.

A government official is entitled to qualified immunity from a plaintiffs claims of constitutional violation unless the officials conduct violated a clearly established constitutional right. A new constitutional rule simply could not have been clearly established at the time of [the] defendants alleged misconduct. Defendants are entitled to qualified immunity on Northrups Second Amendment claim.

[Fourth Amendment:] The Fourth Amendment requires that a police officer determine probable cause exists prior to making an arrest. The Fourth Amendment also covers a less intrusive category of searches and seizures known as a Terry stop. If an officer has a reasonable suspicion criminal activity is occurring, that officer may briefly stop an individual to make reasonable inquiries designed to confirm or dispel that suspicion. The officer also may undertake this course of inquiry if the officer has a reasonable suspicion the individual previously committed a crime. An officers reasonable suspicion must be supported by specific and articulable facts.

See the rest here:
Volokh Conspiracy: Lawful open carry and the First, Second, and Fourth Amendments