Police Can't Arrest Gun Owner Just for Open Carry Gun: 6th Cir

What good is a law allowing the open carrying of handguns when the police are just going to arrest you for it? Shawn and Denise Northrup of Toledo, Ohio were just walking their dog one evening when a motorcyclist saw them and yelled, "You can't walk around with a gun like that!"

For, you see, Shawn was walking the dog while armed with a semiautomatic handgun. The motorcyclist, Alan Rose, called the police, who confirmed that it was legal to carry openly in Ohio, but nevertheless sent an officer out to investigate.

Look It Up Yourself

Officer David Bright arrived on the scene, and, according to Shawn, walked up to him with his gun drawn. Bright took Shawn's gun out of its holster and demanded Shawn's drivers license and concealed carry permit. Shawn handed over the drivers license, but Denise "told Bright to look up the permit himself."

Probably not a great idea there, Denise.

Bright then handcuffed Shawn on suspicion of committing the crime of "inducing panic." He did indeed look up Shawn's permit, found it was valid, then released him with a citation for "failure to disclose personal information" -- a charge that the police later dropped.

No Reasonable Suspicion

Shawn sued the Toledo Police Department for violations of his First, Second and Fourth Amendment rights, along with some state law claims. At summary judgment, the district court dismissed the First and Second Amendment claims, but let the Fourth and state law claims go to trial.

The Sixth Circuit affirmed the district court's decision on the Fourth Amendment claims, finding that Bright wasn't entitled to seize Shawn's gun and then arrest him without reason to believe he was committing a crime.

While Bright relied on Shawn's possession of a gun and the 911 call to form that suspicion, Judge Jeffrey Sutton wasn't impressed. "The Fourth Amendment no doubt permitted Bright to approach Northrup and to ask him questions," he said, but Shawn wasn't actually doing anything wrong. Open carry is legal in Ohio. And the fact that a motorcyclist called 911 doesn't mean anything -- police are expected to know what the law is.

In fact, Ohio doesn't even require open carriers to produce their gun licenses if openly carrying a gun is the only thing they're doing. Even if it had turned that Shawn didn't have an open carry license, Bright wasn't entitled to detain him until he could prove Shawn had a license: "Where it is lawful to possess a firearm, unlawful possession 'is not the default status.'"

Sure, Sutton said, things could have been different, perhaps necessitating a detention and arrest -- but in this case, the facts were what they were. Sean had a valid license and wasn't doing anything illegal, and Bright couldn't arrest him for engaging in lawful conduct.

Related Resources:

• The Fourth Amendment and Open Carry of Guns (Where Such Open Carry Is Legal) (The Volokh Conspiracy)
• Map: Where Is 'Open Carry' Legal? (The Wall Street Journal)
• Supreme Court Has 3 Chances to Decide Concealed Carry (FindLaw's U.S. Supreme Court Blog)
• D.C. District Court Strikes Open Carry Ban; Appeal Expected (FindLaw's D.C Circuit Blog)