Eighth Circuit: Open carry not reasonable suspicion for a police stop

Anything and Everything dealing with Political issues.
Post Reply
User avatar
flcracker
Life Member
Life Member
Posts: 5566
Joined: Thu Sep 23, 2004 8:55 am
Location: Safety Harbor

Eighth Circuit: Open carry not reasonable suspicion for a police stop

Post by flcracker » Tue May 30, 2017 5:58 pm

/:f /:f /:f [smilie=pdt_xtremez_30.gif] [smilie=pdt_xtremez_30.gif] [smilie=pdt_xtremez_30.gif] /:f /:f /:f
(Ammoland.com)- In 2011, on November 2nd, The Lincoln City Police Department received a call about a young man displaying a firearm in an Astro van outside of a convenience store. The call lead to the felony stop of an Astro van about 4 hours later.

In the van was 58-year-old black pastor who was a double amputee. The officers forced the pastor, Leroy Duffie, to exit the van with his hands held up, after he had told them that he could not do so because of his disability.

At gunpoint, Duffie opened his door, and twisted his body in an attempt to comply. He then fell face forward to the pavement, suffering significant injuries including loss of two teeth and a torn rotator cup.

Duffie sued the police department for depriving him of his constitutional rights, of using excessive force, searching his van without his consent, and placing him in danger of physical harm without due process.

The trial court granted qualified immunity to the officers and granted summary judgment against Duffie on all counts. Duffie appealed to the Eight Circuit.

The Eighth Circuit, on 23 August, 2016 reversed the trial court decision, finding that police did not have reasonable suspicion to stop Duffie, because the open carry of handguns is legal under the law in Nebraska. The Court referred to open carry as a right. On March 30th, 2017, Duffie and the City of Lincoln reached a settlement, with Duffie receiving $160,000.

From journalstar.com:
The 8th U.S. Circuit Court of Appeals in August reversed that decision and ruled Officers Nathan Kaiser, Tobias Hite and Shane Jensen violated his Fourth Amendment protection from unreasonable search and seizure.

The judges took issue with the reason for the stop, saying a report of a person with a handgun isn't enough to create a reasonable suspicion of a crime, and in Nebraska and Lincoln people can openly carry handguns.

From the comments at the journalstar article:
Pastor Duffie was ordered out of his van with his HANDS UP, held high. He could not use his arms/hands to help himself out. He tried his best to obey the police but fell out of the van because of the police orders. They had their guns out and pointed at him. What would you have done?? Refused their demands?? I know Pastor Duffie very well, he is one of my best friends and I attended his homechurch for several years until I moved to Kansas. We talk weekly. He is one of the most Christian men I know.

The Eighth Circuit decision is one of the latest in a trend that confirms that the mere carry of a firearm is not cause for a police stop. The decision also makes clear that mere presence of a weapon is not sufficient to allow a felony stop. All of the states in the Eighth Circuit have provisions for legal open carry. The Duffie v. City of Lincoln decision applies to North Dakota, Minnesota, South Dakota, Nebraska, Iowa, Missouri, and Arkansas. Arkansas, Missouri, and North Dakota are Constitutional Carry states.

From uscourts.gov (pdf):
Officer Kaiser relied on an incident report that did not contain information sufficient to create reasonable suspicion that Duffie had already, was, or was about to commit a crime. See United States v. Hensley, 469 U.S. 221, 227 (1985) (extending Terry to the investigation of completed crimes). Nebraska law permits individuals who are at least 18 years old to open carry handguns in public. See Neb. Rev. Stat. §§ 28-1202, 28-1204 (2009). The City of Lincoln does not restrict an individual's right to open carry except in certain locations. See Lincoln, Neb., Mun. Ordinances § 9.36.130. Moreover, the mere report of a person with a handgun is insufficient to create reasonable suspicion. See Florida v. J.L., 529 U.S. 266, 272 (2000)

These are the decisions whereby Constitutional rights are preserved.

©2017 by Dean Weingarten: Permission to share is granted when this notice is included.
https://www.ammoland.com/2017/05/eighth ... z4ibZsPlul
and some rin up hill and down dale, knapping the chucky stanes to pieces wi' hammers, like sae mony road-makers run daft - they say it is to see how the warld was made!

User avatar
flcracker
Life Member
Life Member
Posts: 5566
Joined: Thu Sep 23, 2004 8:55 am
Location: Safety Harbor

Re: Eighth Circuit: Open carry not reasonable suspicion for a police stop

Post by flcracker » Tue May 30, 2017 6:07 pm

https://supreme.justia.com/cases/federal/us/529/266/
OCTOBER TERM, 1999

Syllabus

FLORIDA v. J. L.

CERTIORARI TO THE SUPREME COURT OF FLORIDA No. 98-1993. Argued February 29, 2000-Decided March 28, 2000

After an anonymous caller reported to the Miami-Dade Police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun, officers went to the bus stop and saw three black males, one of whom, respondent J. L., was wearing a plaid shirt. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not see a firearm or observe any unusual movements. One of the officers frisked J. L. and seized a gun from his pocket. J. L., who was then almost 16, was charged under state law with carrying a concealed firearm without a license and possessing a firearm while under the age of 18. The trial court granted his motion to suppress the gun as the fruit of an unlawful search. The intermediate appellate court reversed, but the Supreme Court of Florida quashed that decision and held the search invalid under the Fourth Amendment.

Held: An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer's stop and frisk of that person. An officer, for the protection of himself and others, may conduct a carefully limited search for weapons in the outer clothing of persons engaged in unusual conduct where, inter alia, the officer reasonably concludes in light of his experience that criminal activity may be afoot and that the persons in question may be armed and presently dangerous. Terry v. Ohio, 392 U. S. 1, 30. Here, the officers' suspicion that J. L. was carrying a weapon arose not from their own observations but solely from a call made from an unknown location by an unknown caller. The tip lacked sufficient indicia of reliability to provide reasonable suspicion to make a Terry stop: It provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility. See Alabama v. White, 496 U. S. 325, 327. The contentions of Florida and the United States as amicus that the tip was reliable because it accurately described J. L.'s visible attributes misapprehend the reliability needed for a tip to justify a Terry stop. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. This Court also declines to adopt the argument that the standard Terry analysis should be modified to license a "firearm exception," under which a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing. The facts of this case do not require the Court to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great--e. g., a report of a person carrying a bomb-as to justify a search even without a showing of reliability. Pp.269-274.

727 So. 2d 204, affirmed.
and some rin up hill and down dale, knapping the chucky stanes to pieces wi' hammers, like sae mony road-makers run daft - they say it is to see how the warld was made!

User avatar
FfNJGTFO
Executive Member
Executive Member
Posts: 703
Joined: Sun Oct 16, 2016 1:55 pm
Location: Wesley Chapel, FL
Contact:

Re: Eighth Circuit: Open carry not reasonable suspicion for a police stop

Post by FfNJGTFO » Tue May 30, 2017 6:13 pm

Well, that's the 8th Circuit. I'd suspect the 9th Circuit might think a little differently. And/or the 3rd & 4th. Maybe this a headin' for a SCOTUS showdown...

[smilie=popcorn.gif]

User avatar
Cardboard_killer
Life Member
Life Member
Posts: 2707
Joined: Sun Jul 08, 2007 11:52 am
Location: Zephyrhills, FL

Re: Eighth Circuit: Open carry not reasonable suspicion for a police stop

Post by Cardboard_killer » Tue May 30, 2017 6:21 pm

It's an open carry state. The cops were obviously wrong. But don't worry. The next time it happens there will be a "I smelled pot" or "He appeared to be on angel dust" excuse that will cover the situation.
Brian
Early Merging Causes Traffic Jams

Cloaked Dagger
Executive Member
Executive Member
Posts: 772
Joined: Sun Jan 16, 2005 11:57 pm
Location: Orlando, FL

Re: Eighth Circuit: Open carry not reasonable suspicion for a police stop

Post by Cloaked Dagger » Thu Jun 01, 2017 12:19 pm

Cardboard_killer wrote:It's an open carry state. The cops were obviously wrong. But don't worry. The next time it happens there will be a "I smelled pot" or "He appeared to be on angel dust" excuse that will cover the situation.
Yep, gotta love the drug war. Violating your rights since before terrorism was a thing.
Libertas aut mortis!

Post Reply