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There are folks who are so opposed to the right of an ordinary citizen to openly carry a firearm while they peacefully go about their business that they’ve taken to calling the police at the sight of a safely holstered firearm, unreasonably claiming fear for their lives with the intent on the part of the gun owner to sow panic. The practice – another variation of “SWAT-ing” – has caused a few issues for innocent people in the past. Several have chronicled this practice, including Charles C.W. Cooke at National Review Online, Chuck Ross at dailycaller.com, and our own Dean Weingarten and Nick Leghorn . . .

Last year, a somewhat analogous event took place in Toledo, Ohio. It might not have been a truly malicious case of “SWAT-ing”, because the “SWAT-er” apparently didn’t understand that open carriage of a firearm is perfectly legal in the Buckeye State, but the end result was that the police wrongly arrested a man who was walking down the street with his wife and pet dog while wearing his sidearm.

The resulting case is Northrup v. City of Toledo Police Department, and Judge Jeffrey Sutton, writing for the U.S. Sixth Circuit Court of Appeals, describes the situation…

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.”

When asked what type of gun the guy was carrying, Rose replied, “A handgun, and he’s telling me it’s legal to carry out in the open.” That’s right, the dispatcher responded, it’s legal “[i]f you have a CCW”—a concealed-carry weapon permit. “I’ll get a crew out though.” The legality of Northrup’s behavior threw Rose for a loop, prompting him to add: “I’m not going to call a crew out if it’s legal to carry a gun out in the open.”

Despite Rose’s change of heart, the dispatcher sent an officer to the scene anyway. “I’m not an officer,” she worried. She dispatched Officer David Bright with the message that someone was “walking his dog on Rochelle [Road] carrying a handgun out in the open.” Ten minutes later, Bright spotted the Northrups, their dog, and the “gun on [Shawn’s] hip.” He got out of his vehicle, said “excuse me, sir,” and asked Shawn to hand the dog’s leash to his wife, which Shawn did.

At that point, according to Officer Bright, Shawn pulled out his cell phone, then “moved his hands back toward his weapon”—where his cell phone had been—“in what [Officer Bright] believed to be furtive movement.” Bright asked Shawn to turn around with his hands over his head. Rather than comply, Shawn “kept asking” why Bright was there. And rather than answer, Bright “walked up and unsnapped and temporarily took possession of his firearm.”

Shawn adds these details. Before Officer Bright emerged from his car, Shawn began holding his phone (and leash and arms) out in front of him to record the interaction. Bright walked up with “his hand on his firearm,” announced that if Shawn “go[es] for the weapon, he’s going to shoot,” and refused to answer any of Shawn’s questions, such as: “[W]hat was going on?” “[A]m I free to go?” “[A]m I under arrest here?” R. 28 at 33–35. After Bright disarmed Shawn and explained he was responding to a call, Bright demanded Shawn’s driver’s license and concealed-carry permit. Shawn gave Bright his license, but Denise told Bright to look up the permit himself, prompting Bright to threaten to “arrest [Shawn] for inducing panic right now.”

At that point, Bright placed Shawn in handcuffs and put him in the squad car.

(Legal citations omitted.)

Officer Bright detained Mr. Northrup for thirty minutes, before releasing him and issuing a citation for the offense of “inducing panic” under Ohio Revised Code sec. 2917.31:

2917.31 Inducing panic.
(A) No person shall cause the evacuation of any public place, or otherwise cause serious public inconvenience or alarm, by doing any of the following:

(1) Initiating or circulating a report or warning of an alleged or impending fire, explosion, crime, or other catastrophe, knowing that such report or warning is false;

(2) Threatening to commit any offense of violence;

(3) Committing any offense, with reckless disregard of the likelihood that its commission will cause serious public inconvenience or alarm….

Unsurprisingly, the inducing panic charge was later dropped because Mr. Northrup hadn’t actually committed any of the elements of the offense. (In fact, if one were being ungenerous, one might suggest that Mr. Rose might have come closer to a violation of the statute by calling the police on someone who wasn’t breaking a law — although based on the court documents it appears that he was unaware that openly carrying a firearm is not, in fact, illegal in Ohio.) Northrup later filed suit against the Toledo Police. A lower court allowed Northrup’s claim that the cops violated his Fourth Amendment right against unreasonable searches and seizures to proceed.

The Toledo Five-O appealed that decision to the Sixth Circuit…and were told to go pound sand.

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. 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.

Professor Eugene Volokh offers the following analysis of the decision, which I think is right on the money:

The police are free to approach people to ask them questions, even without reasonable suspicion that the people are violating the law. They can order a person to stop for a short while if they have reasonable suspicion that the person is committing a crime or about to commit a crime. They can certainly disarm him and arrest him if they reasonably think that he’s about to shoot them, or if he is otherwise threatening them (something that the police alleged here, but that the court said is a fact question for the jury).

But to coercively stop a person — and certainly to handcuff the person, which is what happened in this case — the police do have to have such reasonable suspicion. And if all they see is someone openly carrying a gun in a state in which such open carry is legal, the Fourth Amendment prevents them from “search[ing]” or “seiz[ing]” that person. One can support open carry or oppose it (some states ban open carry of guns but broadly offer licenses to carry concealed), but if open carry is legal, this result seems quite right under Fourth Amendment law.

Of course, this decision just means that Mr. Northrup’s case can proceed at the District Court level; he hasn’t won yet. But the Sixth Circuit’s decision is a salutary reminder to the watchmen of Toledo that someone is guarding against the guards themselves.

 

DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my firm or clients.

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54 COMMENTS

  1. Excellent. He wasn’t even asking for it, he’s got ’em by the short hairs. How guilty can you look with your wife and puppy along, walking? Cop’s an idiot.

      • This is very typical cop behavior. They see citizens as “them” in an “us vs them” attitude. Their promotions are based in part on the number of arrests they make so they are out there like sharks — predators — and we are their prey.

        Their built-in incentive structure encourages them to escalate situations as this cop did.

    • Everybody knows that the cops “furtive movement” claim is a POS lie and yet there will be no repercussions for him. The cops are losing the middle class at an alarming rate and yet they continue with their same tricks. They will rue the day.

      • I would go so far as to suggest that furtive movement, without any other context or clarifying information, is generalized, non-specific, and not in line with the requirements for reasonable suspicion as per Terry v Ohio, which stipulates that suspicion must be specific, reasonable, and articulable.

        The term furtive merely means attempting to avoid notice or attention, or suggestive of guilty nervousness.

        I would even argue that furtive is not even appropriate for this scenario, in which the man merely reached for his belt-carried cell phone, and then allegedly hovered his hand near his holster. Such a move is not furtive. If anything, it is potentially threatening (if he is actually reaching for his firearm), but certainly not suggestive of guilty nervousness.

  2. Officer Not So Bright may have just cost the taxpayers due to his “I am the law” attitude.

  3. Open carry of a handgun is legal *without* a permit in Ohio, unless something changed very recently, so the officer was not within the law to demand a permit.

    • The decision states otherwise, specifically that open carry is allowed if you have a CCW–but that the law further provides that you do not have to even carry the permit or produce it to an officer on request. (I guess unless you are carrying concealed.) Maybe you should read the decision and check it out.

      • Then the decision is incorrect. Openly carrying a firearm in Ohio does not require a license. IIRC, the permit in question is even helpfully named Concealed Handgun License.

      • Ohio citizen here and I have a CCW – no permit is needed to open carry in Ohio, nor has there ever been one required for open carry.

    • According to ohiocarry. org open carry does not require a CHL (aka CWP) except for the following places:

      1. You cannot carry your firearm into a Class D Liquor establishment (somewhere that serves liquor for consumption on premises) without having a valid CHL.

      2. You cannot carry your firearm within 1000 feet of a k-12 school safety zone without a valid CHL.

      3. You cannot have a loaded handgun in your vehicle without a valid CHL and you can never carry your long guns loaded in a vehicle.

      Walking along public road, not near a school, does not require a CHL, and thus, the requirement to produce a permit made by Officer Dudley Doright is a total non-starter.

        • Just don’t get in your car.

          Unlicensed open carry only applies on foot in PA, once you’re in a vehicle you need a license unless you meet one of a few exceptions (e.g. going to/from a gun store or range).

        • Plus, if you open carry in Philadelphia, you still need a carry permit. Philadelphia is considered a “city of the first class” and by the open carry laws, require a CCW permit.

  4. “the Ohio legislature has decided its citizens may be entrusted with firearms on public streets.”

    Uhh, so we are given our rights from the legislature? I don’t think so! A fail in what would be a good ruling.

    • “Uhh, so we are given our rights from the legislature? I don’t think so! A fail in what would be a good ruling.”

      Of course WE are given our rights and more often we have our rights taken from the corrupt legislature that we continue appeasing. To say anything else is to be dishonest with yourself, which is worse than being oblivious to the fact that you(notyoupersonally)are a self-interested coward, who sacrificed Liberty for Tyrannical rule by a thousand cuts, like most of our Americant’s are.

      The mirage of We the People having the power is as clear as crystal to many of us citizens and mud to those who are elected to represent us. We are so self-consumed that we can’t sacrifice a couple months to change our depreciating worth as Constitutional Americans into a gain for continued prosperity and restoration of Excellence.

      When the government fears the people that is Liberty, and why should corrupt individuals fear the people, who are the victims of legislative policy but willingly pay for the abusers security.

    • Actually there is NO legislation in Ohio stating that open carry is illegal, so therefore it is legal.. We were not given the right of open carry by the Ohio legislature, they just never put any laws on the books that said we can’t do it.
      That’s as close to constitutional carry as you get in Ohio… for now.

  5. Take the time to read the decision; it is chock-a-block full of great lines. One of my favorites, without quoting, is that the officers do not get to second guess the Legislatures determination to trust its citizens with the lawful open carry of firearms. Which is what these guys do–if they see someone with a firearm, they automatically assume that “the games afoot.” This decision makes it completely clear and without any ambiguity that the mere fact of an openly armed person is NOT enough to constitute “reasonable suspicion” under the law. Every time an officer tells a “suspect” whom he is asking for identification that he is just ‘trying to find out what’s going on here” means he DOES NOT have an articulable reasonable suspicion of wrongdoing.

  6. A cop lied about how the interaction went down? This is my surprised face.
    Wonder when enough will be enough for the supposedly “pro-2a” cops-never-do-wrong supporters. Funny how you never see the copsuckers who complain about RF’s “cop hate” never show up to defend something like this.

    (In fact, if one were being ungenerous, one might suggest that Mr. Rose might have come closer to a violation of the statute by calling the police on someone who wasn’t breaking a law — although based on the court documents it appears that he was unaware that openly carrying a firearm is not, in fact, illegal in Ohio.)

    But ignorance of the law isn’t an excuse…

    Just underlines the importance of filming the police and holding them accountable. Unfortunately, nothing will happen to Officer Dim other than maybe a negative bullet point on his performance report. It’s the people of Toledo that are on the hook.

    • That “Ignorance of the law” only applies to the good citizens excercising their rights and not the Sally soccer mom steeple who bray to the almighty.gov just because they don’t like someone excercising their natural rights.

  7. The policeman is not so bright. The dispatcher passed the buck. The “victim” was no victim but the perpetrator. A backwards system and gross miscarriage of justice, which is all too common today.

    • The perpetrator is also a nosy little coward who meddles in other peoples business and wets themselves at the mere mention of “gun”, because you know… The children… Or something.

      • The motorcycle dood was probably on a Vespa, on his way to get a half calf double mocha to sip during his book club meeting.
        I will give a bit of credit though, as he tried to change his mind.

  8. Unlike the 70’s & 80’s what Cops fail to do today is use discretion. A simple, hey we got a call about a man with a gun and I assume that would be you. Notice you have a holster and open carry, any chance you have your CCW card? Oh you do, lets have a look. Get a chance to train at the range? Seems someone was upset you were OC, we relayed it wasn’t against the law, and hope he’ll refrain from calling 911 again. Looks like all is in order, enjoy your walk and have a good evening.

    THEN I WOKE UP FROM MY DREAM, handcuffed in back of a squad car, explaining myself to a closed minded crew in blue.

    • Except no CCW is needed in Ohio in order to open carry, and Officer Farva knew that (unsure if the dispatcher is simply uninformed, but I’ll give her the benefit of the doubt).

  9. I guess Bright wasn’t so bright, especially when trying to embellish his story to justify his actions.

  10. Rose, the original whiner, told the dispatcher, “I’m not going to call a crew out if it’s legal to carry a gun out in the open.” He showed a lot more intelligence than Officer Krupke Halfbright, who just had to escalate a situation. Which surprises me not. And then he trotted out the same old, tired “furtive movement” bullsh1t. If I never hear that lying phrase ever again, it will be too soon.

    Holy Toledo! You hire stupid cops, you win stupid prizes. Now write a check to Mr. Northrup and try to teach your officers right from wrong, m’kay?

    • Don’t forget the old standby, “I smelled the scent of marijuana coming from the perp/car/house.”

  11. Devils advocate.
    People hear not what said if there are two interpretations possible.
    If Rose said “carrying out in the open”
    Cop hears “brandishing” thus comes into the situation leaning into the wind of his preconception.

    • Pretty easy to see if someone is “brandishing” when you drive up. And since that kind of thing is typically a misdemeanor, the officer can’t arrest you for it without a warrant unless you are essentially doing it in front of him. So if the officer drives up and doesn’t see you brandishing, he’s got nothing to stop and arrest you for.

  12. Perhaps I am being naive, but how can someone in law enforcement be so obtuse to the law itself, the open carry law in this case.

    mk10108 nailed it; more flies with honey, and all that

    • North Carolina supreme court case Heien. Court recognizes that a cop being ignorant of the law is still valid probable cause. Guy with drugs had a busted tail light and in NC only one functioning light is required. Cop found drugs in the guys car, which should have been fruit from the poisonous tree because it was an illegal stop to begin with.

      Related to open carry and cops ignorance of the law one has to look no further than John Crawford III, who was summarily executed for open carrying a BB gun in Walmart. Situational awareness would have helped John Crawford III, plus him having a real firearm and engaging the threats before they executed him for following the law of that particular state.

      The caller in the John Crawford III situation should have been tried with felony murder, along with the dispatcher that was negligently responsible for the cops act of murder. This Rose scum should be charged with the crime that the cop was trying to fraudulently charge the open carrier with. The open carrier’s wife should have been armed and defended her husband’s second amendment rights with her own.

  13. That’s right, the dispatcher responded, it’s legal “[i]f you have a CCW”—a concealed-carry weapon permit.

    Bullshit. You only need a CCW in Ohio if you want to carry concealed

    As for the guy? If you’re going to be a big enough dork to carry your phone in a holster, use a couple of braincells and don’t put it right next to your openly carried gun.

  14. Given multiple examples of otherwise non-criminal people suffering summary punishment or accidental bad handling by cops called in, wouldn’t making such a call be a kind of endangerment?

    Recent stories aside, it seems to me that simply calling in force – calling the police – on someone else is placing them in some increased danger. So, you better have a reason.

    Is there an opinion somewhere making the case that calling the police is a kind of use of force, in and of itself? This would throw these ‘calling in suspicion’ / ‘malice by proxy’ sort of things into requiring judgement and discretion.

    Judgement and discretion when using force (which puts other people at risk.) And maybe counting encounters that don’t escalate as wins, as opposed to the incentives which are mostly the other way for the police these days.

    Wouldn’t that be something.

  15. If you are open carrying- or conceal carrying, for that matter- it’s rather dumb to put your phone ‘holster’ aside your gun holster and then reach for either upon contact with the PoPo.

  16. Absolutely inexcusable for a police officer to act in this rogue manner and deny a law abiding citizen his Constitutional Right. Even worse for them to not know the laws of their own state! Kudos to Mr. Northrup for filing a case against the department, perhaps it will give these police departments something to think about when it comes to the manner they treat law abiding citizens.

  17. I once had some idiot call the cops because I was “threatening a woman with an axe” (I was chatting with a friend after SCA fighting practice, holding a rubber and rattan axe). I’m glad that the responding officers were smarter than Officer (not so) Bright.

  18. This is why I *personally* would not choose to OC in public if it were legal in my state. I prefer concealed, and thankfully Florida made it legal to briefly and unintentionally reveal your carry. So now the wind can’t make you a felon. I figure I have more to worry about from 5-0 than from the criminals. Criminals want a quick easy buck. The cops will ruin your life and erase your savings.

  19. Police officer is one of those what I call a bimodal profession. Bimodal is a statistics term meaning the most frequently occurring value in a data set. In the well known bell curve, or normal distribution, for example, that’s unimodal because it’s a single hill shape. Most of the values cluster around the middle. In a bimodal distribution, there are two distinct hill shapes, with a valley in between,, meaning there are two major clusters. Well.

    People choose professions for all kinds of reasons. In something like police work, or school teacher, you get these large clusters around very good reasons and other large clusters around very bad reasons. In the middle valley are people with pedestrian reasons, like job security or minimal entry requirements.

    Plenty of cops are out there who believe in the “to serve and protect” credo, while just as many or more wear a badge for nefarious purposes. I believe that some police officers are sadists, even serial killer wannabes, who hit the beat each day hoping today’s the day they get to blow someone away and get away with it. Some of the bad may not be quite that bad, but they’re bad, and it’s more than just a few outliers.

    Be careful in your encounters with all of them. Just as good cops don’t know, until they do, what monster member of the public they’re dealing with, good members of the public don’t know, until they do, what monster in uniform they’re dealing with.

  20. One thing gun owners have to do is be the victim when they suspect have been “swatted.” I went to a neighbors property to sight in my rifle. A woman who lived nearby came to where I was shooting and threatened to shoot me if I shot my rifle anymore. I saw her using the phone when she drove away. I called the sheriffs department myself (not 911) and asked to have an officer dispatched to my home.

    The officer arrived and I told him what happened. Come to find out she made an anonymous 911 call saying I threatened her with my rifle. The officer believed my story since I identified myself when I called the SD and waited on my front porch for the officer. He arrested the woman for abusing the 911 system and threatening to shoot me. (I do not recall the exact charges). When I was at the magistrates office signing the paperwork the magistrate said that if I had not called the sheriffs department myself I might be the one who was being arrested.

    • To paraphrase a motto: “It’s probably a good idea to bring a gun to a gun fight.”

      Look, if somebody is going to weaponize law enforcement – not like we’ve seen that (/sarc) – use the tools at hand. Understand the system, and be ready to work the system, too, if need be.

      I think it’s always obnoxious, and sometimes criminal to *start* by working the system to create a kerfuffle. Doing that using heavily-armed law-enforcement is deliberately creating both a cost, and a hazard for the targets. It’s a kind of extortion. A threat. Placing others at risk, to get your way, without the honesty of strong-arming them yourself.

      As I said, always obnoxious, sometimes criminal. But working the ref smacks of desperation – you can’t win on your own, so cheat the game.

      Being wrong (and obnoxious, and often criminal) doesn’t mean people won’t do it. So, like being prepared for whack-jobs who will shoot a gun at you, because they are whack-jobs, be prepared for folks who will use weaponized law enforcement to get their way.

      Pragmatically, have a recording device, have your lawyer on speed dial, have law enforcement on speed dial, have an action plan, and maybe even get to know the apparatchiks so they’ll give you the benefit of the doubt. (This is the way things work. I don’t care how they “should” work.)

      For messaging, let us notice that folks who rant about other citizens who happen to own guns, about feeling intimidated by the presence of guns, about other people putting them at risk by having guns out there in the world, put guns into the world, to intimidate, to put others at risk … to get their way. Such pleasant neighbors. (/sarc) And it’s OK when all that is done on their behalf.

      Of course they would invoke “rough men” with arms to intimidate into getting their way. This is how they see things. So, be ready.

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