Open-carry complicates police encounters

Jack is walking down a busy sidewalk carrying a handgun in a holster on his belt. Someone screams, “He’s got a gun!” A nearby police officer sees the firearm, draws his weapon, and orders Jack to stop, show his hands, and lie down on the ground. The officer then handcuffs Jack, takes his firearm, and detains him for questioning about why he is carrying the firearm.

With more states legalizing the open carry of firearms, this kind of scenario has and will occur with greater frequency. Let’s assume the person with the firearm is not carrying in a prohibited place, brandishing the weapon in a threatening manner, refusing to follow police orders, or otherwise acting suspiciously. Does the mere carrying of a firearm openly in public give the police sufficient reason to stop the carrier and seize the firearm?

{mosads}Several legal provisions come into play here. The Second Amendment protects the individual right to keep and bear arms for the purpose of self defense. This includes the “bearing” of arms in public for self-protection. Additionally, a growing number of states protect the open carry of firearms in public under the their state constitutions or statutes.

The Fourth Amendment prevents police from stopping and detaining persons going about their business on a public street without reasonable suspicion based on specific facts that they have committed, or are about to commit, a crime. The Fourth Amendment also requires the police to have reasonable suspicion that someone is armed and dangerous before searching that person for weapons. Police are not prevented from initiating consensual encounters simply by approaching persons in public without any show of force and asking questions.

Some argue that the police must be allowed to determine whether a person openly carrying a firearm is a threat to himself or others. Allowing officers to briefly detain, disarm, and question the open carrier, they say, is a minor intrusion on the carrier’s freedoms compared to the risk to the officer or the public if the carrier is up to no good.

Nobody wants police officers to be shot by criminals or the mentally-deranged. But lawfully-armed individuals should not be forcibly disarmed when there’s nothing to suggest they’re doing anything criminal.

Allowing the police to detain someone openly carrying a firearm simply because he or she might do something illegal would eliminate constitutional protections for the lawfully armed.

When a state decides that its citizens can be entrusted to carry firearms in public, the police have no authority to disregard that trust by detaining and disarming law-abiding persons without some evidence of criminality or dangerousness.

Federal appellate courts agree that where the open carrying of a firearm is a legal right, the exercise of that right, without more, does not permit police to stop the carrier and seize the firearm. One court observed that forcibly stopping a person openly carrying a weapon based on nothing more than the possibility that the person is safety risk is no different than stopping and searching a person for counterfeit bills based only on information that the person is carrying a wallet.

If the person openly carrying a firearm says or does something that appears criminal or dangerous, the rules change. Police can forcibly detain and question someone who is making threatening movements with a firearm, carrying the firearm in a prohibited area, carrying a prohibited weapon, or otherwise acting suspiciously. Merely holding a handgun or rifle in the hand with a finger on the trigger, as opposed to holstered or slung over the shoulder, could appear threatening and subject the carrier to a legitimate police stop.

The recent shooting in Charlotte, North Carolina, illustrates what can happen when a person displays a firearm to police. While we don’t know all the facts yet, initial reports indicated that police observed Keith Lamont Scott possessing a firearm, attempted to forcibly disarm him, and subsequently shot and killed him. There was no definitive evidence, according to Charlotte-Mecklenburg police Chief Kerr Putney, Scott was pointing the gun at the officer who shot and killed him. 

What should the police do when they see someone openly carrying a firearm in a state where such activity is legal? They can initiate a consensual encounter to ascertain if the carrier appears dangerous, or they can wait and observe until suspicious activity occurs.

Wallace is a law professor at Campbell University Norman Adrian Wiggins School of Law where he teaches constitutional law. He emphasizes on the Second Amendment, free speech and constitutional law. Follow Campbell Law School on Twitter @CampbellLawSBA

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