Lawful open carry and the First, Second, and Fourth Amendments

|The Volokh Conspiracy |

From Northrup v. City of Toledo Police Div., 2014 WL 4925052 (N.D. Ohio Sept. 30, 2014):

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 Bright's car driving down the street. Northrup's 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 Northrup's attention. Northrup then turned toward Officer Bright with his cell phone in one hand and the dog's 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 Northrup's gun from the holster.

Officer Bright asked for and received Northrup's driver's license, before handcuffing Northrup and placing him in the back seat of his police cruiser. While Officer Bright entered Northrup's 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 court's 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 Northrup's 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 Northrup's 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 plaintiff's claims of constitutional violation "unless the official's conduct violated a clearly established constitutional right." A new constitutional rule simply could not have been " 'clearly established' at the time of [the] defendant's alleged misconduct." Defendants are entitled to qualified immunity on Northrup's 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 officer's "reasonable suspicion" must be supported by "specific and articulable facts."

While Northrup's encounter with the Toledo Police originated with a 911 call, the Fourth Amendment does not require a heightened showing to justify the dispatch of officers to the scene [or to justify approaching a person in public and asking questions]. Thus, Northrup's rights were not violated when Officer Bright exited his car and began walking toward Northrup and his family, as consensual encounters between private citizens and law enforcement do not implicate the Fourth Amendment.

Officer Bright testified he had begun talking with Northrup before Northrup reached back toward his cell phone—and his handgun. While Officer Bright then saw Northrup had removed only his cell phone, it is understandable this initial movement caused some alarm. Though Officer Bright clearly knew, prior to approaching him, that Northrup was armed, this movement reasonably could cause Officer Bright to believe Northrup might be dangerous.

Northrup, however, remembers the encounter differently, as he testified he had his cell phone in his hands before Officer Bright first spoke to him. The Defendants argue this is immaterial, as they claim "the 9-1-1 emergency call and a man carrying a pistol in the street who fit the description given to the police" provided Officer Bright with reasonable suspicion to conduct a Terry stop.

This is plainly wrong. While Ohio law forbids individuals from carrying a concealed weapon without a license, there is no prohibition against the open carry of handguns. Northrup was acting within the bounds of Ohio law at the time a then-anonymous person called 911.

The full communication from the dispatcher to Officer Bright was that a white male was walking his dog on Rochelle carrying a handgun out in the open. Though Rose told the dispatcher, and later Officer Comes, that he had argued with Northrup about his handgun, Officer Bright had no knowledge of this detail. When he arrived on the scene, Officer Bright located a person matching this description—Northrup—and clearly observed he had the gun holstered on his hip, and was not carrying it in his hand.

This case is far different from Campbell v. Stamper, 244 F. App'x 629 (6th Cir. 2007), which the Defendants cite in support of their argument. The anonymous 911 caller in Campbell notified police that a man was on the side of a highway pointing a rifle at passing vehicles. Officers arrived to find Campbell and a rifle leaning on a guardrail next to the highway. Unlike in this case, the police officers in Campbell were informed the anonymous caller asserted a crime had occurred.

This case also is far different from Butcher v. City of Cuyahoga Falls, 2011 WL 5971043 (N.D. Ohio), which the Defendants also have cited in support. In that case, police officers responded to a 911 call concerning a man openly carrying weapons to find Butcher carrying a rifle and a handgun while standing in front of the entrance to a drug store. The Butcher court expressly noted Butcher's "loitering in front of the store was cause for just as much concern" as if he had entered it. In this case, Northrup was walking down a sidewalk in a residential neighborhood with his wife, daughter, grandson, and dog.

The Defendants also claim it was reasonable for Officer Bright to stop and disarm Northrup because he was "unfamiliar[ ] with Plaintiff and … [lacked] knowledge of what Plaintiff's intentions [were] and whether Plaintiff was intending to engage in a crime." The Defendants' argument boils down to a claim that an officer's mere hunch or speculation that an individual might have committed an undefined crime is sufficient to support an investigatory stop. This is simply and clearly incorrect. Terry, 392 U.S. at 27 (officer does not act reasonably if he relies on "his inchoate and unparticularized suspicion or 'hunch'")…. The Defendants claim Officer Bright could not have known whether Northrup might have been under a disability from owning a firearm, such as a previous felony conviction, a current indictment, or because he might have been under the influence of drugs or alcohol, but fail to offer a single piece of evidence or identify any case law to substantiate any of these theories

In sum, the Defendants cannot offer any evidence to support their argument that, by the fact of the 911 call and subsequent dispatch, Officer Bright had a reasonable suspicion that Northrup had committed a crime, was committing a crime, or was about to commit a crime. It is the jury's role to determine whether Northrup or Officer Bright offer the more believable account of their encounter.

The Defendants are not entitled to summary judgment on Northrup's Fourth Amendment claims because there is a genuine dispute of material fact as to whether this incident violated Northrup's clearly established right to be free from unconstitutional searches and seizures. Additionally, the Defendants are not entitled to summary judgment on Northrup's excessive force claim, as the permissibility of the use of handcuffs, at least in part, may rise or fall on the constitutionality of the seizure….

[State tort law claims:] Ohio law provides the employees of a political subdivision with immunity from lawsuits which seek damages for a person's injury or loss "allegedly caused by any act or omission in connection with a governmental or proprietary function." An employee is not immune from liability if "[t]he employee's acts or omissions were manifestly outside the scope of the employee's employment or official responsibilities," or the "acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner."

The individual Defendants are not entitled to summary judgment on the Plaintiffs' state law claims for assault, battery, false arrest, and malicious prosecution. Under Ohio law,

One acts with a malicious purpose if one willfully and intentionally acts with a purpose to cause harm. Malice includes the willful and intentional design to do injury, or the intention or desire to harm another through conduct which is unlawful or unjustified. Bad faith is defined as a dishonest purpose, moral obliquity, conscious wrongdoing, or breach of a known duty through some ulterior motive or ill will. A person acts wantonly if that person acts with a complete failure to exercise any care whatsoever. One acts recklessly if one is aware that one's conduct creates an unreasonable risk of physical harm to another[.] Recklessness is more than mere negligence in that the person must be conscious that his [or her] conduct will in all probability result in injury.

I concluded above that there is a genuine dispute of material fact as to whether the Defendants had reasonable suspicion to support a Terry stop or probable cause to support an arrest. If a jury concluded the Defendants lacked a reasonable suspicion or probable cause, they may draw the inference that the Defendants' actions were motivated by malice. Therefore, statutory immunity does not apply to Northrup's state law claims against Officer Bright and Sergeant Ray [including the punitive damages claims -EV].