Guns

Second and Fourth Amendments

"Since openly carrying a handgun is not only not unlawful [in Washington], but is an individual right protected by the federal and state constitutions [as the Washington Supreme Court had earlier held]," it cannot "be the basis, without more, for an investigative stop."

|The Volokh Conspiracy |

From yesterday's Washington Court of Appeals decision in State v. Tarango:

At around 2:00 in the afternoon on a winter day in 2016, Carlos Matthews drove to a neighborhood grocery store in Spokane, parking his car next to a Chevrolet Suburban in which music was playing loudly. A man was sitting in the passenger seat of the Suburban, next to its female driver. When Mr. Matthews stepped out of his car and got a better look at the passenger, who turned out to be Ismael Tarango, he noticed that Mr. Tarango was holding a gun in his right hand, resting it on his thigh. Mr. Matthews would later describe it as a semiautomatic, Glock-style gun.

As he headed into the store, Mr. Matthews called 911 to report what he had seen, providing the 911 operator with his name and telephone number….

The police came out, stopped the car (which had left the parking lot), and found a gun, which the prosecutor argued was possessed by Ismael Tarango, who had prior felony convictions. Tarango was prosecuted for illegally possessing the gun, but the court concluded that the search was unconstitutional:

Because the officers conducting the Terry stop [i.e., a brief investigative stop] of the Suburban had no information at the inception of the stop that Mr. Tarango or Ms. Hutchinson had engaged in or were about to engage in criminal activity, they lacked reasonable suspicion. The motion to suppress should have been granted.

For a Sixth Circuit case involving a similar claim, see this post from 2014.

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147 responses to “Second and Fourth Amendments

  1. I’m not sure I buy into this logic.

    Talking about committing a crime is speech, which is ALSO a protected Constitutional action, but I would think it might justify a Terry stop. Going back to Terry v. Ohio, the guy who got stopped hadn’t done anything illegal, either.

    Yes, allowing Terry stops because someone reported a person with a gun does open up the possibility of responding to ever Nervous Nellie offended/frightened by the sight of a gun. But Terry stops only produce arrests when actual probable cause surfaces, such as when the person in possession DOES turn out to be a felon.

    1. The problem is that if you don’t require reasonable suspicion for Terry stops, then the police can just pat down anyone they want on the street, and arrest them if they have, for example, a small amount of drugs on their persons. Luckily, this is prevented by the 4th Amdt. Cops across the country violate this every day, but they at least have to make a credible attempt at cobbling together a decent story, in order not to waste their time arresting and booking someone whom they really shouldn’t have, and then making the judge and their bosses pissed for at them.

      1. “The problem is that if you don’t require reasonable suspicion for Terry stops, then the police can just pat down anyone they want on the street”

        No, the problem is that I reject the notion that one can’t create reasonable suspicion by doing things that are Constitutionally-protected.

        1. Doing something one is perfectly entitled to do because it’s an inherent right is somehow suspicious?

          Amazing.

          1. we have an inherent right to keep and bear arms, but we don’t have a right to besr arms to rob grocery stores.

            1. Anyone say anything about a legal right or entitlement to rob grocery stores? Curious where this came from, Sir or Madam Voice of Reason.

              1. Probably from his / her posterior orifice.

          2. “Doing something one is perfectly entitled to do because it’s an inherent right is somehow suspicious?
            Amazing.”

            Is there a reason you’re reluctant to respond to the ACTUAL claim I advanced, which is that doing something one is perfectly entitled to do (whether or not it’s an inherent right) CAN BE somehow suspicious?

            1. With that alone – that doesn’t rise to ‘reasonable suspicion’. Which is the bar for search and seizures.

              Otherwise, as has been pointed out – if behavior that others engage in multiple times a day can be, in and of itself suspicious enough to trigger a stop and search, then you’ve effectively removed 4th amendment protections for everyone when they go out in public. You can be stopped at any time by an agent of the state simply because they think you ‘look suspicious’.

        2. Of course. But merely being in possession of a gun does not do that. Lurking outside a bank crouched down with a ski mask on, while possessing a gun, does, for example.

        3. So you’re one of the people who would support cops pulling people over for driving at the speed limit?

          For looking around them while driving? And for not looking around them while driving? When walking down the street with your hands in your pocket. And when walking down the street with your hands at your side.

    2. Talking about comitting a crime conveys information about a crime. Information is what the officers lacked in Tarango.

      Obviously.

      1. “Talking about comitting a crime conveys information about a crime”

        A crime that hasn’t occurred isn’t a crime. Apparently not obviously.

        1. “had no information at the inception of the stop that Mr. Tarango or Ms. Hutchinson … were about to engage in criminal activity”

          Talking about committing a crime would be information that they were going to engage in criminal activity.

          1. “Talking about committing a crime would be information that they were going to engage in criminal activity.”

            Unless, of course, they talked about committing a crime and then (gasp!) didn’t commit any crimes. Remember that time we talked about how easy it would be to rob that bank, and then walked out without robbing any banks?

    3. “Talking about committing a crime is speech”

      Yep, and that kind of speech is called conspiracy to commit a crime in most jurisdictions.

      1. ” that kind of speech is called conspiracy to commit a crime in most jurisdictions.”

        Assuming by “most jurisdictions” you mean “zero jurisdictions”. Conspiracy doesn’t become conspiracy until at least one of the conspirators takes an overt act in furtherance of the crime.

        1. And talking about it doesn’t qualify as an overt act.

    4. Talking about a stickup is probable cause you are going to do it (in some cases). The mere fact you are possessing a firearm conveys no information to a reasonable person.

      1. But Tarango didn’t have the firearm in a holster or sling, he had it in his hand, according to the witness. Does that change the equation? I guess the police who stopped him had the report that he had the gun in his hand while parked at the grocery store.

        1. There is a possibility he was doing something with it and stopped when the other person arrived. If I were transferring a fire arm between locations (say a holster and the glove box) and someone drives up, I would likely stop what I was doing so as to not alarm the person. Or perhaps his view was extremely brief and so he only saw it there for a moment, moving on in fear. There are plenty of plausible explanations for why he saw it there in that manner for the brief moment he was moving by.

          Also for purposes of speculation, callers like this sometimes fabricate things. There was a case near me in which a caller saw a man open carrying legally in a 7-11 and called in an attempted robbery on the guy. The guy was getting coffee.

          I’m not saying that’s the case here. But a brief glimpse of a fire arm affects some people strangely.

          1. But, the possibility that he was just transferring the gun doesn’t mean there was no probable cause. To qoute the decision in this case: “A suspect’s activity that is consistent with noncriminal activity as well as criminal
            activity may still justify a brief detention under Terry. Kennedy, 107 Wn.2d at 6. The
            question for the officer and for a reviewing court is whether the circumstances support a
            reasonable suspicion that there is a “substantial possibility that criminal conduct has
            occurred or is about to occur.” Id.”

            It seems to me that Alpheus Drinkwater is right that having the gun out is more indicative of possible criminal intent than having in a holster. But to me the key here is that the guy drove off. That means there is no evidence that he was planning to rob the store, so the mere fact that he was sitting in his car holding the gun was not enough to stop him. Had he been walking into the store with the gun in his hand, that would be a different story.

            1. “A suspect’s activity that is consistent with noncriminal activity as well as criminal
              activity may still justify a brief detention under Terry.”

              Now modified to read, “A suspect’s activity that is consistent with noncriminal activity as well as criminal activity may still justify a brief detention under Terry, unless it consists of the exercise of an explicitly guaranteed civil liberty, in which case come back when you’ve got a GOOD reason for messing with somebody exercising their rights.”

              1. The main point is that these people DON’T believe it’s a civil right. A while back, the police in Philadelphia were ordering open carriers to the ground at gunpoint to check their permit (you need a concealed carry permit to open carry in Philly). Liberals justified it with “Well, unless they do that, how do they know that the carrier as a permit?” I responded with “Well, unless you pull over and breathalyze every driver, how can you know that the driver isn’t drunk or unlicensed?”

                1. “The main point is that these people DON’T believe it’s a civil right.”

                  What people would “these” people be?

                  1. Liberals like yourself.

                    1. But not gay-obsessed people like yourself?

          2. ” There are plenty of plausible explanations for why he saw it there in that manner for the brief moment he was moving by”

            There are plenty of suspicious explanations for why he saw it there in that manner. Thus, an investigative stop that ends when either A) a non-criminal explanation is confirmed, or B) probable cause to believe a crime is occurring or imminent.

          3. “There are plenty of plausible explanations for why he saw it there in that manner for the brief moment he was moving by.”

            not really. the most likely explanation was that he was going to rob the store, and changed his mind when he was noticed. there was no self-defense or sporting purpose to be sitting in a vehicle in a store parking lot with a gun in hand.

            1. That’s a ludicrous postion, VoR. Given the number of guns out there and the comparatively much smaller number of stores that are actually robbed, intent to rob is actually a very low probability outcome. Thankfully, the fourth amendment does not depend on your mystical ability to determine “most likely” explanations.

              1. “intent to rob is actually a very low probability outcome.”

                Therefore, cops should NEVER proceed as if a person has an intent to rob?

                The point of a Terry stop is to give the cop(s) enough time to investigate the facts, and determine if there’s crime afoot, or not.

                If a cop walks into a bank, and comes across an active robbery, there’s no controversy that they can then act as if they’ve observed an active robbery. The question is, how far away from that direct observation of illegal behavior is still good enough?

                I mean, if a cop comes across a bunch of dudes running from a bank, trying to jump into a running car, it might be reasonable to stop them, even if there’s no alarm sounding. Additional circumstances might make it more reasonable, or less reasonable. There’s nothing inherently illegal about running for a car, with a bank behind you. If the cop just got a radio call about a silent alarm at the bank, but no description of the robbers…

                1. “NEVER”? No. But they must comply with the court’s decision above that a mere report of possession of a weapon is not enough to justify a Terry stop.

                  1. ” they must comply with the court’s decision above that a mere report of possession of a weapon is not enough to justify a Terry stop.”

                    Duh?

            2. Sure there is. Say he has a concealed weapons permit, but its uncomfortable to have his gun on him while he’s driving, so he transfers it to his console when he’s driving and puts it back in his waistband before he gets out of the car.

              Or even without a concealed weapons permit, Washington is an open carry state, but when he gets in the car he has to unload the gun and put it in a locked container in the vehicle before he starts to drive, when he reaches his destination, reverse the process.

          4. “Also for purposes of speculation, callers like this sometimes fabricate things.”

            True enough. Does that mean that cops should NEVER respond to citizen complaints, because the complainant might be lying? Or does that mean that they should keep open the possibility that the complainant might be lying, while they investigate the situation to see if the complainant is lying?

            “a brief glimpse of a fire arm affects some people strangely.”

            Absolutely true.
            There’s a commenter on this site who, thinking about firearms, invariably starts thinking about gay men having gay sex.

        2. Not really. Having a gun in your hand in a concealed manner is not indicative of anything, again, to a reasonable person.

          1. “Having a gun in your hand in a concealed manner is not indicative of anything”

            It’s indicative of an intent to conceal having a gun in your hand. Other circumstances might suggest criminal activity, either accurately or inaccurately. For example, a cop responding to an unrelated shooting might consider having a gun in your hand in a concealed manner to be indicative of being involved in that shooting, until evidence surfaces to show that THIS guy is not THAT guy.

            1. Having a gun in your pocket is indicative of your intent to conceal the firearm.

              Now, what evidence of *criminality* would there be there?

          2. Okay. Way back when I asked you the original question, what I was trying to ask was whether the witness report that he had the gun in hand rather than holstered was enough probable cause for the Terry stop. I guess in your opinion, it does not. The Washington Court of Appeals would seem to agree with you.

            1. Actually not probable cause, but reasonable suspicion.

    5. “Talking about committing a crime is speech”

      But where was the “about committing a crime” element in the above case?

      1. ” where was the “about committing a crime” element in the above case?”

        When the felon was in possession of a firearm, which is a crime.

        1. Nope. At the point when the idiot called 911, the cops had no basis to suspect he was a felon. He could have been anybody.

          1. Agree with Brett here.

            The cops should have asked the caller what crime was he reporting.

            If the caller had said, “I know the guy is a convicted felon and he’s currently holding a weapon,” then that could be investigated (sorry loveconstitution!).

            But that isn’t the case and the cops should have declined to investigate.

          2. And open carry in a vehicle is not a crime if you have a CCL, and since neither the caller nor the cops had any reason to suspect the person didn’t have a valid CCL there is no probable cause that I can see

            Now if the person had been brandishing the gun, or otherwise holding it in a way that might lead to a negligent discharge that could injure someone, then I’d say the cops might have a reason to speak to him

            1. ” since neither the caller nor the cops had any reason to suspect the person didn’t have a valid CCL there is no probable cause that I can see”

              Under that logic, cops that pull you over have no cause to ask you to produce identification, license to drive, or insurance. They have no reason to believe you’d lie about who you are, or whether you have license and insurance.

              Also note: The cops don’t have to have probable cause to stop you. They have to have probable cause to arrest you.

              1. While I disagree with the license concept, you are incorrect on all counts.

                A police officer needs to know to whom they are issuing the ticket. – ID.
                They need to know that the car is properly registered to be on the street before you are permitted to be released. – Registration.
                Insurance is mandatory, and for the same reason as registration, they need to verify insurance as well.

                1. “A police officer needs to know to whom they are issuing the ticket. – ID.”

                  So they ask you, and you tell them. They have no reason to suspect that you’re lying about who you are.

                  “They need to know that the car is properly registered to be on the street before you are permitted to be released. – Registration.”

                  I didn’t mention registration. Whether or not the car is currently registered is immediately visible, from the outside of the car, on the license plate. They can determine who the registered owner is by running the plate through DMV. And, again, they have no reason to suspect that you’re lying about who owns the car, or whether it’s properly registered.

                  “Insurance is mandatory, and for the same reason as registration, they need to verify insurance as well.”

                  If you say it’s insured, they have no reason to believe you’re lying.

                  This is based on the logic of “If they find a weapon, well, it might be legally possessed/carried/concealed whatever, so they have no reason to check.”

              2. The difference there is that the cops can only ask you for that stuff after stopping you for something else.

                1. “The difference there is that the cops can only ask you for that stuff after stopping you for something else.”

                  Incorrect. Cops can ask for anything they want. See that amendment right there before your favorite one? It applies to cops, too.
                  What they CAN’T do is stop you without reasonable suspicion, or arrest you without probable cause.

              3. Yes, cops do need probable cause to stop you.

                The exception is a DUI checkpoint, where they can pull people over at random, but even those must have a set plan (e.g. every car, or every 3rd car, etc) have their own built-in restrictions on the scope of what can be investigated and aren’t even legal in all states

                1. “Yes, cops do need probable cause to stop you.”

                  No, cops do not need probable cause to stop you. They need probable cause to arrest you. They need reasonable suspicion to stop you.

              4. Driving a car on public roads happens to not be an enumerated civil liberty.

              5. Traffic stops generally involve a claim to probable cause involving direct observation of a moving violation of the traffic laws. However they need additional probable cause to detain you beyond the time needed to resolve the traffic violation (issue a ticket)

                Even in a Terry stop, they need probable cause to detain you beyond some very minimal questioning.

                1. “Even in a Terry stop, they need probable cause to detain you beyond some very minimal questioning.”

                  Reasonable suspicion is the bar they need to reach to stop you. Once that reasonable suspicion dissipates, the authority to stop you does, as well. But if the reasonable suspicion doesn’t dissipate, neither does the authority to stop you.
                  They need probable cause to arrest.

            2. what is the difference between “brandishing” and holding a gun in yiur hand in a parking lot when there is no self-defense or sporting purpose to be holding the gun?

              furthermore, negligent discharges happen ALL THE TIME just by people holstering or unholstering Glocks. A safet on the trigger is not really a safety, it’s just a trigger. Hence the term “Glock leg”.

              1. Brandishing is doing so with intent to intimidate. Doing so in a car, not pointed at someone, is not brandishing.

                In any case, negligent discharges only happen if you’re a moron. When I holster or unholster a Glock, I keep my hand on the grip only. It’s really not very hard.

                1. Unfortunately the Constitution doesn’t let us test for “moroness” though.

                2. “Brandishing is doing so with intent to intimidate. Doing so in a car, not pointed at someone, is not brandishing.”

                  Hey! You got one right! Good job (eventually).

              2. I kind of doubt very many people get charged with negligent discharge for shooting themselves.

                1. “I kind of doubt very many people get charged with negligent discharge for shooting themselves.”

                  Depends on whether or not anyone else gets hit or nearly gets hit, as well as the “victim”. If you have a kid nearby, I’d guess it rises to near certainty.

          3. “At the point when the idiot called 911, the cops had no basis to suspect he was a felon.”

            The felon did.

            1. Yeah, so? We’re discussing the legal rights of the police, not the citizen.

              1. ” We’re discussing the legal rights of the police”

                You are, maybe.

  2. No doubt this is ready to change with the new WA gun laws. What if someone calls up 911 to report a standard capacity 30 round magazine in a state that bans them, in favor of low capacity 15 round, or miniscue capacity 10 round magazines? If you can see a good portion of an AR-15 magazine in the firearm, it probably violates those low capacity magazine laws.

    1. You can modify standard capacity magazines to hold fewer rounds to comply with magazine capacity laws. So, seeing a full-length magazine protruding from a rifle, doesn’t mean that it’s actually capable of holding 30 rounds. Hence no reasonable suspicion.

      Canada has a 5 round limit for rifle magazines. There are Canadian gun videos with guys shooting military style rifles with full size magazines that only hold 5 rounds.

      1. But – wouldn’t a standard sized magazine at least raise a reasonable suspicion that it could contain that many rounds? Sure, it could be partially blocked, but how likely is that? Even close to 50/50 would, I think, raise a reasonable suspicion.

        1. By that reasoning, anyone with a gun causes reasonable suspicion that they’re about to commit a crime with it and should be stopped, right? (Case law says no, and it gets expensive if officers do)

          The presence of an item doesn’t provide necessary information for reasonable suspicion every time. I’m sure some judges and DA’s will argue just what you do, that it’s reasonable suspicion. But it isn’t necessarily so.

          A foreign national in VA just spent over a year in prison over the exact situation you’re talking about. The case was finally dismissed because there was zero evidence that the magazines he had were capable of holding above the legal limit. I’m thinking there’s a lawsuit coming against the department that went with this case.

          There needs to be some kind of corroborating information to go beyond or we’re going to have over zealous officers arresting everyone who has a magazine in a fire arm, or a magazine that ‘looks too large’ just because they can.

          1. Re the case you cite, you are conflating the evidence needed to stop someone with the evidence needed to try someone. If I and three friends are standing outside a bank wearing ski masks and carrying guns, do the police have reasonable cause to stop me? Yes. But if it turns out that we were filming a movie, and the guns were fake, the charges will be dismissed because, at that point, there is no evidence of a crime.

            The same is true of a full-length magazine. If a cop sees you with one, of course he can stop you. But if it turns out to have been internally modified so as to comply with the law, your lawyer will successfully move the court to drop the charges.

          2. cops stop people ALL THE TIME on the flimsiest of probable cause, such as windows tinted too dark, driving a car “too nice” for the neighborhood, out-of-state plates, etc., and then search the car looking for drugs, cash and weapons.

            1. Windows tinted too dark is at least an infraction, so if they see it, the probable cause isn’t flimsy. They’ve directly observed a violation of the law.

          3. “The presence of an item doesn’t provide necessary information for reasonable suspicion every time.”

            The ruling of the court is that it doesn’t, ever. That’s what I’m disagreeing with, though I can’t speak for anyone else.
            There’s a case that (relying on memory here, so not 100% sure I’ve got the details right) involved a guy dressed in black, walking around at 3AM, carrying an axe. They decided there was sufficient suspicion to make a Terry stop to determine the immediate purpose of the axe.

        2. Suspicion? Yes. Reasonable suspicion? No. Reasonable suspicion is a higher legal standard than mere possibility.

          Consider that your Lamborghini could easily go three times the speed limit. Does that alone create reasonable suspicion that you did exceed the speed limit? Of course not and you would be justifiably outraged by any police officer who tried to pull you over on such a weak pretext. The same applies to the case above.

          1. “Consider that your Lamborghini could easily go three times the speed limit.”

            Just about everything on the road but the VW bus or Yugo sedan can go three times the speed limit.

            1. Depends on whether you mean highway speed or residential. I meant to imply highway (which around here is as high as 70 mph). And while my current car is somewhat better than a VW or Yugo, the only way it could go three times that highway speed is if you pushed it out the back of an airplane and clocked the speed on the way down.

              1. I was curious enough to google the terminal velocity of cars. I have no idea if the physics is accurate, but the top hit says:

                “The terminal velocity of a car under these conditions would be about 52 mph. This is assuming it’s falling flat. If the car was falling pointing down, the terminal velocity would be something more like 90mph.”

                So it might need rocket assist 🙂

      2. “So, seeing a full-length magazine protruding from a rifle, doesn’t mean that it’s actually capable of holding 30 rounds. Hence no reasonable suspicion.”

        Your conclusion doesn’t follow from your premise. “It might be legal” doesn’t mean there’s no reasonable suspicion that it isn’t. If that were the case, then every felon ever stopped for possessing a firearm would have been in court arguing “it might have been a toy”, so you couldn’t have reasonably suspected that it was a real firearm.

    2. This magazine capacity laws are unconstitutional.

  3. Is it normal to sit in a car and have a gun on your lap? On one hand; I’d say sure (you’re showing it to your passenger, describing it to her or giving instructions on how to use it to her, etc.) But on the other hand, it seems unusual enough so that a 911 call might give rise to allow a cop to at least check with the gun holder. On the other other hand; I think I would (as the hypothetical gun on the street) prefer that someone holding a gun do it in the relative privacy of his car, rather than on the street, at a restaurant table, etc..

    I think the court probably got it right in this case. But I don’t see it as a super-easy clear-cut issue.

    1. Not clear cut. But think about the situation.

      Mr. Matthews view of the fire arm was likely extremely brief. So brief that it’s likely any number of explanations could be provided that it would be in that position for the moment Mr. Matthews vision was there.

      1. “it’s likely any number of explanations could be provided that it would be in that position”

        Authority for Terry stops ends when a non-criminal explanation appears to be true. Or, when probable cause of a crime, actual or imminent, appears.
        The fact that a non-criminal explanation for the facts doesn’t mean that suspecting a crime isn’t reasonable.

        If the cops roll up, and find a dude standing over a dead body with a gunshot wound, holding a recently-fired weapon, it’s possible that the guy’s a bystander who heard the shot, rushed over, and picked up the gun right before the cop showed up. But it’s reasonable to hold on to the guy while we see which of the many possible explanations appears to be true.

    2. It is normal to sit in a vehicle with a gun in you lap.
      It is normal to have a gun on your person.
      It is normal to have a gun on your hip.
      It it normal to have a multiple guns at home.
      It it normal to have thousands of rounds of ammo.
      It is normal to shoot guns on a regular basis to remain proficient with them.

      1. What would you know about “normal”?

      2. no*
        yes
        maybe
        yes
        yes
        yes

        *unless you are about to commit suicide or robbery

  4. I support gun rights, but just like all other rights, they sometimes benefit sleazy people, as in this case. That’s a price we pay for freedom.

    1. Just like paying $20 billion a year for PrEP drugs is the price we pay for gay men to have the “freedom” to bareback hundreds of guys at the local truck stop.

      1. uh, ok, i’ll bite: what??

        1. Society pays many tens of billions of dollars to treat and prevent HIV in the 1% of the population who constitute nearly all of the cases.

          1. We spend tens of billions every year on lots of stupid things, it’s called democracy in action. There are so many lower hanging fruit to complain that the government wastes money on, why care so much about gay sex? I get the undemocratic way it was “legalized,” but the horse has left the barn, and moreover, AIDS research helps everyone in the long run.

            Besides, do you really think that laws against gay sodomy work?

            1. They would if we enforced the laws strictly and punished them very harshly. If we sentenced people who engaged in homosexual anal sodomy to death, and actually carried out the sentences, I suspect you’d see a major drop in occurrences of HIV.

              1. So you support the death penalty for gay sodomy? There is the 8th Amendment, you know, which in most people’s estimation is about as important as the 2nd.

                What originalist interpretation could possibly support the death penalty, as the death penalty for sodomy crimes was removed around the time of the Revolution.

                1. No, I don’t. I’m just saying that any argument that laws don’t work requires that enforcement not be that onerous.

              2. Say, you know who considers homosexual male sodomy a capital offense? Iran. Why don’t you go hang out with your Muslim buddies?

  5. There’s no distinction between “open carrying” and “brandishing”?

    1. Brandishing would be displaying a gun in a threatening manner. I’d imagine that taking a pistol out of a holster without reason could be considered brandishing. But if you have to walk over to a car and look inside to see the gun:

      “Mr. Matthews stepped out of his car and got a better look at the passenger?”

      it would be hard to argue that it’s being displayed in a threatening manner, or even that it’s being displayed at all.

      1. LiborCon,

        I was thinking more toward your second definition of “brandishing” than your first. I am about as pro-Second Amendment as one can get, but I was also always taught never to unholster my weapon unless I planned on using it. But I am not a lawyer, so for all I know “open carry” includes walking around (or sitting in a car) with a pistol in my hand. I guess I always imagined “open carry” meaning “wearing the firearm without concealing it”, but, again, IANAL.

        1. I suppose if you are going to have a reasonable open carry regime, there needs to be some allowable behavior between carrying a holstered weapon and brandishing the weapon in a threatening and/or reckless manner.

    2. That really depends. At one point, before the state enacted Shall Issue, Denver cops used to do just that. The sheriff was appointed by the mayor, and pretty much only issued CCW licenses to friends of the mayor. At the the same time, they would arrest open carriers for brandishing. Thus, if the butt of a firearm was handgun was exposed, that was considered brandishing by the police. And if the butt was covered, it was considered concealed, requiring a CCW, that the sheriff wouldn’t issue.

      But outside progressive havens, like Denver, treating open carry as brandishing is laughable. We spend our time split between MT and AZ, and you see a fair amount of civilian open carry in both states. And, I can pretty well guarantee that any cop in our county in MT who arrested anyone for open carry for brandishing would be out of a job in probably hours of the arrest. Definitely immediately after the defendant’s first appearance before the Justice of the Peace, who is also the owner of a firearms training school and NRA certified instructor.

      1. I believe there was some 1800s state which said an openly holstered gun was concealed because the holster hid part of the revolver. So people started carrying them on neck lanyards.

        Even the best intentioned laws can be twisted into nonsense, and if the twisters are also the people who judge the validity of their contortions, the sky’s the limit.

        The fewer laws, the less chance for contortionists.

        1. Some lawyers will argue that if you can tell exactly what it is, how can it be concealed? Others will argue that covering any part of it is concealing it. Where I live, open carry was allowed, but some locations would argue that a driver in a vehicle wearing a fire arm were considered concealing because the vehicle itself concealed the weapon. Fortunately the judges didn’t take to kindly to that notion and shut it down.

          You are absolutely right that some will attempt to twist the rules to get what they want.

        2. That sort of nonsense was the chief motivation for concealed carry reform in Michigan, as I recall. Michigan was, legally, an open carry state, but in parts of the state with local governments hostile to gun rights, the police had a policy of charging you with either brandishing or illegal concealment, depending on their mood at the time. There wasn’t any safe middle ground unless you were politically connected.

          1. I wonder if race was a factor in this.

            1. To some extent, perhaps, but it was really about whether Democrats controlled the local government; That correlates pretty strongly with race in Michigan, outside of a few college towns.

      2. All of those cops, DAs and mayors should be tried for treason and executed.

        1. Execution is excessive. 10 years for conspiring to violate civil rights would be about right. But the last time we had a federal Attorney General who would take positive action to protect gun rights was the Reconstruction era.

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  7. 2nd Amendment:
    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    All gun control is unconstitutional. There are intentionally no exceptions for the people’s right to keep and bear Arms.

    No exceptions for background checks, limits for ex-felons, registration requirements, bans on automatic weapons, etc.

    1. To keep and bear arms is a human right that the Constitution merely acknowledges . . . progressives, socialists, and communists cannot understand this simple fact.

      1. ‘To keep and bear arms is a human right”

        If it’s a human right, does that mean I’m entitled to have one provided for me if I cannot afford one?

    2. “All gun control is unconstitutional.”

      Is it? Or is taking away the gun of a person who used it to commit a crime, as they are processed into prison, somehow not “gun control”?

      How about taking away the weapons of invading foreign troops?

      Heck, how about shooting someone while they are in the midst of carrying out a mass shooting? Is that an infringement on their right to possess the weapon(s) of their choosing?

    3. the courts have ruled – muddily and opaquely – against you.

      1. The same courts that ruled that the Due Process Clause protects the “right” of a gay man to insert his penis (with no condom) into another man’s butt?

        1. Yes, the same courts. So go “holster” your “weapon”.

          1. The point is that the courts have no moral legitimacy.

            1. The point is that you have too many gay fantasies.

    4. I see. So people incarcerated in prison are entitled to carry firearms?

      1. I’d definitely want one.

  8. Obviously the officers should have ‘observed’ the driver swerving or not using a turn signal or whatever, asked for IDs from both, determined passenger was a felon, and then acted based on the tip about the gun.

    I’m skeptical about the result in this case.

    People are lawfully Terry-stopped for all kinds of lawful activity. Two people sitting in a car in front of a store with a gun resting on a lap is a more substantive set of facts than many lawful stops rely on. Maybe the officers didn’t articulate it that way and only said he was possessing a gun. That at least makes more sense than a “constitutional right” exception for Terry stops, lovely as that sounds.

    1. “Obviously” hope you are not suggesting police perjury.

      At any rate, in this country the exercise of a human right (in an apparent lawful manner) should not be an excuse for police intervention; otherwise we may as well trash the Constitution and call it quits.

      1. ” in this country the exercise of a human right (in an apparent lawful manner) should not be an excuse for police intervention”

        So you’re advocating for overturning Terry v. Ohio in its entirety. (Mr. Terry was stopped because… he walked back and forth in front of a store, met someone, and then they walked off together to go somewhere else. The police officer testified that he thought Mr. Terry’s behavior was consistent with someone casing the joint… which itself isn’t a crime, either.)

        1. Of course, each case stands, or falls on its own merits. There is nothing special about a gun that under the circumstances here provided cause, or an “excuse” for an intervention. Terry’s conduct and the police observations provided a completely different factual basis in support of an intervention.

          The “but guns are different” argument is not applicable here to support another curtailment of the most critical of all human rights.

          1. “The ‘but guns are different’ argument is not applicable here”

            Nor was one offered.

      2. Obviously the first bit was tongue-and-cheek.

        Like Mr. Pollock says, the objection here is really about Terry v. Ohio and what followed from that. I haven’t read the decision linked above, so it may be that the government/police didn’t make the proper representations about what qualified as “suspicious.” Merely saying, “he had a gun,” isn’t enough any more than “he was holding a bag.” The location, demeanor, time, all kinds of things in conjunction with holding a gun or a bag can qualify. And courts generally refer to police judgment based on their asserted expertise.

        Maybe the police failed to articulate their suspicion appropriately and the judge was merely putting a fine point on a conclusion that the Terry standard was not satisfied where the only thing alleged is one seemingly legal act. (I say seemingly, because the possession here was in fact not legally/constitutionally protected.)

    2. windows tinted too dark
      music too loud
      out of state plates
      car looked out of place
      observed occupant throwing something out of the window
      broken tail light
      occupant not wearing seatbelt
      failed to come to complete halt at stopsign, or right turn on red
      the list of dirty cop tricks goes on and on and on

    3. “People are lawfully Terry-stopped for all kinds of lawful activity. Two people sitting in a car in front of a store with a gun resting on a lap is a more substantive set of facts than many lawful stops rely on.”

      But in Terry, the officer relied on his own observations (and the ever helpful training and experience) to conclude that Terry was acting suspiciously. Here the officers themselves never observed anything suspicious.

  9. I fully support lawful concealed carry in public, but view public open carry as problematic. This case of a man sitting in a car with gun in hand gives an example why it is problematic.

    There is a fine line between open carry and brandishing or threatening. A dude sitting in a car at a convenience store with a gun in hand is , IMO, inherently suspicious because there is no self-defense purpose and no sporting purpose for it. I would assume the dude is most likely preparing to rob the store.

    1. I don’t personally like open carry, because it makes pansy liberals nervous, but it should absolutely be legal. But in any case, there is a huge difference between open carrying a handgun in a holster and open carrying a rifle.

      1. i don’t like open carry for many reasons, and i would much prefer that concealed carry be legal than open carry.

        1. If I had to pick between the two, I agree. With a light windbreaker, I can conceal even a gun as large as my Glock 21. Not having the concealed option would suck.

      2. The argument for open carry, of course, is that the chief reason liberal pansies have made as much progress as they have, is because they managed to discourage open carry a long while back, and a whole generation grew up only seeing guns carried by police and criminals on TV.

        To the extent that you can get more people used to seeing open carry, the emotional appeal of gun control declines.

        1. That’s largely true. It is too dangerous though if police can shoot an open carrier and get “qualified immunity.”

        2. Open carry is the 2nd Amendment activist equivalent of “we’re queer and we’re here.” It’s not really helpful in the short run, and will turn people against you in the long run like crazy gay pride marches did. Whereas by comparison, the normal gay guy at your job two cubicles over convinced people that they weren’t all degenerates (despite what ARWP says).

          If you open carry as part of a job, or hunting, or whatever, that’s cool, and if it is culturally normal in whatever part of flyover country you’re in, fine, but if you’re just running errands in the suburbs, get an IWB holster for heaven’s sake.

          1. The thing is, the apparent “normal gay guy” is usually engaged in all kinds of orgies and other deviance in his off time. Even the “married” ones are rarely monogamous.

            1. Your second point is correct, as far as I know via some social science I’ve heard quoted. But I’m not so sure about your first point. Besides, do you know what the N count is for your typical woman these days, higher than you’d think. Women just engage in serial monogamy so they don’t get labeled, which is for all intents and purposes, is not much different than what you’re complaining about.

              1. It’s not even on the same plane. It’s not uncommon for gay men to pickup hundreds of men (google David Mangum) at truck stops. Even the sluttiest of women don’t do that.

                1. Gay men and lesbians have a higher partner count because there is less difficulty communicating across the genders and zero chance of pregnancy, but your typical gay man isn’t blowing people at truck stop glory holes. And I also don’t think you know the depths of degeneracy that exists in similar quantity (due to a pool to draw upon that is larger in comparison) amidst straight people.

                  In short, it is in the “same plane” just headed in different directions.

            2. “The thing is, the apparent “normal gay guy” is usually engaged in all kinds of orgies and other deviance in his off time”

              Somebody’s jealous!

        3. “a whole generation grew up only seeing guns carried by police and criminals on TV.”

          And the generation prior grew up seeing open carry by cowboys and criminals on TV (and in the movies).

          They’re both distortions. People just feel the one they grew up with to be preferable.

          Note that the advocates for non-smoking convinced Hollywood to cut down on the number of smokers shown onscreen, and smoking has been in decline in the U.S. ever since. Meanwhile, L&O:SVU has been on TV for almost two decades now, and people are afraid to let their children play outside because of all the scary sex perverts.

          1. Not so much of a distortion as you think, in that open carry *did* use to be very common. New York City high schools had rifle teams and kids, *kids*, would ride the subway with rifles on their backs in the 50s and 60s.

            Gun owners began to be socially stigmatized, for a host of reasons and various methods, in the mid 1960s.

            1. “Not so much of a distortion as you think”

              OK, fine. There was absolutely no open carrying on TV (and in the movies) in the 1950’s. Your frame of reference is the only possible one.

              1. You’re not quite getting it. In short, open carry on TV in the 1950s was contexualized to the situations on the TV, namely the westerns that were very popular in the era. People didn’t imagine themselves in the Wild West, but did did really exist in a culturally conservative 1950s-1960s America where guns and gun owners weren’t stigmatized, and in that era it wasn’t unusual to see people with guns all the time.

                1. “You’re not quite getting it.”

                  Right.

                  ” In short, open carry on TV in the 1950s was contexualized to the situations on the TV, namely the westerns that were very popular in the era.”

                  The situations contextualized on the TV, and in the movies, were not realistic. As is the case today. For example, the “wild west” largely existed only in… Hollywood.

  10. In July of 1967 (over fifty years ago), California enacted a law which states, “In order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on the person or in a vehicle while in any public place or on any public street in an incorporated city or prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section.”

    In case you missed it in on your first read:

    “Refusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section.”

    I am the first, and only, person to challenge that law in court as violating the Second and Fourth Amendments.

    I am in my eighth year of litigation.

    And so you will forgive me if I dismiss all of the comments here as meaningless.

    https://CaliforniaOpenCarry.com

    1. “And so you will forgive me if I dismiss all of the comments here as meaningless.”

      No prob. But surely, in return, you’ll accept that it’s ok with at least some of us that you’re having trouble convincing anyone that you’re in the right.

      1. James Pollock – You and pretty much everyone else who posts here should not be allowed anywhere near a weapon or a voting booth or a jury box.

        The only people I care about convincing are the judges who will ultimately decide my California Open Carry appeal.

  11. The decision was correct. I don’t blame the cops, unlike other Fourth Amendment violations. It’s reasonable for the police to be in fear of people with guns. 4 v. 2.

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