How Should the Police Respond to a Report of a Man with a Gun?

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Case study: the Neenah stop. Recently in Neenah, WI, a woman called the police to report a man with a gun strapped to his back walking down the street. The call was placed to the non-emergency police number and the caller didn’t report that the man was doing anything threatening, but she did suggest that the police check on the situation. As a result, an officer stopped the man and his companion. The officer engaged in a protracted dialogue with the man, at one point telling the man that he would be shot in the head if he made any furtive movements. Other officers also responded, and at least one drew her weapon. The man who was stopped remained calm throughout the interaction and was eventually permitted to depart. The full 18-minute video of the stop is here. A local news article about the stop is here. It has generated quite a bit of controversy. Were the officer’s actions lawful and justified by public safety concerns? Or was it an unjustified response to lawful open carry? This post breaks down the legal issues.

Legality of open carry. From media reports and statements made by the officer during the stop, there appears to be no question that open carry is legal in Wisconsin. In fact, it seems that during a recent revision of its disorderly conduct statute, Wisconsin changed the law to protect open carry. Wis. Stat. § 947.01(2) (“Unless other facts and circumstances indicate a criminal or malicious intent . . . a person is not in violation of . . . this section for loading, carrying, or going armed with a firearm, without regard to whether the firearm is loaded or is concealed or openly carried.”)) As I noted in this prior blog post, open carry is generally legal in North Carolina as well.

Was the stop justified? A Terry stop requires reasonable suspicion that the subject of the stop is engaged in criminal activity. Carrying a gun openly isn’t criminal in itself. Nor, under most circumstances, is it particularly indicative of other criminal activity. In some instances, though, such as when there is a large group of armed individuals in an unusual location, or when an individual displays his or her firearm in a menacing manner, a Terry stop may be appropriate. There is limited case law in this area, and the few reported decisions aren’t always consistent. Consider the following:

  • United States v. Black, 707 F.3d 531 (4th Cir. 2013) (“[W]here a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.”)
  • United States v. Williams, 731 F.3d 678 (7th Cir. 2013) (two judges found reasonable suspicion to support a Terry stop based principally on a 911 call reporting a group of about 25 people outside a rowdy bar, three or four of whom had their “guns out”; one judge would have found no reasonable suspicion in light of increasing legal support for open carry)
  • Burgess v. Wallingford, 2013 WL 4494481 (D. Conn. May 15, 2013) (unpublished) (holding that a Terry stop was justified based on reports “that a man carrying a weapon [openly] on his person was pacing outside of a pool hall”; this provided reasonable suspicion of disorderly conduct; the court states that “[w]eapons cause unique concerns for the safety of the public and the police”).
  • Banks v. Gallagher, 2011 WL 718632 (M.D. Pa. Feb. 22, 2011) (unpublished) (holding that an investigative detention was proper in light of “multiple fearful calls to 911 by concerned citizens, the unusual and unprecedented circumstance of nearly a dozen armed men in a family eating establishment refusing to explain their purpose,” and other factors)
  • Schubert v. City of Springfield, 589 F.3d 496 (1st Cir. 2009) (holding, in connection with a 42 U.S.C. § 1983 claim, that an officer properly stopped a pedestrian who was wearing a holstered handgun and walking towards a courthouse; that the gun seems to have been somewhere between concealed and carried openly, so the case isn’t perfectly on point)

I tend to think that the Neenah stop was improper, as there wasn’t much to suggest criminal intent on behalf of the subject. But again, the law’s not completely settled in this area.

Scope of the stop. Assuming arguendo that the Neenah stop was lawful at its inception, I doubt that the officers were justified in detaining the subject for more than 15 minutes. Much of the stop consisted of the officer remonstrating with the subject about the Second Amendment. Investigative stops must be brief, and it was clear early on that the subject was calm, rational, and interested more in publicity than in criminal activity.

Alternatives for officers. None of the foregoing means that officers can’t respond to community concerns about people carrying guns openly, a phenomenon that is unsettling to many citizens. An officer can always seek to engage a person carrying a gun in a consensual conversation. That conversation may allay any concerns the officer has, or it may increase the officer’s concerns to the point that an investigative detention is justified.

Further reading. The Pennsylvania Chiefs of Police Association published this short paper for officers about dealing with people carrying guns openly. Some of it is specific to Pennsylvania, but much of it strikes me as sound advice for North Carolina officers as well. Michigan’s Law Enforcement Action Forum published this analysis of the legal issues officers face when dealing with open carry. If others are aware of other resources, please let me know or post a comment.

32 comments on “How Should the Police Respond to a Report of a Man with a Gun?

  1. 2009, Alamogordo, New Mexico. st. john v. mccolley (d.n.m. sept. 8, 2009). Published opinion.

    http://www.leagle.com/decision/In%20FDCO%2020090909841

    The City settled for $21,000.00.

    http://www.alamogordonews.com/ci_13441455

  2. As a retired police officer from NY who now teaches at a local college I have this to offer: if I observe someone carrying a firearm of any size in a non threatening way (holstered or in this case strapped on the back) I have the legal right to inquire as to the identity of the person and the legality of the weapon (stolen and so forth). The amendment gives citizens the right to possess but does not give them the right to frighten others including police officers. Other then being bored and wanting to make a statement responsible gun owners do not want to draw attention to themselves for this very reason. A police officer should not have to wait till a gun is used in a menacing way before being able to draw their own!!!

    • No, you don’t.

      You have no authority to detain the person as they are not committing or have not displayed what a reasonable officer would believe was suspicion of being engaged in criminal activity.

      Simply carrying a firearm in a non-threatening manner (holstered, slung) is not a crime. We do not have “Stop and Identify” laws in North Carolina. We have absolutely no “rights” as a law enforcement officers. We have powers, granted by the state and limited by the Constitution.

      If seeing a citizen walking down a public or private area legally carrying a weapon “frightens” you, well…as an active police officer in the hood, it shouldn’t.

      • I wonder how many civil rights Tina violated in the course of her duties. Being ill informed is no way to protect, serve and honor your oath. The very simple truth is that you MAY NOT detain ANYONE without RAS.

      • “You have no authority to detain”…
        This is correct, however, as a Law Enforcement Officer you can walk up to them, or for that matter anyone, in a public place and conduct a field interview so long as the person “wants” to talk to you…

    • as jp said, no…you do not. Thankfully NC is not NYS. ANY person can be armed. So by this reasoning, all citizens are your enemy and all can and should be stopped at any time and asked for ID. Is that the slippery slope you think we should go down?

      Consider this. No police officer wants a shoot-out. A police officer responding to a calm, person, carrying a firearm in a non-threatening manner (i.e. not in their hands ready to fire), with extreme force (i.e. drawing their gun in a threatening manner and pointing it at the person), significantly raises the chance of an escalation and a shootout. In short, the officer endangers the public.

      I have multiple family members in law enforcement and understand the very difficult situation they are in. Someone carrying a holstered sidearm, or a rifle slung over the should (not in a firing position) is not as high a risk as you would like to think. They are either a law abiding citizen exercising a RIGHT or they are a lunatic looking for trouble. Right at that, the odds are law abiding. Now, they are not carry the firearm in a threatening manner, they are not shooting anything, odds now are really tipped towards being a law abiding citizen.

      The simple act of carrying a gun is not criminal in NC. It is a right in the constitution, and it is a right in NC to open carry. What you have suggested is someone exercising that right, someone in essence following the law is suspicious and should be detained. It is this mentality that breeds distrust for the police.

      Personally, I think the police are partners in keeping my neighborhood safe. They have authority to arrest and detain CRIMINALS. I have the responsibility to protect my family, to keep an eye out for myself and my neighbors, and to protect them within the boundaries of the law. The use of lethal force in NC is pretty clearly defined. I am not a cop, I do not have a badge or the right to detain/arrest. I do not follow (once again cops job) suspects. Oh and as part of that partnership, if someone/anyone attacks a cop I will put my life in jeopardy to protect THEM if need be.

    • Well, things work differently in America.

    • No, you don’t. Not any more than you have a legal right to stop someone for driving a car (which is a licensed privilege, not a right) to make sure they are licensed and that the car is not stolen.

    • frightening others with a firearm is already a crime, and a clearly evident action besides. legal open carry is, well, legal. i also don’t think police have more rights than citizens, just more responsibilities. My personal opinion is that you picked up a few bad habits in new york, and should maybe re-evaluate how you view constitutionally protected activities.

    • Judging from Ms. Swanno’s remarks and from the situation NYPD finds itself in with the courts during the past few months, it appears that citizens of New York
      may have been having their rights violated. The “law of the land” is determined
      by the United States Supreme Court and it is incumbent upon all States to comply.

      In reference to the statement that no one has the right to frighten others and police officers, I would submit that citizens SHOULD call law enforcement when they are frightened or concerned. Law enforcement then has the OBLIGATION
      to determine wrong doing as quickly as possible. If there is none, NO FURTHER detention is authorized. Holding a person merely to browbeat or try to change his/her opinion could possibly be considered an arrest.

      In reference to the statement about “responsible gun owners”, I submit that
      citizens have to right to do anything that is legal-whether it is out of boredom; to
      make a statement or for any other reason.

      Hasn’t the US SC determined that our Constitution allows us to keep and bear arms?
      Hasn’t the US SC determined that an investigatory detention be brief?
      Hasn’t the US SC determined that an individual does not have to present an identification card to law enforcement when he/she is doing nothing wrong? (without being ridiculed i.e. “Oh, You want to play that game!”)

      For many years I was a fence-sitter on the issue of gun control. As I grew older and learned about instances such as the mass murder of tens of thousands
      of Uganda’s citizens at the direction of its ruler, Edi Amin and the “killing fields” of
      Cambodia, I began to feel that it is extremely dangerous for a country’s citizens
      to be restricted in the right to keep and bear arms. More recently, Saddam’s treatment of the Kurds in Iraq and Assaid’s killing of Syrian citizens strengthen
      that feeling. Does adherence to the second amendment make law enforcement’s
      job harder? Certainly it does-Accept it! Could we citizens be in danger in the United States if only law enforcement and the military had guns? Certainly-that’s the fear that our founding fathers had when the Constitution was written.
      And by the way, I am also a retired police officer having served more that 30 years in a Virginia city.

      • thank you for being a retired law enforcement officer who believes in the citizens rights

      • well we all know how NY cops like to use their batons in the restroom on detainees. Tina can be understood from that position.

    • Well, Tina, I have two observations for you: First, thank Heaven this is not New York. Second, thank Heaven you are retired, because what you propose is both illegal and, frankly, frightening. You actually want to draw your firearm on someone who is not behaving in a threatening manner. If I did that, it would be considered assault with a firearm and I would go to jail. Get used to it: In the free state of North Carolina, you are going to see more and more lawful citizens who do not hide the firearms they carry.

    • Well you should not be a cop then.

    • Be lucky you don’t live in Michigan Tina, because if your retired and pull that crap that’s a good way to get yourself shot.

    • you NY cops are the WORST … reality check … “YOU DO NOT HAVE THE RIGHT TO DETAIN” … your job would to to simply EXAMINE the individual for any misconduct … for example: posting up and acting suspicious outside of a bank … but an individual ONLY walking down the street committing no crimes what so ever and not even looking suspicious ??? …I’m sorry to say but NO… you do NOT have any right to detain SOLEY because the person is openly carrying a firearm … if we have the right to open carry … we have the right to be free from harassment … clearly YES it will raise awareness from the public … but that’s something that is automatic … especially since there are Americans who don’t even know their rights … furthermore … there is no law in any state that requires an officer to even respond to a non life threatening call … I personally believe that 911 and the non emergency phone line should be required to state “this is an open carry state and there is nothing we can do” … AFFER gathering facts from the ananomous that clearly show no threat … and by that I mean … if the gun is holstered/strapped to the back … and there is NO suspicious conduct coming from the accused … then there is no need to get law enforcement involved … America reached a turning point because we are sick and tired of the police and the government trying to take over this country … therefore explaining why we ARE out there to make a statement … because the U.S Constitution was created to protect the citizens from YOU … that is why we record you … that is why we do not submit to unlawful orders … that is why we remain silent … that is why we assert our rights … witch “can not be converted into a crime” ruled by the United States Supreme Court in Miller v. U.S … we do what we do to keep you in your place … your sole purpose is to protect and serve … not harass, assault, taise, and shoot law abiding citizizens

  3. In Wisconsin, where this incident occurred, openly carried guns, long or hand, are legal and lightly regulated. A cop has no legal power to confront a citizen absent reasonably articulable probable cause.

    Similarly, a legally armed citizen has every right to refuse contact with a cop. We have only the rights that we defend. MOLON LABE

  4. As a retired police officer you have no rights to stop someone. I’d suggest just remaining calm.

  5. Attached is a video of Officer Lyons (Oceanside, CA) handling a similar incident, and keeping a potentially civil rights issue in check. Even though this is in CA and not NC, it is a good example of how to handle the trend where citizens want to demonstrate (and film) their right to carry. Was there a criminal violation- no. Was it potentially dangerous- yes. Everything is potentially dangerous, including sitting in your marked car since officers have been murdered that way. We can’t allow our well-intended concerns and tactics for officer safety to justify violations of civil rights. A guy with a weapon walking down the road with a weapon in itself is no more a criminal that a person you have arrested dozens of times- without additional criteria it is a consensual encounter, nothing more. You have to legally justify a detention/seizure. Finally a personal opinion- some officers have a belief the only people who should have weapons is the police, an “us vs them” mentality. My response is why do we care if good people have guns? Don’t focus on the object but on if the activity is a criminal violation.

  6. […] parks. Jeff Welty is the usual contact for these types of opinions. He just put up a post called “How Should the Police Respond to a Report of a Man with a Gun?” and brought up this particular case as an example. His opinion is that it was not appropriate for […]

  7. I do not agree with either the 4th Circuit’s opinion or the view that a person who is openly carrying in a public place has an absolute right to do so.

    North Carolina recognizes the common law offense of “Going about armed with an unusual and dangerous weapon to the terror of the people,” and a police officer’s observation of an openly carried firearm in a public place substantially meets a sufficient number of the elements of the crime to warrant a brief interaction.

    While I would prefer that the officer approach the individual from the standpoint of a consensual encounter first, and for uncooperative persons a short detention (preferably with an explanation of the basis for it) seems warranted.

    In any event, the officer should remain calm and unthreatening while asking questions. The officer should also acknowledge (since it’s very likely that a citizen so armed is doing so to make a point) that citizens do have a right to openly carry. Finally, it makes sense for an officer to appeal to the individual to consider that others may be frightened by such conduct, and ask the individual if he/she would feel frightened if a stranger was in their presence in a public place, they were unarmed, and their children were with them.

    That’s a powerful image to people who generally do respect the law, but merely want to assert their rights to make a point when they feel that the government seeks to deprive it.

    • Fortunately for those of us who open carry in North Carolina the law is not concerned with your (incorrect) opinion WRT “going armed to the terror of the public”.

      • A powerful image would be a police officer that doesn’t harass a citizen just because this individual is ( in a nonthreatening way ) minding his own business.

        Now if this individual is waving his weapon around. Then yeah, stop his ignorant ass. This is inappropriate and your ” children ” should then be nervous.

  8. “I do not agree with either the 4th Circuit’s opinion or the view that a person who is openly carrying in a public place has an absolute right to do so.”

    Well, as the Church Lady used to say, “Isn’t that special?”

    A word, Jimbo: Nobody much gives a flying fig whether you, in particular, “agree with the 4th Circuit’s opinion” or not. Their opinion has, in some measure the Force Of Law behind it – clearly, yours does not. Kinda nice the way that works.

    I’m not at all sure just who you are (versus who you apparently THINK you are), or where you came up with this “common-law support” (supposedly) in NC for the “…offense of “Going about armed with an unusual and dangerous weapon to the terror of the people…” ” – and IANAL (nor a Judge, “activist” or otherwise) – but my prior experiences with The Law and with how said Law gets upheld/enforced in a court, tells me that you’re basically blowin’ hot wind, here. Specifically, where “common law” and The Law (i.e., black-letter law, as written and/or interpreted at various levels by the court system and the judiciary) are not totally consonant, The Law takes precedence.

    Further: “…a police officer’s observation of an openly carried firearm in a public place substantially meets a sufficient number of the elements of the crime to warrant a brief interaction.” would be merely laughably, profoundly WRONG, were it not for the dual facts that a) taking – and INSISTING UPON – that line of “reasoning” has considerable potential for danger to all concerned, and b) merely expressing what is so obviously YOUR personal opinion (not any sort of actual law or even a supportable legal concept), if you are any sort of public official, could well make yu liable for considerable damages if a cop in your area of “authority” takes it upon themselves to try to act on your fat-headed opinion as if it were established procedure.

    I am a holder of an NC C.C.W. permit, which means that (subject to certain clearly-defined limitations under NC law) I can carry concealed pretty much anywhere in the State. Further – since I am a legal resident of NC, and since NC law (The Law, not “common-law” opinions, yours or anyone else’s) allows (also subject to some similar, clearly-defined limitations) allows Open Carry, I can CHOOSE to carry openly instead.

    If a law officer wishes to observe – in either case – they can observe-away. However – attempts at “brief interaction” (in the absence of any clearly-apparent hostile intent on my part) are unwarranted, unLawful, will quite likely be politely rebuffed, and are inadvisable.

    Oh, and simple – though firm – refusal to permit such “interactions” (again, in the clear absence of hostile intent) cannot be considered legally to support a charge of “uncooperation, justifying a short detention”, either.

    Nor is it justifiable – or even permissible – for an officer to “…appeal to the individual to consider that others may be frightened by such conduct, and ask the individual if he/she would feel frightened if a stranger was in their presence in a public place, they were unarmed, and their children were with them.” That’s just another description of “brief interaction” It’s also a pretty stupid viewpoint to express – if the mere presence of a firearm frightens someone, whether in public or elsewhere, that’s a problem for THEM to overcome – and is undoubtedly a product of the sort of “scare-tactic” anti-firearms scurf that is all too common.

  9. I disagree with “a police officer’s observation of an openly carried firearm in a public place substantially meets a ‘sufficient number of the elements of the crime’ to warrant a brief interaction.” Seriously?

  10. Lots of folks who own weapons choose to not make a public spectacle of their ownership. They may well have a hundred pistols, rifles, shotguns, revolvers, but nary a one is displayed for the unwashed public to marvel and worry about. Remembering that we are in the middle of a very vicious revolution here in the USA, where the left-wing, Marxists Progressives are continually working to destroy our Constitutional Right, some of us choose to conceal, to go low-key, to obfuscate and to use Maskirova wherever necessary. Our chosen phrase if not necessarily “molon labe” but “I have nothing to say” (The Five Words). We choose to not get involved until the TIME to get involved comes around. That means yuu are always “ready to get ready”, but you are not pushing the buttons of every thug copy, wacko leftie and lickspittle politician looking for votes. Those who choose to be obvious, to wear their weapons as symbols of defiance or support are only asking to be amongst the first to be Detained. You think that everyone who has had their name and address on a piece of paper anyplace which relateds to guns is somehow anonymous? Fools. Even the Nazi’s had cardpunches and “lists (thanks to IBM Company) in the 1930’s. With modern technology, most likely 90% of gun owners will be toast when the Government gets busy.

    • Keeping a low profile and contributing to the perception that carrying is a ” spectacle ‘ will do you no good if and when the oppressive forces come for your guns. As long as your guns are registered you are ripe for confiscation and harrassment. The gangs and criminals will keep theirs as they have no paper trail to tip off the cops as to their ownership..not a comforting thought. The 10% you envision will likely be those who forsake any and all adherence to the laws and they will at least be in a position to resist the disarming of this nation..not by ” leftists ” but by the military/industrial/intelligence apparatus that Eisenhower warned us about..it will not be radicals that come for us..Bush and his evil brain Cheney had the patriot act ready when the 9-11 false flag job was completed, and his ilk did more to undermine liberty and basic rights than any leftist ever could..all they need is an excuse, manufactured, to show their true colors..remember that republicans have not even made a pretense at protecting us..they have abetted the loss of our rights without shame..the people who really run this nation, and world, have grand plans, and they can only succeed when the average American is disarmed or convinced that losing their guns will be the right thing to do…open carriers remind the uneducated that we still have a few people willing to stand up to tyranny.

  11. It is very simple. If someone is legally carrying a gun, and is approached by cops because some citizen does not comprehend the law and whines, the carrier has no obligation to stand there and discuss the issue with the cop. Consensual encounters mean that the carrier is free to walk away and ignore the cop. If the cop insists on the carrier remaining, it is a detention. In all detentions, the citizen has the absolute right to remain silent. That forces the cop to either violate rights by illegally detaining the carrier, or accepting the law as written and allowing the carrier to depart unmolested.

    We are under no obligation to discuss open carrying with cops, or explain our motives for carrying, and unless the cops have RS that a crime is afoot, they have no right to detain. Cops have no right to demand ID or to lecture us about how exercising our rights might frighten some misguided citizen. There will always be lilly livered people who are scared without real reason, and we should not have to conform to their fears. police should learn that they do not have the legal right to detain, question and ID people just because they feel like it. The only way to make the cops learn this is to file complaints or sue if necessary so that there is a penalty for improper police actions.

    Bring it to a choice: Make the cop either persist in an unlawful detention, or allow the carrier to leave. By standing there and engaging in explanations and such, we are giving in to the cops desire to control the encounter. WE control consensual encounters and should make it plain: We do not agree to a detention or conversation and if detained will make no statement whatsoever.

  12. I’m curious as to how open carry should be seen in light of the US Supreme Court’s opinion in PRESSER v. STATE OF ILLINOIS, 116 U.S. 252 (1886)?

    That opinion said this about carrying weapons in public:

    We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265] and towns unless authorized by law, do not infringe the right of the people to keep and bear arms.

    While the decision concerned people engaging in an unauthorised parade while carrying arms, I think it is consistent with what previous treatises said about going about carrying weapons in public, For example, William Rawle explains the relationship of open carry to the Second Amendment in his treatise “A View of the Constitution of the United States”, 125–26 1829 (2d ed.):

    “This right ought not, however, in any government, to be abused to the disturbance of the public peace.

    An assemblage of persons with arms, for an unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace. If he refused he would be liable to imprisonment.”

    While some state legislatures have deemed it wise to allow people to carry weapons in public, that does not seem to be a good policy decision, or one which is covered by the Second Amendment.

  13. […] This is from news reports. People reported a man on the street carrying a gun. Police did not respond. Without probable cause the police could not stop the man and interfere with his going about his business. After the man killed two people the police were able to respond. Here is a case: […]

  14. What anger me is the selective enforcement of laws like this. My nephew had armed men pursuing him, and when calling the Jacksonville, Florida police department, they told him they could not do anything even though they were shooting at my nephew. I lost all faith in law enforcement on that day.

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