Open Carry and Reasonable Suspicion

A decade ago, I wrote a post about the circumstances under which police may stop a person who is carrying a gun openly. A lot has changed since then. The Supreme Court has strengthened the Second Amendment in New York State Rifle & Pistol Association v. Bruen, 597 U.S. __ (2022). The General Assembly has eliminated the requirement that North Carolina residents obtain a permit before buying a handgun. See S.L. 2023-8. And empirical scholarship suggests that many more Americans are carrying guns on a daily basis. See Ali Awhani-Robar et al., Trend in Loaded Handgun Carrying Among Adult Handgun Owners in the United States, 2015-2019, Am. J. Pub. Health (2022) (finding that in 2019, “approximately 6 million [gun owners carried] daily,” which was “twice the 3 million who did so in 2015”). So it is a good time to revisit the question.

What I said back then. In that prior post, I summarized the law this way:

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.

Then I cited a few cases that came out different ways on different facts.

What I think the law is today. I still think that the operative question is often whether the fact that a person is carrying a gun, together with other circumstances, provides reasonable suspicion to support a Terry stop. And I still think that if there aren’t any other suspicious circumstances, the answer is no. The right to carry firearms openly has been protected in North Carolina at least as far back as State v. Kerner, 181 N.C. 574 (1921), about which I wrote here.

The Fourth Circuit considered the intersection of open carry and Terry in United States v. Black, 707 F.3d 531 (4th Cir. 2013), a Charlotte case in which officers approached a group of men in a high-drug area for a voluntary encounter. When one of the men pointed out that he was carrying a gun in a hip holster, the officers seized it – and also detained and frisked the other men, finding another gun on the eventual defendant. The Fourth Circuit found the detention of the other men unjustified, stating that “where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.” The court also found unpersuasive the government’s reliance on other details such as the nature of the area, the time of night, or the officers’ knowledge that one of the men had minor criminal history, which it characterized as “patching together a set of innocent, suspicion-free facts” in a vain hope of drumming up reasonable suspicion.

The question for the officer on the street – and for lawyers and judges in court – is just how much “more,” beyond the presence of a gun, is needed to support a Terry stop. Black suggests that it must be something substantial, not what lawyers like to call a mere peppercorn.

An example of what’s more than a peppercorn. The Fourth Circuit found a stop justified in Walker v. Donahoe, 3 F.4th 676 (4th Cir. 2021), a case Phil Dixon summarized here. In that case, less than a week after the Parkland, Florida school shooting, West Virginia officers stopped a man wearing military-style clothing and carrying a military-style rifle who was walking through a “suburban residential and commercial area” less than a mile from a school. The man sued the officers who stopped him alleging a deprivation of his constitutional rights, but the Fourth Circuit ultimately disagreed. The court acknowledged that open carry is lawful in West Virginia and cannot alone provide reasonable suspicion, but found additional facts supporting reasonable suspicion, including (1) the type of firearm, i.e., an “assault rifle” as opposed to “a handgun in a hip holster,” (2) the recency of the Parkland shooting, (3) the proximity to a school, (4) the man’s apparel, and (5) his seemingly youthful appearance and the fact that he was walking rather than driving, suggesting that he might have been a student at the school or underage to possess a firearm.

Other recent cases. Several other recent federal appellate cases address the same general issue:

  • Northrup v. City of Toledo Police Dept., 785 F.3d 1128 (6th 2015) (a concerned citizen called 911 to report that a man was walking down the street with his wife and dog, wearing a handgun on his hip; an officer was dispatched and detained the man, who later sued the police; reviewing the district court’s denial of pretrial qualified immunity, the Sixth Circuit held that it was clear that open carry alone does not provide reasonable suspicion in Ohio, where open carry is legal)
  • United States v. Willy, 40 F.4th 1074 (9th 2022) (an officer arrested a Washington man for the state law crime of exhibiting a firearm in a manner intended to cause alarm; the arrest was based on two witnesses reporting that the man had approached them at home, claiming that he had been kidnapped and held nearby but had escaped, stating that had had a weapon, and in one case racking his handgun on the spot; the arrest led to a discovery of violations of federal law, and the man moved to suppress, contending that the original arrest lacked probable cause; he was successful in the trial court and on appeal, with the reviewing court noting that Washington is an open carry state and that the man did not make “direct,” “palpable,” or “imminent” threats with the weapon; the court did, however, indicate that the officer had reasonable suspicion that would have warranted an investigative stop)
  • Duffie v. City of Lincoln, 834 F.3d 877 (8th 2016) (finding no reasonable suspicion to support a vehicle stop where the stop was based on an officer’s belief that the driver was the same person who had previously acted strangely while in a convenience store, and outside the store, had “held up a hand gun and acted like he was blowing smoke from the barrel”; the court stated that in an open carry state, “the mere report of a person with a handgun is insufficient to create reasonable suspicion”)

Comment. Northrup seems like an easy case to me, as there were no suspicious circumstances present. But Willy and Duffie strike me as much more difficult. Racking a handgun, or blowing over its barrel, are actions suggestive of imminent or recent discharge of the firearm. That sort of conduct may be concerning, and indeed, it led citizens in both cases to call the police. Yet the appellate courts found that police erred in making investigative stops, suggesting that any law enforcement response would need to be voluntary in nature. It seems that the federal appellate courts may be finding that the revitalized Second Amendment has some implications for the Fourth.

List of factors. As a final note, here’s a partial list of of factors that, based on the cases I have seen, may be pertinent to whether there is reasonable suspicion to stop a person carrying a gun:

  • Type of firearm (e.g., a military style rifle vs. a single-shot shotgun)
  • Geographic location (e.g., near a school or other sensitive location vs. in a dense urban environment vs. on a rural tract where hunting is permitted)
  • Manner of carry (e.g., in the hand in a ready position vs. in a hip holster)
  • Dress and behavior of the person carrying the firearm
  • Prior conduct, including criminal history, of the person carrying the firearm (obviously if the person has a felony conviction, a stop would be justified, but a track record of lesser misconduct may also be relevant)
  • Suspicion of connection to other criminal activity (e.g., is the person near a location where a gun crime has recently been committed)