“Left Coast” Judge: Open Carrying Handgun Is NOT Reasonable Suspicion Of A Crime


I just wrote about a case involving an open gun-carrier whose confrontation with police stemmed from “suspicious activity,” which involved nothing more than walking around in public with a gun. Even though the charges against the man were dropped, the man filed a lawsuit against the police for false arrest. He lost the case. The judge had ruled that open carrying constitutes reasonable suspicion for police to believe that a crime has either been committed or is about to be committed. So, according to the judge, all you have to be doing in order for police to “lawfully” detain and interrogate you is exercise your 2nd Amendment right. And if you exercise your 4th and 5th Amendment rights, they’ll call your mental health into question.

That was in Georgia. There’s a similar case in Oregon that’s gone the other way. A man named Kevin Hall in Corvallis, Oregon was spotted walking to and from his mailbox carrying a Glock on his hip. Officer James Dodge with the Corvallis PD responded to the “concerned citizen’s” call and arrived at Hall’s residence as he was on his way back to his house from his mailbox. His mailbox was about 200 feet away from his house.

The Gazette Times reported:

Court documents indicate that the officer was suspicious of Hall because he was openly carrying a gun in a high-crime area along the railroad tracks, wearing a dark hooded sweatshirt covering his head, behaving and moving suspiciously and refusing to answer his questions. Hall’s residence and mailbox were on a short section of Sixth Street, near D Avenue, which borders the railroad tracks. It is unpaved and dead-ends before it reaches C Avenue.

The officer said he had reasonable suspicion that Hall had been trespassing on railroad property.

This whole “suspicious activity” thing means nothing anymore. If you breathe, that’s “reasonable suspicion” that you might commit a crime. I mean, studies have shown that criminals share at least one thing in common:  they all breathe. So, if a cop catches you breathing, expect to be detained, interrogated and probed, because you might be about to commit a crime. You can never be too safe.

The officer was “suspicious” of Hall because he was openly carrying a gun in a high-crime area. Uhhh, maybe that’s why he was carrying a gun out in the open? Just a thought?

The cop detained him, asked him some unanswered questions, patted him down, and using the name he found on a piece of Hall’s mail, looked to see if he had any outstanding warrants. Finding nothing and hearing nothing from Hall except, “Am I being detained?” he let Hall go.

But Hall didn’t let it go. First, he filed a complaint with the Corvallis Police Department, which resulted in an “internal investigation,” which of course found nothing wrong. So, he sued the city police department for the unlawful stop. He represented himself. And he won.

The Gazette Times reported on U.S. District Judge Michael McShane’s ruling:

“The gravity of the public concern — criminal trespass — was minimal,” he wrote, “as was the public concern — preventing criminal trespass and ‘transient-related crimes and violations’ — served by the seizure.”

Because it was an unlawful stop, McShane wrote, Dodge also didn’t have the right to pat down Hall. Both actions, according to McShane, violated Hall’s Fourth Amendment rights.

The city of Corvallis paid Hall a $5,000 settlement.

A judge in the south rules that carrying a gun is reasonable suspicion of a crime. A judge on the left coast rules that it isn’t. Go figure.







Comments

comments

Posted in 2nd Amendment, Gun Control, Law Enforcement, Police State Tagged with: , , ,
  • USN

    again…….”a concerned citizen” made the call, the cops responded. Found him not to have any outstanding warrants and released him. The railroad property was the probable cause to search excuse………..if it came up in court……and it did, the cop lost. Unanswered questions……be more specific…..mail he found…….or confiscated?? The real problem is all the “concerned” citizens e.g nosy neighbors that cant stay out of other peoples business. He was a home so it had to be a neighbor with no life or ax to grind. “if you see something say something”……….the rat your neighbor out mentality!!! It should of been 5 million settlement, that way the town could raise the neighbors taxes along with the rest of the towns………..and was the cop reprimanded?………….BIG NO!

    “We said, let’s review the Second Amendment, the open carry laws, the concealed carry laws and all the other weapon statutes for Oregon.”…….did not know that some back town sheriff in Oregon had the Constitutional Power to review the Second Amendment………..

    • http://renewthearts.org/projects/music/bands/physick/ Physick

      Unanswered questions refers to Hall not answering the cop’s questions. He remained silent, except to ask if he was being detained.

      • MyronJPoltroonian

        Yes, there is that pesky 5th amendment concept to contend with. After all, I don’t believe that the amendment in question restricts your right to not give evidence against yourself is strictly limited to the courtroom; so, the question becomes, where does it begin and, more importantly, where, if at all, does it end?

        • jagans

          If the cop had no right to detain the guy in the first place, why would Hall be required to answer the cops questions?

      • Rachel Guess

        People are not required to answer questions. It is their right to choose not to do so. Even if they are under arrest, you cannot require them to answer questions.

        • axmickl

          On the other hand, had he simply told the cop that he was on his own property there might never have been an issue. This whole episode could have easily ended with a lot more grief.

        • Ultracon

          Cops need to leave more people alone. Too many overstep their bounds. Too many are just revenue collectors for their jurisdictions.

        • axmickl

          You are absolutely correct in your statement about cops. They are taught from their first day that they are the law and any time they speak to a citizen that the citizen has an obligation to obey their lawful orders. All this is bullcrap but it is what gives them a big head and encourages them to develop the god syndrome. They honestly believe you are below them and you better get down on your knees for them. Personally, I think they watch too many movies and law and order shows. Since most cops are the bullies you knew through school, they chose this career so they could keep bullying people. Except now, they are allowed to carry a weapon. They will change when the public pushes back and shows them the cost of bullying the public that is also armed.

        • Rachel Guess

          It’s not that I am disagreeing with you, yes the individual COULD have made it easier had he CHOSEN to, however he is NOT REQUIRED to. It is his RIGHT to be a jerk if he chooses to be. Regardless of his behavior however, his rights are still untouchable, and the officer violated his rights and his privacy by seizing materials (the mail) and patting him down (unlawful search) without first having probable cause.

        • axmickl

          Rachel, its all well add good to believe in the constitution and all of our inalienable rights if you live in an area where the justice system works like it did in Oregon that day. try doing it in a community where the rotten cops are never reprimanded for such actions, where the FBI refuses to intervene even though their web site states that it is their primary responsibility to protect your rights as long as you are black, where the Governor is clearly anti-gun and will never crack down on corrupt police behavior. Welcome to tarpon Springs Florida. You try asserting your rights there you will be tazzered, locked up and made to wish you had stayed in bed that day. You will also lose anything of value they find on you and ignore your demands to have it returned. If you persist, they will draw a weapon on you and their leadership will laugh.

        • Patriot

          So you’re saying we shouldn’t believe in the constitution or stand up for our rights if we live in “unfriendly” areas? I think that requires even more people to stand up. But that would also require people to be more concerned with what’s good for the country instead of being afraid of personal consequences, thereby allowing the bullying to continue.

        • axmickl

          Thats not at all what i said. If you will take the chip off your shoulder and actually try to understand what people are saying, you might realize I was agreeing with ultracon and was adding a spin to it that might help people understand that the problem is rampant all over the nation. I love the constitution and was willing to defend it with my life. Have you done the same? I believe an uprising is not far off and dirty cops will be first in line when it comes for evening up scores.

        • jagans

          yeah or a little more common sense

    • sc

      the money should have been taken from the “concerned citizen” he/she was the cause of the whole problem.

      • csmith

        Being a concerned citizen isn’t always a bad thing; if you are living in a crime ridden area and just ignore your surroundings (i.e. “mind your own business”) you are just protecting the criminals. The flip side is that sometimes things can go very wrong – e.g. George Zimmerman was just a concerned citizen who attempted to question a similarly hooded person who fit the description of the persons that were committing crimes in the neighborhood. Almost certainly if Trayvon had simply answered a couple of questions, or even just refused to say anything until the police arrived, we would have been spared the ensuing insanity.

  • Kenneth Kirkham

    Having been an open carry advocate in Oregon I was stopped in a store and the officer said some woman was “concerned” about my gun. I explained that her irrational concern about an inanimate object was not probable cause. Open carry is legal and stopping someone simply because they have a gun is not legal (see Terry stops). The officer had recently received a training bulletin and said he understood and I was on my way. This small town judge was correct and it is good to see some decisions that are actually based on constitutional principles.

  • Jim

    Only a $5000 settlement? It should have been at lease a million dollars and the cop should have spent a week in jail.

  • Doc

    I am shocked! Could parts of the left coast be learning what the Constitution really means? Wonder if obama will have this judge “replaced”. . .

  • Walt

    I have been stopped while carrying however, I’ve found that being pleasant and answering the officers questions usually resulted in a “thank you for your cooperation” comment. These guys are usually responding to some panicky fool calling in. By identifying yourself and answering their questions you are letting them do their jobs. While it is an inconvenience, it is usually no more than a few minutes delay when it is done pleasantly.

    • Rachel Guess

      I worked in law enforcement until my retirement in 1999, and there was more than one occasion when I got a call to spot check on someone open carrying. I was always polite to the person, friendly, and simply asked how things were going, did they have any plans, etc. Nothing ever came of any of it. An officer using simple open carry as a reason to pat someone down and search their mail is way over the line for violating an individual’s rights, even if the individual is not being cooperative. There is nothing that requires an individual to provide you their name until and unless you are under arrest. While the individual in this case was probably behaving in a belligerent manner, it is his right to behave that way if he chooses to do so. That does not give the officer, who is acting under color of authority, the right to seize property (the mail) or search the individual (pat down) being questioned. Yes, the guy’s rights were violated.

      • http://renewthearts.org/projects/music/bands/physick/ Physick

        I don’t think there was anything that suggested Mr. Hall was behaving in a belligerent manner. Apparently, all he asked was, “Am I being detained?” He seemed very compliant, just not talkative. The police officer did detain him and patted him down and probably let him go, probably because he wasn’t being belligerent.

        But you’re right. While being a jerk is rude, it’s not illegal.

        • C Proescher

          Some (by no means all) police officers take “Am I being detained?” as belligerent behavior. One, (again, not all) opined that the act of ‘remaining silent’ increases the “reasonable suspicion” and thereby “creates precedent” which means that RAS is no longer required.

          –That’s from Officer.com, a gentleman nicknamed “Shush” btw, [url]http://forums.officer.com/t189961/#post3359726[/url]

  • TPM4

    since I have left law enforcement some 35 years ago I have seen nothing but deterioration in law enforcement officers who now are openly violating citizens rights and it makes me sick we need to fight back and let them know we will not accept that kind of behavior stand your ground on all fronts until they get the message and start doing their job right

    • Rachel Guess

      TP I retired in 1999, and feel exactly the same way, especially since this administration took over.

    • axmickl

      The measurement stick used to grade police officers has changed a lot since you were active. Now we require 4 years of college for our leadership in police forces. That means nobody works their way up the ladder while learning all the important lessons. Instead, cops are led by poorly trained jackasses in college class-rooms who don’t have a clue.

  • anewpher

    A lot of Oregon does not live in Portland… There are a lot of good American people out in the mountains for Oregon. Most of the amerikas live in portland. This must have been an American judge.

  • anewpher

    Maybe we “concerned citizens” should call in next time we see someone carrying a weapon out in the open and wearing dark clothing and possibly military-style webbing – sitting in a restaurant. Never mind that he looks like a police officer…. ;-)

  • FugaziFraggr69

    The Georgia Judge U.S. District Judge William S. Duffey, Jr, is another RINO appointee of GW Bush. The same moron who loosed John Roberts the “Patriot” Act. TSA, DHS…on us

  • Kevis

    The guy in GA should be appealing. There has to be a RAS and there are several precedents that simply carrying a holstered firearm in an open carry state is not RAS.

    • Leonard Embody

      He wouldn’t win on appeal. The reason being is that the blame has been placed upon the security guard who gave a false report to the police. The police will be held blameless because of the false report.

  • Canda Fuqua

    I wrote this article. There was no “concerned citizen” in Kevin Hall’s case. I quoted the police chief who was talking in general about other open carry cases in which concerned citizens call 911.

    • http://renewthearts.org/projects/music/bands/physick/ Physick

      Thank you for your work for the Gazette Times.

      So, was this particular cop that stopped in this guy’s neighborhood just on patrol and happened to spot Hall at the right time?

      • Canda Fuqua

        Yes. He was just patrolling.

        • http://renewthearts.org/projects/music/bands/physick/ Physick

          I see. Thanks for the clarification.

  • jagans

    So this cop patted him down even though he was openly displaying a firearm? Does this police department give an IQ test as part of their entrance requirement? Do they arrest people for driving cars because the might have an “Intention to speed”?

  • jagans

    NEWSFLASH…… THIS JUST IN……. Criminals do not “Open Carry” they hide their weapons until they get their balaclava’s on.

    Call me weird, but I would feel a lot safer if everyone wore a sidearm, like in the old west.

  • Average Joe

    Law and order are falling apart under obama and longer. Crime is sky rocketing because if your black you can do very little wrong and if your white your raisest. I can help but feel we need more cops. Not bad ones that pull this kind of crap because they are afraid of every body but to realy do crime prevention. Since thats NEVER GOING TO HAPPEN citizens need to open carry to be A show of force. It is your RIGHT to carry A gun to protect you and yours. The people that call the police because you are LEAGALY CARRYING are affraid of their own shadow. We need A card to carry that says yes your not A crimmanal (fellon) there for you can carry that gun. These dipstick call the cops on their neibours are stupid. If some one is up to no good that gun would be hidden so they can supprise you with it. If its in A holester on your hip its not A threat it is securty for eveybody with in shouting distance