Last Wednesday, the federal Court of Appeals for the Sixth Circuit issued its decision in the case of Shawn Northrup v. City of Toledo Police Department, a case about one man’s lawful open carry of handguns and the police officers’ response to his exercise of Second Amendment rights. The thrust of the decision centered on the issue of “qualified immunity,” a legal doctrine that sometimes holds government officials free from liability under special circumstances.
On June 16, 2010, according to the decision, Shawn Northrup and his wife went for a peaceful walk in Toledo, Ohio along with their daughter, grandson, and the family dog. Northrup also brought along a handgun for self-defense, which he carried openly on his hip – a practice that is legal under Ohio law.
After a passing biker saw Northrup and called the police, an officer was dispatched to investigate, prompting an incident that resulted in Northrup’s detention and eventual citation (for “failure to disclose personal information”). Northrup was released after being cited.
Following the incident, Northrup filed a federal civil rights lawsuit against the City of Toledo Police Department, Officer David Bright, Officer Donald Comes, and Sergeant Ray Daniel for “violations of his rights under the First, Second, Fourth (and Fourteenth) Amendments as well as state law.” The defendants subsequently filed a motion for summary judgment, asking the court to find in their favor.
The District Court granted the defendants’ summary judgment motion in part, dismissing the case against officer Comes and “rejecting Northrup’s First and Second Amendment claims,” but allowed his Fourth amendment claim and state law claims to go to trial. The defendants then appealed to the Sixth Circuit.
The Sixth Circuit ultimately affirmed the district court’s conclusion that, “after reading the factual inferences in the record in Northrup’s favor, Officer Bright could not reasonably suspect that Northrup needed to be disarmed.”
The case turned, in large part, on the question of whether or not “reasonable suspicion” was present to allow Bright to disarm and detain Northrup. If Bright had reasonable suspicion that Northrup intended to harm someone, his actions may have been justified. If there was no visible reason to intervene, however, then the most that Bright could have legally done was speak to Northrup and try to ascertain his intentions through a voluntary encounter.
As the Court’s opinion explains, “Clearly established law required Bright to point to evidence that Northrup may have been “armed and dangerous.”
Yet, goes the story, all Bright ever saw was that Northrup was armed—and presumably (under the law) legally so. As the Sixth Circuit explained, “To allow stops in this setting ‘would effectively eliminate Fourth Amendment protections for lawfully armed persons.’”
The court compared Officer Bright’s actions to another case – U.S. v. Ubiles – where officers detained Ubiles because his gun “might” have been illegal. In that case, the court analogized the officers’ actions to detaining someone for possession of a wallet, explaining that “[t]hough a search of that wallet may have revealed counterfeit bills—the possession of which is a crime under United States law—the officers would have had no justification to stop Ubiles based merely on information that he possessed a wallet.”
As the Sixth Circuit’s Northrup decision correctly holds, there must be clear and present danger from the firearm carrier (or a plain violation of law) in order to justify a detention. Such factors were, apparently, completely absent in the Northrup case.
Northrup’s decision to lawfully exercise his Second Amendment rights in the manner he chose may have been legal grounds for law enforcement officers to ascertain his intentions and determine if a threat existed. But, held the Sixth Circuit, it is not permissible for law enforcement officers to detain people merely for carrying a handgun when the prevailing law allows for (or protects) such conduct.
Bottom line: Northrup wasn’t doing anything to cause Bright to have reasonable suspicion by openly carrying a handgun any more than he would be for openly carrying his wallet.
Respecting law-abiding individuals’ fundamental Second Amendment right to keep and bear arms does not mean that law enforcement cannot respond to actual (or true threats of) violence, or intervene when they have reasonable suspicion of bad intent.
It does mean, however, that law enforcement cannot leverage a person’s lawful (even visible) exercise of those rights into an opportunity to enforce its policy preferences. As the Supreme Court held in D.C. v. Heller, “[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table.” (Heller, 554 U.S., at ___, 128 S.Ct., at 2822.)
Evan Gillespie is a member of the Firearms Policy Coalition News and Take Action teams.