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March 2, 2013, 10:53 PM | #1 | |
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Bad Plaintiff, but Good Law
To Quote from Pp. 13 and 14 of the recent opinion, U.S. v. Black (CA4), Reversed and Vacated:
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Although the decision does let a felon in possession get "off the hook," as it were, the decision is a good one for maintaining the 4A as a valid restriction on the actions of the government. Amidst all the fervor over encroachment on our rights, this is an excellent decision. I would also add that Judge Davis, was also on the panel that heard the Woollard case. Does not mean that he agrees with Gura, but one can hope. |
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March 3, 2013, 07:26 AM | #2 |
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Indeed, good law. And the decision supports the opinion I have expressed on a couple of other forums (usually in opposition to police officers who choose not to understand the guidelines established in Terry) that openly carrying a firearm in a jurisdiction where open carry is legal does not provide any basis on which an officer might form a suspicion "based on clearly articulable facts" that a crime is being committed."
"He was wearing a gun, your Honor." "Isn't that legal?" "Well, yes, but ..." "If it's legal, what crime was suggested by his engaging in demonstrably legal activity?" |
March 3, 2013, 08:51 AM | #3 |
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Additionally, even if the officers were justified in detaining
Troupe for exercising his constitutional right to bear arms, reasonable suspicion as to Troupe does not amount to, and is not particularized as to Black, and we refuse to find reasonable suspicion merely by association. Oh, and I thought you could only bear arms in the home Wonder if we'll see this in a 28j in Wollard, Peruta/Richards, and the NJ carry lawsuits? |
March 3, 2013, 08:52 AM | #4 |
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As an attorney who has practiced in the civil arena for the last six years but with some criminal law background before that, I have no idea how openly carrying, where it is legal, could constitute reasonable articulable suspicion that a crime was a foot or had reasonably been committed. "Out of the ordinary" does not cut it.
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March 3, 2013, 10:20 AM | #5 | |
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That does not mean that there is no value in this decision. Just that it is inapplicable to those cases wherein a permit or license must be obtained to carry. |
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March 3, 2013, 01:05 PM | #6 | |
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Most of Pennsylvania allows unrestricted open carry, but within a "city of the first class" (Philadelphia), one needs a license in order to carry either openly or concealed. In Connecticut, despite the CT analog to the 2nd Amendment, one must have a permit to carry a handgun but, once you have the permit, open carry is legal (though frowned upon by the aw-thaw-ri-tays). There have been several cases discussed on PAFAO wherein people were stopped, and even arrested, for open carry in Philadelphia. One young man won an award of (IIRC) $25,000 against the Philadelphia PD for arresting him for open carry even though he had a license to carry. So this case is relevant in such jurisdictions. The point being that, even if you need a license/permit to carry openly, the police cannot assume that every person they see carrying does NOT have a permit until proven otherwise. |
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March 3, 2013, 01:30 PM | #7 |
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In a jurisdiction where one must have a license/permit to carry (in any manner), I think we will find that the courts will allow an investigatory stop to determine if the citizen has the necessary license/permit. Once it has been determined that the license/permit is valid, no further investigation will be allowed.
The above scenario would comport with the CA4 and CA10 decisions. The game changer would consist of two things, as I see it: 1. A SCOTUS decision that the Right to Carry exists outside the home.Point 1 would narrow the focus and point 2 would be directly on target. |
March 3, 2013, 09:33 PM | #8 | |
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In fact, one is a right (bearing), and the other is treated as a privilege (driving). If it is impermissible, absent more, to stop someone for a license-check who is exercising the licensed privilege of driving (which undeniably carries a significant public safety risk), how then could it be permissible, absent more, to stop someone merely to show his/her license to exercise a right? |
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March 3, 2013, 09:39 PM | #9 |
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Actually, cars kill about 3 times as many people as do guns.
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March 3, 2013, 11:59 PM | #10 | |
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Yes, this is a good decision. Exercising a lawful right cannot justify a search or seizure. Glad to see this being recognized where open carry is recognized to be lawful.
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March 4, 2013, 04:15 PM | #11 |
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KyJim, I thought the only purpose that the courts ok'd for random checks was DUI checkpoints. Can you please enlighten me as to what case law that supports random license, reg, and insurance checks?
Back on topic: It is rare that such a bad plaintiff leads to anything but bad law. Kudos to this court for its perspective here. |
March 4, 2013, 11:05 PM | #12 |
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So in the appropriate jurisdictions, the police aren't justified in a Terry stop for open carry. What are the repercussions for them doing so?
Don't get me wrong. I like where this is going. I just see the decision being easily overlooked for a while when it should not be overlooked by law enforcement.
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March 5, 2013, 09:37 PM | #13 | ||
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It is the standardless "spot check" that is illegal. |
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March 5, 2013, 09:44 PM | #14 | |
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March 5, 2013, 11:40 PM | #15 | ||
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March 6, 2013, 06:26 AM | #16 |
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^^^ AB, are you sure that was an open carry case? PA is an open carry state but 'not in a city of the first class'. (ie: Philadelphia)
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March 6, 2013, 08:11 AM | #17 |
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As KYJim said, police in any state can set up a roadblock and stop cars to check for essentially any violation of law. As I recall, they don't even have to check every single car, as long as there is standardization as to which cars they stop (e.g., every sixth car).
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March 6, 2013, 08:39 AM | #18 |
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2ndsojourn, incorrect.
PA is an open carry state for any non-prohibited person. The one "City of the First Class" (an appellation I find offensive) has the exception, that open carry is only allowed for those who have valid concealed carry permits. The case AB is referring to involved a licensed CCW who chose to open carry in Philly. |
March 6, 2013, 08:52 AM | #19 |
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So would the logic behind this decision likely be applicable to concealed-carry as well?
Specifically, if the police officer becomes aware that a person has a concealed-carry permit, that alone does NOT provide justification for a "stop and frisk"? |
March 6, 2013, 11:26 AM | #20 | |
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March 6, 2013, 11:30 AM | #21 | |
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March 6, 2013, 05:44 PM | #22 | |
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http://forum.pafoa.org/open-carry-14...ladelphia.html http://forum.pafoa.org/open-carry-14...it-thread.html http://forum.pafoa.org/open-carry-14...pen-carry.html |
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