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« Alcohol, Tobacco, and Firearms | Main | Practical advice we all can use »

Open Carry case from the Sixth Circuit

Posted by David Hardy · 13 May 2015 11:49 AM

Northrup v. City of Toledo Police Dep't, decided today. Plaintiff was open carrying in Toledo, walking with his daughter, grandson, and dog. Somebody complained to police (tho open carry is legal, and he had a CCW permit as well). The officer responded and before it was over had him in handcuffs. The only charge was dismissed before trial, and now he sues under §1983. The trial court dismissed his Second Amendment claim, allowing his Fourth Amendment one to go forward. The Sixth Circuit reversed that dismissal. I gather that on appeal the PD raised claims of "qualified immunity" (the court-created exception to liability where a reasonable officer would not have known his conduct was unconstitutional), and most of the ruling centers on that. The court finds that there was no reason to believe he was engaged in illegality, that the officer at most had the power to ask a few questions, but no power to arrest or even detain.

14 Comments | Leave a comment

Sertorius | May 13, 2015 1:18 PM | Reply

At the risk of picking nits, I think your summary of the holding is a bit off.

It appears to be an interlocutory appeal by the officers of the qualified immunity decision. The 6th Circuit affirmed as to the arresting officer, but reversed as to the sergeant and said the sergeant had qualified immunity.

The 1st and 2nd amendment claims were not before the court.

At least that was my read.

FWB | May 13, 2015 3:20 PM | Reply

If one is a cop, one should know the law. In my system, all cops would be given monthly legal training by the city/county attorneys/DA. Of course, an individual cannot hide behind the idea of not knowing the law so why should cops. In addition, on its face, the qualified immunity would appear to violate equal protection under the 14th since the 14th makes no allowances for classes of persons and the qualified immunity does just that. The citizenry always takes it in the shorts when the government/court does the deciding.

DocMerlin | May 13, 2015 11:13 PM | Reply

@FWB:
No individual can know the law, there simply is too much of it for them to know

Ron W | May 14, 2015 5:52 AM | Reply

Well said, FWB. But the government regularly violates "the equal protection of the laws" by exempting itself in laws, especially re: the possession and carrying of weapons. Instead all Goverment officials and agents are our EMPLOYEES operating UNDER delegated powers!

dittybopper | May 14, 2015 7:03 AM | Reply

@DocMerlin:
Try telling that to the judge the next time you're in court for violating the law.

Mike | May 14, 2015 10:28 AM | Reply

Unrelated to the merits of this case, I really like Judge Sutton's easy, readable writing style in this opinion.

HiCarry | May 14, 2015 3:33 PM | Reply

The recent SCOTUS decision in Heinen v. North Carolina seems to indicate that police cannot be held responsible for actually knowing the law, as long as that lack of knowledge is "reasonable."

No such exception for citizens, reasonable or not....

RetMSgt in Pa. | May 14, 2015 4:28 PM | Reply

@FWB wrote, "No individual can know the law, there simply is too much of it for them to know."

And SCOTUS appears to indicate that the police cannot be held responsible for actually knowing the law..."

But, how can one ENFORCE the law if they don't know what the law is? And if they're unsure about the law, shouldn't they check with someone before attempting to enforce it?

dan | May 14, 2015 6:39 PM | Reply

all is possible in a POLICE STATE.....laws and logic do not apply in the new Amerika....imho

FWB | May 14, 2015 7:56 PM | Reply

A further note:

If it were not for the supreme court, we would not have 20,000 + state and local gun laws. The SC gave us Barron v Baltimore in 1833 and left the states able to violate the Rights enumerated in the Constitution.

If it were not for the supreme court, we would not have 4000+ criminal laws at the federal level because the Constitution only allows for 6, punishment of counterfeiting, securing copyright and patent, piracies on the high seas, felonies on the high seas, offenses against the law of nations, and treason. None of the other Congressional powers come with any police powers attached as is proved by the explicit granting in the Constitution of the 6 aforementioned police powers.

Every enforcement clause in the amendments grants power only to enforce against state action not citizen action.

To quote myself: There ain't no good intentions clause in the Constitution.

Okie Will | May 14, 2015 8:01 PM | Reply

Quoting Sutton:

"If it is appropriate to presume that citizens know the parameters of the criminal laws, it is surely appropriate to expect the same of law enforcement officers—at least with regard to unambiguous statutes. Heien v. North Carolina, 135 S. Ct. 530, 540 (2014)."

Well said, I think all around.

How this nation has slipped to a place where the people are on video 24/7 and the police will not submit to being filmed while on the people's payroll I do not know.

How certain courts think each citizen must adhere to the constitution and full suite of laws but police cannot possibly be bothered to do the same I do not know.

Limited immunity and laws against resisting illegal arrest are simply masking the real problems going on in local polices forces today.

Disarming and arresting a citizen is a sober and serious action. We want officers who are respectful during this process. Sharp minded men and women who know the law and and can clearly state how is has been broken. This whole "arrest them now and figure out what to charge them with later" thing needs to stay on TV shows.

We have to stop holding officers to such a low standards - because they are starting to live down to it en mass.

Frankie replied to comment from DocMerlin | May 15, 2015 11:04 AM | Reply

It may be too much to remember all the laws but open carry being legal seems pretty basic. Sounds like a case of limited intelligence. Common among cops.

Bubblehead Les | May 16, 2015 12:38 PM | Reply

As a Citizen of Ohio, Open Carry has been the Law of the Land pushing a Decade now. For the Police to say that they didn't know that Open Carry was Legal is Crap.

Jim D. | May 19, 2015 1:24 PM | Reply

Frankie, I think Bubblehead Les is more on point. To say that it is "limited intelligence" is to give them the gift of ignorance. Far more likely is that the police know the law, but don't support it. That is a political choice that needs to be explained to them in severe terms under a civil rights violation. Preferably one that causes them to forfeit their livelihood and pension for violation under color of authority. The reason the anti-gunners want the police armed is because they do what they are told to do. The reason the police do things that are against the law is because the risk of punishment is low and the penalties are weak. If you start taking away pensions as forfeit, suddenly the police will understand how important it is to obey the law and not their political overlords politics.

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