John J. Knoll, Senior Assistant City Attorney, Law Department, Overland Park, Kansas
olice officers today have a much higher likelihood of encountering someone carrying a gun than in the past. Until recently, even if it was legal to own a gun, carrying one was usually prohibited in cities, and transporting it was usually extensively regulated.1 However, that is no longer the case in many locations across the United States. The Second Amendment of the U.S. Constitution gives citizens the right “to use [handguns] for the core lawful purpose of self-defense.”2 Every U.S. state currently grants its citizens the right to obtain a concealed carry license, and, in many states, people are also legally permitted to openly carry a firearm.3 With states allowing their citizens to “pack heat,” how should police officers respond when they are likely to be dealing with an armed populace?
As discussed in a 2005 edition of this column, mere possession of a gun, by itself, is unlikely to yield reasonable suspicion to support a stop or probable cause to support an arrest. However, if the gun presents an imminent threat due to present circumstances or immediately past events such as a shots fired call or threatened acts of violence, a court will likely find reasonable suspicion for police inquiry.4 It’s also important to note that, the possession of a gun may still be a criminal offense, depending on the status of the possessor. While citizens have an individual constitutional right to bear arms, Second Amendment rights are not unlimited.5
Police leaders need to keep abreast of the changing landscape of firearm carry laws and ensure that their officers are also kept up to date and trained accordingly. Has agency policy been reviewed with an eye toward all the recent changes in gun laws? Does the agency still allow stops just because someone may be carrying a gun? Perhaps more important, has training included how officers should react when they do encounter someone carrying a gun, which becomes more likely every day?
When dealing with parties who may be armed, the familiar rules from Terry v. Ohio still apply, but the changes in gun laws may not allow officers to stop people for the same reasons they once did.6 Officers may still conduct a brief, investigatory stop when an officer has a reasonable, articulable suspicion that criminal activity is afoot.7 Just as before, displaying physical traits indicating that one might be carrying a gun may not be sufficient reasonable suspicion to support a stop, particularly since a multitude of citizens are entitled to be armed.8 During a stop, if an officer reasonably believes his or her safety requires it, the officer can pat down the outer clothing of the stopped individual for weapons.9 The officer can also employ certain suspect-control activities to maintain the status quo during the encounter,10 such as remove a knife or gun from someone’s possession, and return it to the person at the conclusion of the encounter if it is legally possessed.11 However, these suspect-control activities, however justified, may lead to ill will or claims from those lawfully authorized to carry firearms and may result in a court concluding that the suspect has been arrested, possibly without adequate probable cause for arrest, and thus arrested illegally.12
Officers (and, indeed, the citizens they protect) may not have kept up with the rapidly changing gun laws.13 Almost any sampling of open carry videos on YouTube will yield videos demonstrating some officers’ lack of understanding of current gun laws. That lack of understanding may cost an agency money in legal issues that arise from unlawful arrests concerning firearms possession.14 Establishing and training officers in Terry stop policies and reasonable articulable suspicion for a stop can help minimize an agency’s exposure.♦
1Twenty years ago, Congress passed the Brady Handgun Violence Prevention Act, which, among other things, imposed waiting periods and background checks for handgun purchases and prohibited certain people from possessing guns, including (but not limited to) the mentally ill, dishonorably discharged veterans, those convicted of domestic violence misdemeanors, and those subject to certain domestic violence retraining orders. See 18 U.S.C. § 922.
2McDonald v. Chicago, 561 U.S. 3025, 130 S. Ct. 3020, 3023, 177 L.Ed.2d 894 (2010), citing District of Columbia v. Heller, 554 U.S. 570, 571, 128 S. Ct. 2783, 171 L.Ed.2d 637 (2008).
3See Laura Houser Oblinger, “The Wild, Wild West of Higher Education: Keeping the Campus Carry Decision in the University’s Holster,” Washburn Law Journal 53 (2013): 87, 96, and 72 (“As of July 9, 2013, all fifty states allow some form of concealed carry.”). See also www.opencarry.org (Arkansas became the nation’s
45th open carry state on August 15, 2013.) (accessed February 28, 2014).
4John M. Collins, “Responding to Gun Possession Reports,” Police Chief 72, no. 12 (December 2005): 10–11.
5See Heller, 554 U.S. at 626–27, reaffirming longstanding restrictions such as laws prohibiting possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
6Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
7Illinois v. Wardlow, 528 U.S. 119, 123–24, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000).
8See, e.g., United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013). Black was one of six men standing in a semicircle when officers approached to make “voluntary contact.” One of the men had an openly carried firearm in a holster on his hip. Officers secured the gun in a police car and began patting down the men for other weapons. One of the officers had taken Black’s identification card and pinned it to his uniform. Black got up and attempted to leave, but officers stopped him and eventually found a gun on him. Black was a convicted felon. He moved to suppress the firearm, alleging the stop was not based on reasonable suspicion. The Fourth Circuit agreed. The circuit found that Black was seized long before he was told not to leave, and at the time of the seizure, the only articulable facts were that one of the men was openly carrying a firearm, which is not a crime in North Carolina. The court rejected the government’s contention that a possible felon in a possession situation entitled the police to check. “[W]here a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.”
9Terry, 392 U.S. at 29.
10Status quo–maintaining activities that have been upheld include: (a) blocking a vehicle so its occupant is unable to leave, United States v. Tuley, 161 F.3d 513, 515 (8th Cir. 1998); (b) arresting occupants inside a residence while officers seek a warrant without unreasonable delay, Segura v. United States, 468 U.S. 796, 798, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984); (c) putting suspects on the ground and in handcuffs, Gallegos v. City of Colorado Springs, 114 F.3d 1024, 1030 (10th Cir. 1997); (d) drawing a gun on a car stop involving someone considered “an armed and dangerous Rambo type,” Foote v. Dunagan, 33 F.3d 445, 448 (4th Cir. 1994); (e) ordering a person to return to their vehicle and having a seat, Alston v. Commonwealth of Virginia, 40 Va. App. 728, 738, 581 S.E.2d 245 (2003); (f) a Terry frisk of a car after a victim complained the driver assaulted him with a knife, State v. Gaston, 82 Conn. App. 161, 166-67, 842 A.2d 1171 (2004); and (g) seizing car keys from a person suspected of driving under the influence and telling her not to enter her residence, not to move, and to sit where she was, State v. Whittington, 401 S.W.3d 263, 275 (2013). But see United States v. Robertson, 833 F.2d 777, 781 (9th Cir. 1987), holding that detention of a suspect at gunpoint at a methamphetamine lab for 3–4 minutes was an arrest, not a Terry stop, and was unreasonable.
11See United States v. King, 990 F.2d 1552, 1562 (10th Cir. 1993) (although driver legally possessed a loaded gun, officer was entitled to separate the vehicle occupants from the pistol for the duration of the stop). Ultimately, the court in King held that the officer’s act of pointing her gun at the driver, ordering him to place his hands on the steering wheel, and threatening to shoot him if he did not comply with her order exceeded the lawful scope of a Terry stop. King, 990 F.2d at 1563. See also United States v. Rodriguez, 601 F.3d 402 (5th Cir. 2010) (police were justified in temporary seizure of shotgun while investigating a domestic disturbance). Some states codify a police officer’s right to maintain the status quo during a stop. See, e.g., Kan. Stat. Ann. § 22-2402, Stopping of suspect, which provides:
The presence of a gun in a vehicle may also establish some other exception allowing a warrantless search of a vehicle. See United States v. Campbell, 549 F.3d 364 (6th Cir. 2008) (“An officer at the scene of an automobile stop, who can see the butt of a handgun under the passenger seat while standing outside the vehicle, can confiscate the gun under the plain-view exception to warrant requirement.”)
- Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such suspect and an explanation of such suspect’s actions.
- When a law enforcement officer has stopped a person for questioning pursuant to this section and reasonably suspects that such officer’s personal safety requires it, such officer may frisk such person for firearms or other dangerous weapons. If the law enforcement officer finds a firearm or weapon, or other thing, the possession of which may be a crime or evidence of crime, such officer may take and keep it until the completion of the questioning, at which time such officer shall either return it, if lawfully possessed, or arrest such person; http://kansasstatutes.lesterama.org/Chapter_22/Article_24/22-2402.html (accessed March 26, 2014).
12While tactics are beyond the scope of this article, alternatives to disarming someone might be for the officer to position themselves to advantage and ask the person if they are carrying a firearm. If they respond affirmatively, the officer could ask them not to touch it and disclose where it is, and have the person keep their hands away from it during the contact. Ron Avery, “Dealing with Citizens Legally Carrying a Concealed Weapon,” PoliceOne .com (accessed July 26, 2010). See also Collins, “Responding to Gun Possession Reports,” n. 4 (setting forth enforcement guidelines); King, 990 F.2d, n. 12 at 1562.
13See, e.g., Gonzalez v. Village of West Milwaukee, 671 F.3d 649, 656-57 (7th Cir. 2012); Two different retail store managers were “startled,” “shocked” and “very nervous” when Gonzalez openly carried a firearm in their stores; officers were granted qualified immunity on arrests for disorderly conduct.
14See Chris Legeros, “Bellingham Man Wins $15,000 Settlement after City Cop Stops Him for Carrying Gun in Park,” kirotv.com, August 14, 2013, http://www.kirotv.com/news/news/bellingham-man-wins-15000-settlement-after-city-co/nZPdj (accessed February 28, 2014), reporting on Laigaie v. City of Bellingham, Washington, no case no., in which the city paid a $15,000 settlement for an open carry arrest of Laigaie, and agreed to train its police officers and 9-1-1 dispatchers on open carry laws.
Please cite as:
John J. Knoll, “Dealing with an Armed Populace—Suspect Control in the Age of Open and Concealed Carry,” Chief’s Counsel, The Police Chief 81 (March 2014): 16–17.