CA6: Handcuffing for open carry in Ohio stated a claim; no qualified immunity

The Ohio legislature decided that open carry is permissible with a CCW. Plaintiff was stopped and handcuffed for thirty minutes and let go. He states a claim and qualified immunity is no defense. “Where it is lawful to possess a firearm, unlawful possession ‘is not the default status.’” Northrup v. City of Toledo Police Dep’t, 2015 U.S. App. LEXIS 7868 (6th Cir. May 13, 2015):

What about the possibility that Northrup was carrying a firearm not covered by the Ohio law? Had Northrup been carrying a gun that looked like an assault rifle or some other illicit firearm, that might have justified the officer’s conduct. See Embody v. Ward, 695 F.3d 577, 580-81 (6th Cir. 2012). But there is no evidence that this was the case, and Bright indeed does not even make this argument.

What about the possibility that Northrup was not licensed to carry a gun or that he was a felon prohibited from possessing a gun? Where it is lawful to possess a firearm, unlawful possession “is not the default status.” Black, 707 F.3d at 540; Ubiles, 224 F.3d at 217. There is no “automatic firearm exception” to the Terry rule. Florida v. J.L., 529 U.S. 266, 272, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000). In Ublies, the Third Circuit showed why. There, police responded to an anonymous tip that Ubiles was carrying a gun while attending a crowded street festival in the Virgin Islands—which on its face was a legal activity. 224 F.3d at 214. The police nevertheless detained Ubiles even though they were unaware of “any articulable facts suggesting that the gun Ubiles possessed was defaced or unlicensed, [or] that Ubiles posed a safety risk.” Id. at 218. In rejecting the officers’ argument that Ubiles’s possession might have been illegal, the court treated the situation as “no different” from a setting in which the officers suspected “that Ubiles possessed a wallet, a perfectly legal act in the Virgin Islands, and the authorities stopped him for this reason. Though 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.” Id. (citation omitted).

Officer Bright adds that he faced a difficult choice: “[R]espond to the communities’ fear and the appearance of the gunman by performing an investigatory stop, or do nothing while Northrup continued walking down Rochelle and hope that he was not about to start shooting.” Appellant’s Br. 16. Law enforcement, to be sure, is not an easy job, and it often puts officers to difficult choices. But this was not one of them. The argument indeed presents a false dichotomy. Nothing in the Fourth Amendment prohibited Officer Bright from responding to the call and ascertaining through a consensual encounter whether Northrup appeared dangerous. Until any such suspicion emerged, however, Bright’s hope that Northrup “was not about to start shooting” remains another word for the trust that Ohioans have placed in their State’s approach to gun licensure and gun possession.

What about Officer Bright’s perception that Northrup made a “furtive movement” toward the gun during the encounter? Officer Bright was not the only witness to this encounter, however. Northrup claims that he put both of his hands in front of him as soon as the officer approached—with one holding the cell phone and the other holding the dog leash. R. 28 at 33-35. Only the officer claims that Northrup made a furtive movement after he put both hands in front of him. On this record, only a jury may decide whether Northrup made any such movement and whether it justified the officer’s conduct.

While open-carry laws may put police officers (and some motorcyclists) in awkward situations from time to time, the Ohio legislature has decided its citizens may be entrusted with firearms on public streets. Ohio Rev. Code §§ 9.68, 2923.125. The Toledo Police Department has no authority to disregard this decision—not to mention the protections of the Fourth Amendment—by detaining every “gunman” who lawfully possesses a firearm. See Ohioans for Concealed Carry, Inc. v. Clyde, 120 Ohio St. 3d 96, 2008 Ohio 4605, 896 N.E.2d 967, 976 (Ohio 2008) (holding that Ohio’s statewide handgun policy preempts contrary exercises of a local government’s police power). And it has long been clearly established that an officer needs evidence of criminality or dangerousness before he may detain and disarm a law-abiding citizen. We thus affirm 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.

Officer Bright’s other arguments on appeal rise and fall with his reasonable suspicion defense. If Bright had no reason to stop and frisk Northrup, he violated clearly established law in handcuffing—fully seizing—Northrup in his squad car for thirty minutes. Smoak v. Hall, 460 F.3d 768, 781 (6th Cir. 2006). Officer Bright, quite wisely, no longer defends the theory raised below that he had probable cause to arrest Northrup. And a jury, as the district court also correctly concluded, is the appropriate body to determine whether he acted with malice in seizing Northrup and thus whether he committed a state tort.

Unlike Officer Bright, Sergeant Ray is entitled to qualified immunity. “[W]here individual police officers, acting in good faith and in reliance on the reports of other officers, have a sufficient factual basis for believing that they are in compliance with the law, qualified immunity is warranted, notwithstanding the fact that an action may be illegal when viewed under the totality of the circumstances.” Humphrey v. Mabry, 482 F.3d 840, 847 (6th Cir. 2007). Sergeant Ray did not arrive until after Northrup was handcuffed in the back of Officer Bright’s police car. Ray was then told Bright’s account of events, including of Northrup’s “furtive movement” toward his gun and his failure to produce identification when initially requested. R. 26 at 63; R. 29 at 23; R. 38-2 at 3. With this information in hand, Ray contacted the Toledo Police Department detective’s bureau to help determine the proper charge. A detective advised Ray to cite Northrup for failure to disclose personal information, Ohio Rev. Code § 2921.29, which Ray and Bright then did.