Even in an open carry state, open possession of a firearm plus a bit more can be reasonable suspicion on the totality. Walker v. Donahoe, 2021 U.S. App. LEXIS 20130 (4th Cir. July 7, 2021):
Contrary to Walker’s interpretation, the Black decision does not dictate that, in a state like West Virginia where it is legal to openly carry a firearm, the act of openly carrying a firearm can never engender reasonable suspicion. Indeed, Black explicitly allows that the possession of a firearm, though lawful, can contribute to reasonable suspicion in the totality of the circumstances. That is, the possession of a firearm plus something “more” may “justify an investigatory detention.” See Black, 707 F.3d at 540 (articulating that “where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention”).
The notion that lawful conduct can contribute to reasonable suspicion is hardly shocking or controversial. The Black decision itself cautions against the “misuse of innocent facts as indicia of suspicious activity,” but acknowledges that “factors ‘susceptible of innocent explanation,’ when taken together, may ‘form a particularized and objective basis’ for reasonable suspicion.” See 707 F.3d at 539 (quoting United States v. Arvizu, 534 U.S. 266, 277 (2002)). In his appellate brief, Corporal Donahoe helpfully points to cases in which the possession of a baseball bat and a golf club, when viewed in the context of all the circumstances, justified an investigatory detention. See United States v. DeJear, 552 F.3d 1196, 1201 (9th Cir. 2009) (“[T]he backseat passenger was holding an object that could be used as a weapon — a baseball bat.”); United States v. Ivy, 224 F. App’x 461, 464 (6th Cir. 2007) (“Ivy was loitering [in a gas station parking lot] with a golf club ….”). It mattered not that baseball bats and golf clubs — like firearms in West Virginia — have a multitude of “innocent uses” and “are indisputably legal to possess” and “legal to carry in public.”