By Dean Weingarten
Arizona – -(Ammoland.com)- In 2011, on November 2nd, The Lincoln City Police Department received a call about a young man displaying a firearm in an Astro van outside of a convenience store. The call lead to the felony stop of an Astro van about 4 hours later.
In the van was 58-year-old black pastor who was a double amputee. The officers forced the pastor, Leroy Duffie, to exit the van with his hands held up, after he had told them that he could not do so because of his disability.
At gunpoint, Duffie opened his door, and twisted his body in an attempt to comply. He then fell face forward to the pavement, suffering significant injuries including loss of two teeth and a torn rotator cup.
Duffie sued the police department for depriving him of his constitutional rights, of using excessive force, searching his van without his consent, and placing him in danger of physical harm without due process.
The trial court granted qualified immunity to the officers and granted summary judgment against Duffie on all counts. Duffie appealed to the Eight Circuit.
The Eighth Circuit, on 23 August, 2016 reversed the trial court decision, finding that police did not have reasonable suspicion to stop Duffie, because the open carry of handguns is legal under the law in Nebraska. The Court referred to open carry as a right. On March 30th, 2017, Duffie and the City of Lincoln reached a settlement, with Duffie receiving $160,000.
The 8th U.S. Circuit Court of Appeals in August reversed that decision and ruled Officers Nathan Kaiser, Tobias Hite and Shane Jensen violated his Fourth Amendment protection from unreasonable search and seizure.
The judges took issue with the reason for the stop, saying a report of a person with a handgun isn’t enough to create a reasonable suspicion of a crime, and in Nebraska and Lincoln people can openly carry handguns.
From the comments at the journalstar article:
Pastor Duffie was ordered out of his van with his HANDS UP, held high. He could not use his arms/hands to help himself out. He tried his best to obey the police but fell out of the van because of the police orders. They had their guns out and pointed at him. What would you have done?? Refused their demands?? I know Pastor Duffie very well, he is one of my best friends and I attended his homechurch for several years until I moved to Kansas. We talk weekly. He is one of the most Christian men I know.
The Eighth Circuit decision is one of the latest in a trend that confirms that the mere carry of a firearm is not cause for a police stop. The decision also makes clear that mere presence of a weapon is not sufficient to allow a felony stop. All of the states in the Eighth Circuit have provisions for legal open carry. The Duffie v. City of Lincoln decision applies to North Dakota, Minnesota, South Dakota, Nebraska, Iowa, Missouri, and Arkansas. Arkansas, Missouri, and North Dakota are Constitutional Carry states. From uscourts.gov (pdf):
Officer Kaiser relied on an incident report that did not contain information sufficient to create reasonable suspicion that Duffie had already, was, or was about to commit a crime. See United States v. Hensley, 469 U.S. 221, 227 (1985) (extending Terry to the investigation of completed crimes). Nebraska law permits individuals who are at least 18 years old to open carry handguns in public. See Neb. Rev. Stat. §§ 28-1202, 28-1204 (2009). The City of Lincoln does not restrict an individual’s right to open carry except in certain locations. See Lincoln, Neb., Mun. Ordinances § 9.36.130. Moreover, the mere report of a person with a handgun is insufficient to create reasonable suspicion. See Florida v. J.L., 529 U.S. 266, 272 (2000)
These are the decisions whereby Constitutional rights are preserved.
©2017 by Dean Weingarten: Permission to share is granted when this notice is included.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of constitutional carry was attained. He has degrees in meteorology and mining engineering, and recently retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.
There are many holes and missing facts in this short story… ahem, article. First they stopped the vehicle 4 hours later… Later than what time? If they pulled the vehicle over at midnight or early morning (expecting a young man). If it was after dark, the officers had no idea the pastor wasn’t a young man or was it in broad daylight? Was it raining? Since it was November in Nebraska… Was it snowing, sleeting? There are many reasons why Cops would perform a felony stop in foul weather. Furthermore, what was the actual call made by the reporting party?… Read more »
Acting in accordance with the law is not grounds for police harassment, seems to be the crux of the court’s finding. That some, not enough of the courts display such common sense is amazing.
darn spell check!! carrying …sorry
Duffy was with-in his rights, the police ? well that was another issue. Most cops here in Maine will ask if you are caring.
And what one wonders happened with or to the officers whose actions were found
“faulty” by the appeals court? What indeed?
Common sense is not that common,
To Madelyn,
Gee, I sure have been taken behind the barn and corrected. I will admit to not being perfect but it sure is encouraging to know that there are people out there who are !
I agree with all comments including the far too less monetary settlement. Now the cops, I think a cop that is fearful of people armed or not need not be a cop. I personally know two cops, one should not be a cop, he is a nervous wreck when off duty, he is afraid of people, afraid of guns and have zero people skills he constantly amaze me with his lack of common courtesy and common sense. Now for the other one I know, he is very capable have people skills and very professional I think the only one he… Read more »
It used to be that if you took job doing anything you were the one responsible for assessing the risks in doing that job. Nobody forces anyone to become a police officer, it is a personal choice. But for some reason we have a legal system and a police system that seems to think some perceive risk or danger is enough reason to not hold police liable for their actions, they are declared within their legal rights to kill or injure people simply because of this perceived threat to their safety. unfortunately the common citizen is NOT allowed to react… Read more »
Some cops panic when the see a gun………..and what’s a rotator “cup”?