Eighth Circuit: Open Carry not Reasonable Suspicion for a Police Stop

By Dean Weingarten

Dean Weingarten
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.

From journalstar.com:

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.

Link to Gun Watch

 

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.

  • 28 thoughts on “Eighth Circuit: Open Carry not Reasonable Suspicion for a Police Stop

    1. 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? Were they shouting that a man had pulled a gun in the parking lot on another patron (mistakenly or out of revenge?) Did the reporting party state they ‘Feared for their lives or others’ which would raise the threat level to felony? I think you’ll find there were mitigating circumstances (probably in the call made by the store or the dispatcher) and they elevated the threat level to felony? I think this is the reason why the monetary amount was $160K. The city attorney and the defendant’s attorney probably sat down and agreed to end the litigation that would go on for several more years (started in 2011 and reversed in 2016) to re-argue/re-try the case with the trial court. Probably the pastor needed the money now rather than after more litigation, they agreed to that amount. I don’t believe punitive damages (where the multi-million dollar awards are born) are available in cases against the state, which are probably limited by state law regardless. Just my $.02 showing where I believe this article was pretty poor.

    2. 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.

    3. Duffy was with-in his rights, the police ? well that was another issue. Most cops here in Maine will ask if you are caring.

    4. And what one wonders happened with or to the officers whose actions were found
      “faulty” by the appeals court? What indeed?

    5. 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 !

      1. Ray, Ok… just erase everything i said… for Gods sakes … i said you made me laugh…personally i hate to be wrong but if i am i like to be corrected… if i have spinach between my teeth i hope someone will tell me before i go home and find it myself … besides i hope you read the article about Mark Green and his understanding of the 2nd amendment…

    6. 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 fear in God. The difference also one is a local and the other is a state cop also the difference is training. I believe state cops are better trained better vetted and more of the bad ones are let go, so I believe the training is key. In my personal experience with cops, I would much rather be pulled over by a state cop rather a local.

    7. 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 to any perceived threat from them and if you do resit or try to protect yourself or your rights you will almost assuredly end up dead by police bullets.

      1. As I understand it, because I have a damaged one, it is the socket, if you will, where your arm attaches to your shoulder and allows you to rotate your arm. I damaged mine years ago and while I was working full time and my upper body strength was good it got better and didn’t bother me. However when I retired and my upper body dropped to my lower body and my mussels weakened it now hurts often.

            1. where did you get your “mussels”??? mussels are shell fish like clams… Muscles is the word … you made me laugh… The cops should have to pay the victim out of their own pockets… I find the police academies do not seem to teach the Constitutional rights of citizens… of course each state has their own laws plus there are city laws, statutes, federal laws… additionally some cops have too big of an attitude and ego and not enough common sense which can and should come with experience and age… I enjoy the few experiences i have had with cops who showed kindness, humanity and appreciation for me being armed… didn’t even have to show my “permission slip from the infringing govt oath breakers”… yes i too have an attitude… lots of American Blood has been shed to enforce our rights… and from WWI to present my family has served. Mark Green has the right explanation of the 2nd amendment: Tennessee state Sen. Mark Green (R), President Donald Trump’s nominee for Army secretary, strongly believes that citizens should be armed ― and not just with any ol’ guns. They should be able to possess whatever weapons the military has, because an armed citizenry is the “ultimate checks and balances” against the federal government.
              “The Second Amendment, while it allows citizens to protect themselves from other citizens, goes well beyond just allowing us to defend ourselves from a criminal,” Green said at a pro-gun rally in 2013.
              “The men who penned and ratified this document gave us the right to keep and bear arms as an ultimate checks and balances against the federal government,” he added. “When considering magazine size and weapon type, comments like, ‘You don’t need a 10-round magazine to hunt deer’ completely misses the point of the Second Amendment.”

    8. 160 000 CERTAINLY WAS NOT ENOUGH! But the WORST part is the FAILURE on the part f the courts to SEE the IDIOTIC mindset of the two cops, given the condition of the person in front of them! Unfortunately, there are also FAR too many judges that clearly lack any common sense. As for the cops having our backs, know that there are no laws dictating them protecting us. They may go in for a crime, but their first order is to deal with the “law-braker” and our safety , if at all, is only secondary by-product! It has been my conviction for some time that there FAR TOO MANY a cop that are definitely mentally unstable to carry a gun PERIOD!!

      1. When I see any real video of police in a take down, I have on most occasions noticed the police pointing their guns at the backs of their fellow officers. I would not want to be the lead man in one of their assaults, I’ll take last place so I don’t get killed by “FRIENDLY FIRE”

    9. This was such a dangerous situation. The citizen had no choice, or no other alternative. How abusive and unprofessional these two shits were. I’ve noticed more and more police in my home state, which is an open carry state, violating carry laws. There have been accusations, of police influence, to call in people armed. I know personally of one instance where this did happen.
      For what it’s worth, this is what I see. Most of us gun owners and outdoorsman, go out of our way to support the law. When the law is abused or not appreciated, we come to their defense. But it’s rare to see a police officer, come to the aid of a citizen. If it means going against their peers. The result is, they choose to break the law of the Constitution. And they choose their profession over their oath. This is sickening. These individuals have no more integrity or character than common trash criminals. We citizens have liked to think we have had the backs of them that serve. But I’m afraid, that has become a foolish thought. They cannot police themselves, but we expect them to police others. I have become just like them. It’s always been us against them as their basic philosophical view. So now my attitude is now them against us. It’s just the way they want it. So be it.

      1. Rokflyer,

        I totally agree when you state, “how abusive and unprofessional these two sh!ts were…”

        But, the scariest part here is, “The trial court granted qualified immunity to the officers and granted summary judgment against Duffie on all counts…” These cops made an illegal arrest and the Lincoln County Court gave them cover. WHY?

        If open carry is legal in the state of Nebraska, then what law did this Lincoln County Court base it judgement against Duffie on, and how was this court able to give immunity to the illegal acts of these officers (aka: ‘two sh!ts’) against Duffie’s 4th amendment rights of searching his vehicle?

        Sh!tty cops! Sh!tty Court! = SH!TTY POLICE STATE!

        1. Maybe if that was a once a year payment for 10yrs, then maybe. That’s ridiculous what they did to that man. Come on people. Get it together.

      1. It should have been $160,000,000. The police should be fired for forcing him to do something that caused him to injure him self. If they weren’t locked into tunnel vision, they would have been able to see that he was not capable of obeying their command. Shame on them and the courts for not paying him more in retribution.

        1. I personally believe that many cops are just fearful that act this way. One came to my house once, and I knew him personally, so I invited him in for a cup of coffee. He replied, “NO. There’s too many guns in there.” . I was neither carrying nor displaying any firearm and had never discussed them with him or anyone else ( I don’t want anyone to know if or what I own ).

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