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.

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mdwills

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 »

Alan

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.

EPerry

darn spell check!! carrying …sorry

EPerry

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

Alan

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

Hunter427

Common sense is not that common,

ray

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 !

madelyn

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…

Lloyd Dumas

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 »

Daniel Getz

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 »

Terry Flint

Some cops panic when the see a gun………..and what’s a rotator “cup”?

ray

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.

dave

FYI, since you have a torn one its called a Rotator CUFF not Cup.

ray

Sorry, Never knew the right word.

madelyn

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… Read more »

jastrab

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… Read more »

ray

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”

Southerner

Alabama is an open carry state – until you enter an automobile!

M Reyna

I agree wit all comments
And ROK has it right

Rokflyer

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… Read more »

Garryowen

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… Read more »

Dan

Yes, Florida does need so help!

KDB

$160,000 was not near enough

Rock

Agreed, $160.000 was a joke !

darrenp1976

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.

ray

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.

hijinx60

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 ).

Bernal Chamberlain

Please help us in Florida