Thursday, December 18, 2008

Open Carry in Georgia: State Loses

Well, that headline is a bit of an overstatement, but the (Federal Court) settlement order is interesting.

Here's the story.

...a Richmond County Sheriff’s deputy was making a routine patrol of the Kroger parking lot on Washington Road when he was waved down by a customer who indicated a man carrying a firearm was inside the store acting in a bizarre and obnoxious manner.

...Zach Mead is not, in the strictest sense, normal. He’s military, yes, but he’s also a liberally tattooed free spirit who has friends who wear sombreros and play banjos in checkout aisles.
He also openly carries a Beretta 92 Steel-I in a holster on his hip

Mead not only had a Georgia CCW license, but is active-duty military, meaning that he was exempt from the Georgia license under Georgia law. And yes, he looks very odd.

Anyhoo, the settlement order has some interesting language.

Terry, and cases which follow it, make clear that "an officer may, consistent with the
Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, ----, 120
S.Ct. 673, 675, 145 L.Ed.2d 570 (2000). To make a showing that he or she in fact had reasonable
suspicion, "[t]he officer must be able to articulate more than an 'inchoate and unparticularized
suspicion or "hunch" of criminal activity.' "Id. (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868).
While plenty of case law exists on what conduct justifies a stop under the Fourth Amendment,
there is no case law in the Eleventh Circuit on whether the Fourth Amendment is violated when a person is stopped merely for the presence of a pistol in a holster, with no accompanying facts
indicating the commission of a crime.

...the propriety of the initial stop must be examined under the standards of Terry

...In United States v. Dudley, 854 F.Supp. 570, 580 (S.D.Ind.1994), the court held that a radio call alerting police to the presence of two people in a vehicle with firearms did not provide reasonable suspicion of a crime justifying the stop, because possession of firearms is not, generally speaking, a crime...

Interesting stuff, no?


Billiam said...

Have you heard what the outcome was of the court hearing for the guy from West Allis?

Prosqtor said...

It's still pending, as I understand it.

That ruling is awe-some.

Dad29 said...

I thought the best part was where the Court ruled that cops have NO RIGHT to search for a weapon during a traffic stop (unless there's reasonable suspicion of criminal activity, furtive movements, etc.)

The citation was from a Georgia court, but when the Fed District quoted it, it became a 4th Amendment item.

That is good news, although it's not likely that ScreechinShirley of SCOWI will pay any attention to it, regardless of Wisconsin's 25th Amendment.