Open-carry opens up series of constitutional issues for cops

A police officer receives a dispatch call to a public disturbance. The dispatcher provides the limited information she can: protesters have assembled in a downtown location; tensions are rising between competing groups; no violence reported so far but tempers seem to be flaring.

The officer responds quickly - she is the first on scene. As she pulls up and exits her cruiser, she immediately notices a number of the protesters on either side of the street are carrying firearms, some with pistols strapped to their belt; some with rifles slung over their shoulders.

It is fair to assume that any officer arriving to such a scene would hope to have a monopoly on the deadly power of a firearm. But even in the best of circumstances, no officer can know with certainty that weapons may be concealed among those she is about to encounter. However, our hypothetical officer faces a different reality, a reality in states that have authorized open carry of firearms: the overt presence of armed citizens. Perhaps the ability to observe the firearms offers some tactical advantage over the risk of concealed weapons. Nonetheless, how these laws impact police options to gain control of a situation is an important and complicated question.

Let's start with some basics. The Fourth Amendment protects "the people" from unreasonable seizures. At the most basic level, this means that before police may seize a citizen - even briefly in order to gather information - the officer must have individualized suspicion to justify the seizure.

This doesn't mean that every police encounter with the citizen requires such justification. This is because police interactions with citizens range across a wide spectrum. As the Supreme Court noted in the seminal decision of Terry v. Ohio: "Street encounters between citizens and police officers are incredibly rich in diversity. These encounters range from wholly friendly exchanges of pleasantries or mutually useful information to hostile confrontations of armed men involving arrests, or injuries, or loss of life. Moreover, hostile confrontations are not all of a piece. Some of them begin in a friendly enough manner, only to take a different turn upon the injection of some unexpected element into the conversation."

But when the interaction becomes a seizure, "good cause" is essential.

It is therefore obvious that the line between an encounter that is not a seizure and one that is a seizure is constitutionally significant, for police may cross this line only when they have reason to suspect criminal misconduct. So when is a person seized? When the police officer applies physical force to the individual, or when the officer makes a show of authority to which the individual submits. So let's imagine this officer wants to approach the armed citizen to ask why he is carrying a weapon. Because a "consensual encounter" is not a seizure, she needs no reason to do so. But what happens when the citizen decides to just walk away, or ignore the officer? Now things get more complicated.

The moment the officer demands the citizen interact with her and the citizen submits, or seeks to restrain the citizen by physical force, the encounter blossoms into a seizure. At that point, there must be some objective basis to support the officer's suspicion that criminal activity is ongoing or has occurred. Absent an open carry law, this would have been virtually automatic: the observation of the firearm would support the suspicion that the individual violating the law.

But open carry laws fundamentally alter this equation, leaving the officer to speculate whether the individual is lawfully entitled to carry the weapon or the weapon is an indication of potential criminal misconduct. And the problem for the officer is clear: speculation - purely subjective suspicion - is insufficient to qualify as "reasonable" within the meaning of the Fourth Amendment.

In the same Terry decision referenced above, the Supreme Court ruled that while probable cause was the only level of cause that could justify an arrest, this was too demanding a standard to require for what it characterized as a brief investigatory seizure. Instead, it allowed for such seizures based on the lower standard of reasonable suspicion. What transforms suspicion from constitutionally "unreasonable" to "reasonable" is the identification of some articulable fact that validates the suspicion of wrongdoing. In other words, the officer must be able to point to some objectively verifiable fact that will lead a judge to understand why she was suspicious of criminal wrongdoing. But if all the officer can offer is her subjective instinct that something was amiss because a number of people were openly armed, it will not justify even a brief seizure to gather additional information.

But can't the officer just demand that these individuals produce their firearm licenses? Well, maybe not. Many states, like Texas, do require individuals to produce a firearm license to police when police require them to identify themselves. However, this does not automatically allow an officer to demand a firearm license. Instead, the officer must have some basis to demand the individual's identification to begin with, and since such a demand followed by compliance qualifies as a seizure, this means the officer must have at least reasonable suspicion that the individual is or was recently engaged in criminal activity. Many states, like Texas, also provide police with authority to temporarily disarm individuals. However, this authority requires some reasonable suspicion that the individual is poses a threat to the officer or someone else on the scene (including the individual in possession). Open carry laws present our officer with a genuine Catch-22: her authority to temporarily seize the individuals in possession and/or their firearm is contingent on some indication of wrongdoing, but the lawful authority to carry the weapon openly indicates that her observation upon arrival at the scene cannot satisfy that requirement.

Of course, nothing prevents our officer from asking for cooperation by those in open possession, and there are some indications that this common practice has been generally effective in dealing with open carry situations. But it is also important to note that refusal to cooperate with such a request does not provide "good cause" for a seizure or arrest. Exercising a constitutional right to be left alone simply does not justify being subjected to a police seizure.

So our officer faces a dilemma. Her instinct is almost certainly going to be to establish rapid control of the situation, which would include a monopoly on firepower. But the open carry law means she not only lacks authority to direct the citizen to leave the scene or to disarm the citizen, or even demand that the citizen interact with her to find out if the possession is in fact lawful.

This obviously raises serious challenges to a police officer seeking to ensure tactical dominance of a volatile situation. Of course, the moment a citizen does something with the firearm indicating potential criminal misconduct or that he poses a threat to the officer or others, the equation changes. But when our officer exits her cruiser and realizes she is in the midst of a number of heavily armed citizens, her options are limited by the fact that what she sees is perfectly lawful.

One must wonder whether states that enact open carry laws fully contemplate the challenge such laws will present to police. One must also wonder whether one negative unanticipated consequence of such laws is that police will routinely demand cooperation from those in lawful possession without lawful justification? It is probably true that even in these type of situations, most of the people carrying weapons are law abiding citizens who pose no threat to the police or others around them. But it also probably true that the volatility of a situation will be exacerbated when police are unable to determine who and who should not be armed, or when the lawfully armed citizen believes, perhaps justifiably, that police are exceeding their authority to demand cooperation.

Cornis The Presidential Research Professor of Law at Houston College of Law in Houston Texas. He served in the U.S. Army for 21 years and is the co-author of "Principles of Counter-Terrorism Law." Follow Houston College of Law on Twitter @HOUcollegeoflaw

The views expressed by Contributors are their own and are not the views of The Hill.

View desktop version