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

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 and link are included.

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