Open Carry in SC: Police and Citizen Interactions

Open carry of a handgun, with a proper permit, will become legal in this state on August 15, 2021. This is a significant change in the visibility of legally carried firearms, and that change is raising a lot of questions. One of the most significant ‘where the rubber meets the road’ questions is what to expect when open carrying and interacting with police.

Let’s look into these concerns, establish some expectations, and examine the applicable law.

The Practical in Brief

For those who want a refresher or won’t read the entire article and need to know the practical side quickly: DON’T BE AN ASSHOLE.

Any officer stopping a person open carrying (or concealed carrying for that matter) is initially as nervous as you. Your first actions and words will do much to set the tone and either relax the situation or increase intensity. Go for the former and not the latter.

Be polite. You can be firm. You can deny permission to search. You can refuse to answer questions. Do it politely, without anger, and without an attitude. (I know, it is much easier said than done, especially if you were not expecting an encounter with law enforcement.)

You still have the duty to tell the officer you are carrying a firearm and producing your permit. Even if it should be obvious, tell the officer. Minor failures like this can make your attorney’s life difficult should it go that far.

And finally, remember, the ‘side of the road’ is not the place to win an argument. Preserve your rights and offer, kindly, to take the matter into court if need be.

Can an Officer Stop Me for Open Carrying?

Practically speaking, there will be two types of stops: i) those because you are open carrying, and ii) those for another reason. For the latter, little changes. You will need to respond the same as you do now. Produce your CWP permit and alert the officer that you are carrying. Make no move for your firearm. And if your wallet is near your firearm, let the officer know this and ask his preference for how you retrieve it. (Even better, if you are being pulled over in your car, retrieve your wallet before coming to a complete stop and have it handy. Remember not to unbuckle.)

The real questions I hear concern whether you can be stopped for open carrying and what to do if you are stopped merely for open carrying. This could be if you are walking, out shopping, or otherwise not participating in another activity that could justify a stop. (The latter would include driving, trespassing, or other violations of the law.)

To answer the question, we must first understand that there are different levels of ‘stops’. Lay persons immediately envision the ‘Terry Stop.’ That is an involuntary encounter where the police can detain you until they have satisfied their job. This would include a traffic stop. Most ‘walking encounters’ however do not start as Terry Stops. That is, the casual encounter on foot starts as a ‘voluntary stop.’

What is a Voluntary Stop? This is where an officer engages you in conversation and you respond. You do not have to respond. You may walk away. You may, politely, decline to engage. (“Thank you for your concern officer, but I don’t feel like having a conversation today.”) However, you may choose to respond. Why? To be polite. Because you are caught off guard and answer before thinking. Because you do not realize you have a right not to respond. Whatever the reason, police know that many times citizens will engage with them when they don’t have to, and this is a common technique among officers to determine what is going on with a ‘suspicious person.’

Should you engage voluntarily? Engaging voluntarily may be a simple way to allay fears and allow an officer to close an investigation before it starts. It may also be a way to talk yourself into a charge. Be careful. Common questions of “where are you going?” or “where are you coming from?” may reveal an inadvertent carrying of a firearm in a prohibited location. Answers could also be used to construct an intent charge. Whatever you do, think carefully before you answer.

Outside of cameras, talking yourself into a charge is one of the most common causes of convictions I encounter.

I’m not volunteering. Can I be forcefully stopped?

Here is the $64,000 question. “Am I being detained officer?” What causes a voluntary stop to rise to the level of a Terry Stop? Several things can do the trick. The officer taking and holding onto your property; including a license or permit. The officer telling you that you cannot leave. The officer continuing to engage you after you have made clear that you do not willingly engage. And of course, handcuffing you.

For a Terry Stop, the officer must have a “reasonable suspicion” of “specific and articulable facts” of illegal activity. Terry v. Ohio 392 U.S. 1, 21, 27 (1968). Is carrying a firearm an articulable fact sufficient to support a reasonable suspicion? “There is no ‘automatic firearm exception’ to the Terry rule.” Northrup v. City of Toledo Police Dep’t, et al. 785 F.3d 1128, 1132 (6th. Cir. 2015).

“Where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.” United States v. Black, 707 F.3d 531, 539 (4th Cir. 2013).

So far so good. But there are conflicting cases. We should focus on the 4th Circuit because this is the Federal Circuit for SC. Unless the Supreme Court speaks, which they may soon, the 4th Circuit interpretation of the U.S. Constitution sets an outer bound of allowable police conduct.

In Black the Court did not consider jurisprudence on stops of individuals suspected of being “armed and dangerous.” The Court did cite favorably U.S. vs. King from the 10th circuit which discussed “armed and dangerous” concluding that too equate armed with dangerous “would effectively eliminate Fourth Amendment protections for lawfully armed persons.” United States v. King, 990 F. 2d 1552, 1559 (10th Cir. Ct. App.1993).

The 4th Circuit finally turned to this issue in U.S. vs. Robinson. Initially the Court sided with the 10th Circuit in requiring that an officer must be able to articulate facts supporting a belief that a suspect is both “armed and dangerous.” However, the Government appealed this ruling, and the Court, en banc, reversed course. In the majority opinion Justice Niemeyer equated “armed and dangerous” to “armed and therefore dangerous.”  U.S. vs. Robinson (4th Cir. Ct. App. 2017) (joined by Judge Wilkinson, Judge Traxler, Judge King, Judge Shedd, Judge Duncan, Judge Agee, Judge Keenan, Judge Diaz, Judge Floyd, and Judge Thacker.)

In essence, the 4th Circuit believes that wherever there is a forced (i.e. involuntary) police encounter “the carrying of a firearm poses a categorical danger to others–in this case, law enforcement officers.” U.S. vs. Robinson (4th Cir. Ct. App. 2017) (Judge Wynn concurring). But it gets worse. The encounter was created by the police admittedly because they had a creditable report that the suspect was armed. This creates a dangerous circular logic: “[T]he law enforcement officers lawfully frisked Defendant, after lawfully detaining him, based on information that he carried a firearm.” U.S. vs. Robinson (4th Cir. Ct. App. 2017) (Judge Wynn concurring).

Thus, under the logic in Robinson, even if carrying a firearm is legal, an officer can use this information to forcibly detain a person, and then because armed is equated to dangerous during a forcible encounter, the officer can therefore disarm the person. This misguided view of the Fourth Amendment eviscerates the Second Amendment and invites officers to harass citizens for what is lawful activity.

Is This All? (Ain’t it enough?)

The stop in Robinson was predicated on ‘other’ causes (related to minor traffic violations). It is doubtful that stops for nothing more than legally carrying a firearm would survive many court challenges without a significant alteration to Robinson. However, those legal battles will be lengthy and expensive. (And they likely won’t happen in cases with good facts, but rather in cases where the defendant is guilty of some crime.)

There is however the South Carolina Constitution and the protections it provides. Since most encounters will be with SC officers, these protections are very real and important. Further, the General Assembly can also step in and clarify the protections for those carrying lawfully.  Hopefully these protections will make up for the 4th Circuit’s poor circular logic.

Your take away:

Be polite and courteous. Be firm and protect your rights. This should keep you out of trouble, but if it does not, reach out to me and we can work to resolve the situation.