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    New open-carry law presents new challenges for police, courts  

     

    For South Carolinians who have longed to openly carry their handguns, the wait is over. But what legal issues arise from the recently enacted South Carolina Open Carry with Training Act, and how they play out in court, remain to be seen. 

    On Aug. 15, South Carolina became the 46th state to allow some form of open carry. Broadly, what this means is that handgun owners no longer have to conceal their weapons underneath clothing and are free to wear them in plain sight. While the state has long allowed the “constitutional carry” of shotguns and rifles, lawmakers have rejected the idea of carrying handguns without a permit. 

    According to the new law, those who have completed at least eight hours of handgun education and possess a valid concealed weapons permit (CWP) may now openly carry handguns. 

    While the statute modifies how a handgun may legally be carried, it doesn’t change where they may and may not be carried. Police stations, schools, hospitals, and federal buildings, among other prohibited places, remain off-limits to armed citizens. 

    While the statute clearly establishes the right to openly carry handguns, it remains vague in some places. For example, the statute is silent regarding whether valid permit holders from other states—even those that share reciprocity with South Carolina—can open carry in the state.   

    When contacted by Lawyers Weekly 10 days after the law took effect, an official at the state’s Criminal Justice Academy—responsible for training every law enforcement officer in the state—was unsure whether out-of-state permits are to be honored. It is believed that those permits will be recognized. 

    In those areas where the statute and case law may be unclear or confusing, lawyers anticipate that the courts will eventually provide clarity. According to the South Carolina Law Enforcement Division, nearly 420,000 residents possess a valid CWP. While it’s likely that a small fraction of permit holders will choose to openly carry, increased encounters between police and armed individuals—and lawsuits stemming from those encounters—are inevitable.  

    Law enforcement agencies appear to be split on their opinions of open carry, but nearly all of them are bracing for increased service calls from alarmed citizens. 

    The Justice Academy has implemented scenario-based training into its curriculum to prepare officers for interactions with armed citizens. Every officer in the state must also watch a training video produced by the academy and SLED.  

    Academy director Jackie Swindler instructs recruits and officers that without reasonable suspicion, citizens can legally ignore them, walk away, or be downright rude and obnoxious. The academy teaches how encounters might be handled, but leaves the details to individual agencies, which he believes will be as informed as possible. 

    “They’ll look to the highest court and work their way down,” Swindler said. “Two times a year we do legal updates in any changes of the law … local solicitors may send things out … agencies should get new information all types of ways.” 

    Stop … in the name of the law? 

    Determining whether an encounter between a police officer and a citizen is truly consensual is difficult because it depends on whether a reasonable person would feel free to leave, said Seth Stoughton, a University of South Carolina School of Law professor and former police officer who frequently lectures on policing issues and recently testified as a use-of-force expert in the Derek Chauvin trial. 

    Openly carrying, where it is legal, isn’t enough to give police the reasonable suspicion to justify a non-consensual stop in the absence of other factors. But what might those other factors be? 

    “Is being armed in a ‘high-crime’ area enough? What if someone describes the person as acting suspiciously in some way? Various courts in the 4th Circuit have been inconsistent about determining when circumstances establish reasonable suspicion of danger,” Stoughton said. 

    In 2016 a 4th U.S. Circuit Court of Appeals panel held in U.S. v. Shaquille Robinson that the fact that someone is armed “in and of itself” doesn’t objectively indicate danger and doesn’t justify a frisk under the U.S. Supreme Court’s seminal opinion in Terry v. Ohio. Judge Pamela Harris wrote that police can’t assume that individuals whom lawmakers have entrusted to publicly carry firearms are inherently dangerous when they do so. 

    But months later, that decision was overturned by the full Court of Appeals, with Judge Paul Niemeyer writing that firearms do provide an objective basis for inferring danger and that carrying a weapon “under circumstances that establish reasonable suspicion of danger” justifies a frisk. Judge James Wynn added that those who choose to carry firearms pose a “categorical risk of danger” and subject themselves to be frisked when lawfully stopped by law enforcement officers. 

    Even if a person might be abiding by the law “even apparently innocent behavior can support reasonable suspicion,” Stoughton said, adding that open carry puts officers in a difficult position. 

    Criminal defense attorney Brady Vannoy of Moncks Corner said he understands law enforcement’s predicament and believes that officers will use reasonable suspicion’s many factors to ensure that citizens are carrying lawfully.  

    “If you’re out deer hunting at night, DNR is going to ask for your hunting license, period,” Vannoy said. “So, if you’re out in public and you’ve got a gun on you it’s reasonable to believe that an officer’s going to ask you for your concealed carry permit to make sure you’re allowed to open carry.”  

    Swindler said that he also anticipates that self-defense and stand-your-ground issues will come into play at some point. 

    “I’ve got a gun, you’ve got a gun,” Swindler said. “Will we see more of those? My gun against your gun? I think lawyers are really going to have to look at that as to what’s going to be the defense.”   

    The law may not be black and white in more than one respect. Communities of color fear that the law will be disparately enforced and will lead to more negative interactions with authorities. 

    Racial discrimination a concern 

    If “high crime”—a term often used as a euphemism for areas that are low-income or heavily minority—is a characteristic of a particular neighborhood, as Stoughton said, would that give police carte blanche to claim reasonable suspicion to disparately detain and search its residents? That is yet to be seen, but Stoughton said it is not just a “wild social justice question” to wonder if white people and Black people will be treated equally. He cited the motivation for eliminating open carry in the 1960s to government opposition to the Black Panther party. 

    “White politicians at the time said, ‘Oh, no, that’s a problem when [Panthers] do it,” Stoughton said. “Race is not a good reason to discriminate, obviously, but it’s a factor to consider in our society.” 

    A clear example, Stoughton said, is the 2016 case of Philando Castile, a legal gun owner shot to death in his vehicle by an officer as Castile reached for his license and registration.  

    In South Carolina, law enforcement officers are in a position now where they are going to have to make split-second decisions in relatively unknown territory. 

    “In the absence of clear legal guidance and well-developed case law,” Stoughton said, “Officers are going to have to figure it out on the street.” 

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