Today’s training bulletin discusses open carry of firearms in Colorado. Before getting started, as always, I am going to read this disclaimer:
Bulletin Disclaimer:
I am not an attorney and make no claim to be an attorney. I developed this scenario/training bulletin based on my 38 years of law enforcement experience, my professional application of the Fourth Amendment (based on case law) in the field as a law enforcement officer, and my extensive study of case law pertaining to search and seizure.
I developed and am providing this training bulletin for information only. I make no claim that my interpretations and perceptions of case law provided in the answers to the scenarios are correct in any or all circumstances. All government agents and any other person gathering information from this presentation should consult their respective law enforcement agencies, City Attorney’s Office, District Attorney’s Office, State Attorney General’s Office, or United States Attorney’s Office for their interpretation and application of this information.
Let’s Begin
I routinely field questions concerning the open carry of firearms and what officers can legally do when contacting someone openly carrying a firearm. The purpose of this bulletin is to provide officers with a clear understanding of Art. II, § 13 of Colorado’s Constitution, to discuss the legality of openly carrying a firearm in Colorado and in Home Rule jurisdictions; to explain how the rules governing reasonable suspicion contacts apply to individuals openly carrying firearms, and to address how officers can proceed when contacting individuals openly carry in a public place.
Do people have a legal right to open carry in Colorado?
Yes, most people do have a legal right to open carry in Colorado. Art. II, § 13 of Colorado’s Constitution states the following:
The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.
I must note that Colorado does not allow everyone the right to bear arms. Convicted felons (See CRS 18-12-108), people convicted of a misdemeanor involving domestic violence, and people deemed to have disqualifying mental health histories are prohibited from possessing firearms. Additionally, Colorado does not allow the open carry of firearms in schools and government buildings. Individuals are prohibited from carrying a firearm within 1,000 feet of a school or is on the grounds of an educational facility. I must also note that Colorado does not allow the open carry of firearms in schools and those government buildings which are posted as not allowing open carry or are equipped with metal detectors at all entrances. (The metal detector situation prohibits the carrying of firearms in the building even if the individual has a CCW permit).
Colorado allows local governments to enact ordinances, regulations, or other laws that prohibit the open carrying of a firearm in a building or specific area within the respective local government’s jurisdiction. If a local government enacts an ordinance, regulation, or other law that prohibits the open carrying of a firearm in a building or specific area, the local government must post signs at the public entrances to the building or specific area informing persons that the open carrying of firearms is prohibited in the building or specific area.
Finally, Colorado private businesses can prohibit people from openly carrying in their respective business. The business must post signs at the public entrances to the building or specific area informing persons that the open carrying of firearms is prohibited; or the business must verbally inform the individual that the carrying of a firearm is prohibited. This applies to the carrying of all firearms, even if the individual has a CCW permit.
Open carry of firearms in Home Rule jurisdictions
Article XX, Section 6 of the Colorado Constitution is the home rule amendment. Home rule provides municipalities the ability to address local issues and concerns more directly and tailor laws and regulations to suit their specific needs and circumstances. Home rule allows such jurisdictions to respond to the unique characteristics and demands of their respective communities, promoting local decision-making and participation. Home rule municipalities have the power to enact more restrictive regulations than state laws. That stated, such municipalities cannot adopt regulations that are less restrictive. This balance ensures that local governments can effectively govern while still operating within the framework of state laws and the constitution.
Denver is an example of a home rule city and county that has adopted more restrictive laws concerning the open carry of firearms. In 2003, Denver successfully defended its open carry ordinance against the state in the landmark case Denver v. State of Colorado. The judge opined, “the State’s interest in allowing the general open carry of firearms is insubstantial and is far outweighed by Denver’s local interest in regulating firearms more strictly in an urbanized area.” As such, it is unlawful to openly carry a firearm in Denver.
With the exception of Denver and other home rule jurisdictions, does the mere open carry of a firearm create probable cause or reasonable suspicion to believe that the individual openly carrying is engaged in, about to be engaged in, or has just committed some type of criminal activity?
Colorado is an open carry state. Colorado defines open carry as the act of publicly carrying a firearm in plain sight. Plain sight means the firearm is in plain view and not concealed. As such, in Colorado, the mere open carrying of a firearm does not create probable cause or reasonable suspicion to believe that the individual openly carrying is engaged in, about to be engaged in, or has just committed some type of criminal activity.
The Fourth Amendment, Terry stops, and reasonable suspicion
The Fourth Amendment, a constitutionally protected right granted to individuals, protects against unreasonable searches and seizures. See U.S. Const. Amend. IV. Police conduct that rises to the level of an arrest requires probable cause under the Warrant Clause of the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). There are, however, certain encounters between police and private citizens, called Terry stops, that fall short of the intrusiveness of a full arrest. These encounters require “necessarily swift action predicated upon the on-the-spot observations of the officer on the beat” (Terry v. Ohio, 392 U.S. 1 [1968]). When conducting a Terry stop, a police officer may briefly detain an individual for questioning if the officer has “reasonable suspicion supported by articulable facts that criminal activity `may be afoot.'” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry, 392 U.S. at 30, 88 S.Ct. 1868); see also United States v. Wright, 582 F.3d 199, 205 (1st Cir.2009).
In a 2006 memorandum to the Senate concerning the meaning of probable cause and reasonable suspicion, the American Law Division wrote this about reasonable suspicion:
Reasonable suspicion has been described as “something more than an inchoate and unparticularized suspicion or hunch. .. . [as a] level of suspicion . . . considerable less than proof of wrongdoing by a preponderance of the evidence. . . . [as a] . . . level of suspicion . . . obviously less demanding than that for probable cause. . . [but a level of] suspicion supported by articulable facts that criminal activity “may be afoot,” even if the officer lacks probable cause,” United States v. Sokolow, 490 U.S. 1, 7 (1989); as “a particularized and objective basis for suspecting legal wrongdoing,”United States v. Arvizu, 534 U.S. 266, 273 (2002); and as “a particularized and objective basis for suspecting the person stopped of criminal activity,” Ornelas v. United States, 517 U.S. at 690, citing, United States v. Cortez, 449 U.S. 411, 417-18 (1981). It is a standard that may be invoked for a warrantless search or seizure at less than probable cause when in the totality of the circumstances at hand substantial public interests outweigh the minimal loss of personal freedom of movement and privacy imposed in a manner limited in time and nature.
In determining whether a Terry stop is justified, the Court’s inquiry involves two steps: (1), “whether the officer’s action was justified at its inception”; (2) “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20, 88 S.Ct. 1868. Additionally, under Terry, the test is whether the circumstances give rise to a reasonable suspicion of criminal activity; not whether the defendant’s actions are subject to no reasonable innocent explanation.” United States v. Stanley, 915 F.2d 54, 57 (1st Cir. 1990).
In general, A Terry Stop is authorized if the officer’s action is supported by an articulable reasonable suspicion to believe that criminal activity may be afoot. The key words are articulable, reasonable, suspicion, and “afoot.” Now let us look at the contextual meaning of these words
1. Articulable – the officer must be able to write in his or her report specific factual statements, which support his or her reasonable suspicion. This does not include conclusions such as “a hunch” or other similar terms.
2. Reasonable – the suspicion that the officer is able to articulate must be intelligent, logical, sensible, or sound.
3. Suspicion – this is simply the act of suspecting that something is wrong. An apprehension or foreboding that something is criminally wrong. In articulating this suspicion, the officer does not have to state what criminal activity he or she believe might be afoot.
4. Afoot – this simply means in progress.
Now that we have the “common sense” definitions, we will discuss the balance standard the Supreme Court established concerning reasonable suspicion and Terry stops.
The balance between the public interest and an individual’s right to personal security tilts in favor of a standard less than probable cause in cases of an investigatory stop falling short of the traditional arrest and the Fourth Amendment is satisfied, if the officer’s action is supported by reasonable suspicion to believe that criminal activity may be afoot. United States v. Arvizu 534 U.S. 266 (2002)
Concerning the Court’s statement, Aurora City Attorney George Zierk emphasizes “the balance between the public interest and an individual’s right to person security tilts” towards the public interest. In the open carry scenario(s), with the recent shootings that have occurred, Mr. Zierk opines that the mere open carrying of a firearm carries more weight toward the public interest, than in many other situations. Mr. Zierk further offers that the “more deadly” the firearm the higher the public interest.
The second standard the Supreme Court provides is that in making reasonable suspicion determinations, we must look at the “totality of the circumstances” of each case to determine if there is a particularized and objective basis for suspecting legal wrongdoing. The totality of the circumstances includes:
1. Specific observations including:
a. Location
i. High crime area
ii. Sensitive areas such as schools, courthouses and other places where people may gather
b. The suspect’s behavior
i. Flight from law enforcement
ii. Skulking (i.e., to lie in hiding)
iii. Nervousness,
iv. Attempts to elude the officer
c. The time of day or night
d. Whether the individual is wearing clothes affiliated with some violent gang or sect.
e. The individual is carrying a firearm and looks to be younger than 18 years of age
2. An officer’s experience and training:
a. The Court will give deference to law enforcement officer’s ability to distinguish between innocent and suspicious actions, but keep in mind inchoate suspicions and un-particularized hunches do not provide reasonable suspicion.
i. In drawing on their experience and training, the officer may make inferences from and deductions about the cumulative information available to them.
ii. Officers are entitled to make an assessment of the situation in light of their specialized training and familiarity with the custom of the area’s character and inhabitants.
The Supreme Court has recognized there are circumstances in which wholly lawful conduct might justify the suspicion that criminal activity is afoot. The Court also explained that reasonable suspicion may exist even where it might be more likely than not that the individual is not involved in any illegality. The Terry stop process does not deal with hard certainties, but with probabilities. In such circumstances, practical people formulated certain common sense conclusions about human behavior and law enforcement officers are permitted to do the same. Terry stops are for situations where an officer has a reasonable concern about potential criminal activity based on his “on-the-spot observations,” and where immediate action is required to ensure that any criminal activity is stopped or prevented.” Schubert v. City of Springfield, 589 F.3d 496, 501 (1st Cir. 2009).
Does Colorado’s Constitution abrogate Terry v. Ohio (1968) and the ability for Colorado law enforcement officers to contact and detain individuals who are openly carrying?
Colorado is an open carry state. But, open carry does not abrogate Terry v. Ohio (1968) or the ability for Colorado law enforcement officers to contact and detain an individual who is openly carrying based on a reason to believe the individual is engaged in, is about to be engaged in, or has just committed some type of criminal activity.
How should officers proceed when observing an individual openly carrying a firearm in a public place?
We will now apply what we have learned to the following scenario:
An officer is patrolling eastbound on Alameda Ave. just east of Sable Blvd., when he sees an adult male walking westbound on the south side sidewalk of Alameda Ave. (approaching Sable Blvd.), in the direction of the Town Center of Aurora, openly carrying an AK-47 style rifle slung over his shoulder. Knowing that Colorado is an open carry state and having a clear understanding of Article II, § 13 of Colorado’s Constitution, how can the officer contact the male? Can the officer articulate reasonable suspicion to contact the male?
Answer: An officer can conduct a consensual contact, sit back and watch the individual, contact the male based on reasonable suspicion if articulable facts support such a contact, or contact the male based on probable cause. We will examine each of these responses below.
Conduct a consensual contact on the male
Knowing that individuals have a right to openly carry, an officer can conduct a consensual contact of the male, attempt to engage the male in conversation, and based on that conversation determine if the officer can develop reasonable suspicion or probable cause to believe the individual is engaged in, about to be engaged in, or has just committed some type of criminal activity.
A consensual contact, in all probability, is the least desirable type of contact for obvious reasons. That being said, if an officer chooses to consensually contact the male, the following are some things to remember: (1) an officer cannot demand anything from the male, (2) an officer cannot require the male to answer any questions or engage in conversation, and (3) an officer cannot impede the male’s ability to continue walking.
Sit back and watch the individual
An officer can watch the male and see if the male does anything that would give the officer reasonable suspicion to contact and detain or probable cause to contact and arrest the individual.
Contact the male based on reasonable suspicion
This is perhaps the most controversial type of contact, because of the fact that individuals can openly carry firearms in Colorado. However, if an officer can articulate one or more factors that give rise to reasonable suspicion (as discussed at length above); an officer can conduct a Terry stop on the individual. Once an officer’s articulable factors reach the reasonable suspicion threshold, an officer can take measures to protect himself (e.g., by pointing his gun at the individual or ordering the individual to put the gun down and get into a prone position). Additionally, when conducting a Terry stop, an officer can require the detained individual to provide identification and to answer questions relating to the reasonable suspicion for the stop. I strongly suggest an officer in this situation remain calm and professional; and clearly explaining to the individual the legal reason for the contact (e.g., the officer has reasonable suspicion to believe criminal activity may be afoot; the individual is required to identify himself to the officer and answer the officer’s questions; and the ramifications the individual may face if he fails to comply with the officer’s commands).
If the individual refuses to identify himself or refuses to answer questions related to the reason for the stop, then the individual is in violation of CRS 16-3-103.
16-3-103. Stopping of suspect. (1) A peace officer may stop any person who he reasonably suspects is committing, has committed, or is about to commit a crime and may require him to give his name and address, identification if available, and an explanation of his actions. A peace officer shall not require any person who is stopped pursuant to this section to produce or divulge such person’s social security number. The stopping shall not constitute an arrest. (2) When a peace officer has stopped a person for questioning pursuant to this section and reasonably suspects that his personal safety requires it, he may conduct a pat-down search of that person for weapons.
Contact the individual based on probable cause
An officer can contact an individual who is openly carrying a firearm based on probable cause. “Probable cause exists when the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution to believe that a person has committed a crime” (Colorado Peace Officer’s Legal Source Book, 2009, p. 365). Examples of probable cause to contact and arrest an individual openly carrying a firearm exists include, but are not limited to, the following:
- The individual is under 18 years old and openly carrying a handgun.
- The individual is within 1,000 feet of a school or is on the grounds of an educational facility. As mentioned previously, Colorado does not allow the open carry of firearms in schools and those government buildings, which are posted as not allowing open carry or are equipped with metal detectors at all entrances. (The metal detector situation prohibits the carrying of firearms in the building even if the individual has a CCW permit).
- The individual is in a park.
- The individual is in a business or location that prohibits the carrying of firearms. As mentioned previously, business must post signs at public entrances to the building or in a specific area where the carrying of a firearm is prohibited; or businesses must verbally inform the individual that the carrying of a firearm is prohibited. This applies to the carrying of all firearms, even if the individual has a CCW permit.
- The officer knows the individual is not legally allowed to possess a firearm.
Wrapping up
The open carry of firearms is becoming more prevalent each passing day. As such, officers must have a clear understanding of the meaning of open carry, Article II, § 13 of Colorado’s Constitution, the options available to officers when confronting someone who is openly carrying a firearm, the articulation needed for reasonable suspicion to contact an individual who is openly carrying, what an officer can do to protect himself or herself when contacting an armed person based on reasonable suspicion, and the appropriate municipal code charge for uncooperative individuals contacted based on reasonable suspicion.
I know I could not address every possible scenario in this training bulletin, so as always, please feel free to contact me if you have any questions or need further clarification.