Monthly Archives: August 2012

A Great Book on Public Defenders

I’m not really into book reviews so you can rest assured this won’t be one. In fact, this is just a recommendation. If you’re looking for a fascinating book about public defenders written by an independent, objective source, get: Kevin Davis, Defending The Damned: Inside Chicago’s Cook County Public Defender’s Office, New York: Atria Books 2007.

Somewhat amazingly, this journalist/author was allowed full access to shadow defenders in the Murder Task Force unit of the office. The result is a perspective you normally couldn’t get unless you worked in a pd’s office yourself. So for those of you who have wondered what public defenders are like or how they can represent people accused of awful crimes, this has the answer.

My favorite quote is probably a line from the Author’s Note in the beginning:

Early on, one public defender told me that anyone who chooses this work has to be fearless and unconcerned about whether people like them. It’s not a job for those seeking approval. It’s a job for those willing to rattle cages, make enemies, and raise hell. By raising hell, these lawyers honor the law.

I couldn’t have said it better myself.

-Zachary Cloud


What Exactly Is Habeas Corpus?

Fear not; I shall swiftly disabuse you of your ignorance! Those who know me are aware that federal habeas corpus is my favorite area of law. You might even say I am a habeas nerd. As it turns out, however, a lot of Americans don’t seem to know what in the world habeas corpus even is. I figured I’d remedy that with a concise primer of sorts. Think of it as a cliff notes version of habeas law. I might do more of these quick summaries explaining other areas of law if there’s a demand…or if I just feel like it.

1. History of Habeas Corpus

Habeas corpus is an ancient “writ” used to test the validity of a person’s imprisonment/detention. Although many different forms of habeas developed, the one we generally think of today is the one that examines lawfulness of imprisonment. This form originated in Medieval England and was a way that justices on the King’s Bench court could exert the king’s prerogative, or, privilege over officers of the king such as jailers. For an excellent—albeit long—history of the writ and how it came to develop in America, see Paul D. Halliday & G. Edward White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. 575 (2008).

2. The Federal Law of Habeas Corpus

Although the writ began as judge-made “common law,” the American Constitution codifies habeas corpus in Art. I, § 9, cl. 2. This is commonly known as the “Suspension Clause” and it says that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it.” Congress has passed several statutes fleshing out what exactly constitutes habeas in American law. The first was the Judiciary Act of 1789, which has been followed by the Habeas Corpus Act of 1867 and the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). These acts are federal law but habeas also has meaning under state law in many different states. I won’t address that here since it varies considerably from state to state.

3. How Habeas Corpus Operates in America Today

The original point of habeas corpus was to ensure that someone wasn’t imprisoned without due process of law. In other words, to make sure that a person wasn’t arrested without probable cause or held without any chance of a trial. Now, that sort of thing rarely happens anymore but the writ is doubtless available if someone is arrested and held without being charged. Today, habeas corpus is most frequently used by a prisoner who has already been convicted of a crime. Under 28 U.S.C. § 2254(d), state prisoners may challenge the lawfulness of their conviction in federal court and under § 2255, federal prisoners may do the same thing by making a motion to vacate their sentences. However, those who are being held before any court proceedings still may challenge their detention under 28 U.S.C. § 2241. This is the avenue that detainees at Guantanamo Bay have used. The most recent Supreme Court case on habeas corpus is Boumediene v. Bush, which is well worth a read. It discusses the writ at length.

-Zachary Cloud

Does Openly Carrying A Gun Create Reasonable Suspicion of A Crime?

Recently, I’ve come across a few YouTube videos where people who are openly carrying a firearm have encounters with police. See,, here, and here. In these videos, the police usually claim that they have to investigate because someone called in saying there’s a guy walking around with a gun. Can that possibly be right?

Many states allow open carry. While a person is generally required to obtain a license in order to conceal a firearm, I do not believe that many states require a similar licensing process to carry a weapon, which is openly exposed to the public. Now, the wisdom of actually exercising this right is questionable but that’s a different topic than the one I want to address. Back to these YouTube videos…from what I can tell, these individuals are all law-abiding gun owners. Here’s how the scenario typically plays out:

  • Individual is walking somewhere out in public
  • Police pull up and stop him
  • Police say they’ve gotten calls that a man was walking around with a gun and they need to investigate
  • Individual asserts that he has a right to openly carry
  • Some arguing goes on about the individual’s rights
  • Eventually police leave after realizing he’s just an antagonist; not a criminal.

And now my question: Is this a legal police stop?

Put differently, when someone calls around 911 and reports that he/she sees a guy walking around with a gun, does that give the police “reasonable suspicion” of a crime sufficient to conduct an investigative detention?

The police’s power to stop a person in order to investigate was explained in Terry v. Ohio, 392 U.S. 1 (1968). Terry and is progeny stand for the proposition that an officer must have reasonable suspicion that a crime has or is about to occur before the officer may detain a person for the purposes of investigation.

That’s all well and good but what exactly is “reasonable suspicion”? How does an officer know if he has it? According to the Court in Terry, an “officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” stopping the individual. Id. at 21. The standard of “reasonable suspicion” is an objective one so we are concerned with whether “the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in belief’ that the action taken was appropriate? Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches . . . .” Id. at 22-23 (citations omitted).

Okay, so how do we apply this to reports that a person is carrying a gun? As it turns out, a number of jurisdictions have already contemplated whether open carry of a weapon gives rise to reasonable suspicion. For example, in the Oregon case of State v. Johnson, 772 P.2d 426 (1989), an officer stopped a frisked a man who was openly carrying a knife in a sheath on his belt. There, the Court of Appeals stated:

[Oregon law] specifically provides that ‘[f]irearms carried openly in belt holsters are not concealed . . . . Like a gun in a holster, a knife carried openly in a sheath on the belt is not ‘concealed.’ Once the officer discovered that the defendant carried his knife openly in a sheath at his waist, he no longer had reasonable suspicion, let alone probable cause, to suspect defendant of wrongdoing. The reason for the officer’s stop of the defendant having dissipated, the subsequent arrest and search were unjustified and therefore illegal.

Id. at 428 (citations omitted, alterations in the original). Similarly, in St. John v. McColley, 653 F. Supp. 2d 1155 (D. N.M. 2009), a man was in a movie theater openly carrying a revolver. There, the federal district court ruled that “Mr. St. John’s lawful possession of a loaded firearm in a crowded place could not, by itself, create a reasonable suspicion sufficient to justify an investigatory detention.” Id. at 1161.

In coming to this conclusion, the court cited several federal circuit court decisions coming to the same conclusion. For example, in United States v. Ubiles, 224 F.3d 213 (3d Cir. 2000), a man legally carrying a gun at a “crowded celebration” was stopped after someone alerted the police. The Ubiles court held that “the situation was no different than if the informant had told officers ‘that Ubiles possessed a wallet . . . and the authorities had stopped him for that reason.’” St. John, 653 F. Supp. 2d. at 1161 (citing Ubiles). Continuing, the district court cited the Tenth Circuit case United States v. King, 990 F.2d 1552 (10th Cir. 1993). There, police approached a driver and saw a firearm on his thigh. The Tenth Circuit said this alone could not constitute a reasonable suspicion sufficient to conduct an investigative detention. King, 990 F.2d at 1559.

The Pennsylvania Supreme Court has gone even further than these previous cases. In Commonwealth v. Hawkins, 692 A.2d 1068 (Pa. 1997), the court made a point of establishing that police have no duty to investigate allegations that a person is carrying a gun. After holding that “there is no gun exception to the Terry requirement for reasonable suspicion of criminal activity,” the court had this to say:

The Commonwealth takes the radical position that police have a duty to stop and frisk when the receive information from any source that a suspect has a gun. Since it is not illegal to carry a licensed gun in Pennsylvania, it is difficult to see where this shocking idea originates, notwithstanding the Commonwealth’s fanciful and histrionic reference to maniacs who may spray schoolyards with gunfire and assassins of public figures who may otherwise go undetected. . . . In this case, the police acted on an anonymous tip and had no basis for believing that the tip was reliable. They also had no independent reason to believe the suspect may have been involved in criminal activity.

Id. at 657-58.

Did you catch that reference to an anonymous tip? That’s also worth discussion. Even if we set aside the fact that a report of a person openly carrying a gun in a public place is not, in an of itself, an allegation of a crime, there’s still the aspect of the “anonymous tip.”  The Supreme Court has made it clear that anonymous tips are not usually reliable enough by themselves to establish reasonable suspicion. Generally, these occur in the context of a 911 call. Consider Florida v. L.J., 529 U.S. 266 (2000). In L.J., the Court contemplated if a 911 caller’s assertion that the defendant was standing at a bus stop with a gun concealed on his person constituted sufficient reasonable suspicion to conduct a Terry stop. Citing Alabama v. White (a fundamental case on anonymous tips), the Court said: “The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just its tendency to identify a determinate person.” L.J., 529 U.S. at 272.

In other words, a citizen’s assertion that another person is breaking the law needs to be reliable. How could a 911 caller know whether a person was of age to legally carry a weapon or whether that person was a felon in possession…or whether they lacked a requisite license to carry? Surely the caller would have to provide more than “I just saw a guy walking around with a gun!” As I see it, the caller would need to say something like “I know this guy and he’s only 15” or “I know him and he’s on probation for aggravated assault.”

Based on all of this precedent, it seems fairly clear that officers lack reasonable suspicion to stop a man based on reports that he is openly carrying a gun—unless he’s doing so in a state that prohibits such conduct. That’s not to say every single court would agree. There have been a couple coming out on the other side. See, e.g., United States v. Singleton, 2008 WL 2323487 (W.D.N.C. May 29, 2008). And courts may determine that the totality of the circumstances support reasonable suspicion because other factors such as a defendant’s evasive nature must also be considered. But at the end of the day, I just can’t see how a mere report that an individual is openly carrying a gun could possible constitute reasonable suspicion of a crime. In a state where people are allowed to do this, there just is no crime alleged to begin with. Nor would the police have an independent, reliable basis for reasonable suspicion aside from anonymous 911 tips. The law is rather clear on all of this and the police—despite their assertions to the contrary—don’t have any reason to investigate.

That, of course, does not mean the police will follow it.

-Zachary Cloud