In which of the following situations (if either, or both) is there reasonable suspicion to believe that the individual stopped is guilty of a crime:
Scenario 1: An identified employee at a YMCA calls 911 and says that someone there saw a person in the parking lot with a gun. She doesn't say whether the gun is concealed or not. It's illegal to carry a concealed weapon but legal to carry one openly. A police officer arrives, starts following the person described by the caller, and that person starts running from the police. The police then detain him.
Scenario 2: An identified employee at a bar calls 911 and says that some people there saw a person in the parking lot with a gun. He doesn't say whether the gun is concealed or not. It's illegal to carry a concealed weapon but legal to carry one openly. The person starts running before the police arrive and gets in a vehicle. The police then detain him.
I'm only focusing on the "is there a crime" part; not the reliability of the tip. What do you think? Reasonable suspicion in neither? Reasonable suspicion in both? Reasonable suspicion in the first but not the second? Vice-versa?
Here are the actual results:
The first case is U.S. v. Brown, decided by the Ninth Circuit last year. It holds that there's no reasonable suspicion.
The second case is U.S. v. Vandergroen, decided by the Ninth Circuit yesterday. It holds that there is reasonable suspicion.
To me, that's probably the weakest way to come out. Brown is circuit precedent, and it's very hard to rationally distinguish Brown from the present case on its facts. I suspect that the majority in Brown would have decided the present case the same way. But the panel yesterday is different than the panel in Brown, and reaches a different result.
I admittedly think it's a tough call whether people should be allowed to stop people who are reported to be carrying weapons. Everyone agrees that carrying a weapon openly doesn't normally generate a reasonable suspicion, since it's not illegal. And neither of the tips here reported that the person was carrying a weapon anything other than openly. At the same time, carrying a weapon is a big deal, and I sort of like the ability of police to check things like that out, as sometimes people carrying guns are up to no good.
I could easily see a panel saying that there was more reasonable suspicion in Brown than in the present case; after all, in Brown, the guy actively ran from the police, and the police could also view him (and see that he wasn't carrying his gun openly), whereas in the present case neither of those facts existed. Yet the panel goes the exact other way.
When Brown came out last year, I said that I thought that the Supreme Court was likely to see things a different way than the Ninth Circuit. But -- presumably for tactical reasons -- the Solicitor General didn't seek a writ of certiorari, and didn't even petition for rehearing en banc. The thought may have been that the better approach was to let future panels distinguish the case on its facts. If that was the reasoning, it turned out to be a pretty good thought.
I'd have loved to have seen Judge Friedland write the opinion. She's on both panels. She wrote a concurrence in Brown that explained her reasoning in joining the result, but joins Judge Rakoff's opinion in the present case without additional explanation. Too bad. I'm sure she agrees that the cases are distinguishable -- hence the result. But the distinction articulated by Judge Rakoff seems a fair piece too breezy for me; at least the part about "illegality" does. I'd have liked to see someone who joined the prior opinion (albeit somewhat reluctantly) attempt to explain the distinction in a bit more detail.
