Can the Exercise of a Constitutional Right Create Reasonable Suspicion or Probable Cause?

September 5th, 2012

Let’s consider a few examples. A police officer sees a person reading a book, and the officer suspects that book discusses how to construct a bomb. Is that suspicion sufficient to permit the officer to detain the person, and seize the book? Another example. A police officer starts to ask a suspect questions, and the suspect invokes his constitutional right to remain silent. Can the exercise of that right create reasonable suspicion that criminal activity is afoot? Now, let’s consider the example on my mind. A police officer sees a person carrying a firearm–or suspects a person has a firearm. Is this enough to generate reasonable suspicion, or probable cause?

Can it be, that the exercise of a constitutional right–reading a book, remaining silent, keeping and bearing arms–is enough to give an officer the authority to detain the person exercising that right?

This story from Baltimore raises this question:

A man was shot twice by Baltimore police Saturday night, after he allegedly pointed a gun at officers, a police spokesman said.

Spokesman Anthony Guiglielmi said the nonfatal shooting occurred in the 400 block of Lorraine Avenue around 10 p.m.

The man, who has not yet been identified, was taken to Johns Hopkins Hospital, where he is currently in stable condition.

Gugielmi said two officers from the police department’s violent crime impact section were in an unmarked police cruiser when they “witnessed an individual who exhibited the signs of an armed person.”

The officers got out of their car to approach the man, but he ran into a house, withdrew a gun and pointed it at the two officers, who then shot the man in the waist and leg.

Guglielmi said a semi-automatic handgun was recovered from the scene.

The fact that he ultimately had a gun is immaterial (putting aside issues of inevitable discovery). Does the officer’s ┬ábelief that the suspect “exhibited the signs of an armed person” (whatever the hell that means–let your incredulity be strained for a moment) create reasonable suspicion that would allow the suspect to be detained? (The facts aren’t clear if the suspect fled before or after any kind of interrogation began, but let’s just assume that the police detained him). What about whens someone knowingly openly caries an AK-47 (legal in Tennessee)?

One interesting wrinkle is that in Baltimore, it is effectively illegal for a person to carry a firearm outside the home (carry permits are almost never granted). Here is a case where a reasonable suspicion for a crime must be based on a localities decision to cramp constitutional rights. How would the same case be resolved across the river in Virginia where carrying a firearm is commonplace–and openly carrying a firearm can be done without a permit.

Another wrinkle, is that I’m told this area of Baltimore is a very high-crime area–inviting a common refrain on this blog about whether constitutional rights should be relaxed in high-crime areas (if you relax the Second Amendment, do you also relax the Fourth, Fifth, or Sixth?). Justice Breyer forcefully makes this point whenever he can.

I don’t know that I have any answers to these questions. When I wrap up all this nonsense about the ACA, I hope to return to my work on social cost and constitutional theory.