July 30, 2014

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Legal experts back police’s ID request

MEDINA — Legal scholars say police had the authority to ask gun rights activists for identification on Monday after 10 people called 911 to report the men were carrying firearms through Public Square.

The men, James Purdy and Micah Butcher, both 25, were approached by police and asked to show identification. Purdy and Butcher, members of activist group Northeast Ohio Carry, argued Ohio law does not require them to present identification but eventually gave in to police requests.

Police determined the men were not breaking any laws and allowed them to continue their walk.

But the confrontation has sparked legal debate: Is it appropriate for police to demand identification from gun carriers?

Michael Benza, a professor of law at Case Western Reserve University, said the answer is complicated.

“There’s a dilemma that the officers are facing,” Benza said. “Ohio is an open carry state, but just because we’re open carry doesn’t negate the ability of police to ask, ‘Hey, you have a gun, what are you doing?’

“Police have the ability to ask (the activists) if they’re exercising their Second Amendment rights or if they’re planning to shoot up a school.”

He said the question of whether police can check the IDs, though, is one courts have failed to agree on.

“Courts are beginning to lean more and more toward having to show IDs,” he said. “But they still disagree.”

He said there’s a catch-22 involved because police have a duty to make sure the men were legally carrying the weapons. Ohio residents are restricted from openly carrying weapons if they’re a felon, underage or on probation.

Benza said in order to check whether the men were legally carrying the weapons, police need to see identification to verify birthdates and whether the individual has been in trouble with the law.

“If someone’s a felon, of course they’re not going to tell the police,” he said. “So the only real way to find out if they’re following the law is to check IDs.

“They don’t know who these people are or what they’re doing. All they know is they have a gun.”

Martin Belsky, a professor and former dean of the University of Akron’s law school, agreed with Benza.

“If someone’s carrying around a weapon, the possession of the weapons is not a crime — but that could absolutely be interpreted as frightening and menacing,” Belsky said.

He said police need “reasonable suspicion” the gun carriers are breaking a law in order to demand identification.

“So the only question is if the police had a reasonable basis,” he said.

Belsky said the circumstances are what really matter.

“If you walk down a street with a gun on your back, that’s one thing,” Belsky said. “But if you’re walking back and forth past the same location, then it’s reasonable to think you’re being menacing.”

Jonathan Witmer-Rich, a law professor at Cleveland State University, said the nation should expect more questions like this because this particular gun question is relatively new: The Supreme Court ruled 5-4 in 2010 that the Second Amendment right to bear arms protects from state and local gun control laws.

Still, he said police were within their authority to ask for IDs. But to demand the IDs is where things get questionable.

“The police can always ask anybody for an ID. The police can ask for almost anything; they can ask you questions and ask to search your belongings or a lot of things,” Witmer-Rich said. “The real question is whether the police can force them to give their IDs.”

He too said in order to force them to present identification, police must have a reasonable suspicion the men were breaking laws.

“But is possessing a firearm in public enough to claim disorderly conduct or some other misdemeanor?” Witmer-Rich said. “I don’t think so.”

He added that circumstances — like 10 people calling 911 — may give police the edge they need to make demands for identification.

“The police have a lot of discretion, and ultimately the courts will evaluate the decisions the police make,” Witmer-Rich said. “They have to look at all the facts and circumstances before them, and police have to make potentially difficult judgments.”

Contact reporter Nick Glunt at (330) 721-4048 or nglunt@medina-gazette.com.