FILE - An attendee at a gun rights rally open-carries his gun in a holster that reads "We the People," from the Preamble to the United States Constitution on Jan. 18, 2019, at the Capitol in Olympia, Wash. Advocates say permitless carry makes people safer. Opponents say it makes it more dangerous for ordinary people, and for police officers. (AP Photo/Ted S. Warren, File)
LOUISVILLE, Ky. — Police saw Carmon Tussey walking briskly toward a crowded Louisville bar carrying a semi-automatic weapon.
With people running away, officers moved in, service weapons drawn. They put the 26-year-old in handcuffs and confiscated his gun. Tussey was later charged with terroristic threatening, wanton endangerment and disorderly conduct, prosecutors said, and could face up to 20 years in prison.
His lawyer says he “was engaged in perfectly legal behavior” in the incident last year, raising a relatively new legal argument in the United States that now stands before the courts to settle.
That’s because Kentucky made it legal in 2019 to carry a gun in public without a permit, joining what is now a majority of states with similar laws.
Many celebrate the end of the bureaucracy erected around what they consider every American’s constitutional right to carry any firearm they want. But permitless carry laws have created a dilemma for officers working the streets: They now have to decide, sometimes in seconds, if someone with the right to carry a gun is a danger.
“Kentucky is one of the states that allows a citizen to ‘open carry’ – meaning it is perfectly legal to walk down a public street carrying a loaded gun out in the open,” said Tussey’s attorney, Greg Simms.
Louisville prosecutors say it was more than just the gun that led police to detain Tussey. The type of weapon, how he carried it, and where he was headed also mattered. A witness also told officers that Tussey was returning to the bar after a verbal altercation.
After he was detained, Tussey told police he “was returning to shoot” the people he fought with, according to the arrest citation. Those comments came later. Simms argued in court that he had given police no legal reason to take him into custody when they did.
The judge hasn’t been persuaded by that argument so far, saying in a preliminary ruling on evidence that police had other reasons to arrest Tussey at the time. But Simms says he thinks he can convince a jury that Tussey didn’t commit any crimes, in part because of Kentucky’s new law. His next hearing is Nov. 2.
Advocates say permitless carry makes people safer. Opponents say it makes it more dangerous for ordinary people, and for police officers.
“It’s no secret why so many law enforcement leaders are speaking out against permitless carry laws,” said John Feinblatt, president of Everytown for Gun Safety. “Allowing anyone to carry a gun anywhere makes the job of a police officer harder and more dangerous.”
Gun violence is up nationwide. There have been 35,000 deaths in the U.S. so far this year, following 45,000 deaths in 2020 and the same in 2021. About 79% of the killings in 2020 involved a firearm, the highest percentage since at least 1968.
Earlier this year, Republican Gov. Eric Holcomb signed an Indiana law removing the permit requirement for carrying a handgun in public even though Indiana’s state police superintendent had weighed in against it. The new law took effect July 1.
“We’re still expected to enforce our laws and take those guns off the streets and make sure people that aren’t supposed to have them don’t,” Indiana State Police spokesman Capt. Ron Galaviz said recently. “It’s just an extra couple of steps in that process.”
Under the new law, Galaviz said, officers can’t immediately grab a gun or ask to see a permit when they pull someone over.
Complaints about armed people in public settings can have a range of outcomes.
In Boise, Idaho, police got multiple “man with a gun” calls about 27-year-old Jacob Bergquist, who took a firearm to places they weren’t allowed, like a store, a hospital and a mall, according to The Idaho Statesman.
Idaho passed permitless carry in 2016, but the state allows property owners to ban them in specific locations. Boise Police Chief Ryan Lee said his officers never had grounds to arrest Bergquist under Idaho law.
Lee made that comment after Bergquist entered the Boise Towne Square Mall and fatally shot a 26-year-old security guard and a man, and wounded four others.
Bergquist, who died after exchanging gunfire with police, promoted gun rights on a YouTube channel.
In Houston, Guido Herrera walked into a mall in February with a rifle in one hand and a Bible in the other, wearing a leather mask and a shirt with the Punisher logo.
His lawyer, Armen Merganian, argued that Guido Herrera was just “a gun-loving Texan” who meant no harm. Jurors convicted him of a misdemeanor, disorderly conduct. It’s legal to carry loaded guns in public in Texas, but not in a manner calculated to alarm.
“Cops just like to assume that everyone is a bad guy and everyone is there to cause harm and that’s not necessarily the case. Some people just really enjoy their Second Amendment rights,” Merganian said.
In Florida, Michael Taylor films himself with guns and a fishing pole walking to piers and other spots to cast a line. He says he’s trying to educate people about Florida gun laws, which don’t allow a person to carry a gun without a permit but make exceptions if someone is hunting or fishing.
Sometimes Taylor’s actions lead to discussions about state gun laws. Other times they prompt ‘man with a gun’ calls to police.
Officers in Clearwater stopped Taylor last year as he walked down a crowded beach with a fishing pole, a “Don’t Tread On Me” flag and a loaded semi-automatic weapon, according to a video he posted to social media. Police ask what he’s doing and he tells them he’s going fishing and isn’t breaking any laws.
“Sir, you’re scaring everybody walking down the beach,” one officer says.
After cuffing him, the officers move him to a less crowded area, question him further and release him. He heads on down the crowded beach to the pier.
Shannon West, a training supervisor at the Kentucky Department of Criminal Justice Training, which trains some 300 recruits a year, said that when responding to an armed person in public, officers have “got a very quick decision to make … as to whether or not to intervene, when to intervene, and how.”
In one rare case this year, an Indiana man fatally shot a gunman who killed three people at a mall days after permitless carry took effect in the state. Authorities said the man who shot the gunman was legally armed and praised his actions for saving others’ lives.
That’s the type of scenario that gun rights advocates point to when they argue that the best way to stop a bad guy with a gun is to have a good guy with a gun on the scene.
But that still can create a dilemma for police when they arrive.
“It used to be if someone was carrying a firearm and they had a concealed carry permit, it would be less suspicious for them to have a firearm,” said UCLA law professor Adam Winkler, an expert on gun policy. “But when you eliminate the permit requirement, then anyone can carry a firearm on the streets and it becomes harder for police and for others to figure out whether that person has bad intent or not.”
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