Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 3:12-cv-01544--Jeffrey James Helmick, District Judge.
John T. Madigan, CITY OF TOLEDO DEPARTMENT OF LAW, Toledo, Ohio, for Appellants.
Daniel T. Ellis, LYDY & MOAN, LTD., Sylvania, Ohio, for Appellee.
Before: GILMAN, ROGERS, and SUTTON, Circuit Judges.
SUTTON, Circuit Judge.
On a midsummer evening, Shawn and Denise Northrup went for a neighborhood walk with their daughter, grandson, and dog. Apparently in a happy-go-lucky mood, Shawn wore a t-shirt reading, " This Is The Shirt I Wear When I Don't Care."
R. 28 at 7-8. Shawn carried a cell phone, which he holstered on his hip--next to a black semiautomatic handgun.
A passing motorcyclist stopped to complain about Shawn's visible firearm. The stranger, Alan Rose, yelled, " [Y]ou can't walk around with a gun like that!" But " [O]pen carry is legal in Ohio!" Denise responded. Id. at 28. As the Northrups walked away, Denise and Rose exchanged increasingly unprintable words until he was out of view (and earshot).
Rose called 911, reporting that " a guy walking down the street" with his dog was " carrying a gun out in the open." R. 39 at 22-23. When asked what type of gun the guy was carrying, Rose replied, " A handgun, and he's telling me it's legal to carry out in the open." Id. at 23. That's right, the dispatcher responded, it's legal " [i]f you have a CCW" --a concealed-carry weapon permit. " I'll get a crew out though." Id. The legality of Northrup's behavior threw Rose for a loop, prompting him to add: " I'm not going to call a crew out if it's legal to carry a gun out in the open." Id.
Despite Rose's change of heart, the dispatcher sent an officer to the scene anyway. " I'm not an officer," she worried. Id. She dispatched Officer David Bright with the message that someone was " walking his dog on Rochelle [Road] carrying a handgun out in the open." R. 26 at 35, 115. Ten minutes later, Bright spotted the Northrups, their dog, and the " gun on [Shawn's] hip." Id. at 36. He got out of his vehicle, said " excuse me, sir," and asked Shawn to hand the dog's leash to his wife, which Shawn did. Id. at 37.
At that point, according to Officer Bright, Shawn pulled out his cell phone, then " moved his hands back toward his weapon" --where his cell phone had been--" in what [Officer Bright] believed to be furtive movement." Id. Bright asked Shawn to turn around with his hands over his head. Id. at 38. Rather than comply, Shawn " kept asking" why Bright was there. Id. And rather than answer, Bright " walked up ...