An Update on State Regulatory Developments, Permitting, and Probable Cause

On March 9, South Carolina Governor Henry McMaster signed legislation removing the state’s permit requirement for carrying a concealed handgun in public.  With this development, South Carolina became the 29th state in the nation to move to permitless carry and the sixth state to do so since Bruen was decided in June 2022 (following on the heels of Indiana, Alabama, Florida, Nebraska, and Louisiana—I discussed this general trend in an earlier post here).  Governor McMaster wrote on X after signing the bill that:

This bill expands the Second Amendment rights of our law-abiding citizens and will keep violent criminals behind bars with increased penalties for illegal gun use and possession [referencing a provision in the bill that increased criminal penalties for those convicted of crimes committed with a stolen firearm].

The governor’s reference to “Second Amendment rights” in this context is a notable example of slippage between constitutional and policy rhetoric.  South Carolina citizens now have the ability to carry concealed handguns in public without a permit if they do not have any disqualifying characteristics—but they have that right because of the state legislature’s policy decision that permitless carry is beneficial, not because of the Second Amendment to the U.S. Constitution (or any state analogue).  Bruen is relatively clear that the decision does not cast doubt on objective public carry licensing because such rules do not “prevent law-abiding, responsible citizens from exercising their Second Amendment right to public carry.”  That said, the governor’s statement might represent an aspirational view about what the Constitution should protect; and it’s a view that Bruen at least potentially imbues with a degree of constitutional relevance.  The Court emphasized that New York’s discretionary permitting approach was used in only six states plus DC.  21 states plus DC currently continue to use shall-issue permitting.  Further changes at the state level could bring us closer to the pre-Bruen situation, although permitless carry seems to be at or near its apex pending any major partisan shifts.

According to Bruen, the constitutional issues surrounding objective concealed carry permitting laws are limited to how those laws operate in practice.  Specifically, the Court noted that “lengthy wait times in processing license applications or exorbitant fees [might] deny ordinary citizens their right to public carry.”  In October 2022, I examined Bruen’s practical impact on permitting and observed that many states—especially former may-issue states—saw large increases in concealed carry applications following the decision.  I linked in my prior post to stories suggesting large increases in public carry permit applications in New York City, Hawaii, Maryland, and San Francisco.  While it’s difficult to pin down precise and current information, it appears that these application increases have resulted in more permits issued in certain jurisdictions and created delays in processing applications in other jurisdictions.  Maryland, for example, issued “nearly eight times as many permits” in 2022 as in the prior year; and in D.C. twice as many residents were issued concealed carry permits in 2022 as in 2020.  In New Jersey and certain New York jurisdictions, however, Bruen appears to have triggered a large application increase that has snarled the permitting process and resulted in sometimes-lengthy delays.  Applicants in New York City have sued the city, as mounting applications cause delays beyond the NYPD’s guidance suggesting that a decision on each application will be rendered “[w]ithin approximately six months of receipt of [a] handgun application, and all required documents/forms.”

As an ongoing case in the Eastern District of New York indicates, these developments might have broader consequences for the criminal prosecution of gun crimes.  In United States v. Homer, the government charged an individual with being a felon in possession of a firearm in violation of federal law.  The defendant was arrested based on live surveillance footage that showed him holding a gun.  The defendant moved to suppress, arguing that the government’s case against him resulted from an unlawful arrest without probable cause.  In a February 5 decision, District Judge Nicholas Garaufis granted the motion and framed the question presented as “whether, after Bruen, a police officer that sees an unidentified person with a gun has an objectively reasonable ground to believe that the person is guilty of a crime.”  After Bruen, the judge held, a police officer may no longer rely on the mere belief that an individual is carrying a gun to arrest that individual; rather, “the government must point to facts in the lead up to the arrest that indicate to the arresting officer, based on his experience and expertise, that [the individual] did not have a license to carry the firearm.”  The judge held that the fact that the defendant “could have plausibly been licensed to carry the firearm,” which the officers did not investigate before the arrest, meant they had failed to establish probable cause.  By contrast, the opinion noted that, “[e]ven after Bruen, police officers have reasonable suspicion to justify a Terry stop [a traffic stop or pat-down search of outer clothing for evidence of criminal activity] when seeing someone they suspect has a gun.”

The government moved for reconsideration of Judge Garaufis’ order on March 1.  The government noted in its motion that there was only a slight increase in carry permits granted in New York City between the time Bruen was decided and the time the defendant was arrested in early 2023 and that the percentage of New York City residents who could lawfully carry a firearm was essentially unchanged.  Thus, the government argued that “[t]his minuscule increase in the amount of concealed carry licenses cannot reasonably justify a change as to the probability calculus for a police officer as to whether an unidentified person with a firearm on a New York City sidewalk possesses a firearm unlawfully.”  The government also asserted that additional facts demonstrated the officers had probable cause and that permitting Terry stops in such circumstances was unworkable because, “[i] n crowded locations, . . . it would be unsafe and unworkable to isolate an individual for the period of time it would take to investigate and confirm whether he or she has a gun license.”

Some scholarly commentary following Bruen suggested that the more ubiquitous presence of guns in public spaces would simply result in creative police testimony to articulate other bases for probable cause to arrest because “[c]ourts rely on a variety of factors which are subjective or manipulable, ranging from vague suspicion of dangerousness, or furtive movements, to enable the police.”  Homer is perhaps an initial indication that some judges are not willing to immediately move in that direction.  Judge Garaufis rejected several alternative police explanations for the arrest, including that the defendant was seated in a car that the officer “recognized [] as a vehicle used by a local gang that he was investigating” and that the defendant “did not have ‘firearm discipline’” because he placed the handgun directly into his pants pocket.  Ultimately, New York’s argument that the city’s application backlog means that officers can still act as they did under the prior licensing rule seems unlikely to succeed because it rests on a factual basis that will shift substantially in coming years as the city processes more permit applications.  That said, cases like Homer illustrate a broader challenge that law enforcement faces across all jurisdictions, including those now adopting permitless carry.  A major threshold question will be how courts evaluate other probable-cause factors and arguments in situations involving firearms.