If John Crawford had been holding a real, loaded rifle — as police officers were told before they shot and killed him in a Beavercreek Walmart last month — that act in itself would not have violated any Ohio laws or store policy.
What he did with the gun would have been what mattered.
Ohio is an “open carry” state, meaning anyone can openly carry a loaded firearm without any kind of license, as long as they aren’t personally prohibited by law from owning a gun. Walmart policy does not prohibit customers from carrying firearms.
“Until you do an illegal act, such as shoot it in the air or things like that … just carrying it is not inducing panic, is not an illegal activity,” said B.J. Thornbury, an open carry activist with the group Ohio Carry.
Several local jurisdictions in recent years have increased training for officers in how to deal with an armed public as the Ohio General Assembly has loosened rules on where firearms can be toted.
The city of Riverside in July settled a civil lawsuit for $25,000 and adopted a new policy after a man named Roy Call was detained by police for wearing a holstered sidearm. In a video of the confrontation, the officer threatened to charge Call with inducing panic.
“A Riverside police officer may not stop an individual solely for the reason of the person’s open carry of a firearm,” the new policy states. “Officer statements about possible charges of inducing panic and/or disorderly conduct to a person exercising a lawful right to openly carry a firearm are inappropriate.”
Vandalia adopted a similar policy in 2012 after Call was questioned by police while loading his car with groceries at Kroger.
Thornbury said one of his group’s goals is to educate police and the public that someone simply having a gun should not be cause for alarm.
“If they’re at Kroger and they’re looking at a bottle of ketchup and they’re reading the ingredients, there’s no reason to feel alarmed,” he said. “Until they pull that weapon out and make an aggressive action, that’s when it becomes illegal.”
‘Use of force continuum’
The 911 caller in the Walmart case said Crawford was pointing the air rifle at patrons. The weapon turned out to be a BB/pellet gun.
Regardless, pointing it at someone could be illegal. By itself, pointing the gun could be considered at least misdemeanor aggravated menacing. Other factors, such as threatening to fire it, could raise the charge to felonious assault.
Patrick Oliver, director of the criminal justice program at Cedarville University and a former police chief of cities including Fairborn and Cleveland, said someone with a firearm can escalate a situation. Officers use a “use of force continuum” when interacting with a suspect.
“Typically police will go one above the level of resistance being offered by the individual involved,” he said. “What level above would you use for a weapon? It takes you right to the top level, doesn’t it?”
If a police officer sees someone with a gun, that in itself is not probable cause to detain someone, though an officer can simply talk to them. But if someone calls 911 with a complaint, that creates probable cause for an officer to engage someone and investigate, Oliver said.
“Open carry is more challenging to deal with, because people tend to be frightened by it, but you want to be sure your intervention is legal,” Oliver said. “It’s been an ongoing issue.”
And there is no formula for determining whether the person with a gun is a threat to anyone. It’s a judgment call the officer must make, sometimes in a split second.
Dayton police recently have had run-ins with two men openly displaying assault rifles. One ended peacefully, the other ended with a man shot to death.
In February 2013, officers responded to several 911 calls that a man with a gun was walking down Helena Street toward Island MetroPark. One caller said the man, Daniel Holt, was cocking his weapon as if preparing to fire it, and another caller said he was pointing the rifle at passing vehicles.
Cruiser camera video showed officers demanding Holt drop the weapon — an SKS assault rifle with an attached bayonet — but Holt instead pointed the rifle at police, who shot him to death.
Police later found the rifle wasn’t loaded. Holt had mental health issues and an apparent suicide note on him. Dayton Police Chief Richard Biehl said “officers responded appropriately to a lethal threat.”
Contrast that to February of this year, when police responded to a call of a man with an AK-47 assault rifle walking on North Gettysburg Avenue. He had the gun strapped across his back and did not point it at anyone or threaten anyone with it, police said.
Officers checked his background and let him go.
“It’s not illegal to possess and carry a firearm,” said Dayton Sgt. Mark Spiers. “As long as it’s not concealed and he’s not discharging it … If he did point it in a menacing manner that would make it a crime.”
Both men confronted by Dayton police were white. Crawford, who was shot by Beavercreek police, was black. Oliver wouldn’t comment on the Crawford case, but said in general people can be more likely to call police based on the skin color of the person with the gun.
“If there’s bias toward a particular ethnicity, bias can play a role,” he said. “Does biased-based policing occur? Absolutely it does.
“Law enforcement intervention should be based on what a person does, not who a person is.”
Skateboards banned, but guns allowed
Firearms are not allowed in places such as courts or schools, or on property where signs are posted prohibiting them.
Crawford’s family members, who saw surveillance video from the store that has not been made public, say he picked up the air rifle from a shelf and it was already out of its box. When officers arrived, they say Crawford was talking on the phone and leaning on the weapon like a cane, with its barrel pointed at the floor.
Walmart is one of many stores that allows people to carry firearms. Another is Kroger, which was criticized in an ad campaign last week by the anti-gun group Moms Demand Action because the grocer allows guns but prohibits shirtless patrons, skateboards and food.
Moms Demand Action founder Shannon Watts said in a release that in states such as Ohio, no background check, permit or training is required to openly carry a gun.
“Businesses have an obligation to protect their employees and patrons,” her statement said.
But open carry activists such as Townsend say everyone is safer when law-abiding people carry guns. He said he wears his gun almost everywhere, even while mowing the lawn. It’s a tool, he said, an inanimate object that people shouldn’t fear by itself.
“I equate it to having a first-aid kit in my home, having a fire extinguisher in my home,” he said.