The Open Carry With Training Act took effect in South Carolina in August 2021. The legislation redefined a “concealable weapon” in a way that allows valid permit holders to openly carry firearms, as well as carry them concealed. The portion of the law concerning permits for concealable weapons can be found at SC Code Section 23-31-215.
When an officer is looking to check for a permit, different circumstances govern how the check can proceed.
Consensual encounter without any reasonable suspicion of criminal conduct
Openly carrying a weapon without any other indication of criminal conduct does not create the “reasonable suspicion” necessary for an officer to engage in anything further than a consensual interaction.
The idea that an officer does not need either reasonable suspicion or probable cause for a consensual encounter with a person comes out of the 1991 U.S. Supreme Court case Florida v. Bostick. That court ruling held that a consensual contact between a person and an officer can be determined by whether a reasonable person “would feel free to decline the officers’ requests or otherwise terminate the encounter.” Engaging in this kind of contact, the Supreme Court ruled, does not violate the Fourth Amendment to the U.S. Constitution, which prohibits “unreasonable searches and seizures.”
In a situation with someone open carrying but not creating reasonable suspicion, officers can approach anyone in public to ask questions, including questions about a permit, and offer assistance. The person does not have to answer any questions or respond in any way. Officers cannot detain the person or temporarily restrict their freedom.
Reasonable and articulable suspicion of criminal activity
The legal concept of reasonable suspicion comes from the 1968 U.S. Supreme Court decision in Terry v. Ohio. The decision found that police officers could stop and briefly detain a person for questioning when the officers reasonably suspect the person was involved in criminal activity, without violating the Fourth Amendment.
If officers have reasonable suspicion of criminal activity with a person who is open carrying, then in accordance with SC Code Section 23-31-215(K), the officers can identify themselves as law enforcement and request the person’s identification. When this happens, the law requires that those carrying the guns must indicate they are permit holders and present the permit ID card. If they do not do so, the officers can demand that they produce the permit.
If they are carrying a gun, openly or concealed, without a valid permit, then they are in violation of state law, and officers may arrest them.