Does having a gun make someone suspicious? Courts are not sure now.

It was at 2:30 a.m. on Valentine’s Day last year when a detective watching live surveillance footage from a major thoroughfare in Queens spotted a man in a minivan who appeared to be holding a gun.

Police said they quickly arrested the man, Robert Homer, and found a loaded Glock pistol in his pocket. When they checked his criminal record, they saw that he had been convicted of sex trafficking. As a result, he was ineligible for a gun permit under federal law. He was indicted and pleaded not guilty to the charge of being a felon in possession of a firearm.

The case is now in jeopardy after a federal judge in Brooklyn ruled on February 5 that police did not have probable cause to stop Mr. Homer. In the ruling, the judge, Nicholas G. Garaufis, cited a 2022 Supreme Court decision that found that U.S. citizens have a broad right to carry concealed firearms, overturning longstanding New York regulations. The case involving Mr. Homer is the latest test of gun laws in the state, where officials continue to grapple with how to bring a legacy of strong gun control into line with the 2022 ruling.

Just nine days after Judge Garaufis’ decision in Mr. Homer’s case, a lawyer in another gun case cited the Manhattan state court ruling, saying he understood that having a gun was not probable cause for a stop was. The judge in the state case, Abraham Clott, said he disagreed with the federal judge’s conclusion.

The Supreme Court’s ruling – in New York State Rifle & Pistol Association v. Bruen – “really turned American law on its head,” said Adam Winkler, a professor at UCLA Law. That it has emerged in connection with Fourth Amendment questions about probable cause in the Homer case “just shows the profound impact Bruen is having,” he added.

Mr. Homer’s attorney cited Bruen’s decision in July when she decided to suppress evidence in the case. The attorney, Marissa Sherman of the Federal Defenders of New York, argued that police had no probable cause to believe a crime had been committed when they searched Mr. Homer and found the gun.

If carrying a gun is not presumed to be illegal—as it might have been in New York before the Bruen decision, given the state’s strict rules—then the mere sight of a gun would not be a reasonable cause to stop someone, she argued.

Judge Garaufis agreed. The question after Bruen, he wrote, was whether a police officer who sees an unidentified person with a gun “has an objectively reasonable basis to believe that that person is guilty of a crime.”

In Mr. Homer’s case, the judge concluded, the answer was no.

On the night of Mr. Homer’s arrest, Detective Nicholas Conte of the 113th Precinct watched a video feed from the Argus surveillance system, which police use in high-crime areas. Detective Conte testified at a hearing last year before Judge Garaufis that after a murder, he was assigned to a lengthy investigation into a criminal gang whose members hung out on the stretch of Guy R. Brewer Boulevard where he saw Mr. Homer.

Raffaela S. Belizaire, a prosecutor, wrote in a lawsuit that Detective Conte saw Mr. Homer put a firearm in his pants pocket while Mr. Homer sat in the driver’s seat of a parked van with two passengers inside. The detective stated that he recognized the van as one used by the gang members, but could not see the license plate number.

Ms. Belizaire wrote in the filing that officers arrived at the van within minutes of Detective Conte spotting the gun and pulled Mr. Homer out, and that the event was captured on the officers’ body-worn cameras.

Judge Garaufis, who was appointed to the federal bench by President Bill Clinton, said in his ruling that although the detective determined that Homer lacked “firearm discipline” based on the way he put the gun in his pocket, he did not observed other things. suspicious behaviour. Mr. Homer “could plausibly have obtained a permit to carry the firearm,” the judge wrote.

A spokesperson for the U.S. attorney’s office in the Eastern District of New York declined to comment. Lawyers for Mr. Homer did not respond to requests for comment.

The history of strong gun control in New York City includes the issuance of few so-called concealed carry permits: only 7,384, a number equivalent to just 0.1 percent of the city’s adult residents, were operating on the day the case Bruen was ruled, according to an affidavit filed by Sgt. David Blaize of the Police Department’s Licensing Division, along with a recent motion by prosecutors. Previously, applicants had to demonstrate that they were in “extraordinary personal danger” to obtain such a permit, Judge Garaufis noted in his ruling.

After the Bruen decision, New York lawmakers passed new laws directing officials to issue permits to applicants who had completed safety training, passed a firearms test and provided referrals to confirm their “good moral character.” Still, the judge wrote, the state’s revised post-Bruen law was “broad enough that even alleged gang membership would not necessarily prevent the licensing officer from granting a firearms permit.”

Felons still cannot own guns in New York, and state law bans guns in sensitive areas, including on the subway, in Times Square and around schools. On the day Homer was arrested, eight months after the Bruen decision, the number of concealed carry permits had increased by only 237, according to the affidavit.

Judge Garaufis said in his ruling that police could have stopped Mr Homer, searched him and conducted a license check to see if there was probable cause to arrest him, but instead they arrested him immediately.

Further, the judge wrote, a “reasonably prudent police officer” would not assume that an “unidentified alleged gang member was a criminal.” He also found that the link between the van and the gang was “tenuous at best.”

Michael Alcazar, professor at the John Jay College of Criminal Justice in New York, and The retired New York City police detective said the decision conflicted with the real-time assessments officers are required to make.

If an officer “believes that this person is affiliated with a gang and that he has a gun, most police officers and most detectives will not stop – their main goal is to protect the public and protect themselves from a potentially deadly situation” , professor said Alcazar.

In a March 1 motion asking Judge Garaufis for reconsideration, prosecutors argued that his decision was “unworkable,” would pose practical difficulties for police and endanger them and the public.

The judge, they argued, had created “a new legal standard of probable cause” for gun arrests in New York that would require officers to release people if they could not immediately determine whether they had a gun permit. That would be especially problematic in crowded places or among people who do not identify themselves, prosecutors wrote.

The number of applications for weapons permits has soared in recent years: last year there were 13,369 applications for pistols, rifles and shotguns, compared to 3,766 in 2019, according to police data. The department, which issues licenses in New York City, would not say how many licenses it approved last year. A lawsuit has accused the department of taking so long to process applications that it violates the Second Amendment.

Eric Ruben, a professor at Southern Methodist University’s Dedman School of Law in Dallas and a fellow at NYU Law’s Brennan Center for Justice, warned that it would take a long time to resolve the swirling legal questions surrounding gun ownership in light of the Bruen decision.

Lawsuits across the country had focused on whether the presence of a weapon allows people to be stopped and questioned at all, he said. And while Judge Garaufis’ ruling appeared to be a loss for the police, Professor Ruben said it contained an important clause in their favor: searching Mr Homer, as the judge suggested, would require a lower threshold of reasonable suspicion of a crime required.

“In light of what I have seen around the country on this issue,” Professor Ruben said, “this can actually be seen as a victory for the NYPD.”