LOUISVILLE, Ky. (WDRB) -- Following an argument earlier that night at O'Shea's Irish Pub, Carmon Tussey was arrested last summer while allegedly returning to the Highlands neighborhood bar with a gun.

He was stopped by people outside the bar and subdued by police, who wrestled the weapon from him. All were later credited with preventing a possible mass shooting. 

But did Tussey actually break any laws?

"It is very much legal to carry a (gun) in public places in Kentucky," his lawyer argued in recent court documents.

And that's all Tussey was doing, attorney Greg Simms wrote last month, asking that the evidence in the case be thrown out because of a lack of probable cause to stop and charge the 26-year-old.

"Tussey repeatedly denied any illegal activity and stated he was lawfully carrying a legal weapon, in his name," Simms wrote, adding that Tussey's actions are protected by the Second Amendment. "Regardless of what 'would have happened' or 'could have happened' without some intervention, police could not articulate any illegal activity on the part of Tussey prior to arresting him."

Prosecutors, meanwhile, claim Tussey was not only moving quickly toward the crowded bar with a "semi-automatic AR pistol in the ready position" but earlier had asked the same officers who were patrolling the area "what type of bullets would penetrate their safety vests."

In addition, when the officers approached the scene, "they observed a group of people restraining (Tussey) and attempting to remove the firearm from his hands," Assistant Commonwealth's Attorney Ryan Olberding wrote June 23.

When arrested, police said Tussey told officers he "should have just shot."

The Tussey case comes amid a spate of mass shootings across the nation as lawmakers grapple with how to balance Second Amendment rights with the safety of citizens.

Officers and bystanders were immediately hailed as heroes when Tussey was arrested June 5, 2021, with police saying he could have potentially "harmed or killed dozens of people" after an argument with some bargoers earlier in the evening.

"If I can prevent a mass shooting, like I said, I'd do it a hundred times over," said one of the people who helped subdue Tussey in a WDRB interview.

Patrons of the bar that night say after an argument, Tussey said "I'll be back" as he left.

Tussey has pleaded not guilty to terroristic threatening, disorderly conduct and several counts of wanton endangerment. He posted a $25,000 cash bail in January. 

Previously, in 2017, Tussey was acquitted of a murder charge in the slaying of a St. Matthews man. 

In the recent case, LMPD said Officers John Moore and Kerry Ball were working an overtime detail along Baxter Avenue that Saturday when they saw Tussey running by. The two officers — along with several civilians — disarmed Tussey and took him into custody around 2:50 a.m., according to police.

In his arguments to Jefferson Circuit Court Mary Shaw, however, Simms notes that Tussey never entered the bar, and there is no evidence he broke the law while on the sidewalk with a weapon.

And, Simms argues, the arresting officers did not initially recognize Tussey as the man who had asked them what type of bullets their vests would stop.

He said police testified they believed at the time the question was just "general passing conversation."

"Tussey was simply carrying a firearm, pointed at the ground, and not making any threats to any person," Simms wrote.

His alleged statement that he should have "just shot" came before he was read his rights and should also be thrown out, Simms argued.

"The conduct Tussey engaged in, prior to his arrest, was protected by the Second Amendment and Kentucky Constitution," Simms concluded. "IF Tussey's arrest were lawful, police may arrest any person carrying a gun in the Commonwealth of Kentucky, and that is simply not the case."

Prosecutors have acknowledged they won't be using his statement to police while being arrested in their case. However, the statement asking about the type of bullets that could penetrate their vests came before he was arrested and is not protected, Olberding said in his response.

Olberding also said the officers did recognize Tussey when they later arrested him as he walked towards the bar, giving them probable cause and "reasonable suspicion" necessary to stop and question him.

"Officers observed (Tussey) walking rapidly toward a bar and crowded area with a semi-automatic pistol gripped in both of his hands in the ready position," Olberding wrote. "Immediately thereafter, they also observed him fighting with a group of individuals outside of a bar, attempting to stop him because they feared for everyone's safety."

Shaw heard testimony on the motion in May but has not yet ruled. The case is scheduled to be back in court Wednesday.

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