Also, the clerks reported only that the young man with the gun acted strangely. Though one clerk saw the man blowing smoke off the barrel, the clerk didn't say it was directed toward him, Smith wrote.

After spotting the van, Officer Nathan Kaiser tried to see the driver to compare his appearance to the description of the suspicious person, Smith said. Darkness made that harder, the judge said.

"Nonetheless, an objectively reasonable police officer would not mistake a 58-year-old bald man for a young adult with hair."

"Officers may not turn a blind eye to facts that undermine reasonable suspicion."

Judge Bobby Shepherd, the lone dissenting judge, said he believed the stop was constitutional because officers were told to be on the lookout for the van as part of an investigation and that police don't have to first exclude the possibility the man at the store lawfully possessed the gun to justify stopping Duffie.

Reasonable suspicion relies on the factual and practical considerations prudent people make in everyday life, Shepherd said.

The appellate judges didn't specifically address Duffie's claims that the officers mocked him as he lay on the ground, as he alleged in his lawsuit.