A decision last week from the 4th Circuit Court of Appeals declared that being armed, even legally, is the same as being “armed and dangerous” and leaves you open to police search. It also implies, according to a concurring opinion, that gun carriers lose significant First Amendment as well as Fourth Amendment rights.
Shaquille Robinson in March 2014 was a passenger in a car pulled over by police in Ranson, West Virginia. It was pulled over, ostensibly, because driver and passenger were not wearing seat belts.
However, the police had received a tip that Robinson had been seen loading a gun and putting it in his pocket before he got in the car. He was in a 7-11 parking lot known to cops as a frequent site of drug sales.
The police searched Robinson after pulling the car over and found the gun in his pocket, and arrested him for an illegal possession of a gun by a felon.
Robinson sued to challenge the search. Since merely having the gun on his person, as the police already suspected from the call, could have been a perfectly legal act—he might have had a permit—the police, he insisted, had no legal grounds for the search that did find the (actually illegally possessed) weapon.
To quote from the decision last week, Robinson argued as part of his appeals process that “Under the logic of the district court, in any state where carrying a firearm is a perfectly legal activity, every citizen could be dangerous, and subject to a Terry frisk and pat down.”
Last year, a panel of the 4th Circuit Court of Appeals agreed with Robinson and overturned his initial conviction. The government appealed for a decision of the full court, and now last week that full court disagreed with the panel decision.
The whole case hinges, as the Court explains, in whether “armed” should legally be presumed to mean the same thing as “armed and dangerous,” and they conclude that yes, it can be.
The decision, by Judge Paul Niemeyer, says that Robinson “argues illogically that when a person forcefully stopped may be legally permitted to possess a firearm, any risk of danger to police officers posed by the firearm is eliminated….Robinson’s position…fails as a matter of logic to recognize that the risk inherent in a forced stop of a person who is armed exists even when the firearm is legally possessed. “
Niemeyer’s majority opinion states that precedent all the way back to the 1968 Terry case that established current legal standards for police frisking make it clear that mere suspicion of gun possession, whether legal or not, is more than enough to justify a search, noting that in that original case the court noted in “approving Officer McFadden’s frisk of Terry that ‘a reasonably prudent man would have been warranted in believing petitioner was armed and thus presented a threat to the officer’s safety.’ In this manner, the Court adopted the now well-known standard that an officer can frisk a validly stopped person if the officer reasonably believes that the person is ‘armed and dangerous.'”
A separate concurring opinion from the 4th Circuit in the case, also against Robinson, by Judge James Wynn tries to separate out the majority opinion’s apparent belief that “armed” and “dangerous” mean essentially the same thing to declare more clearly that being armed with a gun specifically (not, for example, a wine bottle) is the thing that indeed takes away your constitutional right to be free from unwarranted search.
As Wynn plainly writes, “individuals who choose to carry firearms forego certain constitutional protections afforded to individuals who elect not to carry firearms.”
In Wynn’s opinion, in a statement that alarmed many in the gun rights community, the majority opinion as it stands has further (bad) implications for gun carriers and their constitutional rights:
I see no basis–nor does the majority opinion provide any– for limiting our conclusion that individuals who choose to carry firearms are categorically dangerous to the Terry frisk inquiry. Accordingly, the majority decision today necessarily leads to the conclusion that individuals who elect to carry firearms forego other constitutional rights, like the Fourth Amendment right to have law enforcement officers “knock-and-announce” before forcibly entering homes. See Richards v. Wisconsin…(1997) (“In order to justify a ‘no-knock’ entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile.” (emphasis added)).
Likewise, it is difficult to escape the conclusion that individuals who choose to carry firearms necessarily face greater restriction on their concurrent exercise of other constitutional rights, like those protected by the First Amendment. See Schenck v. United States...(1919) (Holmes, J.) (“The question in every [freedom of speech] case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” (emphasis added)).
A dissent written by Judge Pamela Harris disagrees, after noting that so many law-abiding citizens have carry rights that it just doesn’t hold up to conflate “armed” (even with a gun) and “dangerous” the way the majority decision does, and that:
unless and until the Supreme Court takes us there, I cannot endorse a rule that puts us on a collision course with rights to gun possession rooted in the Second Amendment and conferred by state legislatures. Nor would I adopt a rule that leaves to unbridled police discretion the decision as to which legally armed citizens will be targeted for frisks, opening the door to the very abuses the Fourth Amendment is designed to prevent.
Harris’ dissent also spells out what seems to this non-lawyer a clear circuit split on the question that the 4th Circuit has just created, one that might require the Supreme Court to hash out:
We are not alone in this insight. In Northrup v. City of Toledo Police Dep’t…(6th Cir. 2015), for instance, the Sixth Circuit held that where state law permits the open carry of firearms, the police are not authorized by Terry to conduct a stop – or an attendant frisk – of a person brandishing a gun in public. Where the state legislature “has decided its citizens may be entrusted with firearms on public streets,” the court reasoned, the police have “no authority to disregard this decision” by subjecting law-abiding citizens to Terry stops and frisks…..; see also, e.g., United States v. Leo…(7th Cir. 2015) (rejecting “frisk” and search of backpack on suspicion that it contains gun in light of “important developments in Second Amendment law together with Wisconsin’s [concealed-carry] gun laws”); United States v. Ubiles (3d Cir. 2000) (invalidating Terry stop based on suspicion of gun possession in open-carry jurisdiction).
Wynn’s boldly stated conclusions about all the rights that gun carriers lose based on this 4th Circuit judgment have been viewed-with-alarm by, among others, the National Rifle Association’s Institute for Legislative Action and Ammoland.
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