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Posted on 29 January 2017.
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Federal Appeals Court’s Shocking Pronouncement: Lawful Gun Carriers Must Forfeit Other Rights

Friday, January 27, 2017

Federal Appeals Court’s Shocking Pronouncement: Lawful Gun Carriers Must Forfeit Other Rights

The election of Donald J. Trump to the presidency has many gun owners feeling more secure about their Second Amendment rights than they have in nearly a decade.

But a decision this week by the full U.S. Court of Appeals for the Fourth Circuit is a stark and sobering reminder of the utter disdain and denial with which many judges continue to treat the right to keep and bear arms. Taken to its logical extreme, the opinion declares open season on law-abiding Americans who choose to carry firearms for self-defense. It may well be the most anti-gun ruling from any court of the modern era.

The case, United States v. Robinson, has been a roller coaster of conflicting opinions ever since Mr. Robinson first moved to have the evidence in the case against him suppressed for violation of his Fourth Amendment right against unreasonable search and seizure. The issue presented by the case is whether police officers, having reason to believe a person is in possession of a firearm, can legally treat the individual as dangerous, even if they have no reason to believe the possession is illegal and even if the person’s behavior is not overtly threatening.

On March 24, 2014, an anonymous tipster called the Ranson, W. Va. police department claiming to have seen an African-American male in the parking lot of a 7-Eleven load a handgun, conceal it in his pocket, and leave the lot as a passenger in bluish-green Toyota Camry driven by a white female. 

Within minutes, a police officer responded to the location and observed a vehicle less than a mile away from the 7-Eleven matching the description provided by the caller. The officer observed that the occupants of the car were not wearing seatbelts, which allowed him to execute a lawful traffic stop under West Virginia law. Mindful of the anonymous tip, the officer ordered Robinson, who was in the passenger seat, out of the car.

Meanwhile, back-up had arrived. The second officer approached the car, opened the passenger side door, and asked Robinson if he had any weapons. He would later testify that Robinson’s only reply was to give him a “weird look.” The officers then had Robinson place his hands on top of the car and frisked him for weapons, finding a firearm in his pants pocket. 

Both officers testified that Robinson was cooperative throughout the encounter and that they never observed any gestures indicating he intended to use any weapons against them.

After the frisk, one of the officers realized that he recognized Robinson from prior criminal proceedings. Confirming that Robinson had a felony record, the officer arrested him for felon in possession of a firearm. The case was then tried in federal court.

Under Supreme Court precedent from 1968 (Terry v. Ohio), police officers who believe a suspect they have detained for investigation but have not arrested can conduct a limited “pat down” of the suspect’s outer clothing when they have reasonable suspicion that the suspect is “armed and dangerous.” This was the basis for the search the officers used to find the incriminating firearm in Robinson’s pocket.

But Robinson claimed that the officers had no reason to believe that he posed any danger to them and therefore that they had no legal authority to frisk him. He noted that people may lawfully carry firearms in West Virginia, that the police had no information at the time of the frisk that his carrying was unlawful, and that he did not act aggressively or uncooperatively toward the officers.

A magistrate judge agreed with Robinson and recommended that the evidence of the firearm be disallowed. The district court judge presiding over the case rejected the recommendation, ruling the high crime area in which the contact occurred, the information the officers had that Robinson was armed, and Robinson’s failure to answer when asked about weapons created a reasonable suspicion that he was armed and dangerous. 

Robinson then appealed the district court’s decision to the U.S. Court of Appeals for the Fourth Circuit. The case was heard by a three-judge panel, and two of the three judges agreed with Robinson. 

Judge Pamela Harris’s majority opinion stated: 

[I]n states like West Virginia, which broadly allow public possession of firearms, reasonable suspicion that a person is armed does not by itself give rise to reasonable suspicion that the person is dangerous for Terry purposes. Where the state legislature has decided that its citizens may be entrusted to carry firearms on public streets, we may not make the contrary assumption that those firearms inherently pose a danger justifying their seizure by law enforcement officers without consent. … Nor will we adopt a rule that would effectively eliminate Fourth Amendment protections for lawfully armed persons … authorizing a personally intrusive frisk whenever a citizen stopped by the police is exercising the constitutional right to bear arms. [Quotation marks and citations omitted].

Barack Obama’s Justice Department then asked the entire Fourth Circuit Court of Appeals to rehear the panel decision.

That rehearing, unfortunately, led to a reversal of the earlier panel decision. The majority opinion, released on Monday, cast the issue in the case as, “whether a law enforcement officer is justified in frisking a person whom the officer has lawfully stopped and whom the officer reasonably believes to be armed, regardless of whether the person may legally be entitled to carry the firearm.”

The majority insisted that the “armed and dangerous” language in Terry really meant “armed and therefore dangerous” (emphasis in original). In other words, “the risk of danger is created simply because the person, who was forcibly stopped, is armed.”

The court also asserted the same “logic” applies, even if possession of the weapon is legal.  “The presumptive lawfulness of an individual’s gun possession in a particular State does next to nothing to negate the reasonable concern an officer has for his own safety when forcing an encounter with an individual who is armed with a gun and whose propensities are unknown,” the majority opinion concludes.

Thus, because Robinson was lawfully stopped, and the police officers had reasonable suspicion to believe he was armed, “the officers were, as a matter of law, justified in frisking him and, in doing so, did not violate Robinson’s Fourth Amendment right.”

Incredibly, though the court resolved the case on the broadest constitutional proposition possible, the majority opinion then went on to describe all the circumstances known to the officers that would have allowed them to make an individual “dangerousness” determination under the facts of the case. Thus, the majority essentially admitted that the patently anti-gun holding of the case – that all persons armed with a gun are a per se lethal threat to police officers – wasn’t even necessary to its resolution.

If the majority opinion were not bad enough, Judge James A. Wynn wrote an incendiary concurrence berating the majority for focusing broadly on “weapons” rather than on firearms specifically. Wynn’s opinion argued that the majority’s reasoning also necessitated recognition of two other “key issues.” The first, Wynn wrote, is that “individuals who carry firearms -- lawfully or unlawfully -- pose a categorical risk of danger to others and police officers, in particular.” The second is that “individuals who choose to carry firearms [therefore] forego certain constitutional protections afforded to individuals who elect not to carry firearms.”

Judge Wynn went on to explain how he believes the law of the Fourth Circuit – which includes Maryland, North Carolina, South Carolina, Virginia, and West Virginia – is now that lawful gun owners are second class citizens. 

“[T]he majority decision today necessarily leads to the conclusion that individuals who elect to carry firearms forego other constitutional rights,” Wynn wrote, “like the Fourth Amendment right to have law enforcement officers ‘knock-and-announce’ before forcibly entering homes.” He continued, “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.”

Indeed, Judge Harris, whose panel opinion was overturned by the majority, recognized even darker implications of the majority opinion in a dissent joined by three other judges. “[T]oday’s decision insisting on a conclusive link between ‘armed’ and ‘dangerous’ she wrote, “undoubtedly will have implications for police use of force, as well.” In particular, “If a police officer reasonably believes that a suspect poses a ‘threat of serious physical harm,’ he may use deadly force to protect himself ….” 

She went on to observe that under the majority’s reasoning, “the legal right to carry arms is perfectly self-defeating ….

Whether Robinson will appeal the case to the U.S. Supreme Court remains to be seen. 

In the meantime, the Fourth Circuit’s majority and concurring opinions epitomize the disordered thinking that leads to useless and persecutory gun control by focusing on an inanimate object, and not on human behavior, as the controlling factor of the law. 

It’s difficult to ignore the timing of the opinion, coming just as Congress’ interest in national right to carry is back in the news. Whether that’s purely coincidental, we’ll leave to the reader to decide. But it’s hard to imagine how any viable right to bears arms can exist where every lawfully armed motorist who’s stopped for a minor traffic infraction can be treated by police officers as a lethal threat.


Author: David Rich

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