[tmoore912]

Branded With a Scarlet 'G': The Fourth Circuit Court of Appeals takes aim at gun owners' civil rights.

http://bit.ly/2jmR9ct

The court actually typed this sentence: "The danger justifying a protective frisk arises from the combination of a forced police encounter and the presence of a weapon, not from any illegality of the weapon's possession" (emphasis added.) The implications were clear: Even lawful gun owners are by definition "dangerous" and can be broadly treated as such by the state.

In essence, the Fourth Circuit is declaring that gun owners lawfully exercising their constitutional rights are to be viewed with particular suspicion by law enforcement, regardless of any empirical evidence of danger.

The court is relegating lawful gun owners to second-class-citizen status. Even worse, it did so gratuitously. It could have analyzed Robinson's claims on the facts, asking whether the fact that he loaded his gun in a high-crime area and acted suspiciously after the stop justified the frisk (probably not, which is likely one reason why the majority reached for a new standard). Or it could have noted that in jurisdictions that require concealed-carry permits, when officers reasonably suspect that a person is armed, they can ask to see the citizen's carry permit and conduct a search if he can't produce it. Instead, however, it wrote a new law.

 

[Malum Prohibitum]

http://www.ca4.uscourts.gov/Opinions/Published/144902.P.pdf

Decided back in February

Rehearing en banc:

This oral argument is posted in September 2016
https://www.c-span.org/video/?41508...t-appeals-hears-oral-argument-stop-frisk-case

 

[tmoore912]

To them, armed is dangerous, and your decision to lawfully carry a weapon opens you to the possibility of a police frisk merely because you exercise a constitutional right. Indeed, Judge James Wynn, writing in concurrence, made the majority's reasoning terrifyingly clear:

In sum, individuals who carry firearms - lawfully or unlawfully - pose a risk of danger to themselves, law enforcement officers, and the public at large. Accordingly, law enforcement officers may frisk lawfully stopped individuals whom the officers reasonably suspect are carrying a firearm because a detainee's possession of a firearm poses a categorical "danger" to the officers.

Read more at: http://www.nationalreview.com/artic...-concealed-carry-permit-firearms-civil-rights

 

[Malum Prohibitum]

http://www.ca4.uscourts.gov/opinions/en-banc-cases

United States v. Shaquille Robinson, 814 F.3d 201 (4th Cir. 2016), rehearing en banc granted (April 25, 2016) (No.14-4902)
http://coop.ca4.uscourts.gov/OAarchive/mp3/14-4902-20160922.mp3

Decision Jan 23, 2017
http://www.ca4.uscourts.gov/Opinions/Published/144902A.P.pdf

We reject Robinson's argument and affirm, concluding that an officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile's occupants is armed may frisk that individual for the officer's protection and the safety of everyone on the scene.

Robinson's argument focuses on whether the officers could reasonably have suspected that he was dangerous. He argues that while the officers may well have had good reason to suspect that he was carrying a loaded concealed firearm, they lacked objective facts indicating that he was also dangerous, so as to justify a frisk for weapons, since an officer must reasonably suspect that the person being frisked is both armed and dangerous. See Terry, 392 U.S. at 27.

As such, when the officer reasonably suspects that the person he has stopped is armed, the officer is "warranted in the belief that his safety . . . [is] in danger," id. at 27, thus justifying a Terry frisk.

In other words, armed IS armed and dangerous.

Here is what they said about the Terry case.

The concern -- i.e., the danger -- was thus found in the presence of a weapon during a forced police encounter.

In short, established Supreme Court law imposes two requirements for conducting a frisk, but no more than two: first, that the officer have conducted a lawful stop, which includes both a traditional Terry stop as well as a traffic stop; and second, that during the valid but forced encounter, the officer reasonably suspect that the person is armed and therefore dangerous.

Underlining emphases as in original.

The public defender is not very good at oral argument (listen to the recording linked in this post).

 

[Malum Prohibitum]

Summary

The plain meaning of "armed and dangerous" is easily changed by adding one word into a different standard, "armed and therefore dangerous."

 

[gunsmoker]

One of the vehicle's occupants !
So this broad authority to seize and disarm people applies to more than just the driver, who may have committed some traffic violation. A driver who may be suspected of some minor offense involving how and where the vehicle is driven, or parked.

It's open season on passengers and witness-bystanders, too.
Anybody who potentially might object to what a cop asks them to do (mere passengers and even non-passenger witnesses to a crime can be seized and ordered to identify themselves, too, if the government wants to go down that road and risk offending people and provoking the ACLU's outcry.)

This ruling isn't just bad for the given scenario from that one case-- it's a slippery slope for sure.

 

[gunsmoker]

Well, they always say that tough facts make for bad caselaw.
Here, we have a black male seen handling a gun and loitering next to a seedy apartment complex known for drug activity, in the highest-crime area of the city. The man turns out to be a convicted felon, and although it's not something cops knew when they first confronted him, it's certainly something the judges hearing his case knew about, and may have allowed to influence them. If cops aren't supposed to profile people, fine, but we all know they do, and the courts will be reluctant to let a bona-fide guilty-as-hell criminal get away with a crime just due to that.

So, this court creates a new type of profiling that's ok.

Black males loitering in high drug areas = bad profiling. Cops can't make any assumptions about that.

Gun possession = dangers, imminent threat to cops. GOOD PROFILING.
Gun owners can go nuts and start shooting police officers at any moment. That's legitimate profiling. EVEN IF THE PERSON HAS A CARRY PERMIT.
Permits don't matter, says this court, because the danger comes from being armed and having a cop challenge you, NOT from the legality of what and how you're carrying.

So, we're back to profiling. The Court is reading minds. If you have a gun and you have to deal with a cop in the cop's official capacity, you're likely to want to shoot the cop. Can't have that. So we'll take away your rights now, BEFORE you can commit the crime we fear you're thinking about committing.

 

[moe mensale]

What a broad brush the justices paint with. Maybe I'll start carrying in Thunderwear and they can fondle my junk looking for it.

The Fourth Circuit Court of Appeals just suffered from an outbreak of bad judging. In an en banc opinion, the court ruled that after a lawful traffic stop, the police may frisk any person who they believe may possess a firearm, regardless of whether that person possesses a concealed-carry permit. The court actually typed this sentence: "The danger justifying a protective frisk arises from the combination of a forced police encounter and the presence of a weapon, not from any illegality of the weapon's possession" (emphasis added.) The implications were clear: Even lawful gun owners are by definition "dangerous" and can be broadly treated as such by the state.

 

[Mrs_Esterhouse]

The most important part of the article-where this actually applies-was left out by everyone.

Make no mistake, imposing a series of new and unconstitutional burdens on gun owners is a form of gun control. It's a judge-made deterrent against gun ownership, concocted out of whole cloth. The court legislated from the bench, and federal, state, and so now local authorities in Virginia, West Virginia, North Carolina, South Carolina, and Maryland can treat lawful gun owners as toxic, depriving them of other constitutional rights, all in order to promote "the safety of persons and property."

Read more at: http://www.nationalreview.com/artic...-concealed-carry-permit-firearms-civil-rights

 

[legacy38]

My personal opinion is that this ruling is contrary to the cases cited within it.

While I think it is a bad ruling, it does still hinge on the initial stop being legal, and I read nothing in it that legalizes stop and frisks on people simply for being armed. The individual was legally seized under Maryland v. Wilson. It is the court's analysis after that point that is in question.

 

[Fallschirmjäger]

What a broad brush the justices paint with. Maybe I'll start carrying in Thunderwear and they can fondle my junk looking for it.

The Fourth Circuit Court of Appeals just suffered from an outbreak of bad judging. In an en banc opinion, the court ruled that after a lawful traffic stop, the police may frisk any person who they believe may possess a firearm, regardless of whether that person possesses a concealed-carry permit.

And that's the part that bothers me, not "... has a reasonable, aticulable suspicion that someone possesses a firearm" , just a belief, in other words not even an "inchoate and unparticularized suspicion*" but a mere hunch.

*plagiarized from Terry v Ohio.

Then again, the ruling is right in line with the judge dismissing civil suit against an officers suspicionless seizure in the great Gary Pirkle Park pirkling,

 

[Mrs_Esterhouse]

Then again, the ruling is right in line with the judge dismissing civil suit against an officers suspicionless seizure in the great Gary Pirkle Park pirkling,

Do officers and judges routinely have sex with each other?

 

[legacy38]

Then again, the ruling is right in line with the judge dismissing civil suit against an officers suspicionless seizure in the great Gary Pirkle Park pirkling,

Are you conceding that your seizure was legal? If not, the cases are not in line at all.

 

[Fallschirmjäger]

Well, the judge conceded that it was all legal and proper, so who am I to argue?


But no, and it STILL irks me.

 

[Nemo]

From what I can read and understand in that case opinion, this may be the perfect case for SCOTUS to take up.

Nemo

 

[gunsmoker]

I like the prior 4th Circuit opinion-- the one from February last year, decided by the normal 3-judge panel.

http://www.ca4.uscourts.gov/Opinions/Published/144902.P.pdf

************ As for the new "en banc" opinion *************

The problem with getting SCOTUS to grant certiorari on this is that it's a pretty narrow question, very fact-specific.

Mr. Robinson was lawfully stopped for a traffic violation.
Even if that cops were using the traffic violation as a mere excuse (pretext) to stop him and detain him over the concealed handgun allegations, pretextual stops are legal. (Whren v. U.S.) (1996).

So, the narrow issue is can a person who is lawfully detained as a suspect in a separate crime, who is reasonably believed to be carrying a LOADED and CONCEALED handgun (both of these things are important to the 4th circuit en banc opinion) be disarmed and detained a bit longer to have the legality of the situation checked-out?

Is there another U.S. Court of Appeals case that says NO, even when the armed citizen is a suspect in a crime and was lawfully stopped for that?

Is there a split among the circuits?

Well, yes. U.S. v. Leo (7th Cir. 2015). The cops had a 911 call that a couple of teenagers were breaking into an apartment. Cops saw the teenagers in the area both before and immediately after the 911 call. The 911 caller said one kid had a gun, and he placed it in his backpack. Cops detained both of them on reasonable suspicion (not probable cause; this was an investigatory stop). That part was OK. But after they were handcuffed, searching Mr. Leo's zippered-shut backpack was not OK. That was not like a Terry v. Ohio pat-down for a gun that the suspect could have drawn in a second. Opening Mr. Leo's bag was not "incidental to" any lawful arrest (it turns out the apartment wasn't burglarized. The 911 caller was wrong.) Leo did not consent. There were no "exigent circumstances" that made getting a warrant signed by a judge impossible due to time or distance or mobility of the suspects.

The LEO court--the 7th Circuit-- said there is no gun exception to the 4th Amendment. Just being suspected of carrying a gun and being suspected of some other crime is not enough when the gun is not within easy reach and when the suspect is already handcuffed, and when there's no reason to believe that the gun was being carried illegally (cops had no way of knowing Mr. Leo didn't have a carry permit).

So yeah, after Trump's new Justice gets on the Court, let's hope they take up this issue and rule on whether "officer safety" can flatly trump gun rights and allow every cop to treat every armed citizen like a wanna-be cop killer.

 

[Rugerer]

"Fourth Circuit shreds civil liberties for public gun carry"

Judge Wynn said that since persons who lawfully carry firearms are “categorically dangerous,†they “sacrifice certain constitutional protections afforded to individuals who elect not to carry firearms.â€

Just. Wow.
http://thehill.com/blogs/pundits-bl...uit-judges-turn-legal-contortionist-over-open

 

[Phil1979]

Can the President fire circuit court judges?

That's one nasty swamp I'd like to see drained. What do those fools think will happen when they strip away the remaining veneer off our rights? Are they trying to get the Tree of Liberty watered again or something?

 

[Malum Prohibitum]

Can the President fire circuit court judges?

No. They are appointed for life. Impeachment is the only way to remove one forcibly.

 

[tmoore912]

States ask Supreme Court to halt unjustified searches of lawful gun owners

http://www.guns.com/2017/07/28/stat...lt-unjustified-searches-of-lawful-gun-owners/

Five states want to overturn a ruling that an officer is justified in searching a person if they suspect that that person has a weapon, even if it's being carried legally.

Attorneys general from Indiana, Michigan, Texas and Utah joined West Virginia Attorney General Patrick Morrisey in filing an amicus brief Wednesday to the Supreme Court for reviewing a Fourth Amendment case.

Their amicus filing aims to protect Second Amendment rights of lawful gun owners to carry a weapon without law enforcement concluding an individual at a warrantless stop is "presently dangerous" and subject to a search.

The filing comes in the 4th Circuit Court of Appeals decision in the case of Shaquille Montel Robinson, who was stopped and searched by police in West Virginia for not wearing a seatbelt and found with a gun in his pocket. Robinson, a felon, had sought the evidence that he was armed suppressed, arguing the gun was found through an illegal search that violated his Fourth Amendment rights, citing that as far as the officers knew he could have had a permit and been legally armed.