The Fourth Court of Appeals this week released an opinion that has many gun owners and proponents of civil liberties worried.
At least one judge, Judge James Wynn, in his opinion, makes the claim that legal gun carriers (aka concealed carriers), essentially give up some of their rights and civil liberties when carrying a firearm.
The case that brought the opinion was from 2014 and is against Shaquille Robinson. Police were advised that Robinson was seen loading a gun and placing it in his pocket in a parking lot of a convenience store known for drug activity.
When police pulled over the vehicle Robinson was a passenger in, for a seat belt violation, they frisked Robinson and found the illegally carried firearm. Robinson was charged with illegal possession of a firearm be a felon.
However, Robinson argued that the search was illegal, because even if police were aware that he was carrying a firearm, they had no other reason to assume that he wasn’t a legal concealed carrier.
A three panel judge in the Fourth Circuit actually agreed with Robinson and overturned his conviction. However, on appeal and en banc review by the entire court they reversed the panel’s decision and upheld Robinson’s conviction, and the way in which they did it has many people concerned.
The court basically ruled that being armed essentially means you meet the requirements for a Terry stop which requires a subject by “armed AND dangerous” to be subject to a Terry frisk.
The general thought has previously been that in states where concealed carry is legal, that law enforcement generally considers the person carrying a firearm to be legally armed unless there is a reason to think otherwise. That reason is usually being engaged in the commission of a crime.
In this case, Robinson was simply a passenger in a car stopped for a minor misdemeanor. A seat belt violation would not normally warrant deeming someone to be “dangerous”, however, the Fourth Circuit essentially ruled that during any sort of stop by police, an armed person could be considered dangerous.
Judge Wynn took things a step further and, in his written opinion on the case, actually said that legal concealed carriers give up some of their constitutional rights just by carrying a firearm:
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.”
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.”
Judge Pamela Harris wrote the most compelling dissent to the case saying:
…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.
It looks like this issue could very well be heading to the Supreme Court and given the timing it is highly likely that the Supreme Court will be back to a solid conservative majority when and if President Trump’s nominee for the Supreme Court, Neil Gorsuch is confirmed by the Senate.