This is the current state of open-carry law in West Virginia (in my opinion), and it’s tricky relationship with a police officer’s right to do a “Terry” frisk under certain instances, as of February of 2019. Note: government lawyers do, and will, disagree with my analysis. But mine’s supported by the law. However, proceed at your own risk, and the law may change after I write this, especially since litigation is ongoing….
1. If you’re in a vehicle, and an officer has a suspicion you may be armed, or sees that you’re open-carrying, you may be frisked and temporarily disarmed;
2. If you’re not in a vehicle subject to a traffic stop, a police officer must have some reasonable articulable suspicion that you are engaged in criminal activity in order to seize and disarm you. Open-carrying a firearm alone is not justifiable suspicion to perform an investigative detention, unless the officer has information that you are a prohibited person unable to possess a firearm.
Many of you have probably seen the recent lawsuit I’ve been involved with in the Michael Walker v. Putnam County case where we sued over the violation of Mr. Walker’s right to open carry a firearm in West Virginia.
The defense from the government so far is that they are allowed to perform what’s called a “Terry” stop and frisk when they see someone with a gun. Just to clarify the law, since they obviously misunderstood then, and continue to misunderstand.
A person’s Fourth Amendment rights under the U.S. Constitution to be free from unreasonable search and seizure are triggered whenever a “seizure” occurs.
When does a seizure occur?
A person is “seized” within the meaning of the Fourth Amendment if, “ ‘in view of all [of] the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Gray, 883 F.2d 320, 322 (4th Cir.1989) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). Specific factors to consider in determining whether a reasonable person would feel free to leave include: (i) the number of police officers present at the scene; (ii) whether the police officers were in uniform; (iii) whether the police officers displayed their weapons; (iv) whether they “touched the defendant or made any attempt to physically block his departure or restrain his movement”; (v) “the use of language or tone of voice indicating that compliance with the officer’s request might be compelled”; (vi) whether the officers informed the defendant that they suspected him of “illegal activity rather than treating the encounter as ‘routine’ in nature”; and (vii) “whether, if the officer requested from the defendant … some form of official identification, the officer promptly returned it.” Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870; Gray, 883 F.2d at 322–23.
The Fourth Circuit has noted that though not dispositive, “the retention of a citizen’s identification or other personal property or effects is highly material under the totality of the circumstances analysis.” United States v. Black, 707 F.3d 531, 538 (2013) (citing Weaver, 282 F.3d at 310 (emphasis added)). In Black, the Court found that, “[i]t is clear that when Officer Zastrow expressly told Black he could not leave, Black was already seized for purposes of the Fourth Amendment.” Black at 538 (emphasis original).
When can a “seizure” be legal as a justified “Terry” Stop and Frisk under Terry v. Ohio?
Federal case law has long been clear that the police officers cannot perform a “Terry stop” of a person lawfully open-carrying a firearm for the purposes of checking his ID and running a background check to determine whether the person is a prohibited person, or to otherwise disarm him, without more. Although brief encounters between police and citizens require no objective justification, United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002), it is clearly established that an investigatory detention of a citizen by an officer must be supported by reasonable articulable suspicion that the individual is engaged in criminal activity. Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. 1868 (1968).
To be lawful, a Terry stop “must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.” Reid v. Georgia, 448 U.S. 438, 440, 100 S. Ct. 2752 (1980). The level of suspicion must be a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009). As such, “the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S. Ct. 1868. Moreover, the Fourth Circuit has already made it very clear that in states where open carry is legal, such as West Virginia, if officers have no individualized information that a particular individual who is lawfully open-carrying is a prohibited person, the mere exercise of their rights by open-carrying “cannot justify an investigatory detention.” Indeed, the Court held that “Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.” United States v. Black, 707 F.3d 531, 540 (2013) (quoting United States v. King, 990 F.2d 1552, 1559 (10th Cir. 1993)).
Occupants of a vehicle subject to a lawful traffic stop are a different analysis altogether, and are more likely to be subject to a Terry seizure. 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 at 696 (2017 case) (citing Pennsylvania v. Mimms, 434 U.S. 106, 112, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).
The importance of the Black case to open-carry rights in our circuit:
In 2013, Judge Gregory of the U.S. Fourth Circuit Court of Appeals, whom I have had the honor of appearing in front of, issued an opinion in the case of United States v. Black, 707 F.3d 531, 540 (2013), which is central to the rights of West Virginians to open carry firearms. Although that case was from North Carolina, it applies equally here. In his opinion, he admonished law enforcement for regularly abusing the Terry Stop procedure to violate the rights of lawful gun owners:
At least four times in 2011, we admonished against the Government’s misuse of innocent facts as indicia of suspicious activity. See United States v. Powell, 666 F.3d 180 (4th Cir.2011); Massenburg, 654 F.3d 480;United States v. Digiovanni, 650 F.3d 498 (4th Cir.2011); and United States v. Foster, 634 F.3d 243 (4th Cir.2011). Although factors “susceptible of innocent explanation,” when taken together, may “form a particularized and objective basis” for reasonable suspicion for a Terry stop, United States v. Arvizu, 534 U.S. 266, 277–78, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), this is not such a case. Instead, we encounter yet another situation where the Government attempts to meet its Terry burden by patching together a set of innocent, suspicion-free facts, which cannot rationally be relied on to establish reasonable suspicion.
Second, Gates’ prior arrest history cannot be a logical basis for a reasonable, particularized suspicion as to Black. Without more, Gates’ prior arrest history in itself is insufficient to support reasonable suspicion as to Gates, much less Black. See Powell, 666 F.3d at 188 (“[A] prior criminal record is not, standing alone, sufficient to create reasonable suspicion.” (citation omitted)). Moreover, we “ha[ve] repeatedly emphasized that to be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.” DesRoches v. Caprio, 156 F.3d 571, 574 (4th Cir.1998) (quotation marks and alterations omitted) (emphasis added). In other words, the suspicious facts must be specific and particular to the individual seized. Exceptions to the individualized suspicion requirement “have been upheld only in ‘certain limited circumstances,’ where the search is justified by ‘special needs’ ”—that is, concerns other than crime detection—and must be justified by balancing the individual’s privacy expectations against the government interests. Id. (quoting Chandler v. Miller, 520 U.S. 305, 308, 313, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997)); see Treasury Employees v. Von Raab, 489 U.S. 656, 665–66, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). Here, the Government has not identified any substantial interests that override Black’s interest in privacy or that suppress the normal requirement of individualized suspicion.
Third, it is undisputed that under the laws of North Carolina, which permit its residents to openly carry firearms, see generally N.C. Gen.Stat. §§ 14–415.10 to 14– 415.23, Troupe’s gun was legally possessed and displayed. The Government contends that because other laws prevent convicted felons from possessing guns, the officers could not know whether Troupe was lawfully in possession of the gun until they performed a records check. Additionally, the Government avers it would be “foolhardy” for the officers to “go about their business while allowing a stranger in their midst to possess a firearm.” We are not persuaded.
Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states. United States v. King, 990 F.2d 1552, 1559 (10th Cir.1993) (emphasis added). Here, Troupe’s lawful display of his lawfully possessed firearm cannot be the justification for Troupe’s detention. See St. John v. McColley, 653 F.Supp.2d 1155, 1161 (D.N.M.2009) (finding no reasonable suspicion where the plaintiff arrived at a movie theater openly carrying a holstered handgun, an act which is legal in the State of New Mexico.) That the officer had never seen anyone in this particular division openly carry a weapon also fails to justify reasonable suspicion. From our understanding of the laws of North Carolina, its laws apply uniformly and without exception in every single division, and every part of the state. Thus, the officer’s observation is irrational and fails to give rise to reasonable suspicion. To hold otherwise would be to give the judicial imprimatur to the dichotomy in the intrusion of constitutional protections.
United States v. Black, 707 F.3d 531, 540 (2013).