WV Supreme Court Releases Formal Statement of Charges against Raleigh County Family Court Judge

Yesterday afternoon, the West Virginia Supreme Court of Appeals clerk’s office released the Formal Statement of Charges against Raleigh County, West Virginia Family Court Judge Louise E. Goldston – a 26 year Family Court judge. This is the judge caught on video searching the home of my client, Matt Gibson – threatening him with arrest if he didn’t allow her in. Here’s the post with the original video, as well as the update video, if you haven’t seen it. The charges state that on March 11, 2020, investigators opened a complaint, and that a subsequently second complaint was filed by my client, Matt Gibson.

For reference, I originally uploaded the video of the judge searching Matt’s property on March 10 – the day before the inception of the opening of the investigation. The video quickly went viral, and by the next day an investigation had essentially opened itself. In other words, the power of Youtube is great. In one day, it found its way into the eyeballs of the Judicial Investigation Commission, the only folks with the power to lodge judicial disciplinary charges against judges in West Virginia.

The Supreme Court of Appeals of West Virginia established the Judicial Investigation Commission to determine whether probable cause exists to formally charge a judge with a violation of the Code of Judicial Conduct, to govern the ethical conduct of judges and to determine if a judge, because of advancing years and attendant physical and mental incapacity, should not continue to serve.

http://www.courtswv.gov/legal-community/judicial-investigation.html

If you want to report what you believe is judicial misconduct, or a civil rights violations committed by a judge, anyone can file a complaint with the JIC. Here’s the complaint form.

Any person may file an ethics complaint against a judge. However, a complaint that is filed more than two (2) years after the complainant knew, or in the exercise of reasonable diligence should have known, of the existence of a violation of the Code of Judicial Conduct may be dismissed for exceeding the statute of limitations.

http://www.courtswv.gov/legal-community/judicial-investigation.html

Then, even though covid hit, the investigation apparently proceeded, and 6 months later the charges dropped (which was yesterday, 10/2/20). I just happened to be traveling when the charges came out, so it wasn’t really until this morning that I was able to digest them.The Formal Statement of Charges alleges that:

FAMILY COURT JUDGE GOLDSTON violated Rule 1.1 (compliance with the law), Rule 1.2 (confidence in the judiciary), Rule 1.3 (avoiding abuse of prestige of office), Rule 2.2 (impartiality and fairness), Rule 2.4(B) (external influences), Rule 2.5 (competence, diligence and cooperation) and Rule 3.1(A), (B), (D) (extrajudicial activities in general) of the Code of Judicial Conduct….

In other words, the JIC concluded that the judge failed to comply with the law, committed actions which undermines confidence in the judiciary, abused the prestige of her office, was impartial and unfair, allowed external influences on her actions, was incompetent, un-diligent (is that a word?) and uncooperative, and engaged in extrajudicial activities. According to the charges, these home “visits” (searches) have been going on “over the past twenty years.”

Over the past twenty years as a Family Court Judge, Respondent has been engaging in the practice of visiting homes of litigants appearing in front of her. Respondent went to the litigants’ homes to either determine if certain disputed marital property was present and/or to supervise the transfer of disputed property. Respondent admitted to conducting these home visits in her capacity as a Family Court Judge on eleven separate occasions in different cases.

In every instance except Mr. Gibson’s case, all of Respondent’s home visits were prompted by a motion by a litigant’s attorney and not objected to by the opposing party and will full knowledge of the purpose therein. Most of the Respondent’s home visits occurred during a court hearing in the case. A party’s attorney would move the Court to leave directly from the bench and accompany the parties to the home. After granting the motion, Respondent would meet the parties at the home.

The JIC interviewed the judge and asked her what authority she had to engage in this practice:

On July 22, 2020, Judicial Disciplinary Counsel took Respondent’s sworn statement. Respondent admitted that she failed to inform Mr. Gibson of the purpose of the home visit while the parties were in the courtroom and that she did not give him any opportunity to object thereto until everyone was at his house.

Respondent opined that she believed it was proper to visit litigants’ homes. Respondent likened the practice to a jury view or similar continuation of the court proceeding and stated that as a finder of fact it was necessary to determine whether a party could be held in contempt for not turning over personal property as previously ordered by the Court.

When asked, Respondent could provide no statute, rule or case that gave her the authority to conduct home visits. Respondent also acknowledged that there was nothing in the contempt powers that gave her the authority to conduct a home visit. Respondent confessed that she never held anyone in contempt prior to going to the home and that she failed to enter any order subsequent to the visit reflecting what had happened at the residence, whether any items had been secured and/or whether or not a party was in contempt.

I was absolutely correct when I first reviewed the video. There was no legal basis upon which a judge could search a home as was portrayed in the video. The fact that this judge had been doing it for the past 20 years, was not itself justification. Instead, this sobering fact proves that many former Family Court litigants are absolutely correct when they rant about corruption and unlawfulness. Over the past 20 years, at least 10 other victims have been subjected to this in this judge’s “courtroom,” subjected to unlawful “home visits” upon the motion of an attorney, and without objection from any other attorney.

I wonder how many of these visits involved this one particular attorney involved in this video? After all, it was this attorney who left a voice message for Mr. Gibson the night before the search, offering $5,000 in exchange for foregoing what would essentially be a Family Court anal probing:

This whole thing reeks to me, and sounds a lot like a “pay to play” style judicial experience. Had he paid 5 grand, he could have avoided being lucky number 11? Time will tell, hopefully. Roots run deep in a 20 year period inside one particular court. Perhaps this had something to do with a local Family Court attorney going on TV following my initial TV appearance with my client, to say that I was wrong, and that “home visits” were a perfectly legal Family Court practice. Yeah, okay…..

BECKLEY, WV (WOAY) – UPDATE: On Thursday, we ran a story about a Raleigh County man involved in a contempt case after a finalized divorce whose recording of a family court judge went viral. Matt Gibson claimed the search of his home was against his 4th Amendment rights. Because the judge and the opposing attorney cannot comment on ongoing litigation, local family attorney [let’s call him JOHN DOE] is speaking out saying Judge Louise Goldston was doing her job and doing it legally

“What I think is most important to know about this is when you see a video on YouTube, when you see a Terry search, when you see something and immediately it doesn’t match what we’ve always seen on television that doesn’t make it wrong,” he said. “Because they didn’t do it that way on Law and Order doesn’t mean that a judge that has decades of experience is breaking the law.”

It looks like I was right, and he was wrong. So, he said the judge wasn’t allowed to respond, so he was responding on her behalf? Why is that, I wonder? That’s a rhetorical question, of course. Is he saying that she asked him to respond and defend her publicly? Another good point that the JIC makes in the statement of charges, is that if the judge, and her local family court lawyers, are going to characterize her actions as a lawful component of a judicial proceeding, then they have some issues to consider:

Respondent admitted that she never had any clear or written procedures for conducting a home visit, including but not limited to, when the proceeding should be utilized and how the process should take place. She also acknowledged that she never took a court reporter to the scene.

Upon reflection, Respondent agreed that the practice could make her a potential witness to a future proceeding which could then result in her disqualification. Respondent further agreed that family court judges run the risk of disqualification if he/she were to become a witness in a subsequent proceeding pertaining thereto.

Respondent also agreed that the burden of proof in a contempt proceeding rests not with the Family Court Judge but with the moving party. She agreed that it is the moving party’s responsibility to provide evidence in support of his/her contention that the other side has failed to produce the items in question. Respondent admitted to improperly putting herself into the role of litigant.

Like I said during the TV interview, the reason I’ve never heard people complain about having their homes searched by judges before, is because that’s not what judge do – judges don’t search homes. This judge was acting in the role of a litigant. So it was basically like Trump debating both Biden and Chris Wallace in the first presidential debate. That’s not how it’s supposed to work. The opposing attorney is supposed to submit evidence and prove his case. Here you had a judge doing both of these things, and then engaging in an unlawful search of one party’s home, on behalf of the other party. Why? That’s yet another rhetorical question of course. If the other 10 victims were represented by lawyers, why didn’t they object?

And then there’s the 800 pound gorilla in the room: the Sheriff’s Department assisting the judge in these actions. On how many of these 10 other searches were they present? The statement of charges also notes that the bailiff (a sheriff’s deputy) forced Mr. Gibson to stop his recording, and that he himself started to record what happened inside the home:

Upon Respondent’s arrival at Mr. Gibson’s property, Mr. Gibson had a bystander video record the initial interactions outside the house between Respondent and the parties. Mr. Gibson also secretly recorded several minutes of audio of the initial interaction on his cell phone.

When the video and audio recording were discovered by Respondent, she ordered both recordings stopped. However, once inside the house, Respondent’s bailiff used his phone to record both video and audio of the separation of marital assets.

Where is this video, and why hasn’t it been produced? I heard through the grapevine, that following my initial uploading of the Youtube video, that the Sheriff of that county sent around a memo to the effect of, “no more going anywhere with a judge….” Of course, the JIC doesn’t investigate law enforcement, nor discipline them. You might find this shocking, but there is no state agency or commission which investigates law enforcement officers in the way that judges, and even lawyers, are investigated (there’s a pending disciplinary complaint against the lawyer who was involved here as well).

The only consistent investigator of law enforcement misconduct in West Virginia is me, sadly. Those who were involved in the search of my client’s house will be explaining their actions. I can’t put people in jail, nor discipline them, so we’ve pretty much come full circle. I have to demand money damages for my client, and they’ll have the opportunity to avoid what’s coming their way. It ain’t pretty, but that’s the relief available. Unless someone wants to deputize me as a special federal prosecutor or something…..

Family Court Judge Search UPDATE – the Judge has been charged!

UPDATE, and Part 2, to one of the craziest search and seizure cases I’ve ever seen, or personally been involved with: The West Virginia Family Court judge who’s searched the home of a federal law enforcement officer, looking for his ex-wife’s DVDs and other stuff, a year and a half after they divorced….. and got caught by YouTube.

Another UPDATE 10/2/20: The judge has been charged. The Statement of Charges was just released this afternoon:

The original video (Part 1), in case you missed it:

Part 3 expected early next week. Make sure to subscribe to our channel and also add yourself to our email subscription list. No spam, just updates every time a new post drops.

Email notifications of updates:

The “Killing Power” of an AR-15: an Update on Walker v. Putnam County

We received the brief from the lawyers for Putnam County, West Virginia in the Michael Walker case, the AR-15 open carry case currently pending at the Fourth Circuit. In case you haven’t seen it, here’s the video of the interaction at issue in the case:

The primary issue in dispute is whether a police officer can stop, detain and run a criminal background check, on an individual safely and lawfully openly-carrying an AR-15 style rifle. Putnam County’s law enforcement is arguing essentially that the AR-15 is a weapon of mass murder and warfare, and that it’s inherently suspicious of criminal conduct. Here are a few nuggets from their brief:

Finally, Mr. Walker’s argument that AR-15 style rifles may not be treated differently than less deadly firearms for reasonable suspicion purposes holds no basis in law, and is contrary to the public safety and intuitive sense. Different firearms have different utilities, purposes, and common uses, and their presence therefore draws different inferences. An AR-15 has more killing power, and is more commonly used in indiscriminate public gun violence than many more commonplace sporting or self-defense weapons, and therefore raises a greater concern for public safety in context. The fact that the AR-15 is so notoriously popular among the deadliest mass shooters also raises reasonable concerns over a copycat mass shooting. Objects need not be illegal for their presence, in appropriate context, to contribute to reasonable suspicion, and there is no reason for bearers of AR-15 style rifles to receive special protection.

“Killing Power?” Is that a scientific unit of measurement. If shotguns are okay, or a bolt-action hunting rifle is okay, then I wonder if they’re aware that an AR-15 uses a .223 caliber diameter round, which is unlawful to use for hunting in some states because it’s too small of a caliber, and therefore not deadly enough for game such as deer (as compared to the good ‘ole .308 or .270 Winchester calibers, etc., etc.).

This is a suburban residential and commercial area which is unsuitable for hunting or target shooting, and Mr. Walker was not wearing any items of blaze orange, or anything else which would signal to an observer that his intention was hunting. (See id.). Furthermore, this interaction occurred in February, when almost no commonly hunted animals, with the exception of noxious pests, are in season. Nor is an AR- 15 a weapon commonly used for hunting, such as a deer rifle or shotgun, or carried for self-defense, such as the handgun possessed by Mr. Troupe in Black. I

Was I the only one who just saw something happen on the news recently involving an AR-15 openly carried for self-defense, and used in self-defense? I think I recall something like that in the news. I bet this is also news to all their law enforcement officers in their county, and surrounding counties, who have an AR-15 in the police cruisers. Those are for hunting, right? Definitely not self defense. It appears that they just don’t like the AR-15:

The mass shooter’s preference for AR-15’s is because, as former U. S. Marine infantry officer and author of “The Gun,” a history of assault rifles and their effects upon security and war, C. J. Chivers, wrote in a February 28, 2018 New York Times column: When a gunman walked into Marjory Stoneman Douglas High School on Feb. 14, he was carrying an AR-15-style rifle that allowed him to fire upon people in much the same way that many American soldiers and Marines would fire their M16 and M4 rifles in combat. See Chivers, C. J., Larry Buchanan, Denise Lu, and Karen Yourish, With AR-15s, Mass Shooters Attack With the Rifle Firepower Typically Used by Infantry Troops, The New York Times (Feb. 28, 2018),

In sum, AR-15 style rifles give the wielder the capability to kill more people in a shorter amount of time than more commonplace styles of firearm, making it an appealing choice for a would-be mass shooter whose goal is exactly that, and a greater danger to public safety than would more commonplace, less-powerful, lower-capacity firearms, such as shotguns or handguns.

How is a .223 caliber rifle “more powerful” than a .308 bolt action hunting rifle? I wonder if they know that the M-60 machine gun is chambered in .308? I wonder if they know that our military has snipers who kill human beings with what are essentially hunting rifles chambered in the same caliber as hunting rifles, such as .308 caliber? They don’t chamber sniper rifles in .223 caliber found in AR-15s, because they are not powerful enough. Complete hogwash……

As discussed in prior sections of this brief, AR-15 style rifles have been featured in substantially all of the deadliest mass shootings in this decade. Mass murderers in Las Vegas and Orlando have killed and wounded over one hundred people in a single event with AR-15. Revolvers and bolt-action deer rifles do not share that infamy. It is therefore reasonable to infer that a person attempting to copycat a mass shooting would likely use the weapon of choice of mass shooters. If officers are concerned about a potential mass shooter, certainly they would justifiably be more concerned by a person carrying an AR-15 than one of the many firearms more commonly used for hunting or self-defense. Different inferences may be reasonably drawn from the presence of different firearms, because different firearms are used for different things: a person viewed at a gun range carrying a shotgun may be presumed to be there to shoot clay pigeons, whereas a person carrying a rifle is almost certainly not.

This is coming from the first county in the State of West Virginia to declare itself a “Second Amendment Sanctuary.” L.O.L. Also, by the way, there was no indication whatsoever that there was any indication or concern that Michael Walker could have been a copycat mass-murderer. That was all made up by lawyers after the lawsuit was filed. The entire incident was filmed. The entire 911 transcript exists. There was nothing that day to concern law enforcement, nor which did concern law enforcement, that Michael was a threat to a school. It was merely harassment for openly carrying a lawful and safely carried AR-15 style rifle.

Next we get to file a Reply Brief, responding to their response. At that point it will be in the hands of the Court. They can hold oral arguments, or rule on their briefs.

Freedom is Scary Ep. 6: Black Rifle Rights and the FBI Lawyer

Also the new 9th Circuit opinion, firearms history and I’ll show you an authentic Model 1866 Winchester Assault Rifle.

Duncan v. Becerra ruling 9th Circuit:

On Friday, a panel of the 9th Circuit Court of Appeals affirmed (by a 2-1 vote) a federal district court’s ruling that so-called “large capacity” magazines are protected by the Second Amendment. In the live cast, I discussed the ruling and the great foundation it lays for inclusion and equal treatment of AR-15 style rifles in the context of the 2nd and 4th Amendments. I may be the first lawyer to have cited this language, since it came down the same day I filed the brief in the Walker case:

“That LCMs [large capacity magazines] are commonly used today for lawful purposes ends the inquiry into unusualness. But the record before us goes beyond what is necessary under Heller: Firearms or magazines holding more than ten rounds have been in existence — and owned by American citizens — for centuries. Firearms with greater than ten round capacities existed even before our nation’s founding, and the common use of LCMs for self-defense is apparent in our shared national history.

Semi-automatic and multi-shot firearms were not novel or unforeseen inventions to the Founders, as the first firearm that could fire more than ten rounds without reloading was invented around 1580. Rapid fire guns, like the famous Puckle Gun, were patented as early as 1718 in London. Moreover, British soldiers were issued magazine-fed repeaters as early as 1658. As a predecessor to modern revolvers, the Pepperbox pistol design pre-dates the American Revolution by nearly one hundred years, with common variants carrying five to seven shots at the ready and with several European variants able to shoot 18 or 24 shots before reloading individual cylinders. Similarly, breech-loading, repeating rifles were conceptualized as early as 1791.

After the American Revolution, the record shows that new firearm designs proliferated throughout the states and few restrictions were enacted on firing capacities. The Girandoni air rifle, developed in 1779, had a 22-round capacity and was famously carried on the Lewis and Clark expedition. In 1821, the Jennings multi-shot flintlock rifle could fire 12 shots without reloading. Around the late antebellum period, one variant of the Belgian Mariette Repeating Pepperbox could fire 18 shots without reloading. Pepperbox pistols maintained popularity over smaller- capacity revolvers for decades, despite the latter being of newer vintage. At this time, revolving rifles were also developed like the Hall rifle that held 15 shots.

The advent of repeating, cartridge-fed firearms occurred at the earliest in 1855 with the Volcanic Arms lever-action rifle that contained a 30-round tubular magazine, and at the latest in 1867, when Winchester created its Model 66, which was a full-size lever-action rifle capable of carrying 17 rounds. The carbine variant was able to hold 12 rounds. Repeating rifles could fire 18 rounds in half as many seconds, and over 170,000 were sold domestically. The Model 66 Winchester was succeeded by the Model 73 and Model 92, combined selling over 1.7 million total copies between 1873 and 1941.

The innovation of the self-contained cartridge along with stronger steel alloys also fostered development in handguns, making them smaller and increasing their capacities. Various revolver designs from France and Germany enabled up to 20 shots to be fired without reloading. A chain-fed variant, the French Guycot, allowed pistols to carry up to 32 shots and a rifle up to 100 shots. One American manufacturer experimented with a horizontally sliding “row of chambers” (an early stacked magazine) through a common frame, dubbed the Jarre “harmonica” pistol, holding ten rounds and patented in 1862. In 1896, Mauser developed what might be the first semi-automatic, recoil-operated pistol — the “Broomhandle” — with a detachable 20-round magazine. Luger’s semiautomatic pistol hit the market in 1899 and came with seven or eight round magazines, although a 32- round drum magazine was widely available.

In 1935, Browning developed the 13-round Hi-Power pistol which quickly achieved mass-market success. Since then, new semi-automatic pistol designs have replaced the revolver as the common, quintessential, self-defense weapon. Many of these pistol models have increased magazine capacities as a result of double-stacked magazines. One of the most popular handguns in America today is the Glock 17, which comes standard with a magazine able to hold 17 bullets.

Rifle magazine development paralleled that of pistol magazines. In 1927, Auto Ordinance Company released its semi-automatic rifle with a 30-round magazine. A decade and a half later, the M-1 carbine was invented for the “citizen soldier” of WWII. The M-1 remained a common and popular rifle for civilians after the war. In 1963, almost 250,000 M- 1s, capable of holding between 15 and 30 rounds, were sold at steeply discounted prices to law-abiding citizens by the federal government. The ultimate successor to the M-1 was the M-16, with a civilian version dubbed the Armalite Model 15, or AR-15. The AR-15 entered the civilian market in 1963 with a standard 20-round magazine and remains today the “most popular rifle in American history.” The AR- 15 was central to a 1994 Supreme Court case in which the Court noted that semiautomatic rifles capable of firing “only one shot with each pull of the trigger” “traditionally have been widely accepted as lawful possessions.” Staples v. United States, 511 U.S. 600, 602 n.1, 603, 612 (1994). By the early-1970s, the AR-15 had competition from other American rifle models, each sold with manufacturer- standard 20-round or greater magazines. By 1980, comparable European models with similar capacities entered the American market.

The point of our long march through the history of firearms is this: The record shows that firearms capable of holding more than ten rounds of ammunition have been available in the United States for well over two centuries.7 While the Supreme Court has ruled that arms need not have been common during the founding era to receive protection under the Second Amendment, the historical prevalence of firearms capable of holding more than ten bullets underscores the heritage of LCMs in our country’s history. See Heller, 554 U.S. at 582.”

Read the order here:

https://www.firearmspolicy.org/9th-circuit-holds-large-capacity-firearm-magazines-protected-2nd-amendment

ATV laws in West Virginia and McDowell County, W. Va.

So a few days ago, I represented a guy down in McDowell County, West Virginia, on a misdemeanor charge of driving on a two-lane road in an ATV/UTV/side-by-side. West Virginia law allows you to do this. But apparently there is confusion, or ignorance, in the local sheriff’s department and/or prosecutor’s office. We were forced to have a trial, which resulted in a not guilty verdict. Here’s the actual criminal complaint charging my client with the non-crime of operating an ATV on a two-lane road in West Virginia:

Clearly this police officer was wrong about the law.

W. Va. Code Section 17F-1-1 allows ATVS to:

  1. Operate on any single lane road (most roadways in rural West Virginia).
  2. Operate on a two-lane road for a distance of 10 miles or less, so long as the ATV it is either on the shoulder of the road, or as far to the right on the pavement as possible if there is insufficient shoulder to ride on, and at a speed of 25 mph or less, in order to travel between “a residence or lodging and off-road trails, fields and areas of operation, including stops for food, fuel, supplies and restrooms.” If operated at night, an ATV must be equipped with headlights and taillights, which must be turned on – obviously. Read it for yourself, here: https://www.wvlegislature.gov/WVCODE/Code.cfm?chap=17f&art=1

So, slightly confusing and a few grey areas, but if you’ve been around the Hatfield & McCoy Trails, you know that it’s necessary to use a two-lane road at times to get where you need to go on an ATV. And in other counties, where there are no Hatfield & McCoy Trails, we still need to go down two-lanes at times to get from one place we’re allowed to ride, to another (whether farms/fields/one-lanes/gas stations, etc.)

Me negotiating down a black diamond trail in the Hatfield & McCoy Trail system. Pocahontas Section, I believe.

Unfortunately however, when we arrived to court on this particular case, the prosecutor looked at me in amazement when I told her that the client hadn’t committed a crime, even assuming all the allegations in the criminal complaint are true. She said dismissively that the client could plead guilty and pay the fines. Of course, I said, “no way, Jose.”

So we had a trial. During the trial, the charging police officer testified that no ATVs are ever allowed to be on a two-lane road, and that his supervisor instructed him, in accordance with this, to “clear” ATVs from the roads, because the Hatfield & McCoy system was closed by the Governor due to COVID-19.

But that has nothing to do with the statute. The Governor can’t change the ATV laws by executive order; nor did he attempt to. Accessing the H&M trails isn’t the only reason ATVs are used in West Virginia. The officer cited 17F-1-1 as his legal authority to “clear the roads.” But in reality, the law still says what it says. Therefore, the magistrate judge correctly found my client not guilty.

There had been no allegations of unsafe or improper operation of the ATV – just that he was on a double yellow line. The officer testified that he didn’t know where the client was coming from – nor where he was going. He had no evidence that my client had been illegally operating on the H&M trail system. The complaint itself corroborates this. It didn’t mention anything other than the fact that he caught him on a two-lane.

However, there were facts pertaining to the officer’s conduct. He got angry and took the citation back, after the mayor of the town where this occurred – Northfork – apparently said that ATVs were welcome and allowed in her ATV-friendly town. Muttering the “F word,” the officer left the city hall, confiscated citation in hand. The testimony at trial was that about an hour later, the officer showed up at my client’s residence – the client wasn’t even home at the time – and threw the citation inside the empty, parked ATV in the driveway. That wasn’t the reason for the not guilty verdict, just a bizarre way to re-issue a ticket. But in any event, it was a non-crime, so the verdict was rightly “not guilty.”

Following the trial, I posted on Facebook that my client had been found not guilty, and that the Governor’s tyrannical executive orders had no effect on the state’s ATV laws, and expressed disbelief that the local sheriff’s department and prosecutor’s office would hassle ATV riders, when that’s really the only thing the local economy has going for it at this point. Did I bash a county by saying this? No, facts are facts. I said nothing about the county, unless you’re referring to the sheriff’s department and the prosecutor’s office prosecuting an innocent man for a non-crime.

Let’s look at the facts though…..

To argue that McDowell County doesn’t have a crisis economy is to stick your head in the sand. Pointing this out is not bashing, nor exploiting, the county. Anyone who makes such an accusation, is either ignorant, or a willing propagandist. Hell, in 1963 – I’ll repeat: 1963 – President John F. Kennedy said:

I don’t think any American can be satisfied to find in McDowell County, West Virginia, 20 or 25 percent of the people of that county out of work, not for 6 weeks or 12 weeks, but for a year, 2, 3, or 4 years.

The situation has only worsened there. McDowell County has been classified as a “food desert” by the USDA. In 2017, there were two full-sized grocery stores serving the county’s 535 square miles. The only Walmart super center in the county closed in 2016 Coyne, Caity (April 7, 2018). “In McDowell County ‘food desert,’ concerns about the future”Charleston Gazette-Mail. Retrieved January 19, 2020. I don’t know that I’ve ever seen another closed Walmart anywhere in the country.

Vacant Walmart building in Kimble, W.Va.
CREDIT ROXY TODD/ WVPB; https://www.wvpublic.org/post/what-happens-when-walmart-closes-one-coal-community#stream/0

State officials estimate that there are between 5,000 to 8,000 abandoned homes and buildings in McDowell County alone that need to come down. Legislation was introduced this year to fund the removal of many of these “blight” areas. See https://www.register-herald.com/opinion/editorials/editorial-removing-blight-swope-s-measure-important-to-west-virginia/article_6d4359cf-8b21-5430-9769-2f874e8fee9b.html They’ve been working on this for years. From a newspaper article from 2015:

WELCH — For years, it has been difficult for McDowell County officials to recognize the obvious fact that deserted and dilapidated structures countywide represent a negative image for visitors to the county.

“U.S. Route 52 is the gateway to our county,” Harold McBride, president of the McDowell County Commission said during a press conference Friday morning at the McDowell County Public Library in Welch. “It looks like a Third World country,” he said and added that most of the dilapidated buildings are owned by people who live outside the state and “think they have something.”

https://www.bdtonline.com/news/officials-and-coal-operators-work-to-remove-blighted-structures/article_e4961188-00f9-11e5-86d4-4b27287a4886.html?mode=jqm

From the Charleston Gazette in 2013:

There were 100,000 people in McDowell County in 1950. Today, there are about 22,000 residents,” Altizer said.From 2000 to 2010, McDowell County’s population dropped by nearly 20 percent, from 27,329 people to 22,064 people, according to the U.S. Census Bureau.”It is so sad we are losing so much population. Half of our homes are on homestead exemption, which lowers property taxes for people who are over 65 or disabled,” Altizer said during a recent interview in the McDowell County Courthouse.Today, Altizer said, most income to county residents come from coal and natural gas jobs, or from checks retired people receive — Social Security, black lung, the Veterans Administration and United Mine Workers.”The monthly West Virginia Economic Survey prepared by Workforce West Virginia recently reported there were about 6,000 people working in the county, many of them with government jobs or fast-food jobs. We have an older population today. And there are not new jobs here,” Altizer said.”Coal and gas are keeping us going. 

https://www.wvgazettemail.com/business/mcdowell-county-fighting-long-term-decline/article_cb381937-e129-59fd-8d7d-f1fb88dbe6a1.html

Here’s an interesting article, with photos from an actual photographer, rather than the few I snapped with my obsolete iPhone. Take a look for yourself and determine if the few pictures I snapped were somehow misleading about the blight in the county:

https://architecturalafterlife.com/2018/01/12/welcome-to-welch/

From the article:

This decline in work lead to the creation of modern era food stamps. The Chloe and Alderson Muncy family of Paynesville, McDowell County were the first recipients of modern day food stamps in America. Their household included 15 people. The city of Welch, and crowds of reporters watched as Secretary of Agriculture Orville Freeman delivered $95 of federal food stamps to Mr. and Mrs. Muncy on May 29, 1961. This was an important moment in history, as it was the first issuance of federal food stamps under the Kennedy Administration. This federal assistance program continued to expand for years to come, and is commonly used across the United States today.

https://architecturalafterlife.com/2018/01/12/welcome-to-welch/

Fortunately for the county, in 2018, the state opened two new trail connections in McDowell County. From a May, 2018 newspaper article:

WELCH — Two new ATV trail connections opening today in McDowell County will give visitors direct access to the city of Welch and the town of Kimball, the Hatfield-McCoy Regional Recreation Authority’s executive director said Tuesday.

“As of in the morning (today), we’ll have the town of Kimball and the city of Welch will be connected to the Hatfield-McCoy Trail in the Indian Ridge system,” Executive Director Jeffrey Lusk said. “This will allow riders of the trails to go into those communities to get food and fuel and to stay. These are two new towns that weren’t on the system. Up until today, the only two towns that were connected were Northfork and Keystone….

The new Warrior Trail will connect with Gary and Welch. ATV riders will be able to travel from the town of Bramwell to the town of War starting on Labor Day, he added. More lodging opportunities are needed to help McDowell County’s communities benefit from the increase ATV tourism traffic.

“We’re opening the Warrior Trail System up on Labor Day Weekend,” Lusk said. “We’re in desperate need of places to stay in War, Gary and Welch come Labor Day Weekend.

Tourism traffic continues to grow on the Hatfield-McCoy Trail’s overall system, Lusk stated. Last year, overall permit sales were up by 15.1 percent, and both Mercer and McDowell Counties had the highest growth in sales. 

https://www.bdtonline.com/news/new-trail-links-opening-on-hatfield-mccoy/article_6d82ce36-5e22-11e8-a13b-a3912708cd04.html

Being an ATV rider myself, I know first hand how the community benefits from the ATV economy. Local entrepreneurs now have opportunities to open ATV resorts, restaurants, and other businesses, which cater to ATV riders. ATV riders bring money. These new ATVs are 15-30k vehicles, each, when it comes to the side-by-sides, and not far off from that for the individual four wheelers. Watch them drive in. They’re driving 70k trucks, pulling 10k trailers, in many instances. They’ve invested heavily in the hobby. They spend money, not only on their equipment, but on food, lodging, gas, and so on. And they come from all over. I’ve even seen guys who drove all the way from Mexico to ride these trails.

Riding somewhere down there….

Some of them even invest in local real estate, such as the client I represented in this case, who loved the community so much, he bought his own place. But go on and attack me for daring to “bash” McDowell County…. So let’s continue with some facts, instead of knee-jerk emotion.

What are some of the side effects of the economic problems?

Of 3,142 counties in the U.S. in 2013, McDowell County, West Virginia ranked 3,142 in the life expectancy of both male and female residents. See http://www.healthdata.org/sites/default/files/files/county_profiles/US/2015/County_Report_McDowell_County_West_Virginia.pdf,; see also https://en.wikipedia.org/wiki/McDowell_County,_West_Virginia

 Males in McDowell County lived an average of 63.5 years and females lived an average of 71.5 years compared to the national average for life expectancy of 76.5 for males and 81.2 for females. Moreover, the average life expectancy in McDowell County declined by 3.2 years for males and 4.1 years for females between 1985 and 2013 compared to a national average for the same period of an increased life span of 5.5 years for men and 3.1 years for women…..

Then there’s the drug problem. In 2015, McDowell County had the highest rate of drug-induced deaths of any county in the U.S., with 141 deaths per 100,000 people. The rate for the U.S. as a whole is only 14.7 deaths per 100,000 people. (Same citation).

So back to my original point. There’s 99 problems there, and ATVs ain’t one of them. So why hassle ATV riders when they’re bringing money, jobs and fun into the local economy?

Again, ATVs are allowed on single lane roads in West Virginia, and are also allowed on two-lane roads, to get from one place they’re allowed to operate, to another place they’re allowed to operate, so long as it’s a distance of 10 miles or less, and so long as they operate on the shoulder, or as far as the right as possible, and under the speed of 25 mph. Counties and cities in West Virginia are granted the authority by the legislature to increase ATV freedoms. Other than interstate highways, they can authorize ATVs to use two lanes within their jurisdictions with no restrictions whatsoever. That would be what signage would refer to as being “ATV Friendly.”

That’s the law anyways. Whether or not law enforcement and prosecutors in any particular county care or not…. well that’s a different issue.

Update regarding the new Senate Bill 690:

Senate Bill 690 is now in effect in West Virginia. ATVs, side by sides, UTVs, can now be made “street legal” in West Virginia. They are calling this group of vehicles with confusing names, “Special Purpose Vehicles.”

SPVs can now be turned into “street legal SPVs.” The following requirements must be met:

(1) One or more headlamps;

(2) One or more tail lamps;

(3) One or more brake lamps;

(4) A tail lamp or other lamp constructed and placed to illuminate the registration plate with a white light;

(5) One or more red reflectors on the rear;

(6) Amber electric turn system, one on each side of the front;

(7) Amber or red electric turn signals;

(8) A braking system, other than a parking brake;

(9) A horn or other warning device;

(10) A muffler and, if required by an applicable federal statute or rule, an emission control system;

(11) Rearview mirrors on the right and left side of the driver;

(12) A windshield, unless the operator wears eye protection while operating the vehicle;

(13) A speedometer, illuminated for nighttime operation;

(14) For vehicles designed by the manufacturer for carrying one or more passengers, a seat designed for passengers; and 

(15) Tires that have at least 2/32 inches or greater tire tread.

Senate Bill 690

Golf carts are being excluded:

(uu) “Low-speed vehicle” means a four-wheeled motor vehicle whose attainable speed in one mile on a paved level surface is more than twenty miles per hour but not more than twenty-five miles per hour.

WV Code §17A-1-1(uu)

A “Special Purpose Vehicle” is defined as:

“Special purpose vehicle” includes all-terrain vehicles, utility terrain vehicles, mini-trucks, pneumatic-tired military vehicles, and full-size special purpose-built vehicles, including those self-constructed or built by the original equipment manufacturer and those that have been modified.

There is a 20 mile limit on the travel on a two-lane road. Controlled-access highways are excluded. That would be interstates and four lanes where there are dedicated access points (on ramps, off ramps, and the like).

A word of caution from a suspicious lawyer on PPP Loans

A word of caution from a suspicious lawyer . . . .So instead of downsizing our massive behemoth of government bureaucracy, Congress passed the CARES Act, establishing the so-called Paycheck Protection Program (PPP), which allows the SBA to guarantee 350 BILLION in loans to help small businesses. As of April 16, 2020, a total of 1,661,397 loans have been made through 4,975 lenders nationwide, eating up all the available money thus far.

Many businesses and investors believe they’re not going to have to pay back these loans. If you believe that, you don’t know government. But there’s way more at stake here than just being required to pay back a low interest loan. Way more. Expect the DOJ to turn their attention to small businesses in the very near future. They’re gonna “help” small business all right….

Take a look at the bill. It’s “Yuge.”

It’s gonna take more government officials to run this thing than would be necessary to run 10 or 12 third world countries. I’m skeptical about who’s paychecks are being protected here. But it’s not just the size of the program that gives me concern. More importantly, these loans have been rushed through, under the hysterics created by the government itself, as well as the media. What does one facing the apocalypse – basically, the scenario of riding motorcycles with spiked shoulder pads – represent on an emergency rushed bank loan application? Therein lies the question of the very near future.

Due to widespread shutdowns, we’re headed into an epic economic depression. That will be a depression for those of us in the private sector. At least at first. They can always take out more debt and print money. But that will collapse too without the forecast of an income stream of real money. The government will want its money from these PPP loans. The government always wants its money. Several quotes come to mind:

  • 1. “I’m from the government. I’m here to help.”
  • 2. “F*ck you, pay me.”
  • 3. “There’s no such thing as a free lunch.”

The False Claims Act (FCA) is a federal law which imposes liability on persons and companies (see “small businesses“) who defraud governmental programs. This law includes a qui tam provision that allows people who are non-government employees (see lawyers and law firms) called “relators” to file lawsuits on behalf of the government. There’s another name for this: “whistleblowers.” Under the FCA, the relators / whistleblowers receive a portion of any recovered damages – generally 15 to 30 percent. This is the basis or all these pharmaceutical lawyer commercials you see on TV. Those lawyers are gonna jump all over this. We need only look to the last “bailout” from Obama’s TARP program in 2008. Just in 2015 alone, the DOJ recovered over 3.5 BILLION in damages under the FCA. And that was the “fourth consecutive year” for such large damages recoveries, as the DOJ proudly announced. It’s an annual expected component of the budget at this point.

Legal experts who practice in the area of the FCA are already warning other lawyers to expect a heightened focus on individuals and small businesses now that these new loans have been made on such a rushed basis. The DOJ recently restated its “commitment to use the False Claims Act and other civil remedies to deter and redress fraud by individuals as well as corporations.”

And it’s not just the private lawyers. Do you think the mountain of lawyers and investigators at the DOJ are going to sit idly by and do nothing? No, they’re ready to get back to work. Remotely of course. In fact, they’ll need even more resources and employees in order to combat the coming fraud crisis you’ll hear about. “With a new national crises at hand, and an even bigger commitment of federal assistance to combat it, expect a plethora of federal and state agencies to join the effort to police recovery spending. Indeed, oversight mechanisms in the act go beyond establishing the special inspector general and include establishing a Pandemic Response Accountability Committee, which is also charged with oversight.” Id.  

Now that’s an acronym that ought to scare the hell out of anyone involved in the application of these loans. I can see that on the side of a van pulling up next to front doors in a Polish ghetto, looking for whatever is deemed verboten.It’s not just the applicants, but the bankers as well, and anyone else connected to the process, or the business. The FCA lawyers and the DOJ, using a theory of mere “false certification” of application information, can go after individuals, small businesses, and the lenders who participated in the program. All it takes is to show false information included in the laundry list of certifications in the applications, including, but not limited to:

  • the recipients must use the funds to retain 90% of their workforce;
  • the recipients must remain neutral in union-organizing efforts;
  • the uncertainty of economic conditions as of the date of the application makes the loan necessary to support ongoing business operations;
  • the recipient INTENDS to restore not less than 90% of its workforce and to restore all benefits to workers no later than 4 months after the termination of the health emergency;
  • the recipient is not a debtor in a bankruptcy proceeding;
  • the recipient will not pay dividends to stockholders.

What is “necessary” and who gets to determine what was “necessary?” And who gets to determine what the recipient “intended?” If the FBI can make General Flynn into a convicted felon just by asking their questions in a certain tricky way, what can they do to you? Not only that, but these applicants are also certifying to all other information provided in these applications. Just take a look:

Government doesn’t word things in such a way as to be concise and clear so that everybody’s on the same page. They word things in such a way so that, if they want to get you, they’ll get you:

Who’s angus is on the line? It’s not just the person who signs the application, but many other potential individuals within a “small business”:

Lastly, to go after you civilly, rather than criminally, under the FCA, the DOJ doesn’t have the usual constraints of the Bill of Rights and the standard of beyond a reasonable doubt. Instead, they only need to prove the civil standards of “deliberate indifference” and “reckless disregard.” You know, like what happens many times when you rush through an emergency apocalypse relief application. It’s just paperwork….

“If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.” – James Madison

Case Updates from The Fort

Update on various cases from within the safe confines of our fort headquarters:

Family Court Search Case:

On Monday, Matt Gibson filed a formal complaint with the Judicial Investigation Commission, as well as a written Motion to Disqualify the judge from the video. We will let those take their course and see what happens. I’m told that they may have already been involved prior to the complaint. I still haven’t seen any other cases where this has happened anywhere else in the state, nor anywhere else in the country.  Right now I’ve been informed of multiple instances of this happening – only in this particular county.

Walker Open Carry Case:

We field Notice of Appeal, and it has now been transferred to the US Fourth Circuit Court of Appeals. Soon we will receive a scheduling order and proceed with the briefing process.

Correctional Officer Traffic Stop Case:

The officer from the video, who was more specifically a parole officer for the WV Division of Corrections has since resigned. I’m told there’s a pending criminal investigation. I have reached out to the DOC’s counsel and requested negotiations with their insurance adjustor. If they don’t make Shawn a fair settlement offer, we’ll file suit.

Putnam County Search Cases:

Right now we are prepared to proceed on six separate search cases out of Putnam County, all related to the same unit of individuals. Although there was an “internal investigation” which we assisted in, there has been no information provided; no outcome whatsoever. At least one of the officers is still arresting people, according to information I’ve received.  So it sounds like nothing has happened.  We issued additional FOIA requests, and only one of the cases we’re investigating, so far, has returned any documentation or paperwork whatsoever.

 

Putnam County W. Va. Search Video Update No. 2

Here’s a quick update video I did for Youtube on the Dustin Elswick case – the case where the drug task force was caught on video searching his house by hidden cameras.

Another Update on the Walker Case: More New Evidence and fighting over its use

Just filed today, our attempt at supplementing our motion for summary judgment with a newly-obtained “CAD” report from the Putnam County 911 center. Originally we were able to obtain a screenshot of the video which had originally been broadcasted on Facebook Live.  As soon as we received that, we sent a FOIA to Putnam County 911 citing the exact time, date and location, and they indeed had a record of the call.

So, looking at the actual CAD sheet, we were able to determine that the original 911 call only referenced a “man with a rifle,” – not a man with an “assault rifle,” as was the testimony. And more importantly, the time was conclusively established as around 6:00 p.m., and not in the “morning,” while “school was in session.” Here was the sworn testimony:

Q. Do you remember what the substance of the dispatch call was?

A. Basically, there was a guy walking down the road with an assault rifle.

But here’s the actual record:

Screen Shot 2020-02-12 at 4.44.02 PM.png

Another interesting thing…. Obviously in the video, the deputy accuses Michael of being a so-called “sovereign citizen.” I asked the deputy as follows during his deposition, which is of course, under oath:

Q. You con’t know who issued that report [the 2/23/18 BOLO characterizing plaintiff as a sovereign citizen] or who prepared that report?

A. I have no idea.

Q. And you don’t know how they came to get the information that Mr. Walker allegedly has sovereign citizen behavior?

A. I have no idea.

Q. That didn’t come from you?

A. No, sir.

Q. Did you tell anyone that Michael Walker was a sovereign citizen?

A. No, sir.

But here’s page 3 of the CAD sheet record from this encounter:

Screen Shot 2020-02-12 at 4.44.33 PM.png

As you can see, apparently the officer radioed dispatch at the conclusion of the encounter that they would probably receive more calls on a “sovereign citizen” carrying a gun. It’s odd that they didn’t already have this document before now, in which case they would have been required to provide it to us.

It’s still not a basis for reasonable suspicion under the holding of U.S. v. Black, for someone to open carry within a mile of a school, but it shows the supposed claim of Michael being a suspected school shooter as an after-thought legal strategy. As I indicated in my questioning about the “sovereign citizen” stuff during the deposition, on 2/23/18 – two days following this encounter, Putnam County Sheriff’s Office issued a “BOLO” to other police officers accusing Michael of being a “sovereign citizen” and being armed and dangerous. Following a BOLO such as this, officers would at that point have reasonable suspicion to go ahead and disarm him and search him during any interaction under Terry v. Ohio.

The Walker Open Carry Case Turns Into a Fight Over the “AR-15”

UPDATE 2/5/20: Here’s our reply to the defense theory of Anti-AR-15:

Central to the Reply is newly discovered evidence. The defendant police officers argued to the Court that even though there’s no indication of it from the video, they actually weren’t checking to see if Michael Walker was a person prohibited from possessing a firearm, but rather that he was a potential school shooter, because it was “morning,” and a school some undetermined distance down that road was “in session.”

Well, the video was originally broadcasted on Facebook Live. Somebody was able to go back and screenshot it, and as it turns out – oops – it was actually 6:00 p.m…. I guess that explains the crickets around the 2:50 mark on the video.

WalkerLiveShot2:21:18.JPG


So, here’s the response we received from Putnam County in response to our pretrial motion asking the Court to stop the Putnam County deputies from presenting anti-AR-15 propaganda and irrelevant media reports of mass shootings at the jury trial in the Michael Walker Open Carry case.

Here was my last update, wherein I posted our motion to exclude the unrelated matters from trial, if you haven’t been following along.

This response is an outrageous attack on the Second Amendment, which ironically was filed by lawyers for West Virginia’s first so-called “Second Amendment Sanctuary” county – Putnam County.  Yesterday we all appeared at the federal courthouse in Huntington, West Virginia, for the pretrial hearing on various motions, including this one.

It was almost surreal to hear the other side argue to the Court that by virtue of the fact that Michael was safely carrying a completely legal AR-15 style rifle, in a non-threatening manner, that police should be able to search and seize him just because the AR is the “preferred weapon of mass shooters,” and so on.  Citing news media reports about the Parkland shooting.  They actually argued in court, that it would not have been suspicious if he had a shotgun, or a handgun.  It was mentioned that AR-15s aren’t used for hunting in West Virginia.  Which is of course completely false, and besides the point.

This is a reality check for people who value the Second Amendment, as well as the Fourth Amendment.  If you live in the Fourth Circuit: West Virginia, Virginia, Maryland, North Carolina, or South Carolina, unless there’s a SCOTUS opinion on point, your constitutional interpretation/law comes from the Fourth Circuit. We’re on the edge….

Right now U.S. v. Black (2013), written by a federal appellate judge who is a staunch defender of the Second Amendment, Judge Gregory, whom I’ve had the honor of arguing in front of, protects citizens who open carry firearms in open carry states.  The police cannot harass you, detain you, search you, seize you, just by virtue of the fact you have a firearm. As we know from the past, that was the original purpose of gun control measures in many of the southern states, such as North Carolina (which is where US v. Black came out of).

Black was narrowed by US v. Robinson in 2017, which said that anyone in a vehicle lawfully stopped for whatever traffic violation, or pre textual reason whatsoever, can be disarmed and searched, because firearm possession automatically makes you dangerous.   Judge Gregory wrote an amazing dissent in that en banc opinion, which specifically mentions this scenario as it pertains to West-by-God-Virginia. However, that wasn’t extended to open carriers who are not already legitimately subjected to a forced encounter with police.  Well, they’re now trying to extend this to open carriers through anti-AR-15 propaganda.

If they succeed, guess what can happen next time thousands of open carriers bring their ARs to the state capitol in peaceful protest and free speech?  It’s game on if law enforcement wants to disarm you, run your background checks, search your pockets, etc. As Judge Gregory warned in the Robinson case dissent:

In my view, states have every right to address these pressing safety concerns with generally applicable and evenhanded laws imposing modest burdens on all citizens who choose to arm themselves in public. For instance, many states—though not West Virginia— seek to reconcile police safety and a right to public carry through “duty to inform” laws, requiring any individual carrying a weapon to so inform the police whenever he or she is stopped,4 or in response to police queries.5 And if a person fails to disclose a suspected weapon to the police as required by state law, then that failure itself may give rise to a reasonable suspicion of dangerousness, justifying a protective frisk.

West Virginia, however, has taken a different approach, permitting concealed carry without the need for disclosure or temporary disarmament during traffic stops. For the reasons described above, I do not believe we may deem inherently “dangerous” any West Virginia citizen stopped for a routine traffic violation, on the sole ground that he is thought to have availed himself fully of those state-law rights to gun possession. Nor, in my view, does the Fourth Amendment allow for a regime in which the safety risks of a policy like West Virginia’s are mitigated by selective and discretionary police spot-checks and frisks of certain legally armed citizens, by way of pretextual stops or otherwise. Cf. Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (invalidating discretionary spot-checks of drivers for licenses and registrations in furtherance of roadway safety). Absent some “specific, articulable suspicion of danger” in a particular case, see United States v. Sakyi, 160 F.3d 164, 168–69 (4th Cir. 1998), West Virginia’s citizens, including its police officers, must trust their state’s considered judgment that the benefits of its approach to public gun possession outweigh the risks. See Northrup, 785 F.3d at 1133.

. . .

That is particularly so given that West Virginia does not require that people carrying firearms inform the police of their guns during traffic or other stops, even if asked. See supra at 50. Where a state has decided that gun owners have a right to carry concealed weapons without so informing the police, gun owners should not be subjected to frisks because they stand on their rights. Cf. Northrup, 785 F.3d at 1132 (“impropriety” of officer’s demand to see permit for gun being brandished in public is “particularly acute” where state has not only legalized open carry of firearms but also “does not require gun owners to produce or even carry their licenses for inquiring officers”). Under a different legal regime, different inferences could be drawn from a failure to answer an officer’s question about a gun. See supra at 50–11. But I do not think we may presume dangerousness from a failure to waive—quickly enough—a state-conferred right to conceal a weapon during a police encounter.

Again, I recognize that expanded rights to openly carry or conceal guns in public will engender genuine safety concerns on the part of police officers, as well as other citizens, who more often will find themselves confronting individuals who may be armed.

But where a sovereign state has made the judgment that its citizens safely may arm themselves in public, I do not believe we may presume that public gun possession gives rise to a reasonable suspicion of dangerousness, no matter what the neighborhood. And because the rest of the circumstances surrounding this otherwise unremarkable traffic stop do not add appreciably to the reasonable suspicion calculus, I must conclude that the police were without authority to frisk Robinson under Terry’s “armed and dangerous” standard.

Accordingly, I dissent.

United States v. Robinson, 846 F.3d 694, 714, 716 (2017).

Don’t forget that Heller, i.e., the Second Amendment, has not yet been extended outside one’s home. It hasn’t been applied to open carry yet, or anywhere outside the home in the Fourth Circuit – nor by SCOTUS. See United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011), other courts are divided on the question, compare Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012) (recognizing that the “right to keep and bear arms for personal self-defense … implies a right to carry a loaded gun outside the home”); Palmer v. Dist. of Columbia, 59 F.Supp.3d 173, 181–82 (D.D.C. 2014) (holding that Second Amendment right recognized in Heller extends beyond home), with Peruta v. Cnty. of San Diego, 824 F.3d 919, 940 (9th Cir. 2016) (“[T]he Second Amendment does not protect the right of a member of the general public to carry concealed firearms in public.” (emphasis added)); Young v. Hawaii, 911 F.Supp.2d 972, 990 (D. Haw. 2012) (“[L]imitations on carrying weapons in public do[ ] not implicate activity protected by the Second Amendment.”); Williams v. State, 417 Md. 479, 10 A.3d 1167, 1178 (Md. 2011) (holding that regulations on carrying firearms outside the home are “outside of the scope of the Second Amendment, as articulated in Heller and McDonald“).

So, are Montani Semper Liberi, or not? It remains to be seen. Right now, definitely not in Putnam County. And if they get their way, neither here, nor our neighbors in Virginia, and below…..