I just uploaded this yesterday afternoon and it’s already over 12k views on Youtube. Probably because most people can relate with having been before a Family Court judge before, whereas they may not be able to automatically relate to someone involved in the criminal justice process.
This is video footage from our client, Matt Gibson, a federal law enforcement officer who had his home searched by a Family Court judge over a year after his divorce was finalized. This just happened on March 4, 2020. I’ve never seen anything like this before, so needless to say, I’m still researching the mountain of issues here.
This isn’t the first viral video showing a West Virginia Family Court judge on a rampage. Remember Chip Watkins in good ‘ole Putnam County? Man that guy was something else.
The Family Court involved in our video is Raleigh County, West Virginia, Judge Louise Goldston. If you know of this happening in other cases, please let me know as I continue to look into this.
UPDATE 3/11/20: Voicemail received by my client from the opposing attorney the evening prior to the hearing, which he himself scheduled. In the recording he says that the Court asked him to call him to convey a settlement offer (which sounds like he’s admitting to an ex parte communication with the judge, meaning without the other party having the opportunity to participate, which is a big no-no) and he demands $5,000.00 to stop the “hearing” which would take place the next day:
So we just received the Court’s ruling in the Walker v. Putnam County open carry AR-15 case, pending in federal court in Huntington, West Virginia, and as suspected would happen, the Court granted summary judgment for the defendants, which dismisses lawsuit, subject to our right to appeal to the Fourth Circuit. We absolutely are going to appeal.
Perhaps the most important part of the ruling, in my mind, was this:
In determining whether reasonable suspicion existed, the Court is mindful of the Fourth Circuit’s instruction that “where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.” Black, 707 F.3d at 540.
What qualifies as something “more” is a developing area of law as courts face the expansion of open carry, which can arouse suspicion in combination with other innocent facts. SeeU.S. v. Arvizu, 534 U.S. 266, 277–78 (2002) (holding that factors “susceptible of innocent explanation” may “form a particularized and objective basis” for reasonable suspicion when considered together).
The parties here only dispute whether the uncontested facts of the encounter constitute the something “more” required for reasonable suspicion to stop Walker as he openly carried his semi- automatic rifle. After considering the issue, the Court concludes reasonable suspicion existed.
Here, in my opinion, this logic is sort of like saying, “You’re not allowed to stop people open carrying a firearm in an open-carry state in order to investigate whether they are legally allowed to possess a firearm, but . . . I’m going to allow it because police officers should be allowed to do so under certain circumstances, for the following reasons . . . .” Whereas, US v. Black provided for no exception to its bright-line rule protecting people open-carrying firearms, now exceptions are being sought for AR-15 style rifles, as well as for the proximity to a school, or a school shooting.
Of course, “innocent facts” can, combined with “more,” equal reasonable suspicion to stop an individual open-carrying a firearm in an open-carry state. But what has been ignored here, is that the only suspected crime was either 1) Michael openly carrying an AR-15, which is not a crime in West Virginia; or 2) being a prohibited person from possessing a firearm, which falls squarely within the holding of U.S. v. Black: you cannot stop and ID an open-carrier in an open carry state (without reasonable suspicion of some other crime). In other words, the mere presence of the firearm cannot be the suspected crime.
The other flawed premise of this opinion is that, even though Deputy Donahoe clearly only suspected Michael Walker of being a prohibited person (which violates Black) as illustrated by the video, and even though Donahoe showed no indication of suspicion of Michael being a school shooter at the time of the encounter, that because the standard is a subjective one, we can ignore everything Donahoe actually said/did, and focus on far-flung theories cooked up by lawyers after-the-fact.
This is the supposed reasonable suspicion justifying the stop: 1) the type of weapon Michael possessed; 2) the encounter’s proximity to a school; and 3) the encounter’s proximity to the Parkland School Shooting. None of these facts, other than the rifle being an AR-15 style rifle, are present in the underlying facts of the case. More troubling, even if they were present in the facts of this actual encounter, we still have the same constitutional dilemma: none of the allegations are illegal. AR-15 style rifles are perfectly legal. Michael’s location, i.e., proximity to the nearest school, was completely legal; and possessing a firearm in proximity to a school shooting 900 or so miles away is certainly not illegal. Moreover, none of these facts are individualized to the encounter.
The objective standard cannot be used to mean, can we think up some hypothetical justification for a stop, after-the-fact, in order to justify the stop? No, we can’t. The objective facts must be analyzed using the actual facts present, which is evidenced by the subjective testimony of those involved. Just because Donahoe is wrong about everything, doesn’t mean that we can throw out his testimony, and the video, and use non-individualized general data, such as weapon types and school proximities to justify searches and seizures.
In any event, as I suspected, the language I quoted above is where we’re heading. When we take this up on appeal, will the Fourth Circuit castrate U.S. v. Black so that any police officer can stop, ID, background check, and Terry Search, anyone openly carrying firearms in open carry states? After all, any good prosecutor or civil defense lawyer could think up some legal theory, based on proximity to some sensitive location: school, courthouse, post office, government building, whatever.
Once you have “reasonable suspicion,” police can then perform a Terry Search, period. There’s no uncoupling Terry Searches from investigatory detentions. An officer can choose to just run an ID and not do a Terry Search. But he will be justified under the law in doing both, should he choose to do so. The old slippery slope of civil rights. It never goes up – only down.
The opinion also included some of the false information on AR-15 style rifles, which I had been hoping to avoid:
Here, Walker’s possession of an AR-15-style rifle under these circumstances was unusual and alarming. Whereas possessing an AR-15 at a shooting range or on one’s own property would not raise an eyebrow, there was no obvious reason for the rifle’s possession here.
Unlike a holstered handgun, like that at issue in U.S. v. Black, AR-15s are not commonly carried for self-defense. 707 F.3d at 535. Nor are they traditionally used for hunting. Seeing Walker at 6:00 p.m. in February in an urban area would further diminish an inference that Walker possessed the rifle for hunting because the sun would soon set and hunting after dark is generally prohibited.
The rifle being uncased, ready to fire at a moment’s notice, and Walker’s camouflage pants also contributed to an unusual presentation of the firearm. SeeEmbody, 695 F.3d at 581 (finding an openly carrying man’s military-style camouflage clothing contributed to reasonable suspicion); Deffert, 111 F. Supp. 3d at 809, 810 (holding the same).
The sight was unusual and startling enough to prompt a concerned citizen to dial 9-1-1 and for Donahoe, based on his practical experience, to investigate Walker’s destination. SeeDeffert, 111 F. Supp. 3d at 809 (holding an officer responding to a 9-1- 1 call about a man carrying a firearm, as opposed to randomly stopping the man, supports finding reasonable suspicion); Smiscik, 49 F. Supp. 3d at 499 (holding the same).
Together, these facts would form a particularized and objective basis for an investigatory stop.
I had attempted to rebut some of this, as it came up during oral arguments on the motion. But post-argument briefing was not allowed. There was no evidence about AR-15s in general involved in the underlying case, whatsoever, except the after-the-fact testimony by the deputy that he was allegedly afraid of scary black rifles, even though he said nothing about it at the time, according to the video.
AR-15 style rifles are today the most popular firearm in America, and are widely used by people hunting. Coyote hunting takes place at dusk and at night. The video clearly shows Michael’s rifle slung over his shoulder, with muzzle pointed down. Even Deputy Donahoe admitted that Michael was safely carrying the rifle, with the muzzle pointed in a safe direction, and that he even had a backpack on top of the rifle. And then there’s the fact that the Second Amendment has absolutely nothing to do with hunting…. But unfortunately, the SCOTUS hasn’t recognized a Second Amendment right outside of one’s home, as of yet.
You may have seen this video footage going around the internet. There was a 2018 Fourth Circuit (WV, VA, NC, SC, MD) case finding the handcuffing of a 10 year old boy, who was compliant, unconstitutional.
So what about a 6 year old who was allegedly non-compliant?
In E.W. v. Dolgos, 884 F.3d 172 (4th Cir. 2018), the Fourth Circuit looked at a claim of excessive force by an officer, against a student. Excessive force questions generally also fall under the Fourth Amendment, except in cases of pretrial detainees (arrestees) and prisoners. In E.W., a ten year old was questioned in school by a police officer, about a fight on the bus with other students, which had occurred three days earlier. The officer viewed the footage, and then had a closed door meeting with the child and two school administrators. During the meeting, the police officer handcuffed the 4’4”, 95 pound child, supposedly for his own safety, and that of the other administrators. The officer himself was 5’5” and 155 pounds. After being handcuffed for about 2 minutes, the child cried and apologized. Subsequently the child’s family filed suit.
(ETA: My video:)
The Court then went through the usual excessive force analysis, which are commonly known as the “Graham Factors.” These are the same factors which are analyzed in every Fourth Amendment excessive force case involving people who are not pretrial detainees. So basically, anyone on the street, or who is “being” arrested. At some point following an arrest, an arrestee becomes a “pretrial detainee,” in which case the analysis changes somewhat.
There arethree factors to the “Graham Factors”:
1. “the severity of the crime at issue;
2. whether the suspect poses an immediate threat to the safety of the officers or others,
3. and whether he is actively resisting arrest or attempting to evade arrest by flight.”
Graham, 490 U.S. at 396, 109 S.Ct. 1865.
But these factors are not “exclusive,” and we may identify other “objective circumstances potentially relevant to a determination of excessive force.” Kingsley v. Hendrickson, ––– U.S. ––––, 135 S.Ct. 2466 2473, 192 L.Ed.2d 416 (2015). Here, we believe it prudent to consider also the suspect’s age and the school context. The ultimate “question [is] whether the totality of the circumstances justified a particular sort of … seizure.” Jones , 325 F.3d at 527–28.
In E.W., the Court wasn’t happy with the decision to handcuff a compliant 10 year old:
In Brown v. Gilmore , we stated that “a standard procedure such as handcuffing would rarely constitute excessive force where the officers were justified … in effecting the underlying arrest.” 278 F.3d 362, 369 (4th Cir. 2002). There, the plaintiff brought an excessive force claim based on allegations that a police officer had handcuffed her, causing her wrists to swell, dragged her to the police cruiser, and then pulled her into the vehicle. Id. at 365–66, 369. We found that the circumstances justified the “minimal level of force applied” because, as the officer approached a crowded scene on the street, he attempted to arrest the plaintiff for failure to follow another officer’s orders to move her car. Id. at 369. We stated that it was not “unreasonable for the officers to believe that a suspect who had already disobeyed one direct order would balk at being arrested. Handcuffing [the plaintiff] and escorting her to a police vehicle was thus reasonable under the circumstances.” Id.
The circumstances in this case are markedly different from those in Brown . We are not considering the typical arrest of an adult (or even a teenager) or the arrest of an uncooperative person engaged in or believed to be engaged in criminal activity. Rather, we have a calm, compliant ten-year-old being handcuffed on school grounds because she hit another student during a fight several days prior. These considerations, evaluated under the Graham framework, demonstrate that Dolgos’s decision to handcuff E.W. was unreasonable.
E.W. v. Dolgos, 884 F.3d 172, 180 (4th Cir. 2018).
The Court supported its conclusion by pointing to other courts around the country, who have recognized that youth is an important consideration when deciding to use handcuffs during an arrest.
The Ninth Circuit, applying the Graham factors, held that officers who handcuffed an eleven-year-old child used excessive force. Tekle v. United States , 511 F.3d 839, 846 (9th Cir. 2007) (“He was cooperative and unarmed and, most importantly, he was eleven years old.”); see alsoIkerd v. Blair , 101 F.3d 430, 435 (5th Cir. 1996) (holding that officer used excessive force against ten-year-old girl under Graham analysis). In addition, the Eleventh Circuit has held that “handcuffing was excessively intrusive given [the arrestee’s] young age.” Gray ex rel. Alexander v. Bostic , 458 F.3d 1295, 1300–01, 1306 (11th Cir. 2006) (denying qualified immunity to SRO who handcuffed nine-year-old student for five minutes). Several district courts have similarly held that young age is a “uniquely” or “highly relevant” consideration under Graham . See Kenton II , 2017 WL 4545231, at *9 (holding that handcuffing eight-year-old child violated constitution); Hoskins v. Cumberland Cty. Bd. of Educ., No. 13-15, 2014 WL 7238621, at *7, 11 (M.D. Tenn. Dec. 17, 2014) (noting that eight-year-old student “was a startlingly young child to be handcuffed”); see alsoJames v. Frederick Cty. Pub. Sch., 441 F.Supp.2d 755, 757, 759 (D. Md. 2006) (concluding that handcuffing eight-year-old child suggested excessive force). Here, E.W. was only ten years old at the time of the arrest. She therefore falls squarely within the tender age range for which the use of handcuffs is excessive absent exceptional circumstances.
Even though the Fourth Circuit found an excessive force civil rights violation under the facts presented in E.W. v. Dolgos, given that none of the lawyers or judges involved found prior legal precedent sufficiently similar to the conduct involved, the Court granted qualified immunity to the police officer, but warned that “our excessive force holding is clearly established for any future qualified immunity cases involving similar circumstances. Id., 884 F.3d at 187.
What that means, is that all police officers in the Fourth Circuit are now “on notice” that if they handcuff a small child without reasonable cause, they will not be granted immunity from civil damages. This handcuffing, however, occurred in Florida, and not in the Fourth Circuit. Florida is a member of the Eleventh Circuit, based out of Atlanta. One of the cases cited by the Fourth Circuit in E.W. was an Eleventh Circuit case: Gray ex rel. Alexander v. Bostic , 458 F.3d 1295, 1300–01, 1306 (11th Cir. 2006) (denying qualified immunity to SRO who handcuffed nine-year-old student for five minutes).
Somebody involved in that situation probably ought to go read that case now . . . .
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:
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:
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.
NOTE: A landlord cannot give you permission to search his tenant’s home for illegal stuff. Write that on the chalkboard, and repeat 100 times . . . .
In the 1961 U.S. Supreme Court case of Chapman v. United States, the Court was presented with the following scenario:
In 1958, acting without a search warrant, but with the consent of the suspect’s landlord, police officers entered the suspect’s home through an unlocked window, and searched the rental house. There they found an “unregistered distillery” and 1,300 gallons of “mash.” Shortly afterwards, the suspect was indicted for violation of federal liquor laws.
A guy named Bridgaman owned a rental house in a wooded area, near Macon, Georgia. Since the house had been rented to a new tenant, on Sunday, February 16, 1958, Mr. Bridgaman went to the rental house, for the purpose of inviting his new tenants to attend church with him. Upon arrival, he noted a strong “odor of mash” around the house. There was no response to his knock. He tried to look in the windows, but couldn’t see anything.
Being a good Christian, Mr. Bridgaman contacted two local police officers, who dutifully reported to his home. Together, the three went to Mr. Bridgaman’s rental house, where all three of them agreed that there was a strong “odor of mash.” They knocked on the door; but no response. They tried to look into the windows; but they couldn’t see anything. They checked to see if the windows were locked. They were all locked, except for one – the bathroom window.
According to the officers’ sworn testimony, the landlord, Mr. Bridgaman, gave them permission to climb in the window and see if the tenants were doing what he suspected they were doing, given the strong smell of moonshine in the making. So the officers climbed in the bathroom window.
After entering the home, one of the officers found 1,300 gallons of mash in the living room, and other than the mash, the rest of the house was empty – aside from the distillery and distilling accessories.
The officer who found the moonshine operation, yelled out to the other about what he had found, and told him “to go get some help.” The other officer then left, taking the landlord home, and called the federal police to come to the scene.
However, before the feds could get there, the tenant arrived home. He unlocked the door, walked inside, and was suddenly confronted by the police officer, still inside the house, who handcuffed him and arrested him.
When the other officers arrived at the scene, they saved samples of the mash, took pictures of the crime scene, inside the house, and then destroyed the moonshine still and destroyed the shine. There had never been a search warrant of any kind. The case went all the way to the U.S. Supreme Court.
Surprisingly, despite not having a search warrant, the government’s argument justifying their warrantless search, was that it was a rental property, and that the landlord, on a social call, noticed that the premises was being used for criminal purposes, and since he had the legal right to enter the premises as the landlord, “he should be able to exercise that right through law enforcement officers to whom he has delegated his authority.”
The SCOTUS immediately pointed out three problems with that argument: 1) the officer forced open a window to gain entry to the premises; 2) their purpose in entering was to search for distilling equipment, not to evaluate the status of the landlord’s property; and 3) if the SCOTUS were to allow such an intrusion, without a warrant, “would reduce the Fourth Amendment to a nullity and leave tenants’ homes secure only in the discretion of landlords.”
Gee . . . . Sounds familiar.
Therefore, the Supreme Court of the United States found that the search was illegal, and thus began an extended progeny of federal cases, all based on the 1961 U.S. Supreme Court decision in Chapman v. U.S., written by Justice Charles E.Whittaker, who was appointed by President Eisenhower in 1957.
Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961).
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. The Supreme Court has held that, with few exceptions, warrantless searches are “per se unreasonable” under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
“At the very core of the Fourth Amendment stands the right of a man to retreat into his home and there be free from unreasonable governmental intrusion. With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (internal quotation marks and citations omitted).
And the protection of a house extends to apartments, rented rooms within a house, and hotel rooms so that a landlord may not give the police consent to a warrantless search of a rented apartment or room. SeeStoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (hotel room); Chapman v. United States, 365 U.S. 610, 616-17, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) (rented house). U.S. v. Stevenson, 396 F.3d 538 (4th Cir. 2005).
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.
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.
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, seeUnited 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. SeeNorthrup, 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…..
I’ll be in federal court tomorrow, Monday, February 3, for a pretrial hearing in the other Putnam County case with a video, and will potentially be meeting with additional witnesses afterwards, if there’s time. If you have information, please let me know.
A few days back I had to trim the video in order to take out the local TV coverage of the task force guys, where they’re walking around the trailer park, banging on doors, etc. They claimed copyright on the footage and threatened to sick their lawyers on me. So I just took that part down. But I assume that you can find it on their site if you look for it. At some point, I’m sure it will be evidence of record anyways.
Since the original video was uploaded, the Putnam County Sheriff has ordered an internal investigation. Right now we’re awaiting the results of that investigation, and also proceeding with our own.
I have personally met with investigators, and have provided them whatever they wanted out of my file. I also made my client and an eyewitness available to them for questioning. I also have received yet another video showing them inside an individual’s home, and I have also provided that to the investigators – with the individual’s consent, of course. Numerous other people have contacted us in regards to other situations involving this same group of guys, and I’m still in the process of speaking to them all.
Here are a few more photos which address important aspects of the situation. Here’s where the Putnam County Special Enforcement Unit cut the lock on my client’s gate at the end of driveway, before driving towards the house in a white truck, and what appears to be two black Ford Explorer unmarked police cruisers.
Here’s where the police officers climbed through the window to get inside the house. They pushed in a window unit air condition. It was actually one of those indoor ACs, but it still requires a window unit for exhaust and drainage. This photos were taken immediately following the search.
Here’s where they yanked the surveillance camera cord. It’s of the type that has two plugs. One of the plugs was pulled out, and the other was ripped in half, leaving the connector still in place.
How do we know it wasn’t already like that? Remember the part of the video where the guy in the SWAT outfit was walking across the bridge? (5:41 in the video) When he gets to the end of the bridge, it freezes. That’s this actual camera. And the point at which it freezes is when the damage occurs to the camera. I originally thought that camera had survived. But no, that one was actually severed, and you see the moment it was severed.
Here’s the guy walking across the bridge:
And here’s the exact moment that camera was disabled:
As for what their defense is at this point, I don’t know. But self-proclaimed “Bailiff” of the Putnam Sheriff’s Department did confront me on social media and try to set me straight on the facts, and the law. He implied that the officers entered with the landlord’s consent. The only problem with that is, a landlord cannot authorize law enforcement to search their tenant’s residence. That’s Fourth Amendment 101, which is why a search warrant is still required even to search the hotel room of an overnight guest (minus a ticking time bomb or something) They can’t just ask the hotel manager for permission to search. A warrant is still required. Secondly, the landlord was questioned very early on, and denied knowing anything about it. That may have been a lie. But if it was, then they can point fingers at each other when it comes time to be placed under oath. But it still won’t be a defense to an illegal search by law enforcement.
As for a criminal investigation, I have no knowledge of any agency investigating them criminally. That doesn’t mean it’s not happening. But nobody has notified myself, nor my client, of there being one. That’s why I believe it’s important to share this information with the public. In the end, the citizens should be informed of what their government is doing. Or not doing.
Check out this new case. Police officer impersonation incident by a WV Division of Corrections CO / Parole officer. We met with investigators already, who were extremely concerned about what they saw here….
In case you’re following along with the Walker v. Donahoe, et al. Fourth Amendment open carry civil rights lawsuit, we have a jury trial scheduled for February 19, beginning at 8:30 a.m. at the federal courthouse in Huntington, West Virginia. As of right now it’s still on. Both sides have asked the court for summary judgment, which basically means that both sides claim to have the law completely on their side. The court has not ruled as of yet. Pretrial documents have been submitted, including motions in limine, which are trial issues anticipated by the parties, which are best argued prior to the start of the trial. If you haven’t seen the video of the incident in dispute, here it is:
The defendants are seeking to exclude portions of this video showing the “investigatory detention” of Michael Walker by the Putnam County Sheriff’s Department. Not surprisingly, they want the part of the video where the police officer calls Michael a “co*ksucker,” repeatedly, among other things to be kept away from the jury. Here’s their argument:
Also not surprisingly, we strongly disagree. Here’s our response. The judge will decide at some point, and generally has the broad discretion to control the flow of what the jury gets to see, and what they don’t:
We also filed a few motions in limine of our own, including our attempt at stopping the defendants from bringing up the Parkland school shooting, which they have announced is their attention, and which has absolutely nothing to do with the case. They are also seeking to make the case that because Michael had an AR-15 style rifle, that a reasonable officer could suspect him of being a potential school shooter, or something to that effect. Which is of course highly offensive, and antithetical to both the Fourth Amendment and the Second Amendment to the U.S. Constitution: