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.

What is Qualified Immunity and why does it fail at life?

Section 1983 lawsuits allow private citizens to sue individual government officials, including police officers, for violations of federal rights performed under color of law.

If a government officer violates a federally protected civil right, the citizen has the legal right to file a civil lawsuit against the officer. 42 USC 1983, passed in 1871, allows citizens to sue state and local government officials – especially police officers – for damages when their rights are violated. Even if they’ve suffered no monetary damages, if they are successful, they’re entitled to an award of reasonable attorney fees and expenses. The same sort of lawsuit is available against federal officials pursuant to the U.S. Supreme Court case, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971). Those are known as “Bivens actions.” But before these lawsuits can be successful, they have to get past the obstacle of the Qualified Immunity defense.

Qualified Immunity is a defense to civil lawsuits alleging the violation of federal rights while acting under color of law. It does not apply as a defense to criminal prosecution.

Qualified Immunity is a civil defense to these lawsuits, provided to government officials by the Supreme Court initially in the case of Pierson v. Ray in 1967, and then again, in its current form, in Harlow v. Fitzgerald, in 1982. It was rearranged yet again in Pearson v. Callahan (2009) giving federal judges more discretion in granting qualified immunity.

Qualified Immunity has been the subject of intense debate in recent years, and especially in recent months. Many commentators have criticized it as an example of the Court creating legislation from the bench, and in so doing having created a significant problem for citizens seeking to hold their government officials accountable for the violations of their civil rights.

As Ninth Circuit Judge Stephen Reinhardt has written, the Supreme Court’s recent qualified immunity decisions have “created such powerful shields for law enforcement that people whose rights are violated, even in egregious ways, often lack any means of enforcing those rights.” Three of the foremost experts on Section 1983 litigation—Karen Blum, Erwin Chemerinsky, and Martin Schwartz—have concluded that recent developments in qualified immunity doctrine leave “not much Hopeless for plaintiffs.” 

Although the concept of qualified immunity was drawn from defenses existing in the common law at the time 42 U.S.C. § 1983 was enacted, the Court has made clear that the contours of qualified immunity’s protections are shaped not by the common law but instead by policy considerations. In particular, the Court seeks to balance “two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” 

The Supreme Court’s original rationale for qualified immunity was to shield officials from financial liability. The Court first announced that law enforcement officials were entitled to a qualified immunity from suits in the 1967 case of Pierson v. Ray. That decision justified qualified immunity as a means of protecting government defendants from financial burdens when acting in good faith in legally murky areas. Qualified immunity was necessary, according to the Court, because “[a] policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he had probable cause, and being mulcted in damages if he does.”

How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).

The reality of Qualified Immunity, through my eyes, which are the eyes of someone who litigates civil rights lawsuits mostly as a plaintiff, is that it’s more of an annoyance in the usual case litigated by an experienced civil rights attorney, but that it’s often a problem in those unique cases where justice really should be served, but isn’t. The big problem, in my opinion, is the use of an objective standard. Common sense tells us that bad faith conduct by law enforcement should be punished. But the subjective bad faith, or malicious intentions, of a defendant police officer, surprisingly may not even be admissible in court. Because it’s usually irrelevant under the standard.

Qualified Immunity is analyzed using an objective standard, rather than subjective.

At its inception in 1967, there was a subjective component to the qualified immunity analysis. From 1967, when qualified immunity was first announced by the Supreme Court, until 1982 when Harlow was decided, a defendant seeking qualified immunity had to show both that his conduct was objectively reasonable and that he had a “good-faith” belief that his conduct was proper. In 1982, the Court in Harlow dropped the second part, the subjective good faith belief requirement, finding that such a requirement was “incompatible” with the policy goals of qualified immunity, which now not only was to protect law enforcement officers from financial liability, but also now to avoid subjecting them to either the costs and burdens of trial, as well as the burdens of broad-reaching discovery.

Qualified Immunity cannot be justified as a means of reducing civil litigation surrounding allegations of police misconduct.

In a recent study discussed in a Yale Law Journal article, out of a study of 1,183 lawsuits against state and local law enforcement defendants, over a period of two years, in five federal district courts, it was found that qualified immunity was only raised as a defense in 37% of the cases, and out of those, only resulted in dismissal in 3.6% of the casesSee How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).

I’ll repeat that: out of 1,183 lawsuits against police officers for civil rights violations, Qualified Immunity was raised as a defense by the officers in only 37% of the cases, and out of those, only 3.6% resulted in dismissals.

Another study by Alexander Reinert, looking at Bivens actions (against federal officials), found that grants of qualified immunity led to just 2% of case dismissals over a three year study period. However, the big difference in those cases from regular Section 1983 cases, is that the defense attorneys are Assistant United States Attorneys – members of the civil branch of each federal district’s federal prosecutor’s office. As such, they may take a different route of defense, as a matter of DOJ policy. So they are somewhat different creatures, though both involve issues of Qualified Immunity.

Therefore, according to the numbers, “Qualified Immunity” itself is rarely the formal reason that civil rights lawsuits against law enforcement end. Moreover, there are certain types of cases where qualified immunity cannot be utilized, such as those against the employers of law enforcement officers (Monell Claims). Out of the 1,183 cases studied, 8.4% fell into this category. 

The Yale study also showed that most of the qualified immunity litigation is taking place at the summary judgment stage, or even the trial stage, rather than at the motion to dismiss stage, as the Supreme Court apparently intended. That means that litigation is not being avoided. It is perhaps being increased. 

As Alan Chen has observed, when considering the deficiencies of qualified immunity, “the costs eliminated by resolving the case prior to trial must be compared to the costs of trying the case . . . . [T]he pretrial litigation costs caused by the invoking of the immunity defense may cancel out the trial costs saved by that defense.”

How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).

Moreover, Qualified Immunity likely increases the expense, as well as the delays, associated with federal civil rights litigation.

Although qualified immunity terminated only 3.9% of the 979 cases in my dataset in which qualified immunity could be raised, the defense was in fact raised by defendants in more than 37% of these cases—and was sometimes raised multiple times, at the motion to dismiss stage, at summary judgment, and through interlocutory appeals. Each time qualified immunity is raised, it must be researched, briefed, and argued by the parties and decided by the judge. And litigating qualified immunity is no small feat. John Je ries describes qualified immunity doctrine as “a mare’s nest of complexity and confusion.”155 Lower courts are “hopelessly conflicted both within and among themselves” as a result. One circuit court judge reported that “[w]ading through the doctrine of qualified immunity is one of the most morally and conceptually challenging tasks federal appellate court judges routinely face.”

How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).

Qualified Immunity cannot be justified as a means of protecting police officers from personal financial liability.

In the study of 1,183 civil lawsuits, police officer defendants paid little, to none, of settlement or verdict amounts. Out of the 44 largest law enforcement agencies included in the study, which included 70 agencies overall, the individual officers paid just 0.02% of the dollars awarded to the plaintiffs in those suits. In the 37 smaller and midsize law enforcement agencies, no individual officer contributed any amount to any award to a plaintiff during this period. All of the officers were indemnified by the employers, even where they were fired, disciplined, or even criminally prosecuted for their conduct. This has been my experience as well, except in one particular case I’ve personally been involved with. I only know of one other instance in West Virginia where there was a second occurrence.

Qualified Immunity cannot be justified as a means of protecting police officers and government officials from the non-financial burdens of discovery and trial.

Often discussed in Qualified Immunity caselaw is this phrase, and so-called policy objective, of shielding government officials from the burdens of participating in a lawsuit, including the discovery process and the trial itself. For this reason, courts have the discretion to apply Qualified Immunity early in the litigation, including at the motion to dismiss stage, prior to any discovery being conducted. However, the study shows that this policy goal is not being met.

I found that, contrary to judicial and scholarly assumptions, qualified immunity is rarely the formal reason that civil rights damages actions against law enforcement end. Qualified immunity is raised infrequently before discovery begins: across the districts in my study, defendants raised qualified immunity in motions to dismiss in 13.9% of the cases in which they could raise the defense. 

These motions were less frequently granted than one might expect: courts granted motions to dismiss in whole or part on qualified immunity grounds 13.6% of the time.Qualified immunity was raised more often by defendants at summary judgment and was more often granted by courts at that stage. But even when courts granted motions to dismiss and summary judgment motions on qualified immunity grounds, those grants did not always result in the dismissal of the cases—additional claims or defendants regularly remained and continued to expose government officials to the possibility of discovery and trial. Across the five districts in my study, just 3.9% of the cases in which qualified immunity could be raised were dismissed on qualified immunity grounds.

And when one considers all the Section 1983 cases brought against law enforcement defendants—each of which could expose law enforcement officials to whatever burdens are associated with discovery and trial—just 0.6% of cases were dismissed at the motion to dismiss stage and 2.6% were dismissed at summary judgment on qualified immunity grounds.

How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).

Thus, Qualified Immunity was the reason for dismissal in only 3.2% of the 1,183 lawsuits in the study. The defendants raised the defense in 37.6% of the cases where the defense was available. Out of these, only 13.9% of these were raised at the earliest point available – that is, the motion to dismiss stage – that being the only method of avoiding the burden of participating in the discovery process. Courts granted less than 18% of those motions raised at the motion to dismiss stage, which includes motions granted “in part,” which means that only some claims were dismissed, and that others were allowed to proceed. 

Therefore, the existence of Qualified Immunity is not serving the alleged policy goal of shielding government officials from the burden of participating in the litigation process. Unless, of course, one considers 3.2% to be a substantial shield from litigation. To the contrary, it arguably has increased the negative public perception of a lack of equal justice in the justice system as a whole.

How to strip a police officer of Qualified Immunity

To strip a police officer of qualified immunity in a civil rights lawsuit, a plaintiff must establish that:

1. the officer’s conduct violated a federal statute or constitutional right; and

2. the right was clearly established at the time of the conduct, such that

3. an objectively reasonable officer would have understood that the conduct

violated that right.

Which comes first? Until recently, the United States Court of Appeals required a court to first determine whether or not a constitutional right had been violated and then determine whether an officer was entitled to qualified immunity. See Saucier v. Katz, 121 S.Ct. 2151 (2001). Courts and attorneys were routinely ignoring this mandate and somewhat recently, the United States Supreme Court in Pearson v. Callahan (2009) reverted back to its initial analysis and now courts are free to evaluate these issues in whatever order the court desires. 

The real world application of Qualified Immunity.

1. There generally tends to be a “grace period “between a change in the law, and then moment it becomes “clearly established” for qualified immunity purposes.

2. Qualified Immunity is generally a poor defense to claims of excessive use of force by a police officer. The reason for this is because this often involves highly contested disputes of fact which make a trial likely. For example, a plaintiff alleges an officer kicked him in the groin while he was handcuffed. The officer responds that the plaintiff is lying, and that he did no such thing. This is most certainly going to require a trial to decide the truth of the matter. It doesn’t really involve a legal analysis of whether a police officer would know it would be a civil rights violation to kick a handcuffed detainee in the groin for no good reason. The primary exception to the excessive force rule is police shooting cases where the plaintiff is dead. Such a case usually involves family members of the decased filing suit. As such, the plaintiff himself/herself cannot tell his/her side of the story. With only one side available in many such cases, the court may grant qualified immunity based on the officers’ un-contradicted affidavits or deposition testimony.

3. Qualified Immunity is a very effective defense when dealing with search and seizure issues, which are rapidly developing and changing (due to commonly being involved in criminal litigation, which occurs in much greater volume and frequency). This creates so-called “grey areas” of the law, for which courts tend to give police officers the benefit of the doubt, so to speak.

4. An officer’s mistaken understanding of the law, or a reasonable misapprehension of the propriety of his conduct, can still provide a defense under Qualified Immunity. See Saucier v. Katz, 533 U.S. 194, 205 (2001) (“The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.”).

5. Qualified immunity applies as an effective defense in wrongful arrest cases, where the Court looks at the facts in the record and determines that probable cause exists, or that the officer made a reasonable mistake as to the existence of probable cause.

Therefore, ironically, Qualified Immunity is not much of a bar to a plaintiff seeking to hold a police officer responsible for the use of excessive force, such as in the recent death of George Floyd. Without a doubt, no court in the land would grant Qualified Immunity to the officer involved in Mr. Floyd’s death. There would be, or probably will be, factual issues to be determined at trial. Rather, it mostly is going to apply to those “grey areas” of search and seizure law. Moreover, it’s going to apply usually without regard to the officer’s subjective ignorance, or expertise, regarding the law. It’s an objective, fairly low standard.

For this reason, I agree with the author of the Yale Law Review study, in that rather than calling for the end of Qualified Immunity, it might be best to return to a subjective standard version of Qualified Immunity, where police officers who act in bad faith, as well as those who act in good faith, though objectively unreasonably, can be held accountable. But as for Qualified Immunity itself, whether it exists, or does not exist, it’s not going to apply to any of the officers directly involved in Mr. Floyd’s death. But it will be involved in many other cases, including cases where there certainly was police misconduct, for which the victim will be barred from recovery. That can’t be a good policy, in my opinion.

Fayette County Search Case was Settled

I’ve had several people ask me about an update on the Sizemore case, which was a search and seizure case out of Fayette County, West Virginia, involving a multi-jurisdictional drug task force who were found by a federal judge to have included false allegations in a search warrant application. The federal criminal charges were dropped after the evidence seized during the search was suppressed from evidence. Then the case was brought to me for a civil lawsuit. We filed in in September of 2019. We recently settled the case.

This was the case where the Charleston Gazette newspaper thought it was shocking that we filed a lawsuit over an illegal search where, despite the illegal warrant, drugs actually were found in my client’s house. I believe the headline was, “Officers found his $25k of heroin. He walked free, and now he’s suing police.”

In my December 2019 update, in response to the police officers’ motion to dismiss the lawsuit, I reiterated that equal justice under the law should mean that even people found with drugs should be entitled to the equal application of law and posted our response brief, as well as their motion.

In my January 2020 update, I posted a copy of the federal court’s memorandum opinion and order denying the motion to dismiss, and denying the application of qualified immunity, ordering that the case proceed. You’ve been hearing a lot about qualified immunity lately. The order in this case denied qualified immunity to the officers:

As previously explained, Defendant Morris violated Plaintiffs’ Fourth Amendment protections. Thus, the next question is whether the violated right was clearly established at the time of the events in question. “[I]t has long been established that when law enforcement acts in reckless disregard of the truth and makes a false statement or material omission that is necessary to a finding of probable cause, the resulting seizure will be determined to be unreasonable.” Gilliam v. Sealey, 932 F.3d 216, 241 (4th Cir. 2019); see Franks, 438 U.S. at 157. 

As the Fourth Circuit has explained, “a reasonable officer cannot believe a warrant is supported by probable cause if the magistrate is misled by statements that the officer knows or should know are false.” Miller, 475 F.3d at 632 (quoting Smith v. Reddy, 101 F.3d 351, 355 (4th Cir.1996)).

Qualified immunity is actually pretty rare in excessive force lawsuits – at least where the plaintiff’s attorney knows what he or she is doing. Ideally, there is a dispute of facts, which requires a trial. But in search in seizure cases, it’s usually less of a factual dispute, and more of a legal dispute. The gist of qualified immunity is that courts give some leeway to police officers, who can’t be expected to automatically know each and every new case that comes out. Some courts expand it, unfortunately, but many don’t.

Here, the court equally applied the Fourth Amendment and justice was served. A police officer should not be allowed to lie in order to obtain a search warrant, even where they believe that the ends justifies the means. Here’s the full order, which was quoted above:

My thoughts on the current protests.

If you really care about police misconduct, and if you want to fix things, are you willing to protest over this man? This is James Dean, who died 14 months ago in a hospital in Huntington, West Virginia, after incurring head trauma while handcuffed in the custody of the Kenova, Police Department. After waiting 14 months, the state medical examiner’s office still hasn’t issued a report regarding his cause of death. Why? So they can protect the police, I would presume. The brain surgeon who performed the man’s craniotomy didn’t have any doubt in his mind apparently that the man suffered head trauma causing his brain to bleed.

Petition for Rehearing En Banc Filed Yesterday with the Fourth Circuit in the Orem Search and Seizure Case

Yesterday we filed a Petition for Rehearing En Banc with the U.S. Court of Appeals for the Fourth Circuit in the Orem case. On May 11, 2020, the Fourth Circuit handed down a panel decision in the Orem v. Gillmore, et al., Section 1983 civil rights lawsuit, arising out of Berkeley County, West Virginia.

Here’s the background post on the initial filing of the lawsuit, in April of 2018. This is the case that made national headlines when a Republican nominee for Sheriff was arrested for allegedly overdosing in his home. He was arrested by a state trooper, who showed up at the scene of the medical emergency, and performed a warrantless search of a bathroom in the house. The trooper’s longtime secretary was the married to one of the candidate’s political opponents. During the arrest booking, a photograph was taken of the client while handcuffed inside a secure area of the state police detachment. It was uploaded to social media as a meme, and quickly went viral. Of course, the state police investigated themselves, and strangely were unable to find the culprit.

The damage was done, as far as the election is concerned. The prosecuting attorney determined that the arrest resulted from an illegal search of the bathroom, and evidently the court agreed. The criminal charges were dismissed. We filed a civil lawsuit in federal court. Unfortunately however, the Court granted the trooper qualified immunity on the search, and claimed that we missed the statute of limitations on the false arrest count. I argued up and down that the judge and the opposing lawyer were confused, and that false arrest has a 2 year SOL – not 1 year, as they claimed. Well, I was right. The Fourth Circuit overturned the ruling on the statute of limitations, holding that I was right about it being 2 years. But then they granted qualified immunity anyways.

Here’s the Petition for Rehearing:

Here’s the opinion, if you want to read it. Unfortunately, the opinion was pretty sparse – granting the defendant police officer qualified immunity, with pretty much no explanation whatsoever. They just said, it was “beyond debate.”

The expansion of qualified immunity to police officers who violate the most central tenant of the Fourth Amendment – a warrantless search of a home – is concerning. Qualified immunity is supposed to apply to the gray areas, where we can’t expect police officers to understand all the nuances and constant changes in case law. But the warrant requirement for searching a man’s home? The U.S. Supreme Court has long held that a police officer cannot be entitled to qualified immunity for the warrantless search of a home. Hopefully we get a rehearing on this and a new opinion, or else we very well may end up there.

Family Court Judge Searches Home


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:

UPDATE 3/13/20: TV news segment:

 

Federal Court Rules Against us in the Walker Case. Let the appeal begin….

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. See U.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. See Embody, 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. See Deffert, 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.

The ruling which came down today:

The video, in case you missed it:

 

Can a police officer handcuff a 6 year old child?

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 are  three 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 also Ikerd 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 also James 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.

 E.W. v. Dolgos, 884 F.3d 172 , 182 (4th Cir. 2018).

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 . . . .

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.

What are your Second Amendment rights? Mostly the Fourth Amendment.

Here’s a brief, but decently thorough, rundown on the current state of “Second Amendment rights” in the United States. Unfortunately, it involves much more than just pulling out your pocket sized booklet of the U.S. Constitution and reading the Second Amendment. This is the ammunition you need to debate, understand, and exercise, your Second Amendment rights. Of course, see the disclaimer lower right on the home page.

This is a broad topic, and it’s all up in the air, depending on where you live in the country, as you’ll see below. These are excerpts from the larger piece I’ve been working on, so I’ve left citations in where possible.

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Second Amendment Law?

Most of the federal constitutional law surrounding the possession and use of firearms, i.e., “Second Amendment law,” is actually the law of the “Search and Seizure” clause of the Fourth Amendment to the Constitution. 

The reason for this is because the United States Supreme Court has been very slow-going to establish any Second Amendment rights whatsoever. Regardless of what we believe the Founders intended, and regardless of what we subjectively believe, or perhaps know, that the Second Amendment means, the federal judiciary has failed miserably – decade after decade – at interpreting the actual words written in the Bill of Rights. I don’t believe it was ever supposed to be that difficult. But it is.

Shall not be infringed . . . .

For instance, it has been interpreted that the Second Amendment, though fairly concise, actually has two different so-called clauses. The Second Amendment provides,

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

See U.S. Const. amend. II. 

Seems pretty straight forward, in light of the fact that in the late 18th century, every military age male was required to comply with militia duties, and was also required by law to provide his own musket, or rifle, as well as sufficient powder and lead. As an interesting aside, in the event that any poor sap among us were so poor and dejected that he could not afford his own firearm, including sufficient powder and lead, there was an early welfare-style system, where that individual could borrow one from the government’s stores, with a requirement that it be returned in working order at the end of the lease term. This was less preferable to being able to use your own stuff. For example, Virginia’s Militia Act, enacted May 5, 1777, was very specific:

Every officer and soldier shall appear at his respective muster-field by eleven o’clock in the forenoon, armed or accoutred as follows: The county lieutenant, colonels, lieutenant colonels, and major, with a sword; every captain and lieutenant with a firelock and bayonet, a cartouch box, a sword, and three charges of powder and ball; every ensign with a sword; every non-commissioned officer and private with a rifle and tomahawk, or good firelock and bayonet, with a pouch and horn, or a cartouch or cartridge box, and with three charges of powder and ball; and, moreover, each of the said officers and soldiers shall constantly keep one pound of powder and four pounds of ball, to be produced whenever called for by his commanding officer.

If any soldier be certified to the court martial to be so poor that he cannot purche such arms, the said court shall cause them to be procured at the expense of the publick, to be reimbursed out of the fines on the delinquents of the county, which arms shall be delivered to such poor person to be used at musters, but shall continue the property of the county; and if any soldier shall sell or conceal such arms, the seller or concealer, and purchaser, shall each of them forfeit the sum of six pounds. And on the death of such poor soldier, or his removal out of the county, such arms shall be delivered to his captain, who shall make report thereof to the next court martial, and deliver the same to such other poor soldier as they shall order.

And if any poor soldier shall remove out of the county, and carry his arms with him, he shall incur the same penalty as if he had sold such arms; and if any persons concerned in selling or concealing such arms shall be sued for the said penalty, and upon conviction and recovery shall fail to make payment, he shall suffer such corporal punishment as the court before whom the recovery shall be shall think fit, not exceeding thirty nine lashes.

Militia or Individuals?

However, fast forward to 2008, long after the militia system has fallen into disuse and obscurity, in the case of District of Columbia v. Heller , the U.S. Supreme Court recognized that the Second Amendment is now officially divided into a prefatory clause (“A well regulated Militia, being necessary to the security of a free State, …”) and an operative clause (“… the right of the people to keep and bear Arms, shall not be infringed.”). See Heller, 554 U.S. 570, 577, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). 

The Heller majority rejected the proposition that, because of its prefatory clause (“A well regulated Militia, being necessary to the security of a free State, …”), the Second Amendment “protects only the right to possess and carry a firearm in connection with militia service.” Id. So the militia part, which is often the center of much internet argument, is actually minor to the litigation.  Rather, the Court determined that, by its operative clause (“… the right of the people to keep and bear Arms, shall not be infringed.”), the Second Amendment guarantees, still today, as of 2008, “the individual right to possess and carry weapons in case of confrontation.” Id. at 592, 128 S.Ct. 2783. 

The Court also explained that the operative clause “fits perfectly” with the prefatory clause, in that creating the individual right to keep and bear arms served to preserve the militia that consisted of self-armed citizens at the time of the Second Amendment’s ratification. Id. at 598, 128 S.Ct. 2783; Kolbe v.  Hogan, 849 F.3d 114, 131-132 (4th Cir. 2017). That’s the overly-complicated way of saying that the people were the militia in the 1790s, and were guaranteed the right to keep their own weapons in case they needed to fight with them.

What is “Second Amendment law?”

This has created a body of law – Second Amendment law – which is amazingly one-sided, as far as the government is concerned, and extremely weak for the individual citizen.  As Professor J. Richard Broughton noted in what is one of the best law review articles I’ve reviewed, Danger at the Intersection of Second and Fourth, from the Idaho Law Review, September 2018:

[U]nder federal law alone, for example, numerous restrictions exist on gun possession: felons, those who have been adjudicated as a mental defective or who have ever been commit- ted to a mental institution, unlawful drug users or addicts, persons who have been dishonorably discharged from the armed forces, illegal aliens, and others. It is a crime to knowingly receive a firearm with an obliterated or altered serial number. It is a crime to possess a machine gun. It is a crime for a minor to possess a firearm, except under limited conditions. Violent crimes, or drug trafficking crimes, committed with a firearm are subject to enhanced punishments. And similar restrictions on possession and use of guns exist in state law. 

Id. at 399-400.  So, as lofty as the Second Amendment sounds, and as much as it is used in speech referencing the God-given right to keep and bear arms, etc., etc., in practice, and in reality, it has been chiseled away through the years, and has been long established as inapplicable to entire groups of individuals who might want to assert it, but who in reality have no recognized Second Amendment right to keep and bear arms. At least not that the federal courts recognize.

As for Heller itself, the landmark Second Amendment case only provides for a Second Amendment right for gun possession in one’s home. See Heller, 554 U.S. at 632, 635. To extend the Second Amendment beyond the home, which it obviously should to those of us who can read, one must look elsewhere at the lower federal courts, specific state laws, or wait until the Supreme Court takes up the issue of the expansion of the Second Amendment beyond the home. 

The expansion issue has been extremely limited in the lower federal courts. See, e.g., Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017); Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012); Kachalsky v. Cty. of Westchester, 701 F.3d 81 (2d Cir. 2012); Grace v. District of Columbia, 187 F. Supp. 3d 124 (D.D. Cir. 2016); see also Jeffrey Bellin, The Right to Remain Armed, 93 WASH. U. L. REV. 1, 18–21 (2015) (discussing recent cases which suggest that gun rights may be gaining traction). 

In the dwindling number of jurisdictions where legislator continue to support strict gun regulation, judges, rather than politicians, spearhead the gun-rights movement . . . .

The Fourth Amendment generally requires police to possess “individualized suspicion” of a crime prior to conducting any search or seizure. When police try to preempt violent crime by stopping (i.e., seizing) armed citizens, the assumed violation of municipal gun laws supplies the requisite Fourth Amendment authority. As gun carrying becomes both lawful and common, even in major cities, police lose the ability to invoke public gun possession as a Fourth-Amendment-satisfying basis for investigation.

Bellin at 3 (citing U.S. v. Martinez-Fuerte, 428 U.S. 543, 560 (1976) (stating that “some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure”).

The Fourth Circuit (WV, VA, MD, NC, SC) Has Declined to Extend Heller outside the home

The Fourth Circuit has expressly declined to resolve whether the right recognized by Heller extends beyond the home.  United States  v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011); see also Footnote 2 of U.S. v. Robinson, 846 F.3d 694 (4th Cir. 2017) (en banc) (noting that they continue to decline to address the issue of extending Heller beyond the home, and noting a split of sister circuits on the issue). 

But the 7th Circuit (Ill., IN, Wis.), and the DC Circuit have extended Heller outside the home

Both the 7th Circuit and the DC Circuit have made such an extension. See 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”); see also 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).

The 9th Circuit (CA, AZ, AK, ID) says Heller doesn’t extend outside the home

However, other courts, including the Ninth Circuit, have expressly found no extension exists. See 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”). 

McDonald v. Chicago (2010): The Second Amendment DOES apply to the States via the Fourteenth Amendment

When I took constitutional law classes in college, and again in law school, the professors made it a point to teach that the Second Amendment “does not apply to the states.” They made sure to inform you of that fact.  And for most of our history, that has been the position of the judiciary. However, that changed with the U.S. Supreme Court case of McDonald v. Chicago, 561 U.S. 742 (2010), which officially issued the holding that the Second Amendment applies, not only to the federal government, but also to the states. In other words, it restricts the state governments, and their political subdivisions, from some level of interference with the right to own and/or possess a gun. 

Thus, much of the body of constitutional law created in the 20th century, and in recent years, technically runs through the Fourteenth Amendment. It’s confusing, but such was the holding of McDonald. Through the ratification of the Fourteenth Amendment, so did the Second Amendment then apply to restrict the states, just as Congress was initially restricted.  The important result here, is that all those professors were wrong – though no doubt they very much want Heller reversed by some future version of the Court. Of course the Second Amendment applies to individuals.  If states can’t violate the Fourth Amendment, it would be completely illogical to argue that states can violate the Second. Political ideology should be irrelevant to Constitutional interpretation, but it’s not.

McDonald specifically rejected the view that the Second Amendment “should be singled out for special–and specially unfavorable–treatment.” McDonald v. Chicago, 561 U.S. 742, 750 (2010). In addition, the Court also touched on the possible impact on States:  As with any incorporated provision of the Bill of Rights, “The enshrinement of constitutional rights necessarily takes certain policy choices off the table [for States].”  Id., 561 U.S. 742, 790.

But restrictions will still be allowed

Legislatures can still enact restrictions on firearms inside the home, as illustrated by the Fourth Circuit allowing the “assault weapon” ban in Maryland, or as in the case of persons prohibited by virtue of being a felon, etc., which were unaffected by Heller, and which have been upheld many times. See Kolbe v.  Hogan, 849 F.3d 114, 131-132 (4th Cir. 2017) (Upholding the MD ban) And if the Supreme Court does end up extending the Second Amendment beyond the home, restrictions are still going to be viable, depending on the analysis adopted by any such opinion. An actual Second Amendment analysis gets really confusing, and is beyond the scope of this post. But read the Kolbe decision and you’ll get the gist of how it can go.

Terry v. Ohio and the “Terry Search”

Perhaps the main collision between the Second Amendment and the Fourth, is one of the most famous cases of the 20th century, and probably the one case that any police officer in the United States can quote, in parts, verbatim: Terry v. Ohio, 392 U.S. 1 (1968). Terry was a 1968 Supreme Court case which came down during the tenure of Chief Justice Earl Warren. Professor Broughton discussed some interesting background on the case in his law review article, which provides context – both in why it was decided the way it was, and why it perhaps should now be sufficiently reigned in.

Terry provides the foundation for the often-used “Terry Search,” which is generally-speaking, when a police officer can make a limited search of a subject he is interacting with, where the subject isn’t yet under arrest necessarily, where probable cause for arrest has not been established, but where there’s some legitimate danger that the subject could be armed and dangerous to the police officer.

This is sometimes referred to as a “Terry Frisk,” or even a “Terry Sweep.” There’s a mountain of caselaw since 1968, from the Supreme Court, every federal circuit, and every state in the land, interpreting just what Terry means, and what it allows; and what it doesn’t allow. As Jeffrey Bellin points out in The Right to Remain Armed, at p. 11, 93 WASH. U. L. REV. 1, 18–21 (2015) it’s a subjective field:

Police often detect guns through public observation. Officers patrol the streets alert to signs of gun possession, such as bulges under clothing or protruding handles. The late Jack Maple, a key Bratton deputy, describes in his memoir how he taught himself to “spot people carrying guns” so he could “save a few lives” by getting the guns off the street. Maple explained the “drill” as follows: after seeing a suspicious bulge, he would make his “first move by grabbing the handle of [the suspect’s] gun. [The suspect] freezes and usually obeys an order to put his hands on his head. If he doesn’t, my hold on his gun and waistband put him off-balance, so I can spin him around and get cuffs on him anyway., Maple bragged that as a patrol officer, he would “stop two or three people a day who were carrying concealed weapons.’

The Courts Continue to Extend Terry, While Red States Continue to Liberalize Gun Rights

Recent federal appellate opinions from the lower federal courts, especially one from the Fourth Circuit, which we’ll discuss, have created an anxious uncertainty about where the Terry line of judicial law is headed in the future. This is “unknown, and unknowable,” given the nationwide trend of liberalization of gun laws of pretty much every “reddish” state in the country – especially West Virginia. Courts are beginning to clash with state legislatures in the levels of trust and freedom they’re willing to grant presumptively law-abiding citizens.

Ideally, Terry’s direction ought to head towards the “liberalization” of individual freedom and liberty, along with gun rights, in the states who’s legislatures are choosing to do so.  Those states, and their citizens, such as West Virginia, where “Mountaineers are Always Free” (Montani Semperi Liberi – the State Motto), understand that such trust and freedom was the intention of the Founders in creating and ratifying the Second Amendment.  

The Founders wanted to ensure that the citizens of the states would not be infringed from possession of arms by the federal government. The perceived problem at that time was federal tyranny. Why would the states give up their sovereign status, protected by their citizens via militia membership, and join this federal government, if the federal government could disarm them and have their way with them thereafter?

The Fourth Amendment White-Knight’s the Second Amendment

Since the Second Amendment itself doesn’t extend beyond the home, if at all, in the eyes of the judiciary, you’re generally only going to be protected by the Fourth Amendment, when in possession of a firearm outside the home. If you leave your house with a gun, whether walking, or driving, and whether carrying a firearm concealed, or carrying a firearm openly, the only real protection available is the Fourth Amendment. The prohibition against unreasonable searches and seizures. Like the Second Amendment, the strongest protections under the Fourth Amendment apply in the home, where generally, even from English common law, a man’s home is his castle. This is the origin of the so-called “Castle Doctrine” statutes which were enacted throughout the country in recent years.

In the Home: No Warrant? Presumptively Illegal

Searches and seizures which take place in a person’s home are presumptively unreasonable, which means they are illegal by default according to the Fourth Amendment. On the other hand, outside a person’s home, Fourth Amendment protections only apply where there is a “reasonable expectation of privacy.” See, e.g., United States v. Castellanos, 716 F.3d 828 (4th Cir. 2013) (Generally no reasonable expectation of privacy in property that is held by a third party). 

Outside the Home: No Warrant? No Need unless REP

To the contrary, the U.S. Supreme Court has found that no presumption exists outside the home, because a person does not have a reasonable expectation of privacy for most “places” outside one’s own home. These unprotected “places” include bank accounts (United States v. Miller, 425 U.S. 435 (1976)), curbside trash (California v. Greenwood, 486 U.S. 35 (1988)), “open fields,” surrounding one’s home (Oliver v. United States, 466 U.S. 170 (1984)), and so on. 

However, use of police dogs to investigate a home and its immediate surroundings is a search under the Fourth Amendment. Florida v. Jardines, 133 S. Ct. 1409 (2013). As does GPS surveillance of a vehicle traveling on public roads. U.S. v. Jones, 132 S.Ct. 945 (2012). Future changes are likely in the areas of cell phones, emails, tablets, and other similar devices. Changes are also likely in the area of videotaping police officers in public areas.

Outside the home, you generally aren’t dealing with search warrants, though you may have arrest warrants.  In public places, you’re mostly dealing with “reasonable suspicion” and “probable cause.” Reasonable suspicion is the standard which is required to be met before a police officer can initiate a stop. 

What is Reasonable Suspicion? First answer whether you’re in a car, or walking down the street….

A “stop” could be a traffic stop, or it could be a “detention” on the street, or some type of pedestrian encounter. It’s not easy to define what reasonable suspicion is, but you generally see these two scenarios. Either you have a traffic stop of a vehicle, or you have a pedestrian encounter. Both occur in public – so outside the highly protected castle of the Fourth Amendment, the home. Both contain very low protections for the individual, and have very high degrees of power to the police. 

Gun rights are mostly a conglomerate of hundreds, if not thousands, of criminal prosecutions, analyzing motions to suppress what are alleged to be illegal searches and/or seizures

Each of these scenarios has vastly different consequences for gun rights. And each of these bring hundreds, if not thousands of different cases, around the country, and within states, describing what police officers can do, and what they cannot do, based on different factual circumstances. Many of those pertain to firearms.  And almost none of them are going to discuss the Second Amendment itself. But they do generally involve the concept of being armed for the purpose of self defense – really the central component of the Second Amendment.

IMPORTANT FEDERAL CASES ON GUN RIGHTS OUTSIDE OF THE HOME:

U.S. v. Robinson (2017): a Fourth Circuit case holding that being an occupant in a car, with a gun, makes you “armed and dangerous” as a matter of law

We can really skip ahead a few decades in the endless litigation of reasonable suspicion and Terry v. Ohio and arrive at the current predicament upon which we’ve arrived. In 2017, the Fourth Circuit took a giant chunk out of gun rights, by issuing the “en banc” opinion (which means the entire court of appellate judges on the Fourth Circuit, rather than the usual random three judge panel) of U.S. v. Robinson, 846 F.3d 694 (4th Cir. 2017) (en banc). 

The majority opinion concluded categorically that the presence of a firearm on a subject, or within reach of the subject, makes that person dangerous, by virtue of being armed with a dangerous weapon. This applies objectively, and does not require any articulable facts by the police officer of some other reason why the person was dangerous. Robinson, 846 F.3d at 699. This is also one of those cases where the separate opinions are perhaps just as important as the majority opinion. For West Virginians specifically, and probably those in North Carolina, Judge Black specifically discusses in his dissent, the potential danger of the majority’s reasoning for Fourth Amendment violations in open carry states:

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.  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 [Northrup] 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.

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

The reality: less gun rights in a car; more as a pedestrian.

The result is, if you are in possession of a firearm inside a vehicle, and therefore subject to a traffic stop, you can be subjected to a Terry search, and disarmed, even if you did nothing wrong at all, assuming it was a legal traffic stop in the first place.  And of course, assuming the officer has knowledge that you’re armed. To the contrary, when in public, but not inside a vehicle, it’s not going to be as easy to find yourself in a situation where you are “seized” by a police officer, and thus not free to go, prior to the officer obtaining knowledge that you’re armed.  Moreover, the holding of U.S. v. Robinson did not extend to pedestrian encounters. So a pedestrian, as of now, is still controlled under the 2013 holding of U.S. v. Black, another Fourth Circuit opinion, which protects the open carry of firearms in open carry states.

United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013).

Writing for the Fourth Circuit in United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013), Judge Gregory wrote that:

Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states. United States v. King, 990 F.2d 1552, 1559 (10th Cir.1993) (emphasis added). Here, Troupe’s lawful display of his lawfully possessed firearm cannot be the justification for Troupe’s detention. See St. John v. McColley, 653 F.Supp.2d 1155, 1161 (D.N.M.2009) (finding no reasonable suspicion where the plaintiff arrived at a movie theater openly carrying a holstered handgun, an act which is legal in the State of New Mexico.) That the officer had never seen anyone in this particular division openly carry a weapon also fails to justify reasonable suspicion. From our understanding of the laws of North Carolina, its laws apply uniformly and without exception in every single division, and every part of the state. Thus, the officer’s observation is irrational and fails to give rise to reasonable suspicion. To hold otherwise would be to give the judicial imprimatur to the dichotomy in the intrusion of constitutional protections. 

Northrup v. City of Toledo Police Department, (6th Cir. 2015): a non-categorical, individual-specific Terry stop

Between Black and Robinson, the Sixth Circuit issued the opinion in Northrup v. City of Toledo Police Department, 785 F.3d 1128 (6th Cir. 2015), which completely rejected the categorical method adopted by the majority in Robinson, and instead applied an individual and particularized approach of distinguishing between one who is “armed,” and one who is “dangerous,” based on the actual facts of the situation. The case involved a man going for a walk with his wife, daughter, grandson, while walking a dog, and while armed with a handgun openly carried on his hip. During the walk, there was a verbal altercation of sorts with a passerby, who told Mr. Northup, “you can’t walk around with a gun like that,” and who then called 911 to report the gun being openly carried by Mr. Northup.

When the case eventually made its way to the Sixth Circuit, Judge Sutton wrote an opinion highly supportive of individual liberty in the open carry context. In response to the officer’s alleged fear that Mr. Northrup could have started suddenly shooting people, which I’ve commonly encountered in my practice, Judge Sutton wrote that the officer should have engaged Mr. Northrup in a conversation before determining whether he was dangerous. He wrote that absent reasonable suspicion of Mr. Northrup being dangerous, the officer’s fear, or “hope” that Mr. Northrup wouldn’t start shooting, “remains another word for the trust that Ohioans have placed in their State’s approach to gun licensure and gun possession: “[W]hile open carry laws may put police officers (and some motorcyclists) in awkward situations from time to time, the Ohio legislature has decided its citizens may be entrusted with firearms on public streets.

United States v. Leo: a Seventh Circuit restriction on gun searches

A police officer in Racine, Wisconsin, was driving an unmarked car when he spotted two young men in black hoodies standing on the sidewalk. As he drove by, he saw the men running into the yard of a nearby duplex. Shortly after this, the police officer heard the dispatcher relay that a 911 call was received, reporting a suspected burglary in process in the exact duplex unit he had last seen one of the suspects.  The description of the suspects described the suspects as “two Hispanic men wearing black hoodies, one of them with a gun, possibly a revolver.” The dispatcher also relayed that the 911 caller had also reported an unmarked police car pass by. United States v. Leo, 792 F.3d 742 (7th Cir. 2015).

Police later stopped Mr. Leo after he left, heading towards a local Head Start program. He was handcuffed, and having information there would be a gun in the backpack, the backpack was searched, where drugs, as well as the firearm, were found. The purported justification was a search under Terry. However, since the gun was suspected to be in the backpack, and since it was no longer accessible to Mr. Leo, who was handcuffed, was there justification under Terry?

The officers, or at least their lawyers, also argued that Mr. Leo was heading towards the Head Start school with a gun, which justified the backpack search. However, the Seventh Circuit noted that the Head Start program was not a “school” under Wisconsin law, and as such, carrying a gun there wouldn’t have been a violation of federal or state “gun-free school zone laws.” Moreover, the concealed carry laws in Wisconsin limits the rights of convicted felons or persons under the age of twenty one. However, the officers did not know Leo’s age or criminal history – nor did they inquire. 

The Court noted that Seventh Circuit precedent permits public carry of a firearm, pursuant to the Second Amendment. Therefore, the Court rejected the officers’ justification for the search, without a sufficient articulation of probable cause. The Court held that the liberalization of state gun laws, along with Heller and McDonald, required probable cause before searching Mr. Leo:

[C]onsidering thee important developments in Second Amendment law together with Wisconsin’s gun laws,” the court was compelled to reject the Government’s justification for search without establishing probable cause.

Broughton, at 394 Danger at the Intersection of Second and Fourth, from the Idaho Law Review, September 2018.

Florida v. J.L., 529 U.S. 266, 272 (2000)

The U.S. Supreme Court declined to recognize a “firearm exception” to the requirements justifying a Terry search in a case dealing with an anonymous tip alleging an illegal gun would be found on the target of the anonymous tip. The Court’s reasoning was grounded upon the reliability inquiries attending anonymous tips, rather than the issue of whether the mere possession of a firearm alone can establish a per se basis for an investigative detention.

A second major argument advanced by Florida and the United States as amicus is, in essence, that the standard Terry analysis should be modified to license a ‘firearm exception.’ . . . We decline to adopt this position.

See J.L., 529 U.S. 266, 272 (2000)

United States v. Ubiles, 224 F.3d 213 (3d Cir. 2000)

Another anonymous tip case, from the Third Circuit, arising out of the Virgin Islands. An anonymous tip was received that Mr. Ubiles possessed a firearm at a public event, but there was no indication or information that he was engaged in, nor planning to engage in, illegal activity. The Court held that mere possession of a lawful object does not entitle a police officer to infer criminal activity in the absence of reasonable, articulable suspicion. Ubiles at 218.

The Court analogized the situation to the lawful possession of a wallet. The wallet may, or may not, contain counterfeit bills. The mere possibility of it having counterfeit bills, likewise would not entitle a police officer to infer their presence in the wallet.

To be continued…..