On the heels of the Fourth Circuit’s awful anti-gun opinion in the Walker case, comes an opinion today which holds that 18-20 year olds have a constitutional right to keep and bear arms under the Second Amendment. Federal law prohibits the sale of handguns and handgun ammunition to 18-20 year olds by licensed dealers. In an opinion written by Judge Richardson (appointed by Trump), the Court held that “Eighteen- to twenty-year-olds have Second Amendment rights, and the challenged laws impermissibly burden those rights.”
There are many things that minors and even those under 21 cannot do. See Ent. Merchs. Ass’n, 564 U.S. at 836–37 (Thomas, J., dissenting) (explaining that minors cannot drive for hire or drive a school bus, buy tobacco, play bingo for money, or execute a will). But none of those restrictions implicate constitutional rights, so states have great leeway to regulate those activities under their general police powers. And while the Court has “recognized that the State has somewhat broader authority to regulate the activities of children than of adults,” that does not mean that children necessarily have different rights than adults. Danforth, 428 U.S. at 74. Often they have the same rights as adults, but the states’ interests are stronger with regard to minors so restrictions may more easily pass constitutional scrutiny. Ent. Merchs. Ass’n, 564 U.S. at 794–95. So it is hard to conclude that 18- to 20-year-olds have no Second Amendment rights when almost every other constitutional right affords them protection. This conclusion becomes inescapable when we consider the history.
This is the Fourth Circuit, so WV, VA, MD, NC and SC. The government could still petition for rehearing en banc, as well as petition for certiorari to the US Supreme Court. So it’s not over yet….
Congratulations to West Virginia’s first Second Amendment “Sanctuary,” Putnam County, in obtaining a new anti-gun diatribe of a published opinion from the Fourth Circuit. This morning, the Fourth Circuit issued a published opinion in the Walker case. Basically, the Second Amendment doesn’t apply to the AR-15, and it matters not that the WV legislature allows its citizens to possess and use AR-15s, because the judiciary decides what peasants may possess – not the state legislature.
I knew it was going to be bad, since at the oral arguments one of the judges likened the AR-15 to the M-16. And he ended up authoring the opinion. You can listen to the oral arguments here, if you missed them.
Join me live at 7pm for a discussion on the ruling:
Just today the WV Governor signed a bill making WV a Second Amendment sanctuary of sorts from the federal government. There’s a lot of things going on in the world of federal gun control efforts at the moment. The GOA – Gun Owners of America is neck deep in fighting back against it. With me tonight is Luis Valdes, the Florida Director of the GOA, a well known Second Amendment advocate to discuss what’s going on.
This afternoon, oral arguments were held in the case of Walker v. Donahoe – the AR-15 open carry case out of Putnam County, West Virginia. I’ll discuss what happened in a live debriefing at 6:30 pm, which is in 4 minutes…..
Here’s a link to the actual recording of the arguments, if you missed it live:
Here’s an excerpt of my argument, as taken by my staff:
Here’s the video of the underlying incident, if you haven’t seen it:
Election Day! Who knows what’s going to happen tonight and the next few days. Understand your state’s “Stand Your Ground” law, if it has one. And if not, understand what the self defense laws are in your state. As of January 1, 2020, 34 states have stand-your-ground laws or have expanded castle doctrine to apply beyond the home. Eight states have expanded castle doctrine to motor vehicles or the workplace.
“There is nothing so likely to produce peace as to be well prepared to meet an enemy.”
– George Washington
“The right of self-defense never ceases. It is among the most sacred, and alike necessary to nations and to individuals.”
– James Monroe, Second annual message to Congress, November 16, 1818
“Our nation was built and civilized by men and women who used guns in self-defense and in pursuit of peace. One wonders indeed, if the rising crime rate, isn’t due as much as anything to the criminal’s instinctive knowledge that the average victim no longer has means of self-protection.”
– Ronald Reagan
The criminal does not expect his prey to fight back. May he never choose you, but, if he does, surprise him.
– Jeff Cooper
“Though violence is not lawful, when it is offered in self-defense or for the defense of the defenseless, it is an act of bravery far better than cowardly submission.”
– Mahatma Gandhi
CASTLE DOCTRINE
Standard castle doctrine states that a person in his or her own home does not have a duty to retreat prior to using force, including deadly force, in self-defense.
‘STAND YOUR GROUND’ LAW
A stand-your-ground law varies by state, and generally provides that people may use deadly force when they reasonably believe it to be necessary to defend against a threat of death, serious bodily harm, and other serious crimes, differing slightly between states, without there being a duty to retreat before using such deadly force in self-defense.
It is generally required that the individual who is standing his ground be in a place where he or she is lawfully present. Stand-your-ground laws generally cannot be invoked by someone who is the initial aggressor, or who is otherwise engaged in criminal activity. The exact details vary by jurisdiction.
YE OLD DUTY TO RETREAT
The alternative to stand your ground is “duty to retreat.” In states that implement a duty to retreat, even a person who is unlawfully attacked (or who is defending someone who is unlawfully attacked) may not use deadly force if it is possible to instead avoid the danger with complete safety by retreating.
Even duty-to-retreat states generally follow the “castle doctrine,” under which people have no duty to retreat when they are attacked in their homes, or (in some states) in their vehicles or workplaces.
BREAKDOWN OF STATES
Laws in at least 25 states allow that there is no duty to retreat an attacker in any place in which one is lawfully present.
(Alabama, Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah and West Virginia.)
At least ten of those states include language stating one may “stand his or her ground.” (Alabama, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Oklahoma, Pennsylvania and South Carolina.)
Pennsylvania’s law, amended in 2011, distinguishes use of deadly force outside one’s home or vehicle. It provides that in such locations one cannot use deadly force unless he has reasonable belief of imminent death or injury, and either he or she cannot retreat in safety or the attacker displays or uses a lethal weapon.
Idaho’s law, passed in 2018, expanded the definition of justifiable homicide to include not only defending one’s home against an intruder, but also defending one’s place of employment or an occupied vehicle.
Self-defense laws in at least 23 states (Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, Montana, New Hampshire, North Carolina, North Dakota, Oklahoma, Ohio, Pennsylvania, South Carolina, Tennessee West Virginia and Wisconsin) provide civil immunity under certain self- defense circumstances.
Statutes in at least six states (Hawaii, Missouri, Nebraska, New Jersey, North Dakota and Tennessee) assert that civil remedies are unaffected by criminal provisions of self-defense law.
*In 2018, the Ohio House and Senate voted to override the Governor’s veto of House Bill 228. The bill places the burden of disproving a self-defense claim on the prosecution.
WEST VIRGINIA, SPECIFICALLY:
West Virginia is a “stand your ground state,” and does not require a person to retreat before using force, including deadly force:
(a) A lawful occupant within a home or other place of residence is justified in using reasonable and proportionate force, including deadly force, against an intruder or attacker to prevent a forcible entry into the home or residence or to terminate the intruder’s or attacker’s unlawful entry if the occupant reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the home or residence or if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary.
(b) A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder or attacker in the circumstances described in subsection (a) of this section.
(c) A person not engaged in unlawful activity who is attacked in any place he or she has a legal right to be outside of his or her home or residence may use reasonable and proportionate force against an intruder or attacker: Provided, That such person may use deadly force against an intruder or attacker in a place that is not his or her residence without a duty to retreat if the person reasonably believes that he or she or another is in imminent danger of death or serious bodily harm from which he or she or another can only be saved by the use of deadly force against the intruder or attacker.
(d) The justified use of reasonable and proportionate force under this section shall constitute a full and complete defense to any civil action brought by an intruder or attacker against a person using such force.
W. Va. Code § 55-7-22(a)-(d).
WV EXCEPTIONS:
Of course, there are exceptions. The absolute immunity afforded by Section 55-7-22 does not apply in the following circumstances:
– The person who would invoke Section 55-7-22 was attempting to commit, committing, or escaping from the commission of a felony;
– The person initially provoked the use of force against himself, herself, or another with the intent to use such force as an excuse to inflict bodily harm upon the assailant;
– Otherwise initially provokes the use of force against himself, herself, or another, unless the individual withdraws from the physical contact and clearly indicates to the assailant the desire to withdraw, but the assailant continues to use force.
W. Va. Code § 55-7-22(e)(1)-(3). Case law considering Section 55-7-22 is sparse. See State v. Samuel (No. 13-0273, Mem. Dec.) (Nov. 8, 2013); United States v. Matheny (No. 2:12-CR-00068, S.D. W. Va., May 8, 2012).
STILL NO BOOBY TRAPS:
Nothing in Section 55-7-22, however, permits the creation of a hazardous condition on or in real or personal property designed to prevent criminal conduct or cause injury to a person engaging in criminal conduct (e.g., spring-loaded shotguns). Nor does Section 55-7-22 authorize or justify a person to resist or obstruct a law-enforcement officer acting in the course of his or her duty. W. Va. Code § 55-7-22(g).
The Civil Rights Lawyer explains how to handle a traffic stop – a discussion on constitutional law issues surrounding traffic stops and gives commentary on Do’s and Don’ts for both drivers and police officers during the course of traffic stops. TUE 10/27 at 6pm.
Set your reminder, notifications, and subscribe. Bring your experiences, your issues, and your questions, live for Freedom is Scary Live Episode No. 22. This will somewhat of a continuation from FIS No. 21, since so many issues arise in the context of traffic stops. Firearms, searches, lying….. lots of issues and topics.
On with me tonight on Freedom is Scary, Episode 18, live, is Benjamin Hatfield, Esq., the Republican Nominee for Prosecuting Attorney of Raleigh County, West Virginia. Most state level prosecutors are elected politicians with party affiliations. They are enormously powerful, as demonstrated by the Rittenhouse and McCloskey cases. You can watch read here on this Youtube link, or on our Facebook page using Facebook Live. It will be simultaneously streamed to both. You can also submit comments and/or questions on both platforms.
In this video we’ll discuss what you need to know before voting for or supporting a prosecutor candidate. There is a reason George Soros is funding radical left-wing prosecutors around the country. Prosecutors hold the keys to the criminal courtrooms, and can design prosecutions to further their social justice and radical anti-gun and anti-freedom agendas – long before they reach the judiciary. Is there a difference between Democrat and Republican prosecutors? I’ll answer that question with another question: is there a difference in the Democrat and Republican platforms in regards to a law abiding citizen defending themselves, or their homes, with firearms?
This is an urgent situation for all of us now. Join me LIVE with special guest, Benjamin Hatfield, Esq., the Republican Nominee for Prosecuting Attorney of Raleigh County, West Virginia (Beckley, WV), who is running against a career Democrat prosecutor, who hasn’t had a contested election in over a decade, and who has been a prosecutor there since 1983. The law abiding citizens there are suffering.
Hatfield is a former assistant prosecutor in that county, and currently works as a civil litigation attorney at a private law firm. If you’re in West Virginia, and if you’re anywhere near Raleigh County, you may have seen some of the issues occurring there recently. You want to pay close attention to this race, and I encourage you to take a hard look at Mr. Hatfield, and then do whatever you can to help him. Because your liberty may count on it. Tune in to see why and to ask questions.
If you can send any financial help his way, donations can be sent to the “Committee to Elect Benjamin Hatfield,” PO Box 5241, Beckley, WV 25801.
Update: Here’s the article on Soros funding the Trojan Horse prosecutors I referenced in the video:
After St. Louis erupted in violence, arson, and looting, Circuit Attorney Kim Gardner ($307,000) dismissed all charges against the 36 people arrested for that violence. In the last few days eight St. Louis police officers have been shot.
At the same time, Gardner rushed to file charges against Mark and Patricia McCloskey, the homeowners who brandished (but did not use) guns at protestors who had entered the private street where the McCloskeys reside.
In Chicago, Illinois State’s Attorney Kim Foxx ($817,000) refused to prosecute rioters who violated the curfew imposed to quell the violence. “The question it comes down to is, is it a good use of our time and resources? No, it’s not.” What does she think would be a better use of her time and resources?
You probably remember Foxx. She dismissed the charges against Jussie Smollett, the actor who reported a hate crime attack against himself that turned out to be bogus. A judge removed Foxx from the case and assigned a special prosecutor who filed six new charges.
Philadelphia District Attorney Larry Krasner ($1.7 Million) announced he won’t prosecute people arrested for the violence that rocked his city for days with widespread looting and many cars torched. His excuse for not holding the mob accountable for their violence was laughable. “Prosecution alone will achieve nothing close to justice—not when power imbalances and lack of accountability make it possible for government actors including police or prosecutors to regularly take life or liberty unjustly and face no criminal or career penalty….” San Francisco District Attorney Chesa Boudin ($620,000) is the beau ideal of the Trojan Horse prosecutors. “The criminal justice system isn’t just massive and brutal, it’s also racist,” according to Boudin…. In Portland, DA Mike Schmidt ($230,000) refuses to prosecute the rioters who have burned and looted his city for over 90 days straight…..
Since 2018, Soros has made Virginia the focus of his efforts. And it has paid dividends. Trojan Horse candidates have taken over five of the largest prosecutor’s offices in the Commonwealth: Fairfax, Arlington, Alexandria, Albemarle, Portsmouth, and Loudoun.
We received the brief from the lawyers for Putnam County, West Virginia in the Michael Walker case, the AR-15 open carry case currently pending at the Fourth Circuit. In case you haven’t seen it, here’s the video of the interaction at issue in the case:
The primary issue in dispute is whether a police officer can stop, detain and run a criminal background check, on an individual safely and lawfully openly-carrying an AR-15 style rifle. Putnam County’s law enforcement is arguing essentially that the AR-15 is a weapon of mass murder and warfare, and that it’s inherently suspicious of criminal conduct. Here are a few nuggets from their brief:
Finally, Mr. Walker’s argument that AR-15 style rifles may not be treated differently than less deadly firearms for reasonable suspicion purposes holds no basis in law, and is contrary to the public safety and intuitive sense. Different firearms have different utilities, purposes, and common uses, and their presence therefore draws different inferences. An AR-15 has more killing power, and is more commonly used in indiscriminate public gun violence than many more commonplace sporting or self-defense weapons, and therefore raises a greater concern for public safety in context. The fact that the AR-15 is so notoriously popular among the deadliest mass shooters also raises reasonable concerns over a copycat mass shooting. Objects need not be illegal for their presence, in appropriate context, to contribute to reasonable suspicion, and there is no reason for bearers of AR-15 style rifles to receive special protection.
“Killing Power?” Is that a scientific unit of measurement. If shotguns are okay, or a bolt-action hunting rifle is okay, then I wonder if they’re aware that an AR-15 uses a .223 caliber diameter round, which is unlawful to use for hunting in some states because it’s too small of a caliber, and therefore not deadly enough for game such as deer (as compared to the good ‘ole .308 or .270 Winchester calibers, etc., etc.).
This is a suburban residential and commercial area which is unsuitable for hunting or target shooting, and Mr. Walker was not wearing any items of blaze orange, or anything else which would signal to an observer that his intention was hunting. (See id.). Furthermore, this interaction occurred in February, when almost no commonly hunted animals, with the exception of noxious pests, are in season. Nor is an AR- 15 a weapon commonly used for hunting, such as a deer rifle or shotgun, or carried for self-defense, such as the handgun possessed by Mr. Troupe in Black. I
Was I the only one who just saw something happen on the news recently involving an AR-15 openly carried for self-defense, and used in self-defense? I think I recall something like that in the news. I bet this is also news to all their law enforcement officers in their county, and surrounding counties, who have an AR-15 in the police cruisers. Those are for hunting, right? Definitely not self defense. It appears that they just don’t like the AR-15:
The mass shooter’s preference for AR-15’s is because, as former U. S. Marine infantry officer and author of “The Gun,” a history of assault rifles and their effects upon security and war, C. J. Chivers, wrote in a February 28, 2018 New York Times column: When a gunman walked into Marjory Stoneman Douglas High School on Feb. 14, he was carrying an AR-15-style rifle that allowed him to fire upon people in much the same way that many American soldiers and Marines would fire their M16 and M4 rifles in combat. See Chivers, C. J., Larry Buchanan, Denise Lu, and Karen Yourish, With AR-15s, Mass Shooters Attack With the Rifle Firepower Typically Used by Infantry Troops, The New York Times (Feb. 28, 2018),
In sum, AR-15 style rifles give the wielder the capability to kill more people in a shorter amount of time than more commonplace styles of firearm, making it an appealing choice for a would-be mass shooter whose goal is exactly that, and a greater danger to public safety than would more commonplace, less-powerful, lower-capacity firearms, such as shotguns or handguns.
How is a .223 caliber rifle “more powerful” than a .308 bolt action hunting rifle? I wonder if they know that the M-60 machine gun is chambered in .308? I wonder if they know that our military has snipers who kill human beings with what are essentially hunting rifles chambered in the same caliber as hunting rifles, such as .308 caliber? They don’t chamber sniper rifles in .223 caliber found in AR-15s, because they are not powerful enough. Complete hogwash……
As discussed in prior sections of this brief, AR-15 style rifles have been featured in substantially all of the deadliest mass shootings in this decade. Mass murderers in Las Vegas and Orlando have killed and wounded over one hundred people in a single event with AR-15. Revolvers and bolt-action deer rifles do not share that infamy. It is therefore reasonable to infer that a person attempting to copycat a mass shooting would likely use the weapon of choice of mass shooters. If officers are concerned about a potential mass shooter, certainly they would justifiably be more concerned by a person carrying an AR-15 than one of the many firearms more commonly used for hunting or self-defense. Different inferences may be reasonably drawn from the presence of different firearms, because different firearms are used for different things: a person viewed at a gun range carrying a shotgun may be presumed to be there to shoot clay pigeons, whereas a person carrying a rifle is almost certainly not.
This is coming from the first county in the State of West Virginia to declare itself a “Second Amendment Sanctuary.” L.O.L. Also, by the way, there was no indication whatsoever that there was any indication or concern that Michael Walker could have been a copycat mass-murderer. That was all made up by lawyers after the lawsuit was filed. The entire incident was filmed. The entire 911 transcript exists. There was nothing that day to concern law enforcement, nor which did concern law enforcement, that Michael was a threat to a school. It was merely harassment for openly carrying a lawful and safely carried AR-15 style rifle.
Next we get to file a Reply Brief, responding to their response. At that point it will be in the hands of the Court. They can hold oral arguments, or rule on their briefs.
(Update: Life under the new normal of “State of Emergency” government. Why it’s unconstitutional, unAmerican, and the danger ahead. Freedom is Scary, Episode 7. Recorded live on August 19, 2020. Skip ahead to different topics: Discussion about the constitutionality of our “State of Emergency” at about 3:00. Discussion about scientists’ concerns about children wearing masks at 20:15. Discussion about the Franklin Templeton-Gallup Research Project showing an insane level of misinformation about the threat posed by COVID-19 and the economic consequences at 25:15. Really interesting discussion with my brother’s longtime girlfriend, Diana, at around 39:00 discussing life in communist Romania, where she was born and her family still lives, and the similarities to the new normal of 2020 United States. Discussion about wearing masks in public at 1:09:50. Discussion regarding WV School Reopening and the Rainbow Code at 1:11:08. Discussion on suppression of school choice and freedom by governors at 1:25:45. The CDC Director’s opinion about kids and reopening schools at 1:33:45. Separation of powers violations by the governors at 1:41:20. Discussion on the Nanny State and JFK, Democrats, and third world economies here in WV at 1:48:00.)
On March 16, 2020, Gov. Justice declared a “State of Emergency” under W. Va. Code § 15-5-6. In the proclamation, the Governor provided the following substantiation for his declaration of a “State of Emergency”: The COVID-19 epidemic constitutes a disaster under W. Va. Code § 15-5-2; COVID-19 has been deemed a pandemic by the World Health Organization and the President of the United States has declared a national emergency; It is in the best interest of the citizens of West Virginia that we are able to stand up emergency operation centers and allow boards and agencies to suspend certain rules that inhibit them from responding effectively. At that time there hadn’t even been one positive diagnosis in the State.
Fast forward to August 19 – over five (5) months later – and every county in the State of West Virginia is still being ruled by executive fiat, by one man, in what has become an indefinite “State of Emergency” style of government, which so far has lasted 5 months. And there appears to be no end in sight.
So where in the Governor’s proclamation did he mention his constitutional powers, and where in our State Constitution does the phrase “State of Emergency” appear? Moreover, where does the Constitution describe how the Governor gets to become a de-facto dictator, so long as he alleges a disaster zone exists? Even in counties which still after 5 months have had zero deaths from COVID-19, but numerous deaths from all the usual leading causes of death (mostly heart disease)?
Did you know that the legislature is not allowed to delegate their legislative responsibilities to the Governor? So even if an emergency powers statute attempted to do so (which it doesn’t), it would be unconstitutional.
1. Americans still misperceive the risks of death from COVID-19 for different age cohorts—to a shocking extent; 2. The misperception is greater for those who identify as Democrats, and for those who rely more on social media for information; partisanship and misinformation, to misquote Thomas Dolby, are blinding us from science; and 3. We find a sizable “safety premium” that could become a significant driver of inflation as the recovery gets underway.
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.
