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.
What are our “rights” as law abiding citizens and/or property owners, when it comes to violent rioters or protestors? Are AR-15s treated differently? Episode 9 of FIS gets to the heart of the concept that “freedom is scary,” so questions need to be discussed. Join me LIVE and bring your own questions, if you’ve got them. Here are some good ones:
Can you unlawfully possess a firearm and then lawfully use that firearm in a self defense situation?
Can you and should you be able to defend private property with deadly force, and if not, can the law be changed in your state?
Were there new information releases today relevant to the probable legality of self defense for Kyle Rittenhouse?
Does the mention of “militia” in the 2nd Amendment have any applicability?
What federal circuit covers Wisconsin and has it been favorable to the exercise of 2nd Amendment rights and the right of self defense in the context of AR-15 style rifles?
The Rittenhouse shootings were the next logical step of violent riots, combined with government leaders who allow them to occur. What happens when the right to riot collides with the natural rights or life, liberty and the pursuit of happiness? Or more specifically, the right to life, i.e., the right to self defense? It may be a new normal in 2020, but we build courthouses for a reason: to sort out the facts, and apply the law. The difficult part is to ensure a fair trial without the media poisoning the potential jury pool with misinformation, and misnomers, such as “armed vigilante,” “assault rifle,” “peaceful protestors,” and so on, and to let the true facts fall where they may. In the end, our Founders demanded, and ensured, that we have the right to a jury of our peers for a very good reason. That’s the only thing standing in between an individual in this position, and a lifetime of being locked away in a cage.
The facts can be sorted out. There are multiple videos of the incident. There will be many pictures and screenshots, and slow motion, or frame by frame versions of the incidents. Easier to determine is, what sort of laws will be applied here?
Possession of Firearms in Wisconsin and Illinois:
Wisconsin firearms law provides for open carry of loaded rifles and pistols for those 18 and older not otherwise prohibited from possessing firearms. Unless Rittenhouse’s age has been incorrectly reported he would be in violation of these statutes. Similar statutes exist in Illinois. Further, in Wisconsin and Illinois, providing an underaged individual with a firearm is a felony. It seems safe to assume that Rittenhouse’s enthusiasm for firearms was supported at least in some measure by his legal guardians. If they knowingly lent him use of the AR he carried in Kenosha they may face charges under these statutes.
Transportation of Firearms between Wisconsin and Illinois:
Federal law pre-empts the prosecution of illegal transportation via 18 U.S.C. §?926A which provides:
“Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.”
Any number of state statutes in Wisconsin or Illinois may govern the illegal importation or exportation of firearms where the “peaceable journey” exemption of 18 U.S.C. § 926A does not preempt. Rittenhouse is in jeopardy here if his age is reported correctly as he is not legally able to possess the AR platform he possessed in Kenosha in either Wisconsin or Illinois.
In general, and Wisconsin is no exception, a “self-defence” defence to homicide (i.e. “justifiable homicide” or “excusable homicide”) or the use of deadly or potentially force requires several elements. Those claiming self defence must:
1. Have the reasonable belief that… 2. …they or another person… 3. …are in imminent… 4. …danger of death or great bodily harm, and… 5. …that the use of deadly force is necessary to prevent said harm.
Key elements of the defence to hone in on are:
Reasonability. Would a reasonable person fear for your life under the circumstances presented?
Imminent. Is the threatened death or great bodily harm about to occur that moment, or at some other time? It has to be literally about to occur.
Wisconsin incorporates these elements in its excusable homicide statute thus:
“A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.” (Wisconsin Updated Statutes 2019 § 939.48(1))
Further, many jurisdictions do not permit defendants to use self-defense as an argument if deadly force was used in a confrontation the defendant him or herself precipitated. Wisconsin is one such jurisdiction, terming the restriction “Provocation” providing:
“A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defence against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defence, but the person is not privileged to resort to the use of force intended or likely to cause death to the person’s assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.
The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant.
A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defence.” (Wisconsin Updated Statutes 2019 § 939.48(2))
Use of Deadly Force By Rittenhouse
Was there a reasonable belief of imminent death or great bodily harm?
Did Rittenhouse provoke the aggressors? In both episodes, Rittenhouse appears to be attempting to retreat. In the first, he is shown on video being chased, and having something thrown at him. In the second episode, they are clearly chasing him, and attacking him. One attacker had a skateboard, and another had a pistol. Moreover, he appears to be using every effort at escaping, i.e., exhausting his reasonable means to escape, in the second episode.
What about the illegal possession of a firearm? That remains to be seen. Self-defense should still apply, whether or not it utilizes an illegally possessed firearm, which is not a requirement of the basic self-defense analysis. Then again, I’m not a Wisconsin lawyer, so…….
(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.
Also the new 9th Circuit opinion, firearms history and I’ll show you an authentic Model 1866 Winchester Assault Rifle.
Duncan v. Becerra ruling 9th Circuit:
On Friday, a panel of the 9th Circuit Court of Appeals affirmed (by a 2-1 vote) a federal district court’s ruling that so-called “large capacity” magazines are protected by the Second Amendment. In the live cast, I discussed the ruling and the great foundation it lays for inclusion and equal treatment of AR-15 style rifles in the context of the 2nd and 4th Amendments. I may be the first lawyer to have cited this language, since it came down the same day I filed the brief in the Walker case:
“That LCMs [large capacity magazines] are commonly used today for lawful purposes ends the inquiry into unusualness. But the record before us goes beyond what is necessary under Heller: Firearms or magazines holding more than ten rounds have been in existence — and owned by American citizens — for centuries. Firearms with greater than ten round capacities existed even before our nation’s founding, and the common use of LCMs for self-defense is apparent in our shared national history.
Semi-automatic and multi-shot firearms were not novel or unforeseen inventions to the Founders, as the first firearm that could fire more than ten rounds without reloading was invented around 1580. Rapid fire guns, like the famous Puckle Gun, were patented as early as 1718 in London. Moreover, British soldiers were issued magazine-fed repeaters as early as 1658. As a predecessor to modern revolvers, the Pepperbox pistol design pre-dates the American Revolution by nearly one hundred years, with common variants carrying five to seven shots at the ready and with several European variants able to shoot 18 or 24 shots before reloading individual cylinders. Similarly, breech-loading, repeating rifles were conceptualized as early as 1791.
After the American Revolution, the record shows that new firearm designs proliferated throughout the states and few restrictions were enacted on firing capacities. The Girandoni air rifle, developed in 1779, had a 22-round capacity and was famously carried on the Lewis and Clark expedition. In 1821, the Jennings multi-shot flintlock rifle could fire 12 shots without reloading. Around the late antebellum period, one variant of the Belgian Mariette Repeating Pepperbox could fire 18 shots without reloading. Pepperbox pistols maintained popularity over smaller- capacity revolvers for decades, despite the latter being of newer vintage. At this time, revolving rifles were also developed like the Hall rifle that held 15 shots.
The advent of repeating, cartridge-fed firearms occurred at the earliest in 1855 with the Volcanic Arms lever-action rifle that contained a 30-round tubular magazine, and at the latest in 1867, when Winchester created its Model 66, which was a full-size lever-action rifle capable of carrying 17 rounds. The carbine variant was able to hold 12 rounds. Repeating rifles could fire 18 rounds in half as many seconds, and over 170,000 were sold domestically. The Model 66 Winchester was succeeded by the Model 73 and Model 92, combined selling over 1.7 million total copies between 1873 and 1941.
The innovation of the self-contained cartridge along with stronger steel alloys also fostered development in handguns, making them smaller and increasing their capacities. Various revolver designs from France and Germany enabled up to 20 shots to be fired without reloading. A chain-fed variant, the French Guycot, allowed pistols to carry up to 32 shots and a rifle up to 100 shots. One American manufacturer experimented with a horizontally sliding “row of chambers” (an early stacked magazine) through a common frame, dubbed the Jarre “harmonica” pistol, holding ten rounds and patented in 1862. In 1896, Mauser developed what might be the first semi-automatic, recoil-operated pistol — the “Broomhandle” — with a detachable 20-round magazine. Luger’s semiautomatic pistol hit the market in 1899 and came with seven or eight round magazines, although a 32- round drum magazine was widely available.
In 1935, Browning developed the 13-round Hi-Power pistol which quickly achieved mass-market success. Since then, new semi-automatic pistol designs have replaced the revolver as the common, quintessential, self-defense weapon. Many of these pistol models have increased magazine capacities as a result of double-stacked magazines. One of the most popular handguns in America today is the Glock 17, which comes standard with a magazine able to hold 17 bullets.
Rifle magazine development paralleled that of pistol magazines. In 1927, Auto Ordinance Company released its semi-automatic rifle with a 30-round magazine. A decade and a half later, the M-1 carbine was invented for the “citizen soldier” of WWII. The M-1 remained a common and popular rifle for civilians after the war. In 1963, almost 250,000 M- 1s, capable of holding between 15 and 30 rounds, were sold at steeply discounted prices to law-abiding citizens by the federal government. The ultimate successor to the M-1 was the M-16, with a civilian version dubbed the Armalite Model 15, or AR-15. The AR-15 entered the civilian market in 1963 with a standard 20-round magazine and remains today the “most popular rifle in American history.” The AR- 15 was central to a 1994 Supreme Court case in which the Court noted that semiautomatic rifles capable of firing “only one shot with each pull of the trigger” “traditionally have been widely accepted as lawful possessions.” Staples v. United States, 511 U.S. 600, 602 n.1, 603, 612 (1994). By the early-1970s, the AR-15 had competition from other American rifle models, each sold with manufacturer- standard 20-round or greater magazines. By 1980, comparable European models with similar capacities entered the American market.
The point of our long march through the history of firearms is this: The record shows that firearms capable of holding more than ten rounds of ammunition have been available in the United States for well over two centuries.7 While the Supreme Court has ruled that arms need not have been common during the founding era to receive protection under the Second Amendment, the historical prevalence of firearms capable of holding more than ten bullets underscores the heritage of LCMs in our country’s history. See Heller, 554 U.S. at 582.”
Well, here’s our opening brief in the Walker v. Putnam County, et al. open carry case. This went from a relatively simple search and seizure Section 1983 civil lawsuit, to a battle over gun rights and whether or not the AR-15 is entitled to equal treatment under the law at the U.S. Fourth Circuit Court of Appeals. This is the case where my client was stopped, harassed, and called a co@ksucker, twice, for trying to mind his own business and go coyote hunting. Just one nugget out of the video:
It is your fault! Because you co$ksuckers . . . start it. I ask you for ID – when a law enforcement officer asks you for ID, it’s not “I don’t have to provide it,” it’s “here it is, sir,” because, by law, you fucking got to give it, when you are asked for it. And if you think you don’t, [then] press the issue, we’ll find out; I’ll hook you, book you, jamb you in the jail; and then you can’t answer to a God damned judge.
At the urging of Putnam County (W. Va.), the Court ruled against us at the trial court level, and well, ruled against AR-15 style rifles as well:
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.
Why might you care about these issues? If you live in the jurisdiction of the Fourth Circuit (WV, VA, MD, NC, SC), and in particular one of the open carry states therein (WV, VA, and NC) then the outcome of this case will affect your rights one way or the other. We’ve had a couple of really bad gun rights decisions handed down in the Fourth Circuit in 2017 (US v. Robinson and the Kolbe case). If we lose this one, our last vestige of gun freedoms, contained in the holding of US v. Black (2013) will be overturned.
Since AR-15 style rifles are completely legal to possess in West Virginia, including in the context of open carry, we had to appeal, and we had to cover a lot of ground in our opening brief. Mind you, there’s a page limit, and I spent hours deleting great arguments I had already written, as well as great quotes I wanted to include, in order to bring it under the page limit:
Update on various cases from within the safe confines of our fort headquarters:
Family Court Search Case:
On Monday, Matt Gibson filed a formal complaint with the Judicial Investigation Commission, as well as a written Motion to Disqualify the judge from the video. We will let those take their course and see what happens. I’m told that they may have already been involved prior to the complaint. I still haven’t seen any other cases where this has happened anywhere else in the state, nor anywhere else in the country. Right now I’ve been informed of multiple instances of this happening – only in this particular county.
Walker Open Carry Case:
We field Notice of Appeal, and it has now been transferred to the US Fourth Circuit Court of Appeals. Soon we will receive a scheduling order and proceed with the briefing process.
Correctional Officer Traffic Stop Case:
The officer from the video, who was more specifically a parole officer for the WV Division of Corrections has since resigned. I’m told there’s a pending criminal investigation. I have reached out to the DOC’s counsel and requested negotiations with their insurance adjustor. If they don’t make Shawn a fair settlement offer, we’ll file suit.
Putnam County Search Cases:
Right now we are prepared to proceed on six separate search cases out of Putnam County, all related to the same unit of individuals. Although there was an “internal investigation” which we assisted in, there has been no information provided; no outcome whatsoever. At least one of the officers is still arresting people, according to information I’ve received. So it sounds like nothing has happened. We issued additional FOIA requests, and only one of the cases we’re investigating, so far, has returned any documentation or paperwork whatsoever.
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.