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

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

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

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

WalkerLiveShot2:21:18.JPG


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

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

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

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

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

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

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

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

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

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

. . .

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

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

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

Accordingly, I dissent.

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

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

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

Update on the Walker Case (Fourth Amendment Open Carry Lawsuit)

In case you’re following along with the Walker v. Donahoe, et al. Fourth Amendment open carry civil rights lawsuit, we have a jury trial scheduled for February 19, beginning at 8:30 a.m. at the federal courthouse in Huntington, West Virginia. As of right now it’s still on.  Both sides have asked the court for summary judgment, which basically means that both sides claim to have the law completely on their side.  The court has not ruled as of yet. Pretrial documents have been submitted, including motions in limine, which are trial issues anticipated by the parties, which are best argued prior to the start of the trial.  If you haven’t seen the video of the incident in dispute, here it is:

The defendants are seeking to exclude portions of this video showing the “investigatory detention” of Michael Walker by the Putnam County Sheriff’s Department.  Not surprisingly, they want the part of the video where the police officer calls Michael a “co*ksucker,” repeatedly, among other things to be kept away from the jury.  Here’s their argument:

Also not surprisingly, we strongly disagree.  Here’s our response.  The judge will decide at some point, and generally has the broad discretion to control the flow of what the jury gets to see, and what they don’t:

We also filed a few motions in limine of our own, including our attempt at stopping the defendants from bringing up the Parkland school shooting, which they have announced is their attention, and which has absolutely nothing to do with the case.  They are also seeking to make the case that because Michael had an AR-15 style rifle, that a reasonable officer could suspect him of being a potential school shooter, or something to that effect.  Which is of course highly offensive, and antithetical to both the Fourth Amendment and the Second Amendment to the U.S. Constitution:

In case you’re curious about the current status of laws pertaining to the open carrying of firearms in West Virginia, check out the last post I did on it.  It should still be the same. Of course, this case could change that if it doesn’t go our way…..

Episode 1 of the JOHN BRYAN PODCAST – impeachment, constitutional law, gun laws, self defense laws, and glucose meters are screwed up….

https://www.podbean.com/eu/pb-tqqbg-cb4067

Check out Episode 1 of the John Bryan PODCAST, where I pontificate on several topics, including impeachment evidence we’ve supposedly been hearing about, some search and seizure issues pertaining to the open carry of firearms, some self defense firearms issues, and a really crazy discovery that generic brand blood glucose meters, used by diabetics, are apparently way, way off……

 

Understanding the law of West Virginia Domestic Violence Petitions

So, we end up doing a lot of domestic violence protective order litigation in both Greenbrier and Monroe County, WV.  This past week has to have been one of the craziest weeks on record, with some of the most insane, bizarre, and malicious, human behavior I’ve encountered in the past decade or so…..

As I sat trying to negotiate a resolution with one particular pro se (unrepresented by a lawyer) party a couple of days ago, it became apparent to me that people don’t know what the “F” they are doing….

  1.  Domestic Violence is bad, of course, but what is it, technically?

The West Virginia Legislature has adopted a civil remedy where victims of domestic violence can obtain what is essentially a restraining order.  So what is “domestic violence” according to this law?

The Prevention and Treatment of Domestic Violence Act, West Virginia Code §§ 48-27-101 et seq., defines “domestic violence” or “abuse” as specific acts between family or household members that involve:

1. Attempting to cause or intentionally, knowingly or recklessly causing physical harm to another with or without dangerous or deadly weapons;

2. Placing another in reasonable apprehension of physical harm;

3. Creating fear of physical harm by harassment, stalking, psychological abuse or threatening acts;

4. Committing either sexual assault or sexual abuse as those terms are defined in articles eight-b [§§ 61- 8B-1 et seq.] and eight-d [§§ 61-8D-1 et seq.], chapter sixty-one of this code, and;

5. Holding, confining, detaining or abducting another person against their will. W. Va. Code § 48-27-202.

The statutory definition of domestic violence is narrower than the commonly accepted definition of domestic violence because it primarily defines domestic violence as acts of physical violence, and only includes psychological abuse when it creates fear of physical harm. Although psychological abuse may not meet the statutory definition of domestic violence by itself, this type of abuse may be relevant to a proceeding involving domestic violence because it provides evidence of an abuser’s motive, intent, or plan. Additionally, evidence of psychological abuse may provide insight into the actions of both the abuser and the victim.

In addition to the definitions set forth in West Virginia Code § 48-27- 202, the West Virginia Legislature has criminalized acts of domestic assault and domestic battery by the enactment of West Virginia Code § 61-2-28. The distinction between domestic assault or battery and non-domestic assault or battery is that the domestic abuse must occur between family or household members. The Legislature has also established enhanced penalties for subsequent domestic assault and battery convictions. The enhanced penalties demonstrate that the Legislature both recognizes the repetitive nature of domestic violence and punishes it accordingly.

Providing further protection for domestic violence victims, West Virginia Code § 61-2-9a criminalizes stalking, harassment, and threats. As with domestic assault and battery, this code section establishes enhanced penalties for subsequent convictions. It also authorizes a court to issue a restraining order for a period of up to ten years upon conviction. When a defendant is charged with either harassment or stalking, it is a condition of a bond that the defendant shall have no contact with the victim. Although this code section could be applied to situations that do not involve domestic violence, this code section provides meaningful protection for domestic violence victims because it criminalizes behavior typically identified as domestic violence.

 

Family Court Judges are taught the following, in addition to the actual wording of the statute:

Although the motive for domestic violence commonly involves domination and control, domestic violence perpetrators employ various methods to achieve that purpose.4 Common psychological tactics include emotional abuse, such as control over finances, repeated and degrading insults, and threats. An abuser is often extremely jealous or possessive, and may isolate a victim from friends, family and other relationships. As another psychological tactic, an abuser may threaten to gain full custody of children. An abuser may also throw things, punch walls or hurt pets.

In addition to emotional abuse, an abuser may push, shove, shake or grab a victim. Other forms of physical abuse include: slapping, kicking, biting or twisting arms, legs or fingers. An abuser may choke, strangle or smother a victim. An abuser may also threaten a victim with a weapon, such as a knife or a gun, and may commit assault with a weapon. Rape or other forced sexual contact is yet one more type of abuse. Physical acts of domestic violence may constitute criminal behaviors, and should not be minimized or tolerated because they are directed against family members.

See 2012 Domestic Violence Judicial Handbook.

 

2.   Some background on “domestic violence protective orders”

Although the motive for domestic violence commonly involves domination and control, domestic violence perpetrators employ various methods to achieve that purpose.4 Common psychological tactics include emotional abuse, such as control over finances, repeated and degrading insults, and threats. An abuser is often extremely jealous or possessive, and may isolate a victim from friends, family and other relationships. As another psychological tactic, an abuser may threaten to gain full custody of children. An abuser may also throw things, punch walls or hurt pets.

In addition to emotional abuse, an abuser may push, shove, shake or grab a victim. Other forms of physical abuse include: slapping, kicking, biting or twisting arms, legs or fingers. An abuser may choke, strangle or smother a victim. An abuser may also threaten a victim with a weapon, such as a knife or a gun, and may commit assault with a weapon. Rape or other forced sexual contact is yet one more type of abuse. Physical acts of domestic violence may constitute criminal behaviors, and should not be minimized or tolerated because they are directed against family members.

 

A protective order proceeding has the added advantage of a lower burden of proof. Often, there are no witnesses to domestic violence other than the abuser and the victim, and the evidence may not meet the criminal standard of proof of beyond a reasonable doubt.

Although protective order proceedings provide a legal remedy for domestic violence victims, some professionals involved in the proceedings may question their efficacy.48 In a study examining victims’ strategies to combat domestic violence, the results indicated that 30% of the victims who obtained an initial ex parte protective order did not appear at the final hearing.49 Examining the reasons for this occurrence, it was noted that law enforcement failed to serve a petition in 50% of the cases, which in turn either delayed or prevented the entry of a final protective order. Also, petitioners did not attend a final hearing because of conflicts with employment or lack of childcare. A lack of legal representation was an additional reason that victims did not complete the process. Certainly, these institutional barriers must be addressed to increase the effectiveness of protective orders.

The study also indicated that the ex parte orders, in some cases, were sufficient to meet the victims’ needs. Specifically, victims noted that the ex parte order stopped the violence, allowed the victim to separate, or induced the abuser to seek counseling. Based upon these interviews, it was concluded that the failure to obtain a final protective order does not indicate “that the advocate has failed or the woman has been passive in the face of abuse.”50 Rather, protective orders, including ex parte orders, provide an effective legal remedy that can be tailored to meet the needs of domestic violence victims.

 

3.  There must be a “family or household member” relationship

The domestic violence protections and remedies under Chapter 48, Article 27 are tied to occurrences of violence or abuse between “family or household members” as that term is defined under this Act. The only time a proceeding under this Act may involve parties other than “family or household members” is when the petitioner is seeking protection as one who reported or witnessed domesticviolence. See W. Va. Code §§ 48-27-305(3); 48-27-504.

As provided in West Virginia Code § 48-27-204, “family or household members” means persons who:

(1) Are or were married to each other;(2) Are or were living together as spouses;
(3) Are or were sexual or intimate partners;
(4) Are or were dating: Provided, That a casual acquaintance or ordinary fraternization between persons in a business or social context does not establish a dating relationship;
(5) Are or were residing together in the same household;
(6) Have a child in common regardless of whether they have ever married or lived together;
(7) Have the following relationships to another person: (A) Parent; (B) Stepparent; (C) Brother or sister; (D) Half-brother or half-sister; (E) Stepbrother or stepsister; (F) Father-in-law or mother-in-law; (G) Stepfather-in-law or stepmother-in-law; (H) Child or stepchild; (I) Daughter-in-law or son-in-law; (J) Stepdaughter-in-law or stepson-in-law; (K) Grandparent; (L) Stepgrandparent; (M) Aunt, aunt-in-law or stepaunt; (N) Uncle, uncle-in-law or stepuncle; (O) Niece or nephew; (P) First or second cousin; or
(8) Have the relationships set forth in paragraphs (A) through (P), subdivision (7) of this section to a family or household member, as defined in subdivisions (1) through (6), of this section.

The length of this provision is the first indication that the class of persons covered by the term “family or household members” is fairly broad. The statutory definition can be generally broken down into three categories of covered persons. Determinations as to who falls within either of the first two categories is straightforward in most cases. More careful analysis is generally needed if the determination involves the third category of covered persons.

The first category, the “partner” relationships described in subsections (1) through (6) of the statute, encompass parties who are or were — married; living together (whether in a spousal relationship or simply residing in the same household); sexual partners; dating; or parents of a child. Second, the “kinship” categories listed in subsections (7)(A) through (P), cover many of the family connections by blood or marriage. The third category, the subsection (8) “tie-in” provision, brings two parties within the “family or household member” class as long as one party has a “kinship” relationship [under subsection (7)(A)-(P)] with someone who has or had a “partner” relationship [under subsections (1)-(6)] with the other party.

See 2012 Domestic Violence Judicial Handbook.

 

4.  The Logistics

Circuit courts, family courts and magistrate courts have concurrent jurisdiction over domestic violence proceedings. W. Va. Code § 48- 27-301; Rule 25, RDVCP. Emergency proceedings upon the filing of a petition for a protective order are held before a magistrate. W. Va. Code § 48-27-203.

Final hearings, following the entry of an emergency protective order by a magistrate, are typically heard before a family court judge. W. Va. Code § 48-27-205. However, circuit court judges may assist family court judges in the disposition of domestic violence caseloads by conducting protective order proceedings. Rule 25, RDVCP.

Appellate jurisdiction from a magistrate’s denial of an emergency protective order lies in the family court; and appeals from family court

 

5.  The Timeline

A petitioner denied a DVPO may appeal to the family court. The petition for appeal must be filed no later than five days following the denial, and must be heard by the family court within ten days from the date the appeal was filed. W. Va. Code § 48-27-510(a); Rule 18(a), RDVCP.

 

If the Temporary DVPO is granted, a final hearing before the family court must be scheduled to take place no later than ten days following the entry of the Temporary DVPO. W. Va. Code § 48-27-402(e).

Any party may file a petition for appeal following the grant or denial of a DVPO at the final hearing in Family Court. The petition must be filed within ten days following the decision of the family court. Rule 19(a), RDVCP. The circuit court is required to hear the appeal within ten days following the filing of the petition. W. Va. Code § 48-27-510(b) and (c); Rule 19(a), RDVCP.

 

6.  Never walk into court without a lawyer.  Period.  Especially not when the words “domestic violence” are in the subject line of the case…..

 

 

West Virginia Gun Laws – July 2019

I’m seeing more and more confusing regarding West Virginia’s gun laws as of 2019.  Here is a quick rundown of some important things every West Virginian should know:

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“Constitutional Carry”

West Virginia recognizes the right of United States Citizens, or Legal Residents of the United States, who are 21 years of age or older, and who are not otherwise prohibited under state or federal law from possessing a firearm, to carry a concealed weapon in West Virginia without first obtaining a concealed carry license.  This is known as “Constitutional Carry,” in this, as well as other freedom-loving states.

This allows qualified persons to carry any “deadly weapon,” not just a pistol/revolver, like the old permit process allowed.  What can be carried concealed under constitutional carry?

A “deadly weapon” is generally deemed as “an instrument which is designed to be used to produce serious bodily injury or death or is readily adaptable to such use.” W. Va. Code § 61-7-2(9). It includes, but is not limited to, knives, switchblades, metallic knuckles, pistols, revolvers, and blackjacks. W. Va. Code § 61-7-2. Other items will be considered a “deadly weapon” for purposes of this statute where the circumstances of a particular case demonstrate that the weapon was “dangerous or deadly.” See Syl. Pt. 5, State v. Choat, 178 W. Va. 607, 363 S.E.2d 493 (1987).

What is the definition of “concealed” under the law?

“Concealed,” for purposes of W. Va. Code § 61-7-1, et seq., means: 

hidden from ordinary observation so as to prevent disclosure or recognition. A deadly weapon is concealed when it is carried on or about the person in such a manner that another person in the ordinary course of events would not be placed on notice that the deadly weapon was being carried. For purposes of concealed handgun licensees, a licensee shall be deemed to be carrying on or about his or her person while in or on a motor vehicle if the firearm is located in a storage area in or on the motor vehicle. 

Exceptions:

  1.  West Virginia’s constitutional carry law applies only to persons physically within the State of West Virginia.  It does not authorize any person to carry in another state.
  2. It does not apply to persons under the age of 21, even if they are otherwise eligible to possess a firearm.

18-21 year olds:

Just how is freedom denied to 18-21 year olds who have fought and died in foreign wars for the politicians who restricted their God-given rights?

  1. WV residents from 18-20 years of age who are not otherwise prohibited by law may obtain a “Provisional License” to carry a concealed pistol/handgun (ONLY- no nunchucks,etc.) for a total cost of $40.00.  It will be valid until the person turns 21.
  2. NOTE: The provisional license only applies to pistols or revolvers. Other concealed deadly weapons (such as brass knuckles, knives longer than 3.5″, clubs, ASPs, etc…) may result in arrest, fine, and jail time. An 18-20 year old who carries any concealed deadly weapon without a license will face a year in jail and a $1000 fine, and could find themselves disqualified for firearms ownership in the future. The same penalty applies to an 18-20 year old who carries a concealed deadly weapon other than a handgun, even if they have a provisional license. 21+ persons are allowed to carry deadly weapons other than firearms concealed, provided that weapon is legal to possess, and that they are not prohibited by law from possessing firearms. Disqualified persons (felony convictions, etc..) who carry concealed deadly weapons of any kind face severe criminal penalties.
  3. 18-20 year old members of the United States Armed Forces, Reserves, and National Guard may carry concealed handguns without a license. NOTE: This does not cover deadly weapons other than handguns. Knives with blades longer than 3.5″, switchblades, dirks, ASPs, etc… are NOT covered under this section. Handguns only. See: §61-7-6.
  4. Persons between the ages of 18 and 21 in lawful possession of a rearm are not prohibited from carrying an unconcealed rearm (“open carry”) without a provisional license as long as the person obeys all other applicable laws and restrictions.

 

“Prohibited Persons” from owning a firearm under West Virginia law:

Under West Virginia law, individuals falling within the following categories are prohibited from possessing a firearm: 

–  Has been convicted in any court of a crime punishable by imprisonment for a    term  exceeding one year;

–  Is habitually addicted to alcohol;

–  Is an unlawful user of or habitually addicted to any controlled substance;

–  Has been adjudicated to be mentally incompetent or who has been              involuntarily committed to a mental institution

–  Is an alien illegally or unlawfully in the United States;

–  Has been discharged from the armed forces under dishonorable conditions;

–  Is subject to a domestic violence protective order (provided the DVP prohibits    possession of firearms/ammunition; note that an emergency, ex parte domestic    violence protective order must prohibit the respondent from possessing a    firearm);

–  Has been convicted of a misdemeanor offense of assault or battery either    under state or federal law which the victim was a current or former spouse or    sexual or intimate partner, person with whom the defendant has a child in    common, person with whom the defendant cohabits or has cohabited, a parent    or guardian, the defendant’s child or ward or a member of the defendant’s    household at the time of the offense or has been convicted in any court of any    jurisdiction of a comparable misdemeanor crime of domestic violence.

W. Va. Code 61-7-7(a)(1)-(8) (2016).

Temporary Personal Safety Orders:

West Virginia also recently enacted W. Va. Code Section 53-8-5, which provides for “temporary personal safety orders”, which are essentially domestic violence protective orders for petitioners who are not related to the respondents.  PSOs are available where the respondent alleges sexual offenses, stalking (W. Va. Code Section 61-2-9(a)), or repeated credible threats of bodily injury (W. Va. Code Section 53-8-4).  A PSO may prohibit the respondent from possessing a firearm if a weapon was used or threatened to be used in the commission of the offense; or the respondent has violated any previous order; or the respondent has been convicted of an offense involving the use of a firearm. See W. Va. Code Section 53-8-5.  These orders can be in effect up to two years.

For more information, see the Attorney General’s handbook:

https://ago.wv.gov/gunreciprocity/Documents/On%20The%20Mark.pdf

 

 

Open-Carry of Firearms in WV in 2019: “Am I being detained?”

This is the current state of open-carry law in West Virginia (in my opinion), and it’s tricky relationship with a police officer’s right to do a “Terry” frisk under certain instances, as of February of 2019. Note: government lawyers do, and will, disagree with my analysis.  But mine’s supported by the law. However, proceed at your own risk, and the law may change after I write this, especially since litigation is ongoing….

1. If you’re in a vehicle, and an officer has a suspicion you may be armed, or sees that you’re open-carrying, you may be frisked and temporarily disarmed; 

2. If you’re not in a vehicle subject to a traffic stop, a police officer must have some reasonable articulable suspicion that you are engaged in criminal activity in order to seize and disarm you. Open-carrying a firearm alone is not justifiable suspicion to perform an investigative detention, unless the officer has information that you are a prohibited person unable to possess a firearm.

91063853-D5A6-44CD-B396-8E75736D5093

Many of you have probably seen the recent lawsuit I’ve been involved with in the Michael Walker v. Putnam County case where we sued over the violation of Mr. Walker’s right to open carry a firearm in West Virginia.

The defense from the government so far is that they are allowed to perform what’s called a “Terry” stop and frisk when they see someone with a gun.  Just to clarify the law, since they obviously misunderstood then, and continue to misunderstand.

A person’s Fourth Amendment rights under the U.S. Constitution to be free from unreasonable search and seizure are triggered whenever a “seizure” occurs.

When does a seizure occur?

A person is “seized” within the meaning of the Fourth Amendment if, “ ‘in view of all [of] the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Gray, 883 F.2d 320, 322 (4th Cir.1989) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). Specific factors to consider in determining whether a reasonable person would feel free to leave include: (i) the number of police officers present at the scene; (ii) whether the police officers were in uniform; (iii) whether the police officers displayed their weapons; (iv) whether they “touched the defendant or made any attempt to physically block his departure or restrain his movement”; (v) “the use of language or tone of voice indicating that compliance with the officer’s request might be compelled”; (vi) whether the officers informed the defendant that they suspected him of “illegal activity rather than treating the encounter as ‘routine’ in nature”; and (vii) “whether, if the officer requested from the defendant … some form of official identification, the officer promptly returned it.” Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870; Gray, 883 F.2d at 322–23.

The Fourth Circuit has noted that though not dispositive, “the retention of a citizen’s identification or other personal property or effects is highly material under the totality of the circumstances analysis.” United States v. Black, 707 F.3d 531, 538 (2013) (citing Weaver, 282 F.3d at 310 (emphasis added)). In Black, the Court found that, “[i]t is clear that when Officer Zastrow expressly told Black he could not leave, Black was already seized for purposes of the Fourth Amendment.” Black at 538 (emphasis original).

When can a “seizure” be legal as a justified “Terry” Stop and Frisk under Terry v. Ohio?

Federal case law has long been clear that the police officers cannot perform a “Terry stop” of a person lawfully open-carrying a firearm for the purposes of checking his ID and running a background check to determine whether the person is a prohibited person, or to otherwise disarm him, without more.  Although brief encounters between police and citizens require no objective justification, United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002), it is clearly established that an investigatory detention of a citizen by an officer must be supported by reasonable articulable suspicion that the individual is engaged in criminal activity. Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. 1868 (1968). 

To be lawful, a Terry stop “must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.” Reid v. Georgia, 448 U.S. 438, 440, 100 S. Ct. 2752 (1980).  The level of suspicion must be a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009).  As such, “the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S. Ct. 1868. Moreover, the Fourth Circuit has already made it very clear that in states where open carry is legal, such as West Virginia, if officers have no individualized information that a particular individual who is lawfully open-carrying is a prohibited person, the mere exercise of their rights by open-carrying “cannot justify an investigatory detention.”  Indeed, the Court held that “Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.” United States v. Black, 707 F.3d 531, 540 (2013) (quoting United States v. King, 990 F.2d 1552, 1559 (10th Cir. 1993)).

Occupants of a vehicle subject to a lawful traffic stop are a different analysis altogether, and are more likely to be subject to a Terry seizure.  An officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile’s occupants is armed may frisk that individual for the officer’s protection and the safety of everyone on the scene. Robinson at 696 (2017 case) (citing Pennsylvania v. Mimms, 434 U.S. 106, 112, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).

The importance of the Black case to open-carry rights in our circuit:

In 2013, Judge Gregory of the U.S. Fourth Circuit Court of Appeals, whom I have had the honor of appearing in front of, issued an opinion in the case of United States v. Black, 707 F.3d 531, 540 (2013), which is central to the rights of West Virginians to open carry firearms.  Although that case was from North Carolina, it applies equally here.  In his opinion, he admonished law enforcement for regularly abusing the Terry Stop procedure to violate the rights of lawful gun owners:

At least four times in 2011, we admonished against the Government’s misuse of innocent facts as indicia of suspicious activity. See United States v. Powell, 666 F.3d 180 (4th Cir.2011); Massenburg, 654 F.3d 480;United States v. Digiovanni, 650 F.3d 498 (4th Cir.2011); and United States v. Foster, 634 F.3d 243 (4th Cir.2011). Although factors “susceptible of innocent explanation,” when taken together, may “form a particularized and objective basis” for reasonable suspicion for a Terry stop, United States v. Arvizu, 534 U.S. 266, 277–78, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), this is not such a case. Instead, we encounter yet another situation where the Government attempts to meet its Terry burden by patching together a set of innocent, suspicion-free facts, which cannot rationally be relied on to establish reasonable suspicion. 

Second, Gates’ prior arrest history cannot be a logical basis for a reasonable, particularized suspicion as to Black. Without more, Gates’ prior arrest history in itself is insufficient to support reasonable suspicion as to Gates, much less Black. See Powell, 666 F.3d at 188 (“[A] prior criminal record is not, standing alone, sufficient to create reasonable suspicion.” (citation omitted)). Moreover, we “ha[ve] repeatedly emphasized that to be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.” DesRoches v. Caprio, 156 F.3d 571, 574 (4th Cir.1998) (quotation marks and alterations omitted) (emphasis added). In other words, the suspicious facts must be specific and particular to the individual seized. Exceptions to the individualized suspicion requirement “have been upheld only in ‘certain limited circumstances,’ where the search is justified by ‘special needs’ ”—that is, concerns other than crime detection—and must be justified by balancing the individual’s privacy expectations against the government interests. Id. (quoting Chandler v. Miller, 520 U.S. 305, 308, 313, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997)); see Treasury Employees v. Von Raab, 489 U.S. 656, 665–66, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). Here, the Government has not identified any substantial interests that override Black’s interest in privacy or that suppress the normal requirement of individualized suspicion. 

Third, it is undisputed that under the laws of North Carolina, which permit its residents to openly carry firearms, see generally N.C. Gen.Stat. §§ 14–415.10 to 14– 415.23, Troupe’s gun was legally possessed and displayed. The Government contends that because other laws prevent convicted felons from possessing guns, the officers could not know whether Troupe was lawfully in possession of the gun until they performed a records check. Additionally, the Government avers it would be “foolhardy” for the officers to “go about their business while allowing a stranger in their midst to possess a firearm.” We are not persuaded. 

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. 

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

 

Forget what you heard: the reality of the law of self-defense with a firearm in West Virginia. What does “castle doctrine” or “stand your ground” actually mean in WV?

Case studies are important aspect of learning and evaluating the law.  Being a Second Amendment supporting state, most West Virginians have heard one thing or another about the “castle doctrine,” or about what the law is regarding self defense with a firearm in West Virginia.

You can read the statutes, and you can read the case law.  You can read advice from anonymous sources on the internet.  But perhaps the best method is to go directly to a case-in-point.  A true nightmare scenario involving a home invader, a shooting, and a prosecution by overzealous authorities.

This case demonstrates a real life scenario.  It shows how the media and law enforcement can shift the narrative very quickly.  Most importantly, it shows the actual charge to the jurors who decided the man’s fate.  I obtained a copy of the jury charge, including the jury instructions, from the circuit clerk’s office, and have uploaded them to this site.  They are linked at the bottom of the page.  I also am providing a complete narrative showing some of the media reports, and how they shifted very quickly, turning on the homeowner.  It also shows how law enforcement used the media against the homeowner, poisoning the potential jury pool.

In March of 2015, a man intoxicated on various drugs, stripped off his clothes and attempted to forcibly enter the home of a family in Huntington, West Virginia.  The homeowner, Micah LeMaster, shot the intruder three times with his handgun.  He then followed the intruder outside towards the sidewalk, where he fired three more shots, resulting in the death of the home invader.  It was undisputed that this was a home invasion.  However, the media and the police quickly turned on the homeowner, resulting in an arrest, charge of first degree murder and a $700,000.00 bond.  The trial took place in November of 2016, resulting in a complete acquittal following his assertion of self defense and West Virginia’s “castle doctrine” law.  

One particular TV station’s website has their reporting of the incident, which in itself is educational.  From oldest to most recent:

LeMaster Media Narrative

If you really want to educate yourself on self defense law in West Virginia, read the actual law given to the LeMaster jury from the presiding trial judge.

The Actual Charge To the LeMaster Jury

The law given to the LeMaster jury contained the following specific instruction on the law pertaining to the West Virginia “Castle Doctrine,” in part:

An intruder is a person who enters, remains on, uses, or touches land or chattels in another’s possession without the possessor’s consent.

Our society recognizes that the home shelters and is a physical refuge for the basic unit of society, the family.  A man attacked in his own home by an intruder may invoke the law of self-defense without retreating.  The occupant of a dwelling is not limited in using deadly force against an unlawful intruder to the situation where the occupant is threatened with serious bodily injury or death, but he may use deadly force if the unlawful intruder threatens imminent physical violence or the commission of a felony and the occupant reasonably believes deadly force is necessary.

The violent and unlawful entry into a dwelling with intent to injury the occupants or commit a felony carries a common sense conclusion that he may be met with deadly force.

The source for this is the fact that West Virginia is a “stand your ground state,” and does not require a person to retreat before using 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). 

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). 

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). 

[As quoted from the West Virginia Gun Law CLE 2017]

I hope this clears up some of the confusion out there regarding West Virginia’s self defense laws, the practical application of what they mean, and how the “castle doctrine” and “stand your ground” actually work.

 

West Virginia Lawyer Charged in Relation to Shooting

Apparently a West Virginia lawyer was charged with being an accessory after-the-fact in relation to a New Year’s Eve shooting in Charleston, which is a felony.  This was reported by WCHS, as well as the Charleston Gazette.  Allegedly, after his friend shot a guy after an argument over ordering a pizza, the lawyer took the guy’s cell phone and instructed him to run.  And then he was allegedly uncooperative with police when they asked him the identity of the shooter.

It was reported that all of this can be viewed on surveillance footage:

“Conrad is in trouble, because police said he can clearly be seen on surveillance video taking Underwood’s cell phone, which is considered evidence, from the scene and telling the suspect to run.”

So my initial thought is, how can you view what someone is saying on surveillance footage?  You can’t.  We pretty much know the footage does not contain audio – since that in itself would constitute felony illegal wiretapping in West Virginia, since it would be capturing conversations for which no party has consented.

The police are the first to complain about surveillance footage when they are accused of misconduct, noting that you can’t tell everything from the video.  Well you certainly cannot tell what someone is saying to another.  How does a video prove that the lawyer was instructing the shooter to flee? And if you can view the cell phone being handed to the lawyer, how can you tell that the lawyer asked for it.  And if a cell phone is handed to you in such a situation, does that make you a felon?  What if you are a lawyer potentially representing the individual.  Can you preserve evidence yourself?  Are you compelled to turn over your own evidence to police at their demand?  The West Virginia Rules of Criminal Procedure don’t provide for that.  In fact, a criminal defendant is not compelled to provide discovery to the prosecution until and unless he or she requests discovery from the State.

As with any of the decaying “cities” in this country where you have arrogant and hypocritical leadership, the City of Charleston was quick to jump into attention-whore mode and to engage in their first attempts at poisoning the jury pool:

“It’s really surprising that someone in a position of authority, and all that he is responsible for, to participate in this criminal conduct,” Lt. Steve Cooper, with Charleston police said. 

. . .

Charleston Mayor Danny Jones said he plans to file an ethics complaint with the state bar, against Conrad.

What ever happened to “innocent until proven guilty”?  Is it ethical for a police officer, or mayor, to go onto TV and tell the public that an individual who has been charged, and who is presumed innocent, has committed criminal conduct?  Or that the individual has abused a position of authority?  Or that the person is unethical?

I’m not passing judgment on the lawyer’s actions one way or the other since I don’t know all of the facts.  After all, isn’t that what police say when one of their own are accused of misconduct?  Well, it’s under investigation and we don’t know all of the facts.  So what if he did take the guy’s cell phone and told him to run?  What negative consequences did that have?  Who is a victim to the lawyer’s alleged crime?  None and nobody.

WV gun owner stops home invasion. When can you legally shoot someone?

There was an article yesterday in the Charleston Gazette about a gun owner in Logan, WV who stopped a home invasion in progress at his neighbor’s home.

He shot one of the burglars, and held the other at gunpoint until police arrived.  This brings up a common topic of interest to people – especially in West Virginia, which has one of the largest percentages of gun owners per capita (we are no. 5 I believe).

When can you legally shoot someone in a home invasion scenario?  

In the end, it comes down to whether or not you reasonably believe that you, or someone else (anyone else – it doesn’t have to be a family member) is in imminent danger of death or serious bodily harm.  People tend to get obsessed with the “castle doctrine.”  Just understand that to mean, that if you are in your home, you have no legal obligation to run out the back door, if given the opportunity.  It all comes down to whether you believe you, or someone else, is going to be killed or seriously hurt if you don’t take action.

There is no guarantee that, even if you do believe you’re about to be killed, and you fire your weapon, that the shooting will be deemed justified.  Your fear must have been reasonable – based on something that your peers would likely also consider as significant enough to cause them fear as well.

Everyone should think about these types of things ahead of time.  You should draw a mental line in the sand regarding when you shoot, and when you do not shoot.  What is enough?  What if someone in a ski mask is lurking outside your house?  What if someone in a ski mask is outside your house with a gun in their hand?  What if someone is burglarizing your vehicle in your driveway?  What if someone is burglarizing your neighbor’s home?  Or car?

There is not necessarily a right answer for these types of scenarios.  But you should never pull the trigger unless you really do fear for a life.  It’s not that they don’t deserve a dirt nap.  If it were up to me, all thieves entering your property at night should be executed.  But unfortunately it’s not.

Many people in West Virginia do believe that if someone is breaking into their car at night, that they can run outside and shoot them.  Unfortunately, here we are not allowed to use deadly force in order to protect property.  For this reason, electric companies are not supposed to keep lines active for the sole purpose of deterring trespassers.  Now if the car burglar approaches you, or if he has a weapon and has the imminent ability to use it against you – that is different.

1.  It’s always going to be more difficult to justify a shooting where the person shot was “unarmed”.  I knife, gun, or even a stick could count as a weapon.  It is never a good idea to provide your own weapon after the shooting.  The facts are what they are.  Never try to change them.

2.  It’s always going to be more difficult to justify a shooting where the person shot was shot in the back.  This would indicate that the person was walking, or running, away from you.  That causes a problem because at that point it’s hard to argue that your fear was reasonable when the threat was leaving.  It’s also hard to argue that the threat was imminent.  But, if the person shot was in your house, it’s probably going to be a good shoot, because the threat was still in your home.  Generally when we shoot someone, our natural tendency is to keep shooting.  So there have been cases where the first shot was in the front of the person’s body, and several more shots went into the guy’s back as he turned to run away.  Good shoot, but bullets in the back are always going to make things more difficult.

3.  In your home, it’s game on.  Like I said, draw a line in the sand.  If someone maliciously invades your home, you generally can eliminate the threat with extreme prejudice.  But it still has to be reasonable.  You wouldn’t want to shoot a drunk neighbor who wandered in the wrong house – or a family member sneaking back in from a night of partying.  For this reason, always have a good home defense light.  You have to know your target – and what’s behind it.

It’s outside the home, where most of the grey areas live.  So be very careful venturing outside your castle with a gun in the dark of night.  Know where your line in the sand is.

As for the shooting in the article, the 800 pound gorilla is the fact that was left out of the story.  Did the shooter believe that the neighbors were in the home at the time he saw the attempted home invasion?  If so, good shoot.  If not, he may have a more difficult time due to the fact that we are not allowed to use deadly force in order to protect (only) property.

4.  Lastly, all gun owners who anticipate ever having to use their firearms in self defense should get some formal training, such as in a defensive handgun class.  A basic concealed weapons class does not qualify as training.  This is me at a handgun class a couple of weeks ago.  It’s a lot of fun, and it’s part of our obligation as citizens under the 2nd Amendment.

2013-12-15 14.45.47 copy

Fourth Circuit Open Carry Decision

The Fourth Circuit issued a decision bolstering our 2nd Amendment rights.  The case is styled  USA v. Nathaniel Black, out of the Western District of North Carolina.  Essentially, a guy who was a convicted felon was open carrying a firearm.  He was then seized by police, who were subsequently able to determine that he was not allowed to possess a firearm.  But, was it an unconstitutional seizure since they didn’t know before they seized the guy that he was committing a crime by possessing a firearm?

The 4th Circuit held that it was unconstitutional to seize the man merely because they observed him with a holstered handgun, since they had no reason to believe that he was legally barred from possessing firearms, or that he was engaging in any other illegal activity.  The importance of this decision is that it protects our 2nd Amendment rights.  If it is legal for us to openly carry a handgun, then law enforcement is unable to seize us in order to determine our criminal record, harass us, etc.  The case has all the goodies when it comes to search and seizure case law in the Fourth Circuit (WV, VA, NC, MD).