This is a video about an encounter at the home of my client, Matt, in March of 2019, which occurred in Charmco, West Virginia, which is in Greenbrier County. It shows police arriving at his home to arrest a friend who was visiting him, who happened to have an outstanding warrant.
Matt didn’t want to be involved one way or the other. He was afraid, so he turned on his phone and began recording and he laid down. He didn’t want to get shot. But they forced him to crawl to the door on his hands and knees. When he got there, he got head-stomped by the first officer.
They didn’t know he was recording. The second officer, a West Virginia State Police trooper, noticed the phone filming, and he covered it with his hands, and turned the phone off. The officers then deleted the video footage. But it was recovered.
“No Knocks” are in the news following the Breonna Taylor shooting case. What is a “No Knock” warrant and when/how are they legal under federal constitutional law? One of my favorite topics. By favorite I mean that if I was a middle eastern dictator they would flow freely. This has been in the news now following the Breonna Taylor case. I’ll offer some analysis on that case, and also answer other civil rights constitutional law questions, if you have any – since this is LIVE.
Podcast version (audio only):
"No Knock" Warrants and Civil Rights Q&A – FIS Live Ep. 16 – thecivilrightslawyer.com –
Freedom is Scary
"No Knocks" are in the news following the Breonna Taylor shooting case. What is a "No Knock" warrant and when/how are they legal under federal constitutional law? One of my favorite topics. By favorite I mean that if I was a middle eastern dictator they would flow freely. This has been in the news now following the Breonna Taylor case. I'll offer some analysis on that case, and also answer other civil rights constitutional law questions, if you have any – since this is LIVE.This is the FREEDOM IS SCARY livecast Episode 16. Please join me. It seems to be happening every Monday evening……thecivilrightslawyer.com
Searches and Seizures in the Home and No-Knock Warrants, i.e., the “Knock and Announce” Requirement, Generally:
In the Home: No Warrant? Presumptively Illegal: Searches and seizures which take place in a person’s home are presumptively unreasonable, which means they are illegal by default according to the Fourth Amendment. On the other hand, outside a person’s home, Fourth Amendment protections only apply where there is a “reasonable expectation of privacy.”
Outside the Home: No Warrant? No Need unless REP: To the contrary, the U.S. Supreme Court has found that no presumption exists outside the home, because a person does not have a reasonable expectation of privacy for most “places” outside one’s own home. These unprotected “places” include bank accounts, curbside trash, “open fields,” surrounding one’s home, and so on.
Search of home with a warrant: presumptively legal: So since the inverse is true, all searches of a home, made pursuant to a warrant are presumptively reasonable. The standard for a warrant requires only that “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” It is still a requirement, obviously, that police officers tell the truth when they make their search warrant applications. If it is discovered that false information was intentionally provided to the magistrate, the warrant will be fraudulent, and therefore ineffective. At which point, we’re back to the search being presumptively unreasonable. During the execution of a lawfully-obtained search warrant, officers may temporarily seize the inhabitants of the structure being searched, including handcuffing them.
There is a default “knock and announce” requirement under the Constitution, though it frequently is ignored. Can officers make, or apply, for a no knock entry just b/c the homeowner has a CCW? Check out the 4th Circuit case out of West Virginia, Bellotte v. Edwards (4th Cir. 2011), authored by Judge Wilkinson. Judge Gregory was also on the panel:
The knock-and-announce requirement has long been a fixture in law. Gould v. Davis, 165 F.3d 265, 270 (4th Cir. 1998). Before forcibly entering a residence, police officers “must knock on the door and announce their identity and purpose.” Richards v. Wisconsin, 520 U.S. 385, 387 (1997)….
“In order to justify a ‘no-knock’ entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Richards, 520 U.S. at 394. The Supreme Court has admonished that “it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement.” Id. We have thus required a particularized basis for any suspicion that would justify a no-knock entry. See United States v. Dunnock, 295 F.3d 431, 434 (4th Cir. 2002)…..
Of course, the absence of a no-knock warrant “should not be interpreted to remove the officers’ authority to exercise independent judgment concerning the wisdom of a no-knock entry at the time the warrant is being executed.” Richards, 520 U.S. at 396 n.7. But where, as here, the officers faced no barrier at all to seeking no-knock authorization at the time they obtained a warrant, “a strong preference for warrants” leads us to view their choice not to seek no-knock authorization with some skepticism. United States v. Leon, 468 U.S. 897, 914 (1984)….
To permit a no-knock entry on facts this paltry would be to regularize the practice. Our cases allow officers the latitude to effect dynamic entries when their safety is at stake, but the Fourth Amendment does not regard as reasonable an entry with echoes, however faint, of the totalitarian state…..
It should go without saying that carrying a concealed weapon pursuant to a valid concealed carry permit is a lawful act.The officers admitted at oral argument, moreover, that “most people in West Virginia have guns.” Most importantly, we have earlier rejected this contention: “If the officers are correct, then the knock and announcement requirement would never apply in the search of anyone’s home who legally owned a firearm.” Gould, 165 F.3d at 272; accord United States v. Smith, 386 F.3d 753, 760 (6th Cir. 2004); United States v. Marts, 986 F.2d 1216, 1218 (8th Cir. 1993). We recognized over a decade ago that “[t]his clearly was not and is not the law, and no reasonable officer could have believed it to be so.” Gould, 165 F.3d at 272.
Section 1983 lawsuits allow private citizens to sue individual government officials, including police officers, for violations of federal rights performed under color of law.
If a government officer violates a federally protected civil right, the citizen has the legal right to file a civil lawsuit against the officer. 42 USC 1983, passed in 1871, allows citizens to sue state and local government officials – especially police officers – for damages when their rights are violated. Even if they’ve suffered no monetary damages, if they are successful, they’re entitled to an award of reasonable attorney fees and expenses. The same sort of lawsuit is available against federal officials pursuant to the U.S. Supreme Court case, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971). Those are known as “Bivens actions.” But before these lawsuits can be successful, they have to get past the obstacle of the Qualified Immunity defense.
Qualified Immunity is a defense to civil lawsuits alleging the violation of federal rights while acting under color of law. It does not apply as a defense to criminal prosecution.
Qualified Immunity is a civil defense to these lawsuits, provided to government officials by the Supreme Court initially in the case of Pierson v. Ray in 1967, and then again, in its current form, in Harlow v. Fitzgerald, in 1982. It was rearranged yet again in Pearson v. Callahan (2009) giving federal judges more discretion in granting qualified immunity.
Qualified Immunity has been the subject of intense debate in recent years, and especially in recent months. Many commentators have criticized it as an example of the Court creating legislation from the bench, and in so doing having created a significant problem for citizens seeking to hold their government officials accountable for the violations of their civil rights.
As Ninth Circuit Judge Stephen Reinhardt has written, the Supreme Court’s recent qualified immunity decisions have “created such powerful shields for law enforcement that people whose rights are violated, even in egregious ways, often lack any means of enforcing those rights.” Three of the foremost experts on Section 1983 litigation—Karen Blum, Erwin Chemerinsky, and Martin Schwartz—have concluded that recent developments in qualified immunity doctrine leave “not much Hopeless for plaintiffs.”
Although the concept of qualified immunity was drawn from defenses existing in the common law at the time 42 U.S.C. § 1983 was enacted, the Court has made clear that the contours of qualified immunity’s protections are shaped not by the common law but instead by policy considerations. In particular, the Court seeks to balance “two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”
The Supreme Court’s original rationale for qualified immunity was to shield officials from financial liability. The Court first announced that law enforcement officials were entitled to a qualified immunity from suits in the 1967 case of Pierson v. Ray. That decision justified qualified immunity as a means of protecting government defendants from financial burdens when acting in good faith in legally murky areas. Qualified immunity was necessary, according to the Court, because “[a] policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he had probable cause, and being mulcted in damages if he does.”
How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).
The reality of Qualified Immunity, through my eyes, which are the eyes of someone who litigates civil rights lawsuits mostly as a plaintiff, is that it’s more of an annoyance in the usual case litigated by an experienced civil rights attorney, but that it’s often a problem in those unique cases where justice really should be served, but isn’t. The big problem, in my opinion, is the use of an objective standard. Common sense tells us that bad faith conduct by law enforcement should be punished. But the subjective bad faith, or malicious intentions, of a defendant police officer, surprisingly may not even be admissible in court. Because it’s usually irrelevant under the standard.
Qualified Immunity is analyzed using an objective standard, rather than subjective.
At its inception in 1967, there was a subjective component to the qualified immunity analysis. From 1967, when qualified immunity was first announced by the Supreme Court, until 1982 when Harlow was decided, a defendant seeking qualified immunity had to show both that his conduct was objectively reasonable and that he had a “good-faith” belief that his conduct was proper. In 1982, the Court in Harlow dropped the second part, the subjective good faith belief requirement, finding that such a requirement was “incompatible” with the policy goals of qualified immunity, which now not only was to protect law enforcement officers from financial liability, but also now to avoid subjecting them to either the costs and burdens of trial, as well as the burdens of broad-reaching discovery.
Qualified Immunity cannot be justified as a means of reducing civil litigation surrounding allegations of police misconduct.
In a recent study discussed in a Yale Law Journal article, out of a study of 1,183 lawsuits against state and local law enforcement defendants, over a period of two years, in five federal district courts, it was found that qualified immunity was only raised as a defense in 37% of the cases, and out of those, only resulted in dismissal in 3.6% of the cases. See How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).
I’ll repeat that: out of 1,183 lawsuits against police officers for civil rights violations, Qualified Immunity was raised as a defense by the officers in only 37% of the cases, and out of those, only 3.6% resulted in dismissals.
Another study by Alexander Reinert, looking at Bivens actions (against federal officials), found that grants of qualified immunity led to just 2% of case dismissals over a three year study period. However, the big difference in those cases from regular Section 1983 cases, is that the defense attorneys are Assistant United States Attorneys – members of the civil branch of each federal district’s federal prosecutor’s office. As such, they may take a different route of defense, as a matter of DOJ policy. So they are somewhat different creatures, though both involve issues of Qualified Immunity.
Therefore, according to the numbers, “Qualified Immunity” itself is rarely the formal reason that civil rights lawsuits against law enforcement end. Moreover, there are certain types of cases where qualified immunity cannot be utilized, such as those against the employers of law enforcement officers (Monell Claims). Out of the 1,183 cases studied, 8.4% fell into this category.
The Yale study also showed that most of the qualified immunity litigation is taking place at the summary judgment stage, or even the trial stage, rather than at the motion to dismiss stage, as the Supreme Court apparently intended. That means that litigation is not being avoided. It is perhaps being increased.
As Alan Chen has observed, when considering the deficiencies of qualified immunity, “the costs eliminated by resolving the case prior to trial must be compared to the costs of trying the case . . . . [T]he pretrial litigation costs caused by the invoking of the immunity defense may cancel out the trial costs saved by that defense.”
How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).
Moreover, Qualified Immunity likely increases the expense, as well as the delays, associated with federal civil rights litigation.
Although qualified immunity terminated only 3.9% of the 979 cases in my dataset in which qualified immunity could be raised, the defense was in fact raised by defendants in more than 37% of these cases—and was sometimes raised multiple times, at the motion to dismiss stage, at summary judgment, and through interlocutory appeals. Each time qualified immunity is raised, it must be researched, briefed, and argued by the parties and decided by the judge. And litigating qualified immunity is no small feat. John Je ries describes qualified immunity doctrine as “a mare’s nest of complexity and confusion.”155 Lower courts are “hopelessly conflicted both within and among themselves” as a result. One circuit court judge reported that “[w]ading through the doctrine of qualified immunity is one of the most morally and conceptually challenging tasks federal appellate court judges routinely face.”
How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).
Qualified Immunity cannot be justified as a means of protecting police officers from personal financial liability.
In the study of 1,183 civil lawsuits, police officer defendants paid little, to none, of settlement or verdict amounts. Out of the 44 largest law enforcement agencies included in the study, which included 70 agencies overall, the individual officers paid just 0.02% of the dollars awarded to the plaintiffs in those suits. In the 37 smaller and midsize law enforcement agencies, no individual officer contributed any amount to any award to a plaintiff during this period. All of the officers were indemnified by the employers, even where they were fired, disciplined, or even criminally prosecuted for their conduct. This has been my experience as well, except in one particular case I’ve personally been involved with. I only know of one other instance in West Virginia where there was a second occurrence.
Qualified Immunity cannot be justified as a means of protecting police officers and government officials from the non-financial burdens of discovery and trial.
Often discussed in Qualified Immunity caselaw is this phrase, and so-called policy objective, of shielding government officials from the burdens of participating in a lawsuit, including the discovery process and the trial itself. For this reason, courts have the discretion to apply Qualified Immunity early in the litigation, including at the motion to dismiss stage, prior to any discovery being conducted. However, the study shows that this policy goal is not being met.
I found that, contrary to judicial and scholarly assumptions, qualified immunity is rarely the formal reason that civil rights damages actions against law enforcement end. Qualified immunity is raised infrequently before discovery begins: across the districts in my study, defendants raised qualified immunity in motions to dismiss in 13.9% of the cases in which they could raise the defense.
These motions were less frequently granted than one might expect: courts granted motions to dismiss in whole or part on qualified immunity grounds 13.6% of the time.Qualified immunity was raised more often by defendants at summary judgment and was more often granted by courts at that stage. But even when courts granted motions to dismiss and summary judgment motions on qualified immunity grounds, those grants did not always result in the dismissal of the cases—additional claims or defendants regularly remained and continued to expose government officials to the possibility of discovery and trial. Across the five districts in my study, just 3.9% of the cases in which qualified immunity could be raised were dismissed on qualified immunity grounds.
And when one considers all the Section 1983 cases brought against law enforcement defendants—each of which could expose law enforcement officials to whatever burdens are associated with discovery and trial—just 0.6% of cases were dismissed at the motion to dismiss stage and 2.6% were dismissed at summary judgment on qualified immunity grounds.
How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).
Thus, Qualified Immunity was the reason for dismissal in only 3.2% of the 1,183 lawsuits in the study. The defendants raised the defense in 37.6% of the cases where the defense was available. Out of these, only 13.9% of these were raised at the earliest point available – that is, the motion to dismiss stage – that being the only method of avoiding the burden of participating in the discovery process. Courts granted less than 18% of those motions raised at the motion to dismiss stage, which includes motions granted “in part,” which means that only some claims were dismissed, and that others were allowed to proceed.
Therefore, the existence of Qualified Immunity is not serving the alleged policy goal of shielding government officials from the burden of participating in the litigation process. Unless, of course, one considers 3.2% to be a substantial shield from litigation. To the contrary, it arguably has increased the negative public perception of a lack of equal justice in the justice system as a whole.
How to strip a police officer of Qualified Immunity
To strip a police officer of qualified immunity in a civil rights lawsuit, a plaintiff must establish that:
1. the officer’s conduct violated a federal statute or constitutional right; and
2. the right was clearly established at the time of the conduct, such that
3. an objectively reasonable officer would have understood that the conduct
violated that right.
Which comes first? Until recently, the United States Court of Appeals required a court to first determine whether or not a constitutional right had been violated and then determine whether an officer was entitled to qualified immunity. SeeSaucier v. Katz, 121 S.Ct. 2151 (2001). Courts and attorneys were routinely ignoring this mandate and somewhat recently, the United States Supreme Court in Pearson v. Callahan (2009) reverted back to its initial analysis and now courts are free to evaluate these issues in whatever order the court desires.
The real world application of Qualified Immunity.
1. There generally tends to be a “grace period “between a change in the law, and then moment it becomes “clearly established” for qualified immunity purposes.
2. Qualified Immunity is generally a poor defense to claims of excessive use of force by a police officer. The reason for this is because this often involves highly contested disputes of fact which make a trial likely. For example, a plaintiff alleges an officer kicked him in the groin while he was handcuffed. The officer responds that the plaintiff is lying, and that he did no such thing. This is most certainly going to require a trial to decide the truth of the matter. It doesn’t really involve a legal analysis of whether a police officer would know it would be a civil rights violation to kick a handcuffed detainee in the groin for no good reason. The primary exception to the excessive force rule is police shooting cases where the plaintiff is dead. Such a case usually involves family members of the decased filing suit. As such, the plaintiff himself/herself cannot tell his/her side of the story. With only one side available in many such cases, the court may grant qualified immunity based on the officers’ un-contradicted affidavits or deposition testimony.
3. Qualified Immunity is a very effective defense when dealing with search and seizure issues, which are rapidly developing and changing (due to commonly being involved in criminal litigation, which occurs in much greater volume and frequency). This creates so-called “grey areas” of the law, for which courts tend to give police officers the benefit of the doubt, so to speak.
4. An officer’s mistaken understanding of the law, or a reasonable misapprehension of the propriety of his conduct, can still provide a defense under Qualified Immunity. SeeSaucier v. Katz, 533 U.S. 194, 205 (2001) (“The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.”).
5. Qualified immunity applies as an effective defense in wrongful arrest cases, where the Court looks at the facts in the record and determines that probable cause exists, or that the officer made a reasonable mistake as to the existence of probable cause.
Therefore, ironically, Qualified Immunity is not much of a bar to a plaintiff seeking to hold a police officer responsible for the use of excessive force, such as in the recent death of George Floyd. Without a doubt, no court in the land would grant Qualified Immunity to the officer involved in Mr. Floyd’s death. There would be, or probably will be, factual issues to be determined at trial. Rather, it mostly is going to apply to those “grey areas” of search and seizure law. Moreover, it’s going to apply usually without regard to the officer’s subjective ignorance, or expertise, regarding the law. It’s an objective, fairly low standard.
For this reason, I agree with the author of the Yale Law Review study, in that rather than calling for the end of Qualified Immunity, it might be best to return to a subjective standard version of Qualified Immunity, where police officers who act in bad faith, as well as those who act in good faith, though objectively unreasonably, can be held accountable. But as for Qualified Immunity itself, whether it exists, or does not exist, it’s not going to apply to any of the officers directly involved in Mr. Floyd’s death. But it will be involved in many other cases, including cases where there certainly was police misconduct, for which the victim will be barred from recovery. That can’t be a good policy, in my opinion.
Here’s a brief, but decently thorough, rundown on the current state of “Second Amendment rights” in the United States. Unfortunately, it involves much more than just pulling out your pocket sized booklet of the U.S. Constitution and reading the Second Amendment. This is the ammunition you need to debate, understand, and exercise, your Second Amendment rights. Of course, see the disclaimer lower right on the home page.
This is a broad topic, and it’s all up in the air, depending on where you live in the country, as you’ll see below. These are excerpts from the larger piece I’ve been working on, so I’ve left citations in where possible.
Second Amendment Law?
Most of the federal constitutional law surrounding the possession and use of firearms, i.e., “Second Amendment law,” is actually the law of the “Search and Seizure” clause of the Fourth Amendment to the Constitution.
The reason for this is because the United States Supreme Court has been very slow-going to establish any Second Amendment rights whatsoever. Regardless of what we believe the Founders intended, and regardless of what we subjectively believe, or perhaps know, that the Second Amendment means, the federal judiciary has failed miserably – decade after decade – at interpreting the actual words written in the Bill of Rights. I don’t believe it was ever supposed to be that difficult. But it is.
Shall not be infringed . . . .
For instance, it has been interpreted that the Second Amendment, though fairly concise, actually has two different so-called clauses. The Second Amendment provides,
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
See U.S. Const. amend. II.
Seems pretty straight forward, in light of the fact that in the late 18th century, every military age male was required to comply with militia duties, and was also required by law to provide his own musket, or rifle, as well as sufficient powder and lead. As an interesting aside, in the event that any poor sap among us were so poor and dejected that he could not afford his own firearm, including sufficient powder and lead, there was an early welfare-style system, where that individual could borrow one from the government’s stores, with a requirement that it be returned in working order at the end of the lease term. This was less preferable to being able to use your own stuff. For example, Virginia’s Militia Act, enacted May 5, 1777, was very specific:
Every officer and soldier shall appear at his respective muster-field by eleven o’clock in the forenoon, armed or accoutred as follows: The county lieutenant, colonels, lieutenant colonels, and major, with a sword; every captain and lieutenant with a firelock and bayonet, a cartouch box, a sword, and three charges of powder and ball; every ensign with a sword; every non-commissioned officer and private with a rifle and tomahawk, or good firelock and bayonet, with a pouch and horn, or a cartouch or cartridge box, and with three charges of powder and ball; and, moreover, each of the said officers and soldiers shall constantly keep one pound of powder and four pounds of ball, to be produced whenever called for by his commanding officer.
If any soldier be certified to the court martial to be so poor that he cannot purche such arms, the said court shall cause them to be procured at the expense of the publick, to be reimbursed out of the fines on the delinquents of the county, which arms shall be delivered to such poor person to be used at musters, but shall continue the property of the county; and if any soldier shall sell or conceal such arms, the seller or concealer, and purchaser, shall each of them forfeit the sum of six pounds. And on the death of such poor soldier, or his removal out of the county, such arms shall be delivered to his captain, who shall make report thereof to the next court martial, and deliver the same to such other poor soldier as they shall order.
And if any poor soldier shall remove out of the county, and carry his arms with him, he shall incur the same penalty as if he had sold such arms; and if any persons concerned in selling or concealing such arms shall be sued for the said penalty, and upon conviction and recovery shall fail to make payment, he shall suffer such corporal punishment as the court before whom the recovery shall be shall think fit, not exceeding thirty nine lashes.
Militia or Individuals?
However, fast forward to 2008, long after the militia system has fallen into disuse and obscurity, in the case of District of Columbia v. Heller , the U.S. Supreme Court recognized that the Second Amendment is now officially divided into a prefatory clause (“A well regulated Militia, being necessary to the security of a free State, …”) and an operative clause (“… the right of the people to keep and bear Arms, shall not be infringed.”). SeeHeller, 554 U.S. 570, 577, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).
The Heller majority rejected the proposition that, because of its prefatory clause (“A well regulated Militia, being necessary to the security of a free State, …”), the Second Amendment “protects only the right to possess and carry a firearm in connection with militia service.” Id. So the militia part, which is often the center of much internet argument, is actually minor to the litigation.Rather, the Court determined that, by its operative clause (“… the right of the people to keep and bear Arms, shall not be infringed.”), the Second Amendment guarantees, still today, as of 2008, “the individual right to possess and carry weapons in case of confrontation.” Id. at 592, 128 S.Ct. 2783.
The Court also explained that the operative clause “fits perfectly” with the prefatory clause, in that creating the individual right to keep and bear arms served to preserve the militia that consisted of self-armed citizens at the time of the Second Amendment’s ratification. Id. at 598, 128 S.Ct. 2783; Kolbe v.Hogan, 849 F.3d 114, 131-132 (4th Cir. 2017).That’s the overly-complicated way of saying that the people were the militia in the 1790s, and were guaranteed the right to keep their own weapons in case they needed to fight with them.
What is “Second Amendment law?”
This has created a body of law – Second Amendment law – which is amazingly one-sided, as far as the government is concerned, and extremely weak for the individual citizen.As Professor J. Richard Broughton noted in what is one of the best law review articles I’ve reviewed, Danger at the Intersection of Second and Fourth, from the Idaho Law Review, September 2018:
[U]nder federal law alone, for example, numerous restrictions exist on gun possession: felons, those who have been adjudicated as a mental defective or who have ever been commit- ted to a mental institution, unlawful drug users or addicts, persons who have been dishonorably discharged from the armed forces, illegal aliens, and others. It is a crime to knowingly receive a firearm with an obliterated or altered serial number. It is a crime to possess a machine gun. It is a crime for a minor to possess a firearm, except under limited conditions. Violent crimes, or drug trafficking crimes, committed with a firearm are subject to enhanced punishments. And similar restrictions on possession and use of guns exist in state law.
Id. at 399-400. So, as lofty as the Second Amendment sounds, and as much as it is used in speech referencing the God-given right to keep and bear arms, etc., etc., in practice, and in reality, it has been chiseled away through the years, and has been long established as inapplicable to entire groups of individuals who might want to assert it, but who in reality have no recognized Second Amendment right to keep and bear arms. At least not that the federal courts recognize.
As for Heller itself, the landmark Second Amendment case only provides for a Second Amendment right for gun possession in one’s home. SeeHeller, 554 U.S. at 632, 635.To extend the Second Amendment beyond the home, which it obviously should to those of us who can read, one must look elsewhere at the lower federal courts, specific state laws, or wait until the Supreme Court takes up the issue of the expansion of the Second Amendment beyond the home.
The expansion issue has been extremely limited in the lower federal courts. See, e.g., Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017); Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012); Kachalsky v. Cty. of Westchester, 701 F.3d 81 (2d Cir. 2012); Grace v. District of Columbia, 187 F. Supp. 3d 124 (D.D. Cir. 2016); see also Jeffrey Bellin, The Right to Remain Armed, 93 WASH. U. L. REV. 1, 18–21 (2015) (discussing recent cases which suggest that gun rights may be gaining traction).
In the dwindling number of jurisdictions where legislator continue to support strict gun regulation, judges, rather than politicians, spearhead the gun-rights movement . . . .
The Fourth Amendment generally requires police to possess “individualized suspicion” of a crime prior to conducting any search or seizure. When police try to preempt violent crime by stopping (i.e., seizing) armed citizens, the assumed violation of municipal gun laws supplies the requisite Fourth Amendment authority. As gun carrying becomes both lawful and common, even in major cities, police lose the ability to invoke public gun possession as a Fourth-Amendment-satisfying basis for investigation.
Bellin at 3 (citingU.S. v. Martinez-Fuerte, 428 U.S. 543, 560 (1976) (stating that “some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure”).
The Fourth Circuit (WV, VA, MD, NC, SC)Has Declined to Extend Heller outside the home
The Fourth Circuit has expressly declined to resolve whether the right recognized by Heller extends beyond the home.United Statesv. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011); see also Footnote 2 of U.S. v. Robinson, 846 F.3d 694 (4th Cir. 2017) (en banc) (noting that they continue to decline to address the issue of extending Heller beyond the home, and noting a split of sister circuits on the issue).
But the 7th Circuit (Ill., IN, Wis.), and theDC Circuit have extended Heller outside the home
Both the 7th Circuit and the DC Circuit have made such an extension. SeeMoore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012) (recognizing that the “right to keep and bear arms for personal self-defense … implies a right to carry a loaded gun outside the home”); see alsoPalmer v. Dist. of Columbia, 59 F.Supp.3d 173, 181–82 (D.D.C. 2014) (holding that Second Amendment right recognized in Heller extends beyond home).
The 9th Circuit (CA, AZ, AK, ID) says Heller doesn’t extend outside the home
However, other courts, including the Ninth Circuit, have expressly found no extension exists. SeePeruta v. Cnty. of San Diego, 824 F.3d 919, 940 (9th Cir. 2016) (“[T]he Second Amendment does not protect the right of a member of the general public to carry concealed firearms in public.” (emphasis added)); Young v. Hawaii, 911 F.Supp.2d 972, 990 (D. Haw. 2012) (“[L]imitations on carrying weapons in public do[ ] not implicate activity protected by the Second Amendment.”); Williams v. State, 417 Md. 479, 10 A.3d 1167, 1178 (Md. 2011) (holding that regulations on carrying firearms outside the home are “outside of the scope of the Second Amendment, as articulated in Heller and McDonald”).
McDonald v. Chicago (2010): The Second Amendment DOES apply to the States via the Fourteenth Amendment
When I took constitutional law classes in college, and again in law school, the professors made it a point to teach that the Second Amendment “does not apply to the states.” They made sure to inform you of that fact.And for most of our history, that has been the position of the judiciary. However, that changed with the U.S. Supreme Court case of McDonald v. Chicago, 561 U.S. 742 (2010), which officially issued the holding that the Second Amendment applies, not only to the federal government, but also to the states. In other words, it restricts the state governments, and their political subdivisions, from some level of interference with the right to own and/or possess a gun.
Thus, much of the body of constitutional law created in the 20th century, and in recent years, technically runs through the Fourteenth Amendment. It’s confusing, but such was the holding of McDonald. Through the ratification of the Fourteenth Amendment, so did the Second Amendment then apply to restrict the states, just as Congress was initially restricted.The important result here, is that all those professors were wrong – though no doubt they very much want Heller reversed by some future version of the Court. Of course the Second Amendment applies to individuals.If states can’t violate the Fourth Amendment, it would be completely illogical to argue that states can violate the Second. Political ideology should be irrelevant to Constitutional interpretation, but it’s not.
McDonald specifically rejected the view that the Second Amendment “should be singled out for special–and specially unfavorable–treatment.” McDonald v. Chicago, 561 U.S. 742, 750 (2010). In addition, the Court also touched on the possible impact on States:As with any incorporated provision of the Bill of Rights, “The enshrinement of constitutional rights necessarily takes certain policy choices off the table [for States].”Id., 561 U.S. 742, 790.
But restrictions will still be allowed
Legislatures can still enact restrictions on firearms inside the home, as illustrated by the Fourth Circuit allowing the “assault weapon” ban in Maryland, or as in the case of persons prohibited by virtue of being a felon, etc., which were unaffected by Heller, and which have been upheld many times. SeeKolbe v.Hogan, 849 F.3d 114, 131-132 (4th Cir. 2017) (Upholding the MD ban) And if the Supreme Court does end up extending the Second Amendment beyond the home, restrictions are still going to be viable, depending on the analysis adopted by any such opinion. An actual Second Amendment analysis gets really confusing, and is beyond the scope of this post. But read the Kolbe decision and you’ll get the gist of how it can go.
Terry v. Ohio and the “Terry Search”
Perhaps the main collision between the Second Amendment and the Fourth, is one of the most famous cases of the 20th century, and probably the one case that any police officer in the United States can quote, in parts, verbatim: Terry v. Ohio, 392 U.S. 1 (1968). Terry was a 1968 Supreme Court case which came down during the tenure of Chief Justice Earl Warren. Professor Broughton discussed some interesting background on the case in his law review article, which provides context – both in why it was decided the way it was, and why it perhaps should now be sufficiently reigned in.
Terry provides the foundation for the often-used “Terry Search,” which is generally-speaking, when a police officer can make a limited search of a subject he is interacting with, where the subject isn’t yet under arrest necessarily, where probable cause for arrest has not been established, but where there’s some legitimate danger that the subject could be armed and dangerous to the police officer.
This is sometimes referred to as a “Terry Frisk,” or even a “Terry Sweep.” There’s a mountain of caselaw since 1968, from the Supreme Court, every federal circuit, and every state in the land, interpreting just what Terry means, and what it allows; and what it doesn’t allow. As Jeffrey Bellin points out in The Right to Remain Armed, at p. 11, 93 WASH. U. L. REV. 1, 18–21 (2015) it’s a subjective field:
Police often detect guns through public observation. Officers patrol the streets alert to signs of gun possession, such as bulges under clothing or protruding handles. The late Jack Maple, a key Bratton deputy, describes in his memoir how he taught himself to “spot people carrying guns” so he could “save a few lives” by getting the guns off the street. Maple explained the “drill” as follows: after seeing a suspicious bulge, he would make his “first move by grabbing the handle of [the suspect’s] gun. [The suspect] freezes and usually obeys an order to put his hands on his head. If he doesn’t, my hold on his gun and waistband put him off-balance, so I can spin him around and get cuffs on him anyway., Maple bragged that as a patrol officer, he would “stop two or three people a day who were carrying concealed weapons.’
The Courts Continue to Extend Terry, While Red States Continue to Liberalize Gun Rights
Recent federal appellate opinions from the lower federal courts, especially one from the Fourth Circuit, which we’ll discuss, have created an anxious uncertainty about where the Terry line of judicial law is headed in the future. This is “unknown, and unknowable,” given the nationwide trend of liberalization of gun laws of pretty much every “reddish” state in the country – especially West Virginia. Courts are beginning to clash with state legislatures in the levels of trust and freedom they’re willing to grant presumptively law-abiding citizens.
Ideally, Terry’s direction ought to head towards the “liberalization” of individual freedom and liberty, along with gun rights, in the states who’s legislatures are choosing to do so.Those states, and their citizens, such as West Virginia, where “Mountaineers are Always Free” (Montani Semperi Liberi– the State Motto), understand that such trust and freedom was the intention of the Founders in creating and ratifying the Second Amendment.
The Founders wanted to ensure that the citizens of the states would not be infringed from possession of arms by the federal government. The perceived problem at that time was federal tyranny. Why would the states give up their sovereign status, protected by their citizens via militia membership, and join this federal government, if the federal government could disarm them and have their way with them thereafter?
The Fourth Amendment White-Knight’s the Second Amendment
Since the Second Amendment itself doesn’t extend beyond the home, if at all, in the eyes of the judiciary, you’re generally only going to be protected by the Fourth Amendment, when in possession of a firearm outside the home. If you leave your house with a gun, whether walking, or driving, and whether carrying a firearm concealed, or carrying a firearm openly, the only real protection available is the Fourth Amendment. The prohibition against unreasonable searches and seizures. Like the Second Amendment, the strongest protections under the Fourth Amendment apply in the home, where generally, even from English common law, a man’s home is his castle. This is the origin of the so-called “Castle Doctrine” statutes which were enacted throughout the country in recent years.
In the Home: No Warrant? Presumptively Illegal
Searches and seizures which take place in a person’s home are presumptively unreasonable, which means they are illegal by default according to the Fourth Amendment. On the other hand, outside a person’s home, Fourth Amendment protections only apply where there is a “reasonable expectation of privacy.” See, e.g., United States v. Castellanos, 716 F.3d 828 (4th Cir. 2013) (Generally no reasonable expectation of privacy in property that is held by a third party).
Outside the Home: No Warrant? No Need unless REP
To the contrary, the U.S. Supreme Court has found that no presumption exists outside the home, because a person does not have a reasonable expectation of privacy for most “places” outside one’s own home. These unprotected “places” include bank accounts (United States v. Miller, 425 U.S. 435 (1976)), curbside trash (California v. Greenwood, 486 U.S. 35 (1988)), “open fields,” surrounding one’s home (Oliver v. United States, 466 U.S. 170 (1984)), and so on.
However, use of police dogs to investigate a home and its immediate surroundings is a search under the Fourth Amendment. Florida v. Jardines, 133 S. Ct. 1409 (2013). As does GPS surveillance of a vehicle traveling on public roads. U.S. v. Jones, 132 S.Ct. 945 (2012). Future changes are likely in the areas of cell phones, emails, tablets, and other similar devices. Changes are also likely in the area of videotaping police officers in public areas.
Outside the home, you generally aren’t dealing with search warrants, though you may have arrest warrants.In public places, you’re mostly dealing with “reasonable suspicion” and “probable cause.” Reasonable suspicion is the standard which is required to be met before a police officer can initiate a stop.
What is Reasonable Suspicion? First answer whether you’re in a car, or walking down the street….
A “stop” could be a traffic stop, or it could be a “detention” on the street, or some type of pedestrian encounter. It’s not easy to define what reasonable suspicion is, but you generally see these two scenarios. Either you have a traffic stop of a vehicle, or you have a pedestrian encounter. Both occur in public – so outside the highly protected castle of the Fourth Amendment, the home. Both contain very low protections for the individual, and have very high degrees of power to the police.
Gun rights are mostly a conglomerate of hundreds, if not thousands, of criminal prosecutions, analyzing motions to suppress what are alleged to be illegal searches and/or seizures
Each of these scenarios has vastly different consequences for gun rights. And each of these bring hundreds, if not thousands of different cases, around the country, and within states, describing what police officers can do, and what they cannot do, based on different factual circumstances. Many of those pertain to firearms.And almost none of them are going to discuss the Second Amendment itself. But they do generally involve the concept of being armed for the purpose of self defense – really the central component of the Second Amendment.
IMPORTANT FEDERAL CASES ON GUN RIGHTS OUTSIDE OF THE HOME:
U.S. v. Robinson (2017): a Fourth Circuit case holding that being an occupant in a car, with a gun, makes you “armed and dangerous” as a matter of law
We can really skip ahead a few decades in the endless litigation of reasonable suspicion and Terry v. Ohio and arrive at the current predicament upon which we’ve arrived. In 2017, the Fourth Circuit took a giant chunk out of gun rights, by issuing the “en banc” opinion (which means the entire court of appellate judges on the Fourth Circuit, rather than the usual random three judge panel) of U.S. v. Robinson, 846 F.3d 694 (4th Cir. 2017) (en banc).
The majority opinion concluded categorically that the presence of a firearm on a subject, or within reach of the subject, makes that person dangerous, by virtue of being armed with a dangerous weapon. This applies objectively, and does not require any articulable facts by the police officer of some other reason why the person was dangerous. Robinson, 846 F.3d at 699. This is also one of those cases where the separate opinions are perhaps just as important as the majority opinion. For West Virginians specifically, and probably those in North Carolina, Judge Black specifically discusses in his dissent, the potential danger of the majority’s reasoning for Fourth Amendment violations in open carry states:
In my view, states have every right to address these pressing safety concerns with generally applicable and evenhanded laws imposing modest burdens on all citizens who choose to arm themselves in public. For instance, many states—though not West Virginia— seek to reconcile police safety and a right to public carry through “duty to inform” laws, requiring any individual carrying a weapon to so inform the police whenever he or she is stopped,4 or in response to police queries.And if a person fails to disclose a suspected weapon to the police as required by state law, then that failure itself may give rise to a reasonable suspicion of dangerousness, justifying a protective frisk.
West Virginia, however, has taken a different approach, permitting concealed carry without the need for disclosure or temporary disarmament during traffic stops. For the reasons described above, I do not believe we may deem inherently “dangerous” any West Virginia citizen stopped for a routine traffic violation, on the sole ground that he is thought to have availed himself fully of those state-law rights to gun possession.
Nor, in my view, does the Fourth Amendment allow for a regime in which the safety risks of a policy like West Virginia’s are mitigated by selective and discretionary police spot-checks and frisks of certain legally armed citizens, by way of pretextual stops or otherwise. Cf.Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (invalidating discretionary spot-checks of drivers for licenses and registrations in furtherance of roadway safety). Absent some “specific, articulable suspicion of danger” in a particular case, seeUnited States v. Sakyi, 160 F.3d 164, 168–69 (4th Cir. 1998), West Virginia’s citizens, including its police officers, must trust their state’s considered judgment that the benefits of its approach to public gun possession outweigh the risks. SeeNorthrup, 785 F.3d at 1133. . . .
That is particularly so given that West Virginia does not require that people carrying firearms inform the police of their guns during traffic or other stops, even if asked. See supra at 50. Where a state has decided that gun owners have a right to carry concealed weapons without so informing the police, gun owners should not be subjected to frisks because they stand on their rights. Cf.Northrup, 785 F.3d at 1132 (“impropriety” of officer’s demand to see permit for gun being brandished in public is “particularly acute” where state has not only legalized open carry of firearms but also “does not require gun owners to produce or even carry their licenses for inquiring officers”). Under a different legal regime, different inferences could be drawn from a failure to answer an officer’s question about a gun. See [Northrup] at 50–11. But I do not think we may presume dangerousness from a failure to waive—quickly enough—a state-conferred right to conceal a weapon during a police encounter.
Again, I recognize that expanded rights to openly carry or conceal guns in public will engender genuine safety concerns on the part of police officers, as well as other citizens, who more often will find themselves confronting individuals who may be armed.
But where a sovereign state has made the judgment that its citizens safely may arm themselves in public, I do not believe we may presume that public gun possession gives rise to a reasonable suspicion of dangerousness, no matter what the neighborhood. And because the rest of the circumstances surrounding this otherwise unremarkable traffic stop do not add appreciably to the reasonable suspicion calculus, I must conclude that the police were without authority to frisk Robinson under Terry’s “armed and dangerous” standard.
United States v. Robinson, 846 F.3d 694, 714, 716 (2017) (emphasis added).
The reality: less gun rights in a car; more as a pedestrian.
The result is, if you are in possession of a firearm inside a vehicle, and therefore subject to a traffic stop, you can be subjected to a Terry search, and disarmed, even if you did nothing wrong at all, assuming it was a legal traffic stop in the first place.And of course, assuming the officer has knowledge that you’re armed. To the contrary, when in public, but not inside a vehicle, it’s not going to be as easy to find yourself in a situation where you are “seized” by a police officer, and thus not free to go, prior to the officer obtaining knowledge that you’re armed.Moreover, the holding of U.S. v. Robinson did not extend to pedestrian encounters. So a pedestrian, as of now, is still controlled under the 2013 holding of U.S. v. Black, another Fourth Circuit opinion, which protects the open carry of firearms in open carry states.
United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013).
Writing for the Fourth Circuit in United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013), Judge Gregory wrote that:
Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states. United States v. King, 990 F.2d 1552, 1559 (10th Cir.1993) (emphasis added). Here, Troupe’s lawful display of his lawfully possessed firearm cannot be the justification for Troupe’s detention. SeeSt. John v. McColley, 653 F.Supp.2d 1155, 1161 (D.N.M.2009) (finding no reasonable suspicion where the plaintiff arrived at a movie theater openly carrying a holstered handgun, an act which is legal in the State of New Mexico.) That the officer had never seen anyone in this particular division openly carry a weapon also fails to justify reasonable suspicion. From our understanding of the laws of North Carolina, its laws apply uniformly and without exception in every single division, and every part of the state. Thus, the officer’s observation is irrational and fails to give rise to reasonable suspicion. To hold otherwise would be to give the judicial imprimatur to the dichotomy in the intrusion of constitutional protections.
Northrup v. City of Toledo Police Department,(6th Cir. 2015): a non-categorical, individual-specific Terry stop
Between Black and Robinson, the Sixth Circuit issued the opinion in Northrup v. City of Toledo Police Department, 785 F.3d 1128 (6th Cir. 2015), which completely rejected the categorical method adopted by the majority in Robinson, and instead applied an individual and particularized approach of distinguishing between one who is “armed,” and one who is “dangerous,” based on the actual facts of the situation. The case involved a man going for a walk with his wife, daughter, grandson, while walking a dog, and while armed with a handgun openly carried on his hip. During the walk, there was a verbal altercation of sorts with a passerby, who told Mr. Northup, “you can’t walk around with a gun like that,” and who then called 911 to report the gun being openly carried by Mr. Northup.
When the case eventually made its way to the Sixth Circuit, Judge Sutton wrote an opinion highly supportive of individual liberty in the open carry context. In response to the officer’s alleged fear that Mr. Northrup could have started suddenly shooting people, which I’ve commonly encountered in my practice, Judge Sutton wrote that the officer should have engaged Mr. Northrup in a conversation before determining whether he was dangerous. He wrote that absent reasonable suspicion of Mr. Northrup being dangerous, the officer’s fear, or “hope” that Mr. Northrup wouldn’t start shooting, “remains another word for the trust that Ohioans have placed in their State’s approach to gun licensure and gun possession: “[W]hile open carry laws may put police officers (and some motorcyclists) in awkward situations from time to time, the Ohio legislature has decided its citizens may be entrusted with firearms on public streets.
United States v. Leo: a Seventh Circuit restriction on gun searches
A police officer in Racine, Wisconsin, was driving an unmarked car when he spotted two young men in black hoodies standing on the sidewalk. As he drove by, he saw the men running into the yard of a nearby duplex. Shortly after this, the police officer heard the dispatcher relay that a 911 call was received, reporting a suspected burglary in process in the exact duplex unit he had last seen one of the suspects.The description of the suspects described the suspects as “two Hispanic men wearing black hoodies, one of them with a gun, possibly a revolver.” The dispatcher also relayed that the 911 caller had also reported an unmarked police car pass by. United States v. Leo, 792 F.3d 742 (7th Cir. 2015).
Police later stopped Mr. Leo after he left, heading towards a local Head Start program. He was handcuffed, and having information there would be a gun in the backpack, the backpack was searched, where drugs, as well as the firearm, were found. The purported justification was a search under Terry. However, since the gun was suspected to be in the backpack, and since it was no longer accessible to Mr. Leo, who was handcuffed, was there justification under Terry?
The officers, or at least their lawyers, also argued that Mr. Leo was heading towards the Head Start school with a gun, which justified the backpack search. However, the Seventh Circuit noted that the Head Start program was not a “school” under Wisconsin law, and as such, carrying a gun there wouldn’t have been a violation of federal or state “gun-free school zone laws.” Moreover, the concealed carry laws in Wisconsin limits the rights of convicted felons or persons under the age of twenty one. However, the officers did not know Leo’s age or criminal history – nor did they inquire.
The Court noted that Seventh Circuit precedent permits public carry of a firearm, pursuant to the Second Amendment. Therefore, the Court rejected the officers’ justification for the search, without a sufficient articulation of probable cause. The Court held that the liberalization of state gun laws, along with Heller and McDonald, required probable cause before searching Mr. Leo:
[C]onsidering thee important developments in Second Amendment law together with Wisconsin’s gun laws,” the court was compelled to reject the Government’s justification for search without establishing probable cause.
Broughton, at 394 Danger at the Intersection of Second and Fourth, from the Idaho Law Review, September 2018.
Florida v. J.L., 529 U.S. 266, 272 (2000)
The U.S. Supreme Court declined to recognize a “firearm exception” to the requirements justifying a Terry search in a case dealing with an anonymous tip alleging an illegal gun would be found on the target of the anonymous tip. The Court’s reasoning was grounded upon the reliability inquiries attending anonymous tips, rather than the issue of whether the mere possession of a firearm alone can establish a per se basis for an investigative detention.
A second major argument advanced by Florida and the United States as amicus is, in essence, that the standard Terry analysis should be modified to license a ‘firearm exception.’ . . . We decline to adopt this position.
SeeJ.L., 529 U.S. 266, 272 (2000)
United States v. Ubiles, 224 F.3d 213 (3d Cir. 2000)
Another anonymous tip case, from the Third Circuit, arising out of the Virgin Islands. An anonymous tip was received that Mr. Ubiles possessed a firearm at a public event, but there was no indication or information that he was engaged in, nor planning to engage in, illegal activity. The Court held that mere possession of a lawful object does not entitle a police officer to infer criminal activity in the absence of reasonable, articulable suspicion. Ubiles at 218.
The Court analogized the situation to the lawful possession of a wallet. The wallet may, or may not, contain counterfeit bills. The mere possibility of it having counterfeit bills, likewise would not entitle a police officer to infer their presence in the wallet.
Check out this new case. Police officer impersonation incident by a WV Division of Corrections CO / Parole officer. We met with investigators already, who were extremely concerned about what they saw here….
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.
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) (quotingUnited 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) (quotingUnited 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) (citingPennsylvania 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.
The Rosa O’Neal Fourth Amendment case against Braxton County, and Deputy Bryce Scarbro. This is an interesting case because it brings up what is commonly referred to as a “Franks Claim.”
In West Virginia, unless a warrantless arrest is made, that means that a police officer usually wrote out a “Criminal Complaint,” and submitted it to a magistrate for their approval. This is basically an affidavit for an arrest warrant. If the arrest was “wrongful,” you can’t sue the magistrate because they have absolute immunity. You can only sue the police officer who submitted the document to the magistrate.
If the magistrate approved it, then there is basically a presumption that there was probable cause, and therefore not a wrongful arrest. That leaves you in the position of proving that the officer who wrote the arrest warrant application included false statements, or material omissions, and that they did so with a certain degree of incompetency, or intentionally.
So generally, to sue for Wrongful Arrest in West Virginia:
If there was no arrest warrant, you can just prove there was no probable cause;
If there was an arrest warrant (Criminal Complaint signed by a magistrate), then you are required to show false or misleading information was included in the affidavit to the magistrate which, had it been known to the magistrate, probably would not have been signed because there would have been no probable cause.
We are dealing with option No. 2, which isn’t easy. So, did the police officer mislead the magistrate, and was it just a stupid or reasonable mistake, or was it really incompetent and/or done maliciously or purposefully?
Rosa O’Neal was a 66 year old lady who had never been in trouble in her life, who was physically arrested for allegedly lying to a deputy about two fairly innocuous facts. She spent 15 hours in jail, and then was released onto the side of the road to hitchhike home.
I took the deputy’s deposition, and he claimed that it is always illegal to lie to a deputy in West Virginia, and because he’s Mr. Truth and Justice, and had her arrested. That’s just not true. It’s only illegal to lie to a deputy if it pertains to a material topic for an official felony investigation. It’s not illegal to lie about a misdemeanor investigation, per se. And it’s not illegal to lie about something irrelevant; or about something that’s not part of an investigation….
Lies to a police officer in West Virginia? Depends on what the officer is investigating:
Felony Investigation: A person who, with intent to impede or obstruct a law-enforcement officer in the conduct of an investigation of a felony offense, knowingly and willfully makes a materially false statement is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $25 nor more than $200, or confined in jail for five days, or both fined and confined. The provisions of this section do not apply to statements made by a spouse, parent, stepparent, grandparent, sibling, half sibling, child, stepchild or grandchild, whether related by blood or marriage, of the person under investigation. Statements made by the person under investigation may not be used as the basis for prosecution under this subsection. For purposes of this subsection, “law-enforcement officer“ does not include a watchman, a member of the West Virginia State Police or college security personnel who is not a certified law-enforcement officer.
Misdemeanor Investigation: A person who by threats, menaces, acts or otherwise forcibly or illegally hinders or obstructs or attempts to hinder or obstruct a law-enforcement officer, probation officer or parole officer acting in his or her official capacity is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $500 or confined in jail not more than one year, or both fined and confined.
So option 2 is your basic obstruction. It actually doesn’t say anything about lying.
Anyways, discovery was completed in the O’Neal case. Depositions were taken, and everything has been submitted to the federal judge, who will decide whether the evidence is sufficient to present to a jury…..