Join me at 7pm Live – The SCOTUS issued an opinion today protecting the sanctity of the Fourth Amendment protections of the home, which also served as an anti-red-flag ruling, restricting the police from performing warrantless searches of homes to seize firearms.
This is just in time for recent updates on two of our search and seizure cases with the same or similar issues: the Putnam County drug task force search case and the WV Family Court Judge Search case.
Yesterday afternoon, the West Virginia Supreme Court of Appeals clerk’s office released the Formal Statement of Charges against Raleigh County, West Virginia Family Court Judge Louise E. Goldston – a 26 year Family Court judge. This is the judge caught on video searching the home of my client, Matt Gibson – threatening him with arrest if he didn’t allow her in. Here’s the post with the original video, as well as the update video, if you haven’t seen it. The charges state that on March 11, 2020, investigators opened a complaint, and that a subsequently second complaint was filed by my client, Matt Gibson.
For reference, I originally uploaded the video of the judge searching Matt’s property on March 10 – the day before the inception of the opening of the investigation. The video quickly went viral, and by the next day an investigation had essentially opened itself. In other words, the power of Youtube is great. In one day, it found its way into the eyeballs of the Judicial Investigation Commission, the only folks with the power to lodge judicial disciplinary charges against judges in West Virginia.
The Supreme Court of Appeals of West Virginia established the Judicial Investigation Commission to determine whether probable cause exists to formally charge a judge with a violation of the Code of Judicial Conduct, to govern the ethical conduct of judges and to determine if a judge, because of advancing years and attendant physical and mental incapacity, should not continue to serve.
If you want to report what you believe is judicial misconduct, or a civil rights violations committed by a judge, anyone can file a complaint with the JIC. Here’s the complaint form.
Any person may file an ethics complaint against a judge. However, a complaint that is filed more than two (2) years after the complainant knew, or in the exercise of reasonable diligence should have known, of the existence of a violation of the Code of Judicial Conduct may be dismissed for exceeding the statute of limitations.
Then, even though covid hit, the investigation apparently proceeded, and 6 months later the charges dropped (which was yesterday, 10/2/20). I just happened to be traveling when the charges came out, so it wasn’t really until this morning that I was able to digest them.The Formal Statement of Charges alleges that:
FAMILY COURT JUDGE GOLDSTON violated Rule 1.1 (compliance with the law), Rule 1.2 (confidence in the judiciary), Rule 1.3 (avoiding abuse of prestige of office), Rule 2.2 (impartiality and fairness), Rule 2.4(B) (external influences), Rule 2.5 (competence, diligence and cooperation) and Rule 3.1(A), (B), (D) (extrajudicial activities in general) of the Code of Judicial Conduct….
In other words, the JIC concluded that the judge failed to comply with the law, committed actions which undermines confidence in the judiciary,abused the prestige of her office, was impartial and unfair, allowed external influences on her actions, was incompetent, un-diligent (is that a word?) and uncooperative, and engaged in extrajudicial activities. According to the charges, these home “visits” (searches) have been going on “over the past twenty years.”
Over the past twenty years as a Family Court Judge, Respondent has been engaging in the practice of visiting homes of litigants appearing in front of her. Respondent went to the litigants’ homes to either determine if certain disputed marital property was present and/or to supervise the transfer of disputed property. Respondent admitted to conducting these home visits in her capacity as a Family Court Judge on eleven separate occasions in different cases.
In every instance except Mr. Gibson’s case, all of Respondent’s home visits were prompted by a motion by a litigant’s attorney and not objected to by the opposing party and will full knowledge of the purpose therein. Most of the Respondent’s home visits occurred during a court hearing in the case. A party’s attorney would move the Court to leave directly from the bench and accompany the parties to the home. After granting the motion, Respondent would meet the parties at the home.
The JIC interviewed the judge and asked her what authority she had to engage in this practice:
On July 22, 2020, Judicial Disciplinary Counsel took Respondent’s sworn statement. Respondent admitted that she failed to inform Mr. Gibson of the purpose of the home visit while the parties were in the courtroom and that she did not give him any opportunity to object thereto until everyone was at his house.
Respondent opined that she believed it was proper to visit litigants’ homes. Respondent likened the practice to a jury view or similar continuation of the court proceeding and stated that as a finder of fact it was necessary to determine whether a party could be held in contempt for not turning over personal property as previously ordered by the Court.
When asked, Respondent could provide no statute, rule or case that gave her the authority to conduct home visits. Respondent also acknowledged that there was nothing in the contempt powers that gave her the authority to conduct a home visit. Respondent confessed that she never held anyone in contempt prior to going to the home and that she failed to enter any order subsequent to the visit reflecting what had happened at the residence, whether any items had been secured and/or whether or not a party was in contempt.
I was absolutely correct when I first reviewed the video. There was no legal basis upon which a judge could search a home as was portrayed in the video. The fact that this judge had been doing it for the past 20 years, was not itself justification. Instead, this sobering fact proves that many former Family Court litigants are absolutely correct when they rant about corruption and unlawfulness. Over the past 20 years, at least 10 other victims have been subjected to this in this judge’s “courtroom,” subjected to unlawful “home visits” upon the motion of an attorney, and without objection from any other attorney.
I wonder how many of these visits involved this one particular attorney involved in this video? After all, it was this attorney who left a voice message for Mr. Gibson the night before the search, offering $5,000 in exchange for foregoing what would essentially be a Family Court anal probing:
This whole thing reeks to me, and sounds a lot like a “pay to play” style judicial experience. Had he paid 5 grand, he could have avoided being lucky number 11? Time will tell, hopefully. Roots run deep in a 20 year period inside one particular court. Perhaps this had something to do with a local Family Court attorney going on TV following my initial TV appearance with my client, to say that I was wrong, and that “home visits” were a perfectly legal Family Court practice. Yeah, okay…..
BECKLEY, WV (WOAY) – UPDATE: On Thursday, we ran a story about a Raleigh County man involved in a contempt case after a finalized divorce whose recording of a family court judge went viral. Matt Gibson claimed the search of his home was against his 4th Amendment rights. Because the judge and the opposing attorney cannot comment on ongoing litigation, local family attorney [let’s call him JOHN DOE] is speaking out saying Judge Louise Goldston was doing her job and doing it legally.
“What I think is most important to know about this is when you see a video on YouTube, when you see a Terry search, when you see something and immediately it doesn’t match what we’ve always seen on television that doesn’t make it wrong,” he said. “Because they didn’t do it that way on Law and Order doesn’t mean that a judge that has decades of experience is breaking the law.”
It looks like I was right, and he was wrong. So, he said the judge wasn’t allowed to respond, so he was responding on her behalf? Why is that, I wonder? That’s a rhetorical question, of course. Is he saying that she asked him to respond and defend her publicly? Another good point that the JIC makes in the statement of charges, is that if the judge, and her local family court lawyers, are going to characterize her actions as a lawful component of a judicial proceeding, then they have some issues to consider:
Respondent admitted that she never had any clear or written procedures for conducting a home visit, including but not limited to, when the proceeding should be utilized and how the process should take place. She also acknowledged that she never took a court reporter to the scene.
Upon reflection, Respondent agreed that the practice could make her a potential witness to a future proceeding which could then result in her disqualification. Respondent further agreed that family court judges run the risk of disqualification if he/she were to become a witness in a subsequent proceeding pertaining thereto.
Respondent also agreed that the burden of proof in a contempt proceeding rests not with the Family Court Judge but with the moving party. She agreed that it is the moving party’s responsibility to provide evidence in support of his/her contention that the other side has failed to produce the items in question. Respondent admitted to improperly putting herself into the role of litigant.
Like I said during the TV interview, the reason I’ve never heard people complain about having their homes searched by judges before, is because that’s not what judge do – judges don’t search homes. This judge was acting in the role of a litigant. So it was basically like Trump debating both Biden and Chris Wallace in the first presidential debate. That’s not how it’s supposed to work. The opposing attorney is supposed to submit evidence and prove his case. Here you had a judge doing both of these things, and then engaging in an unlawful search of one party’s home, on behalf of the other party. Why? That’s yet another rhetorical question of course. If the other 10 victims were represented by lawyers, why didn’t they object?
And then there’s the 800 pound gorilla in the room: the Sheriff’s Department assisting the judge in these actions. On how many of these 10 other searches were they present? The statement of charges also notes that the bailiff (a sheriff’s deputy) forced Mr. Gibson to stop his recording, and that he himself started to record what happened inside the home:
Upon Respondent’s arrival at Mr. Gibson’s property, Mr. Gibson had a bystander video record the initial interactions outside the house between Respondent and the parties. Mr. Gibson also secretly recorded several minutes of audio of the initial interaction on his cell phone.
When the video and audio recording were discovered by Respondent, she ordered both recordings stopped. However, once inside the house, Respondent’s bailiff used his phone to record both video and audio of the separation of marital assets.
Where is this video, and why hasn’t it been produced? I heard through the grapevine, that following my initial uploading of the Youtube video, that the Sheriff of that county sent around a memo to the effect of, “no more going anywhere with a judge….” Of course, the JIC doesn’t investigate law enforcement, nor discipline them. You might find this shocking, but there is no state agency or commission which investigates law enforcement officers in the way that judges, and even lawyers, are investigated (there’s a pending disciplinary complaint against the lawyer who was involved here as well).
The only consistent investigator of law enforcement misconduct in West Virginia is me, sadly. Those who were involved in the search of my client’s house will be explaining their actions. I can’t put people in jail, nor discipline them, so we’ve pretty much come full circle. I have to demand money damages for my client, and they’ll have the opportunity to avoid what’s coming their way. It ain’t pretty, but that’s the relief available. Unless someone wants to deputize me as a special federal prosecutor or something…..
You may have seen this video footage going around the internet. There was a 2018 Fourth Circuit (WV, VA, NC, SC, MD) case finding the handcuffing of a 10 year old boy, who was compliant, unconstitutional.
So what about a 6 year old who was allegedly non-compliant?
In E.W. v. Dolgos, 884 F.3d 172 (4th Cir. 2018), the Fourth Circuit looked at a claim of excessive force by an officer, against a student. Excessive force questions generally also fall under the Fourth Amendment, except in cases of pretrial detainees (arrestees) and prisoners. In E.W., a ten year old was questioned in school by a police officer, about a fight on the bus with other students, which had occurred three days earlier. The officer viewed the footage, and then had a closed door meeting with the child and two school administrators. During the meeting, the police officer handcuffed the 4’4”, 95 pound child, supposedly for his own safety, and that of the other administrators. The officer himself was 5’5” and 155 pounds. After being handcuffed for about 2 minutes, the child cried and apologized. Subsequently the child’s family filed suit.
(ETA: My video:)
The Court then went through the usual excessive force analysis, which are commonly known as the “Graham Factors.” These are the same factors which are analyzed in every Fourth Amendment excessive force case involving people who are not pretrial detainees. So basically, anyone on the street, or who is “being” arrested. At some point following an arrest, an arrestee becomes a “pretrial detainee,” in which case the analysis changes somewhat.
There arethree factors to the “Graham Factors”:
1. “the severity of the crime at issue;
2. whether the suspect poses an immediate threat to the safety of the officers or others,
3. and whether he is actively resisting arrest or attempting to evade arrest by flight.”
Graham, 490 U.S. at 396, 109 S.Ct. 1865.
But these factors are not “exclusive,” and we may identify other “objective circumstances potentially relevant to a determination of excessive force.” Kingsley v. Hendrickson, ––– U.S. ––––, 135 S.Ct. 2466 2473, 192 L.Ed.2d 416 (2015). Here, we believe it prudent to consider also the suspect’s age and the school context. The ultimate “question [is] whether the totality of the circumstances justified a particular sort of … seizure.” Jones , 325 F.3d at 527–28.
In E.W., the Court wasn’t happy with the decision to handcuff a compliant 10 year old:
In Brown v. Gilmore , we stated that “a standard procedure such as handcuffing would rarely constitute excessive force where the officers were justified … in effecting the underlying arrest.” 278 F.3d 362, 369 (4th Cir. 2002). There, the plaintiff brought an excessive force claim based on allegations that a police officer had handcuffed her, causing her wrists to swell, dragged her to the police cruiser, and then pulled her into the vehicle. Id. at 365–66, 369. We found that the circumstances justified the “minimal level of force applied” because, as the officer approached a crowded scene on the street, he attempted to arrest the plaintiff for failure to follow another officer’s orders to move her car. Id. at 369. We stated that it was not “unreasonable for the officers to believe that a suspect who had already disobeyed one direct order would balk at being arrested. Handcuffing [the plaintiff] and escorting her to a police vehicle was thus reasonable under the circumstances.” Id.
The circumstances in this case are markedly different from those in Brown . We are not considering the typical arrest of an adult (or even a teenager) or the arrest of an uncooperative person engaged in or believed to be engaged in criminal activity. Rather, we have a calm, compliant ten-year-old being handcuffed on school grounds because she hit another student during a fight several days prior. These considerations, evaluated under the Graham framework, demonstrate that Dolgos’s decision to handcuff E.W. was unreasonable.
E.W. v. Dolgos, 884 F.3d 172, 180 (4th Cir. 2018).
The Court supported its conclusion by pointing to other courts around the country, who have recognized that youth is an important consideration when deciding to use handcuffs during an arrest.
The Ninth Circuit, applying the Graham factors, held that officers who handcuffed an eleven-year-old child used excessive force. Tekle v. United States , 511 F.3d 839, 846 (9th Cir. 2007) (“He was cooperative and unarmed and, most importantly, he was eleven years old.”); see alsoIkerd v. Blair , 101 F.3d 430, 435 (5th Cir. 1996) (holding that officer used excessive force against ten-year-old girl under Graham analysis). In addition, the Eleventh Circuit has held that “handcuffing was excessively intrusive given [the arrestee’s] young age.” Gray ex rel. Alexander v. Bostic , 458 F.3d 1295, 1300–01, 1306 (11th Cir. 2006) (denying qualified immunity to SRO who handcuffed nine-year-old student for five minutes). Several district courts have similarly held that young age is a “uniquely” or “highly relevant” consideration under Graham . See Kenton II , 2017 WL 4545231, at *9 (holding that handcuffing eight-year-old child violated constitution); Hoskins v. Cumberland Cty. Bd. of Educ., No. 13-15, 2014 WL 7238621, at *7, 11 (M.D. Tenn. Dec. 17, 2014) (noting that eight-year-old student “was a startlingly young child to be handcuffed”); see alsoJames v. Frederick Cty. Pub. Sch., 441 F.Supp.2d 755, 757, 759 (D. Md. 2006) (concluding that handcuffing eight-year-old child suggested excessive force). Here, E.W. was only ten years old at the time of the arrest. She therefore falls squarely within the tender age range for which the use of handcuffs is excessive absent exceptional circumstances.
Even though the Fourth Circuit found an excessive force civil rights violation under the facts presented in E.W. v. Dolgos, given that none of the lawyers or judges involved found prior legal precedent sufficiently similar to the conduct involved, the Court granted qualified immunity to the police officer, but warned that “our excessive force holding is clearly established for any future qualified immunity cases involving similar circumstances. Id., 884 F.3d at 187.
What that means, is that all police officers in the Fourth Circuit are now “on notice” that if they handcuff a small child without reasonable cause, they will not be granted immunity from civil damages. This handcuffing, however, occurred in Florida, and not in the Fourth Circuit. Florida is a member of the Eleventh Circuit, based out of Atlanta. One of the cases cited by the Fourth Circuit in E.W. was an Eleventh Circuit case: Gray ex rel. Alexander v. Bostic , 458 F.3d 1295, 1300–01, 1306 (11th Cir. 2006) (denying qualified immunity to SRO who handcuffed nine-year-old student for five minutes).
Somebody involved in that situation probably ought to go read that case now . . . .
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 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……