Michael Brewer spent 14 days in jail for a crime that was never even committed. He goes to a local gun store to buy a gun. The store employees run the routine NICS instant criminal background check, as per federal law. But there was apparently a mistake in Michael’s criminal record somewhere, making it look like he’s not allowed to possess, purchase, or even handle, a firearm. Days later he’s driving down the road and gets pulled over. He ends up getting arrested and going to jail. As he’s sitting in jail, his lawyer provides proof that they’ve made a mistake. But they ignore him.
Although the Second Amendment “right to possess and carry weapons in case of confrontation” is supposed to belong to all Americans, right now Adult Americans age 18-20 are excluded from the commercial market for handguns. They may vote, enter contracts, and marry. They are eligible to serve in the military and die for their country. And they have, obviously. But they are prohibited by the federal Government from purchasing handguns and handgun ammunition commercially. They can buy rifles or shotguns commercially, but not handguns, which according to the SCOTUS is “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family.” See McDonald v. City of Chicago (2010) (quoting Heller).
This week we filed a memorandum in support of our motion for summary judgment in the Second Amendment Foundation’s federal lawsuit against the ATF challenging the ban on sales of handguns to 18-21 year olds. Here’s the filing:
Following New York State Rifle & Pistol Ass’n, Inc. v. Bruen, if a law restricts conduct falling within the scope of the Second Amendment’s text, as the federal Government’s Handgun Ban does, that law is presumed invalid and can only be saved if the government demonstrates the existence of a “distinctly similar historical regulation” that burdened the right to bear arms in the same way and for the same reasons.
Of course, that doesn’t exist. At the time the Second Amendment was ratified, not only were there no laws in any state that purported to limit the rights of 18 to 20 year olds to purchase handguns for self defense, there were several laws enacted, including the Militia Acts of 1792, that required 18 year olds to buy and maintain firearms.
The correct historical period in examining the public’s understanding of the Right to Keep and Bear Arms is 1791. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” See Heller. The Second Amendment was adopted in 1791.The Government directs the Court to look at laws adopted in the late 19th century and beyond to justify their Handgun Ban. The Supreme Court has already made clear that 1791 is the appropriate period.
Even at the time that the Fourteenth Amendment was ratified, in 1868, only two states had a ban like the Handgun Bun and it would be another five years before another state adopted such a law. The ATF cannot point to any historical tradition that could justify the federal government’s attempt to deviate from the plain text of the Second Amendment. Therefore, we are asking the federal court to declare the federal Handgun Ban unconstitutional.
On February 21, 2018, Putnam County Sheriff’s Office Deputy B.E. Donahoe responded to a complaint relayed from the emergency dispatch center that someone had reported that there was an individual walking down the side of a public road while in possession of a firearm. The individual was the plaintiff, Michael Walker, who being a victim of epileptic seizures, does not have a driver’s license. He was headed coyote hunting, and had a rifle strapped over his back, along with a backpack. Deputy Donahoe brutally insulted Mr. Walker, who was being polite, but insisting that he had committed no crime, and therefore should not be stopped and forced to hand over his ID. Donahoe repeatedly called him a “c_cksucker” while forcibly detaining him and running a criminal background check on him and questioning him as to why he would need an AR-15. The incident was fully captured on video by Mr. Walker.
At the time Deputy Donahoe responded to the scene, he possessed no prior knowledge of Mr. Walker. All he knew about Mr. Walker is what he observed when he arrived at the scene, which was observing him walking down the side of the road. He didn’t recall who had called 911, or specifically what the complainant had stated, other than that there was a guy walking down the side of the road with a firearm. Upon arriving at the scene, he observed Mr. Walker walking down the side of the road with a rifle “strapped across his back,” with the muzzle of the gun pointed towards the sky.
Upon arriving at the scene, Mr. Donahoe did not observe Walker committing any criminal activity. Nor was he informed by any other source that any crime had been committed by any individual. Walker was just walking. Donahoe had no indication that Mr. Walker was a person prohibited from possessing a firearm. Donahoe testified that he did not observe Mr. Walker doing anything unsafe with the rifle strapped on his back; nor did he observe the rifle in Mr. Walker’s hands; nor did he observe Mr. Walker acting threatening in any way. His only reason for stopping Mr. Walker was to find out if he was a prohibited person.
As portrayed by video footage taken by Mr. Walker with his phone, the interaction was not consensual. Donahoe gave Mr. Walker “no choice” in the matter. He told him during the stop that he was not free to leave until he was done with his investigation. Donahoe explained that the only investigation he was undertaking at the time, to which Mr. Walker was forced to submit, was to run Mr. Walker’s criminal history report, in order to determine whether he “was a person that could possess a firearm.” Admittedly, he had no information indicating that Mr. Walker may have been a prohibited person.
The case is over. We lost. Compare the video footage of the encounter with the legal aftermath, from the trial court level, through appeal to the Fourth Circuit, oral arguments, and ending with a deeply flawed published Fourth Circuit opinion. This case demonstrates what I refer to as a Bermuda Triangle of civil rights law….
Here we are following the hearing at the U.S. District Court in Huntington, West Virginia.
The U.S. District Court granted summary judgment for the officer, dismissing the lawsuit filed by Michael Walker. The order essentially created a carve-out for AR-15 style rifles from the usual reasonable suspicion analysis:
Here, Walker’s possession of an AR-15-style rifle under these circumstances was unusual and alarming. Whereas possessing an AR-15 at a shooting range or on one’s own property would not raise an eyebrow, there was no obvious reason for the rifle’s possession here.
Unlike a holstered handgun, like that at issue in U.S. v. Black, AR-15s are not commonly carried for self-defense. 707 F.3d at 535. Nor are they traditionally used for hunting. Seeing Walker at 6:00 p.m. in February in an urban area would further diminish an inference that Walker possessed the rifle for hunting because the sun would soon set and hunting after dark is generally prohibited.
The rifle being uncased, ready to fire at a moment’s notice, and Walker’s camouflage pants also contributed to an unusual presentation of the firearm. See Embody, 695 F.3d at 581 (finding an openly carrying man’s military-style camouflage clothing contributed to reasonable suspicion); Deffert, 111 F. Supp. 3d at 809, 810 (holding the same).
The sight was unusual and startling enough to prompt a concerned citizen to dial 9-1-1 and for Donahoe, based on his practical experience, to investigate Walker’s destination. See Deffert, 111 F. Supp. 3d at 809 (holding an officer responding to a 9-1- 1 call about a man carrying a firearm, as opposed to randomly stopping the man, supports finding reasonable suspicion); Smiscik, 49 F. Supp. 3d at 499 (holding the same).
Together, these facts would form a particularized and objective basis for an investigatory stop.
In June of 2016 in Henry County, Georgia. Police sergeant Patrick Snook arrived at the wrong house and shot and killed the innocent homeowner, William David Powell, standing in his driveway. Sharon Powell, his wife, fled a federal civil rights lawsuit alleging excessive force against the officer. The Northern District of GA ultimately granted Summary Judgment in favor of the officer, granting him qualified immunity from standing trial in the civil case. She appealed to the 11th Circuit, which issued a published opinion on February 8. Here’s the full opinion, which you should read. Below I will post my takeaways and the basic law on police shootings.
(1) “has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others” or “that he has committed a crime involving the infliction or threatened infliction of serious physical harm;”
(2) reasonably believes that the use of deadly force was necessary to prevent es- cape; and
(3) has given some warning about the possible use of deadly force, if feasible.
This case focused on “Garner Factor” number 3. Is an officer required, as a bright line rule, to issue a warning prior to firing at a homeowner who appears with a gun? The Court held no. Only if “feasible.”
On the subject of warnings, we “have declined to fashion an inflexible rule that, in order to avoid civil liability, an officer must always warn his suspect before firing — particularly where such a warning might easily have cost the officer his life.” Penley, 605 F.3d at 854 n.6 (cleaned up); see also Carr v. Tatangelo, 338 F.3d 1259, 1269 n.19 (11th Cir. 2003). And the Supreme Court has instructed us that a plaintiff “cannot establish a Fourth Amendment violation based merely on bad tactics that result in a deadly confrontation that could have been avoided.” City & Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1777 (2015) (quotation marks omitted)…..
While it’s clear that in some circumstances an officer must warn before using deadly force where it’s feasible to do so, Garner, 471 U.S. at 11–12, decisions addressing how soon an officer is required to give a warning to an unarmed suspect do not clearly establish anything about whether or when a warning is required for armed suspects raising a firearm in the direction of an officer. See Garner, 471 U.S. at 4, 21 (unarmed teen burglary suspect); Perez, 809 F.3d at 1217 (unarmed man lying on his stomach); Lundgren, 814 F.2d at 603 n.1 (store owner who did not threaten the officer with a weapon). There is no obviously clear, any-reasonable-officer-would-know rule that when faced with the threat of deadly force, an officer must give an armed suspect a warning at the earliest possible moment. See White, 137 S. Ct. at 552 (concluding, where late-arriving officer shot armed suspect without giving a warning, it was not an obvious case under Garner’s general principles). Instead, what’s clearly established is that it “is reasonable, and therefore constitutionally permissible, for an officer to use deadly force when he has probable cause to believe that his own life is in peril.” Tillis v. Brown, 12 F.4th 1291, 1298 (11th Cir. 2021) (quotation marks omitted).
But see, Betton v. Belue, 942 F.3d 184 (4th Cir. 2019), from the Fourth Circuit, which was almost identical factually, but came out the other way. The difference? There was a factual dispute regarding whether the homeowner pointed the gun at the officer. That small detail probably made the difference, as the Court had to assume that the homeowner did not point the gun.
If Officer Belue or another officer had identified themselves as members of law enforcement, Officer Belue reasonably may have believed that Betton’s presence while holding a firearm posed a deadly threat to the officers. Cooper , 735 F.3d at 159 ; Elliott , 99 F.3d at 644. And had Betton disobeyed a command given by the officers, such as to drop his weapon or to “come out” with his hands raised, Officer Belue reasonably may have feared for his safety upon observing Betton holding a gun at his side. See, e.g. , Sigman v. Town of Chapel Hill , 161 F.3d 782 (4th Cir. 1998) (officer was justified in using deadly force after suspect failed to obey command to stop advancing toward officer while carrying a knife). However, under our precedent, Officer Belue’s failure to employ any of these protective measures rendered his use of force unreasonable.
Today we filed a federal Section 1983 civil rights lawsuit alleging multiple counts of civil rights violations related to allegations of excessive force which occurred during a “domestic disturbance” call involving my client, Melvin Sargent. Following a non-violent argument with his wife, deputies from the Mercer County Sheriff’s Department arrived at his home.
Due to the fact that he was open-carrying a pistol in a retention holster, as he usually did, and as he was legally entitled to do, Mr. Sargent went out of his way to raise his hands in the air and allow the officers to disarm him, following their arrival. However, as the complaint alleges, after being disarmed, he was punched in the face with a closed fist, and subjected to violence from there. His hand was boot-stomped, which resulted in a fractured hand.
After handcuffs were applied behind his back and placed in the rear of the police cruiser, his hand began to swell and cause severe pain. When he complained about the pain, the deputy violently pushed him and began punching him again. He then sprays pepper spray in his eyes for 3 to 5 seconds, and then shuts him inside the police cruiser. Afterwards the deputy walks over to Mr. Sargent’s significant other, who was filming video, where you can see his black armored knuckle gloves, covered with my client’s blood.
Closing arguments today in the Kyle Rittenhouse trial. Post-trial legal analysis, Live at 7pm ET. Also, the firearms possession count – count 6 – was dismissed by the judge prior to closing arguments beginning. The evidence is closed and attorneys for each side gets to make their arguments to the jury. Here’s my take…. Join me Live at 7:00 p.m. ET. Freedom is Scary – Ep. 83.
Some armchair legal quarterbacking following day 8 of the Kyle Rittenhouse self defense trial in Wisconsin. This is an important firearms related self defense case which illustrates the importance of attorney skill and tactics in jury trial advocacy. There’s been some surprising events so far in the trial, including the testimony of the defendant himself today. In fact, something shocking happened during Kyle’s cross examination which may itself be a constitutional violation. Join me to watch some of it and discuss…… Freedom is Scary Episode 80:
Here’s the Petition for Rehearing and Petition for Rehearing En Banc we filed yesterday in the Walker AR-15 open carry case, which will give effectively stay the case while the other judges on the Fourth Circuit have an opportunity to review our petition and consider whether to get involved.
If the Panel Opinion remains, Black is meaningless, because there will always be “more” available to any police officer. Even if an individual has violated no law, they will be subject to detainment based on any speculative crime which generally could be committed by any anonymous person. A man walking in the direction of any woman might be a rapist, given that he would appear to have the physical ability to carry out a rape. Any driver of a car heading in the direction of any other human being might be a potential murderer, because they appear to have the physical ability to run-over people, should they so choose. The analogies could go on and on because, like the Michael Walker case, these scenarios are all generalized, rather than based on individualized reasonable suspicion.
Deputy Donahoe did, and claims to have done numerous other times, exactly that which Black forbade: to assume that being a felon in possession of a firearm was the default status; that, without more, he could detain and ID anyone he saw with a firearm. He admitted that he had no information that Walker may have been a prohibited person. (J.A. 162:5-8). Donahoe admitted under oath that had no indications that Mr. Walker was a threat to anyone, nor appeared to have any ill intentions (J.A. 167:1-4). Donahoe told Mr. Walker at the beginning of the stop, “At this point, I have the absolute right to see whether you’re legal to carry that gun or not.” (See J.A. 209 – Video of Incident).
The District Court acknowledged that “where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.” Black, 707 F.3d at 540 (J.A. 326). There was no “more.” Walker had committed no crime. He wasn’t observed committing a crime. Not a single person alleged that a crime was committed by Michael Walker. To allow a police officer’s subjective fear of AR-15s, or of theoretical copycat crimes, to be utilized as “more,” effectively swallows the rule. This opens the door to racial profiling, and so on. To allow the Panel Opinion to stand is to unravel Black, and important civil rights protections.
On the heels of the Fourth Circuit’s awful anti-gun opinion in the Walker case, comes an opinion today which holds that 18-20 year olds have a constitutional right to keep and bear arms under the Second Amendment. Federal law prohibits the sale of handguns and handgun ammunition to 18-20 year olds by licensed dealers. In an opinion written by Judge Richardson (appointed by Trump), the Court held that “Eighteen- to twenty-year-olds have Second Amendment rights, and the challenged laws impermissibly burden those rights.”
There are many things that minors and even those under 21 cannot do. See Ent. Merchs. Ass’n, 564 U.S. at 836–37 (Thomas, J., dissenting) (explaining that minors cannot drive for hire or drive a school bus, buy tobacco, play bingo for money, or execute a will). But none of those restrictions implicate constitutional rights, so states have great leeway to regulate those activities under their general police powers. And while the Court has “recognized that the State has somewhat broader authority to regulate the activities of children than of adults,” that does not mean that children necessarily have different rights than adults. Danforth, 428 U.S. at 74. Often they have the same rights as adults, but the states’ interests are stronger with regard to minors so restrictions may more easily pass constitutional scrutiny. Ent. Merchs. Ass’n, 564 U.S. at 794–95. So it is hard to conclude that 18- to 20-year-olds have no Second Amendment rights when almost every other constitutional right affords them protection. This conclusion becomes inescapable when we consider the history.
This is the Fourth Circuit, so WV, VA, MD, NC and SC. The government could still petition for rehearing en banc, as well as petition for certiorari to the US Supreme Court. So it’s not over yet….
Congratulations to West Virginia’s first Second Amendment “Sanctuary,” Putnam County, in obtaining a new anti-gun diatribe of a published opinion from the Fourth Circuit. This morning, the Fourth Circuit issued a published opinion in the Walker case. Basically, the Second Amendment doesn’t apply to the AR-15, and it matters not that the WV legislature allows its citizens to possess and use AR-15s, because the judiciary decides what peasants may possess – not the state legislature.
I knew it was going to be bad, since at the oral arguments one of the judges likened the AR-15 to the M-16. And he ended up authoring the opinion. You can listen to the oral arguments here, if you missed them.
Join me live at 7pm for a discussion on the ruling:
