NRA: Federal Appeals Court’s Shocking Pronouncement on Your Rights

By Dave Dolbee published on in News

Lawful Gun Carriers Must Forfeit Other Rights

If you thought your Second Amendment rights were safe with the election of a new President, you may have to rethink your position. Rulings such as this, especially given the first decision and the Justice Department’s sending the case back to be reconsidered which resulted in the weapon being blamed in the second decision… should give each of us pause to ask ourselves, “How safe is the Second Amendment in the eyes of the courts and how important will the fight be for the next Supreme Court Justice?

The election of Donald J. Trump to the presidency has many gun owners feeling more secure about their Second Amendment rights than they have in nearly a decade.

Gavel in front of a blurred out American flag

But a decision this week by the full U.S. Court of Appeals for the Fourth Circuit is a stark and sobering reminder of the utter disdain and denial with which many judges continue to treat the right to keep and bear arms. Taken to its logical extreme, the opinion declares open season on law-abiding Americans who choose to carry firearms for self-defense. It may well be the most anti-gun ruling from any court of the modern era.

The case, United States v. Robinson, has been a roller coaster of conflicting opinions ever since Mr. Robinson first moved to have the evidence in the case against him suppressed for violation of his Fourth Amendment right against unreasonable search and seizure. The issue presented by the case is whether police officers, having reason to believe a person is in possession of a firearm, can legally treat the individual as dangerous, even if they have no reason to believe the possession is illegal and even if the person’s behavior is not overtly threatening.

On March 24, 2014, an anonymous tipster called the Ranson, W. Va. police department claiming to have seen an African-American male in the parking lot of a 7-Eleven load a handgun, conceal it in his pocket, and leave the lot as a passenger in bluish-green Toyota Camry driven by a white female.

Within minutes, a police officer responded to the location and observed a vehicle less than a mile away from the 7-Eleven matching the description provided by the caller. The officer observed that the occupants of the car were not wearing seatbelts, which allowed him to execute a lawful traffic stop under West Virginia law. Mindful of the anonymous tip, the officer ordered Robinson, who was in the passenger seat, out of the car.

Meanwhile, back-up had arrived. The second officer approached the car, opened the passenger side door, and asked Robinson if he had any weapons. He would later testify that Robinson’s only reply was to give him a “weird look.” The officers then had Robinson place his hands on top of the car and frisked him for weapons, finding a firearm in his pants pocket.

Both officers testified that Robinson was cooperative throughout the encounter and that they never observed any gestures indicating he intended to use any weapons against them.

After the frisk, one of the officers realized that he recognized Robinson from prior criminal proceedings. Confirming that Robinson had a felony record, the officer arrested him for felon in possession of a firearm. The case was then tried in federal court.

Under Supreme Court precedent from 1968 (Terry v. Ohio), police officers who believe a suspect they have detained for investigation but have not arrested can conduct a limited “pat down” of the suspect’s outer clothing when they have reasonable suspicion that the suspect is “armed and dangerous.” This was the basis for the search the officers used to find the incriminating firearm in Robinson’s pocket.

But Robinson claimed that the officers had no reason to believe that he posed any danger to them and therefore that they had no legal authority to frisk him. He noted that people may lawfully carry firearms in West Virginia, that the police had no information at the time of the frisk that his carrying was unlawful, and that he did not act aggressively or uncooperatively toward the officers.

A magistrate judge agreed with Robinson and recommended that the evidence of the firearm be disallowed. The district court judge presiding over the case rejected the recommendation, ruling the high crime area in which the contact occurred, the information the officers had that Robinson was armed, and Robinson’s failure to answer when asked about weapons created a reasonable suspicion that he was armed and dangerous.

Robinson then appealed the district court’s decision to the U.S. Court of Appeals for the Fourth Circuit. The case was heard by a three-judge panel, and two of the three judges agreed with Robinson.

Judge Pamela Harris’s majority opinion stated:

[I]n states like West Virginia, which broadly allow public possession of firearms, reasonable suspicion that a person is armed does not by itself give rise to reasonable suspicion that the person is dangerous for Terry purposes. Where the state legislature has decided that its citizens may be entrusted to carry firearms on public streets, we may not make the contrary assumption that those firearms inherently pose a danger justifying their seizure by law enforcement officers without consent. … Nor will we adopt a rule that would effectively eliminate Fourth Amendment protections for lawfully armed persons … authorizing a personally intrusive frisk whenever a citizen stopped by the police is exercising the constitutional right to bear arms. [Quotation marks and citations omitted].

Barack Obama’s Justice Department then asked the entire Fourth Circuit Court of Appeals to rehear the panel decision.

That rehearing, unfortunately, led to a reversal of the earlier panel decision. The majority opinion, released on Monday, cast the issue in the case as, “whether a law enforcement officer is justified in frisking a person whom the officer has lawfully stopped and whom the officer reasonably believes to be armed, regardless of whether the person may legally be entitled to carry the firearm.”

The majority insisted that the “armed and dangerous” language in Terry really meant “armed and therefore dangerous” (emphasis in original). In other words, “the risk of danger is created simply because the person, who was forcibly stopped, is armed.”

The court also asserted the same “logic” applies, even if possession of the weapon is legal. “The presumptive lawfulness of an individual’s gun possession in a particular State does next to nothing to negate the reasonable concern an officer has for his own safety when forcing an encounter with an individual who is armed with a gun and whose propensities are unknown,” the majority opinion concludes.

Thus, because Robinson was lawfully stopped, and the police officers had reasonable suspicion to believe he was armed, “the officers were, as a matter of law, justified in frisking him and, in doing so, did not violate Robinson’s Fourth Amendment right.”

Incredibly, though the court resolved the case on the broadest constitutional proposition possible, the majority opinion then went on to describe all the circumstances known to the officers that would have allowed them to make an individual “dangerousness” determination under the facts of the case. Thus, the majority essentially admitted that the patently anti-gun holding of the case–that all persons armed with a gun are a per se lethal threat to police officers–wasn’t even necessary to its resolution.

If the majority opinion were not bad enough, Judge James A. Wynn wrote an incendiary concurrence berating the majority for focusing broadly on “weapons” rather than on firearms specifically. Wynn’s opinion argued that the majority’s reasoning also necessitated recognition of two other “key issues.” The first, Wynn wrote, is that “individuals who carry firearms—lawfully or unlawfully—pose a categorical risk of danger to others and police officers, in particular.” The second is that “individuals who choose to carry firearms [therefore] forego certain constitutional protections afforded to individuals who elect not to carry firearms.”

Judge Wynn went on to explain how he believes the law of the Fourth Circuit—which includes Maryland, North Carolina, South Carolina, Virginia, and West Virginia—is now that lawful gun owners are second class citizens.

“[T]he majority decision today necessarily leads to the conclusion that individuals who elect to carry firearms forego other constitutional rights,” Wynn wrote, “like the Fourth Amendment right to have law enforcement officers ‘knock-and-announce’ before forcibly entering homes.” He continued, “Likewise, it is difficult to escape the conclusion that individuals who choose to carry firearms necessarily face greater restriction on their concurrent exercise of other constitutional rights, like those protected by the First Amendment.”

Indeed, Judge Harris, whose panel opinion was overturned by the majority, recognized even darker implications of the majority opinion in a dissent joined by three other judges. “[T]oday’s decision insisting on a conclusive link between ‘armed’ and ‘dangerous’ she wrote, “undoubtedly will have implications for police use of force, as well.” In particular, “If a police officer reasonably believes that a suspect poses a ‘threat of serious physical harm,’ he may use deadly force to protect himself ….”

She went on to observe that under the majority’s reasoning, “The legal right to carry arms is perfectly self-defeating ….”

Whether Robinson will appeal the case to the U.S. Supreme Court remains to be seen.

In the meantime, the Fourth Circuit’s majority and concurring opinions epitomize the disordered thinking that leads to useless and persecutory gun control by focusing on an inanimate object, and not on human behavior, as the controlling factor of the law.

It’s difficult to ignore the timing of the opinion, coming just as Congress’ interest in national right to carry is back in the news. Whether that’s purely coincidental, we’ll leave to the reader to decide. But it’s hard to imagine how any viable right to bears arms can exist where every lawfully armed motorist who’s stopped for a minor traffic infraction can be treated by police officers as a lethal threat.

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Comments (60)

  • SGT Luky

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    Maybe I am not a philisophicle “thinking” man, but what I read is that a convicted felon, was pulled over by the police due to a public tip, found to be in possession of a firearm, and is trying to fight it saying his (4th amendment) “rights” were violated? Fvck the piece of schitte. He’s a convicted felon. He committed another felony and should get the death penalty for committing a crime with a firearm. (No more life in prison terms; Give them the death penalty and end it. I am tired of wasting my tax dollars on supporting criminals when my kids school is constantly asking for donations to cover basic stuff like pens, pencils, copy paper, etc.) Yes, mere possession by a felon is a crime… If the penalties were sufficient and enforced, maybe it would actually be a deterrent to committing firearm crimes.

    Reply

  • Karl

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    This article says, “Confirming that Robinson had a felony record, the officer arrested him for felon in possession of a firearm.” To my mind, this puts a different twist on things. I suspect that had Robinson not been a convicted felon, he probably would not have been arrested in the first place.

    Those who are convicted of felonies are not allowed to possess firearms, and I have no sympathy for such people if they break this law again. The fact that felons often successfully hide behind our fourth amendment to avoid prosecution is in part why so many of them illegally possess and use firearms. Cities like Chicago, where gun violence is seriously out of control and too many repeat offenders are on the streets, clearly demonstrate what happens when convicted felons are held to the same standards as law abiding people.

    At best, United States v. Robinson is an extremely poor example to use to demonstrate how our rights are being threatened.

    Reply

  • abelhorn

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    When the government including the courts ignore the rights of the people

    they ask to be removed by the people.

    Reply

  • Mike in Flag

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    This guy’s rights were violated plain and simple, and the law needs to be enforced on these police where they were clearly out of line, then the courts completely out of line. HOWEVER, the fact that this fellow was a convicted felon with his right to bear arms lost, he was in fact breaking the law. I understand and agree that we are protected from illegal search and seizure because if any of us are searched randomly the odds are we are breaking some law somehow, and the courts SHOULD rule in favor of this man. The courts are heavily biased and unless Trump can get a pro-gun SCOTUS installed firmly, this may not be a hill to die on, just because of the man’s previous record.

    Too many courts ignore the Constitution when rendering decisions.

    Reply

  • Wayne Clark

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    That’s a BINGO, Joe! When will they understand this simple construct?

    Reply

  • Dragon

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    Several years back, in 1998, I was traveling from Michigan back to my home in Texas. My routing took me through Illinois, which I had done a number of times previously. However, on this particular trip, I was pulled over by a Calhoun County Sheriff’s deputy…..ostensibly because I had failed to signal a lane change on a deserted stretch of I-55 near Effingham.

    It became apparent that the ostensible reason for the stop was soon overshadowed by the deputy’s comment that he saw an NRA sticker on my car, and he figured I might be carrying some weapons. After the deputy frisked me and took my 9mm pistol from the holster in which it was being carrried, he asked to look through my car. When he did, he found several more firearms that I was transporting that had been given to my by my aging father.

    A second deputy pulled up, and joined in the “fun”, and together they confiscated about five firearms and placed them in one of the patrol cars. At this point the second deputy…..a young smart ass…..informed me that I was fortunate that the first deputy had made the stop, since if it had been him, he would have impounded my car. Interestingly, the two deputies seemed to confer with each other as to what they should do, and I overheard them making conjecture that I might be a CIA operative or something since I had federal military stickers on the car and military ID (Lt Col) in my wallet, as well as a number of Second Amendment books and pamphlets in the car.

    As this dragged on, I commented that I was not a bad guy, and that I should be permitted to simply move on, at which point the younger deputy Patrolman #2 commented…..”How do we know you’re a good guy?”. He was not pleased when I told him it was because they were both still on their feet, since they had both made so many mistakes in this contact that had I been a bad guy, they’d both have been shot by now. Patrolman #1 did utter a bit of a chuckle, though.

    After about two hours, the older deputy, Patrolman #1 commented to me that he really didn’t want to make any trouble for me, and he made this comment…..”I don’t think you’re a bad guy, but what you are doing here with all of these weapons just isn’t right”. He then corrected himself by saying…..”Er, it’s just not legal”. At that point, I commented…..”Well, Deputy, often what is legal is not right, and what is right is not legal”. His response to that comment was to give me all of my firearms back telling me to put them all in the trunk and get the hell out of Illinois…..which is what I did.

    My parting comment to the two deputies was…..”While you two officers have spent two hours here, hassling me for exercising my Second Amendment rights, there were likely some real crimes being committed in your county, to which you did not respond”. Neither of them liked that comment, but I said no more and did…..get the hell out of Illinois…..never again to pass through that state on my annual trip to visit family in Michigan.

    Reply

    • Dragon

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      By-the-way…..When I originally wrote the comment above, I used the names of the two Deputies, but as I continued writing, I figured that those who administer this blog might view my identifying the two deputies by name would constitute an undesirable post, so I changed their names to numbers.

      Reply

  • James

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    I’m as pro 2nd amendment as anybody, but after reading through this article, the court got it right. Their reasons might not have been the best, but the end result was correct. If this guy would not have been a convicted felon, and had a concealed carry permit, he would’ve walked away with a seatbelt ticket.

    Reply

    • G-Man

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      @ James,

      Actually they got it wrong and the lower court had it right when they originally vacated his conviction. You’ll realize this when you later read about the Supreme Court overturning this 4th Circuit’s outrageous liberal Ruling.

      Your misguided decision is based on having the entire story to assess from beginning to end. However, the police who responded at the time did not have that information and thus acted improperly.

      The entire scenario was predicated upon a “tip” that in and of itself revealed no unlawful activity or probable cause to even search for the vehicle to begin with. The fact it occurred in a dangerous neighborhood actually lends itself more to the right of a person to be armed thus making the scenario even less suspicious, rather than to be used an excuse for the officer to search for the vehicle.

      And so, the case ends right then and there according to the original Court that tossed his conviction out.

      Had the officers happened upon the vehicle naturally without the “tip” they would have been justified in stopping it for the seatbelt violation only, which may have amounted to a mere citation. But never would that have been a justifiable cause to frisk the passenger; and thus they would never have found a weapon.

      That is precisely why the lower court appropriately vacated his conviction. However, Obama’s anti-gun liberal Attorney General didn’t like that Ruling and knew to count on it being overturned by pushing the case up to the increasingly liberal 4th Circuit; which Obama worked so diligently to convert over the past 8 years.

      Thereafter, one need only read through the actual final Ruling and liberal opinions of those judges and you will be left with little doubt this was more of a staged attack on Second Amendment Rights when it should have instead been about clearing up Fourth Amendment procedural misbehavior by law enforcement.

      By no means am I defending this felon, but they abused his case to attack our Second Amendment Rights. There is no doubt that was their intent once I read where these judges stated that citizens wishing to exercise their Second Amendment Rights must give up protections of their First and Fourth Amendment Rights.

      This case will most definitely be overturned by the Full Supreme Court.

      Reply

    • Chris Gillespie

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      Permits are not needed in West Virginia. I know because I live here an I am sitting in my car carrying a gun right now.

      Reply

  • Jeremy7135

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    As this say it makes every law abiding citizen that carry a lethal threat to officers. In return this makes every officer a lethal threat to law abiding citizens. That’s just plain stupid. Here I am exercising my right to protect myself but if I get pulled over now I’m in a situation where my life is on the line now because now I have to treat the officer as a lethal treat to me because I carry for my own protection. That’s not something you want people thinking or officers. As the article says basing the situation on a object instead of human behavior. If I have my hands in plain view and not arguable no problem. Here in AZ if pulled over and the officer ask if you have a fire you have to tell him yes if you do and hand it over for his safety if they ask. Then they return firearm after the stop. Or you can choose to just step out of your vehicle and lock the door removing your self from it .

    Reply

    • Chris Gillespie

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      I was thinking the same thing.

      Reply

  • Deplorable Robert

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    The Supreme Court will need to “INTERPRET” the Constitution, as it should, and it should be that all adults, that are not felons, or otherwise prohibited from possession of firearms, shall be afforded the right to carry and possess without restriction. This should also be the same with ammunition, and as for California, they have/ had passed the background check law for ammo purchases , which is an infringement. Can you imagine having to get a background check done and pay a tax before someone could VOTE each time there was an election?

    Reply

  • Joe

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    The major problem in all of this is this statement…

    “Where the state legislature has decided that its citizens may be entrusted to carry firearms…”

    The state legislature does not issue RIGHTS and therefore can not decide that the citizens may exercise a right that was given to them by GOD.

    Reply

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