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.
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.
I’ll try not to be as long-worded as some of these posts. Yes, IMHO there was “reasonable” and “Articulable” suspicion that he was armed which justified the frisk once there was a reason for the stop. I would find it reasonable for LE to want to know if I was armed – hell, I would let them hold my weapon if they wanted to. If he hadn’t been a felon they would have handed him his gun back and sent him on his way. I am all about 2A rights but don’t feel this threatens the rights of law abiding citizens. This guy was not one of them.
@ Brian Shea,
Wrong. Whether suspected or confirmed, just being armed alone is not an unlawful act and therefore would never justify a frisk. In addition to a weapon, an officer must “articulate” they witnessed actual dangerous activity to qualify for a “Terry frisk”. That simply was not the case.
I recommend you actually thoroughly read some of these “long-worded” posts. Most of my posts explain how the law is actually applied, rather than you winging it with personal opinions. You never know – one day this knowledge might help you or a family member through a similar situation.
In case you’re interested in reading any of my post based on my 35 years (and counting) in law enforcement, here’s a link to a lawful explanation as to why your opinion is mooted by facts and law:
http://dev-migrationctd6.pantheonsite.io/nra-federal-appeals-courts-shocking-pronouncement-rights/comment-page-3/#comment-368146
My first interaction with an officer was after a very minor traffic crash not my fault.
Colorado used to be a must inform state but is not any longer. I choose to tell him I was legally armed and handed him my permit along with my drivers license and registration.
His response was he didn’t care if I had a firearm as long as I didn’t point it at him and handed my permit back to me.
Even with CO becoming ridiculously liberal in areas I was pleasantly surprised my town cops were of like mind.
As a former law officer of long past, before officers became open targets and trigger happy themselves, I fear this ruling will only escalate the potential for more civilians being harmed along with more officers also being endangered due to weary citizens fearful for their lives. Leave the sleeping dog lay, less he growls or jumps at you, applies to both parties of a confrontation if no visible indication of a threat is present.. I am a bit concerned myself by some of the new younger generation officers serving this day and time. There are just far to many factors one has to be aware of and take into consideration these days and to many of these new young officers can not multi-task. I also know the feeling of putting forth your all just to have some judge place a revolving door in the court house! Liberal DA’s that dislike cops are also a problem in small towns ! Social justice has no place in law enforcement or the courts. Equal justice should rule and politics and personal agendas or feelings have no place in our justice system. Say what you want, but the Obama administration made a mockery of our justice system that will take years to over come.. Oh, and yes, I have carried a side arm in one way or another for over fifty years, some of that time in the military. Bad move by this court.
Nothing mixed about my opinion on this case – it was an illegal search AND the illegally obtained evidence should have been admitted under the Inevitable Discovery exception.
I also agree with your comments about why the prosecution tried to tap dance a legal justification for the search rather than admit it was an illegal search and just go for getting the evidence admitted.
They were trying to think long-term, and MAYBE they guessed right (or maybe not) — this case has a good chance of making it to SCOTUS and it is very hard to guess just what they might decide – while Gorsuch is normally considered a “conservative” my understanding is that he is actually an originalist. We might see some Strange Bedfellows making a rather mixed majority if this case does go to SCOTUS
@ TomC,
I only based my “mixed bag” comment off the distinct differences between what you actually wrote from one post to the next. In one post you clearly stated, “(the evidence was admissible)” while in your post to “Council” you clearly indicated the opposite by writing, “The defense argued that the search was illegal (which it was…)”.
Constitutionally it is impossible for any evidence obtained illegally to ever be lawfully admissible; and thus your conflicting comments warranted the “mixed bag” label.
I do understand that theoretically you believe the prosecutors should have attempted a motion under “Inevitable Discovery”. But the fact of the matter is they did not ever file any such motion; it was never considered by a judge, and thus amounts to nothing more than just your opinion.
In other words – no matter how much wishful thinking you share in your comments, it will never change the fact that the evidence was ruled unlawfully inadmissible by the Fourth Circuit Panel’s original decision.
I’ve already stated the specific reasons the evidence did not qualify for “Inevitable Discovery” and why it was never considered by the prosecution. Beyond that I’m just going to have to ask you trust my 35 years as a federal agent assisting in trial prosecution.
Your sentiment regarding Gorsuch is spot on. I worry about some of his odd rulings though. He’s already heard a very similar case and ruled for the prosecution.
In this case the ex-Felon was not entitled to carry a firearm and hence his constitutional rights were not violated. However, fast forward to another lawful stop with a non-felon citizen entitled to carry and who is now going to be treated as a danger if armed is a violation of the citizens constitutional rights. This overly broad and liberal ruling attempting to rewrite and limit the citiz me constitutional rights is a danger to law abiding citizens and an attempt by a liberal anti gun bench to rewrite the laws of these states by misinterpreting and incorrectly applying citizens constitutional rights resulting in the erosion of citizens constitutional rights and they state granted rights to legally carry; furthermore, the ruling endangers law abiding citizens by allowing law enforcement to approach a legally carrying individual as an armed and dangerous individual as a presumption without any evidence or probable cause. Such a broad and biased interpretation is dangerous and a clear violation of citizens’ constitutional rights by the Federal District Courts.
Keep you hands in plain view and do not reach for ANYTHING until instructed to do so by the Officer’s, if nighttime turn on your dome light so the Officer’s can see inside your vehicle and yes, IMMEDIATELY and POLITELY inform the Officer’s you have a valid permit to carry a firearm, where your firearm is located and if it is loaded (if legal to keep it loaded in your state) with a round chambered. With over 20 years law enforcement service, I assure you the patrolman is just as concerned about what the driver and/or passengers might do and to your frustration on WHY he stopped you in the first place. A little courtesy and owning up to a violation goes a long way, too.
@ RPK,
… and while you’re at it go ahead and tell the officer you have a valid marriage license to cohabitate with your spouse, a certified birth certificate to prove you are legally in this Country, and a proper deed to inhabit your home. Oh, and if you own a business, don’t forget to show him your license to operate that as well.
Seriously, that part is ridiculous. Unless your State law requires you to notify an officer you have a firearm, you don’t need to tell the officer a damned thing. Only 9 states require this. Others have rules that only require it if the officer asks.
But to just blindly tell people to offer up such information just because they are exercising an enumerated Constitutional Right does nothing but cater to an increasing Police-State mentality.
That notwithstanding, the rest of your advice is outstanding. FYI – My background stems from an active LEA career of 35 years and still counting.
Never Talk to the Police. What you say can and WILL be used against you.
https://www.youtube.com/watch?v=d-7o9xYp7eE
Personally i do not care what city ,state i am in i have read the laws of any state i may have to cross its state line to get where i am going if i am stopped by the police i am letting the police know i have a valid permit and i am armed what are their commands from there if at night yes the dome light will be on hands on wheel at 10 and 2: 00 0 clock until given instructions by the officer or officers .I have had to do this a few times as i have carried for last 25 yrs daily every police officer i have encountered thanked me for my honesty about having my pistols on me and most times gave me a break on even getting a ticket plainly because i showed respect with no ill intent and was 100% honest from the second they approached my vehicle. Last thing you want is nervous police who in todays world have to be super cautious with all stops and encounters and in my state of Ohio it is state law i inform the officer i have a valid permit and i am armed but it could be any state i happen to be in the response and answer would always be the same .
@ Damian,
Please give our officers a bit more credit – if he/she wants to know if you are armed… they’re smart enough to ask you.
I suppose when officers knock at your front door you immediately bark out a list of all the weapons in your home as well. I’ll presume those officers were just as appreciative of such honesty too, even though they were merely canvassing the area over some recent break-ins.
Please do not misunderstand me. By no means am I advising folks that wish to offer up their life stories to every traffic cop to not go ahead and fulfill such desires; but rather my goal is to put such comments in the proper perspective whenever they come off as though it’s some mandatory necessity or you’ll never make it out of your traffic stop alive.
One final thought: It is also quite offensive of you to infer that anyone not “IMMEDIATELY and POLITELY” offering up such unsolicited information is somehow being dishonest; [I’ll pause so you can digest what you wrote to deserve that comment]…
So go ahead and pat yourself on the back for thinking somehow you’re exceptional honesty above everyone else must have saved your life, or at least got you out of a citation. But the reality is more likely the officer probably just wasn’t in the mood to write you a citation.
As I’ve already stated, doing the rest is always a good idea. Not making any sudden moves to which could agitate the situation should be common sense anyway. And being polite and respectful are just good manners, so there’s nothing special going on there.
RPK – Amen brother, you nailed it. I grew up on stop & frisk as well. The standard was “Articulable Suspicion”, meaning you could put your reason(s) in writing and it wasn’t just a gut feeling. In this case they had the tip and the matching vehicle description. They asked if he was armed and he did not reply – probably because he knew as a felon he shouldn’t be. I don’t really see this incident as applying to legal gun owners who carry. In fact, if he had been “legal” it’s a non-issue….except if the state requires him to acknowledge carrying when asked by LE. And the end result is a felon goes (back) to jail. Hard to find fault with that.
The scary thing about this ruling is not the decision itself, but the rationale and the language used by the court to support that decision.
From the facts reported, the court reached the right decision (the evidence was admissible), but they reached that right decision for all the wrong reasons. This seems to be a modern version of the Dred Scott Decision where the court took what was basically a simple case and used it to invent a whole new rationale which was totally unnecessary to the decision.
The evidence should have been declared admissible on the basis of the Inevitable Discovery Exception. Instead each level of the courts wandered around looking for irrelevant and unnecessary reasons to support what appear to be the personal agendas of the various judges.
Since, we know that every level of the US courts has been doing this for many years and will undoubtedly continue to do the same thing for as long as we have human beings sitting on the bench, that is why it is critical that we have Supreme Court Justices whose agendas we can live with.
Fortunately that seems more likely now than it looked a few months ago.
@ TomC,
You’re somewhat a mixed bag. In a separate post to “Council” you wrote you feel the search was illegal. But here you wrote, “the court reached the right decision (the evidence was admissible)…”
Notwithstanding your written contradiction – “Inevitable Discovery” would never have applied. The entire premise behind “Inevitable Discovery” stems from the misconduct of an officer who acquired evidence illegally.
For prosecutors to request that inadmissible evidence later be admitted under “Inevitable Discovery”, requires they also concede to the officer’s violation of the Constitution at the time he unlawfully obtained the evidence to begin with.
That was never going to happen because their entire prosecution depended on a supposedly lawful “Terry frisk”. Since evidence acquired under “Terry stops” is already contentiously subject to additional scrutiny, the prosecution would never have even contemplated filing a motion for “Inevitable Discovery” because it would have destroyed their entire case.
This is because even though a Judge need only consider the preponderance of evidence when deciding to allow an “Inevitable Discovery Exclusion”, the evidence under consideration must still meet specific “Inevitable Discovery” requirements; which in this case – being a weak “Terry frisk” to begin with – would never have qualified for an “Inevitable Discovery Exclusion”.
Below is a quick link in case you missed my post to “Council”. It explains why most of his 3 points of interest are incorrect, but also offers a breakdown as to why the “Terry frisk” was illegal from the start.
Here’s the link if you care to review it: http://dev-migrationctd6.pantheonsite.io/nra-federal-appeals-courts-shocking-pronouncement-rights/comment-page-3/#comment-368146
Its irreverent that Robinson was a felon. If a bad precedent is made and this puts gun owners in a second class status under 4th and 5th Amendment issues this needs to be taken up before SCOTUS. Remember. Miller was a POS felon too and because his side was not argued in the court we have the 1934 NFA. I am highly suspicious that an anonymous tipster relayed such a precise report to the PD. In this day an age there should have been a reverse call number ID on the call. I am suspicious that all the conditions lined up to justify the search having worked with a small town PD for 33 years. I
It should be obvious to everyone, but for some reason has was almost completely been ignored by the author and many readers: Robinson was a felon!
1. Robinson had no business possessing a gun in the first place as a felon!
2. It was concealed and un-announced to the officer upon being stopped — that makes it a potential threat.
3. The officer stopped the car for a legit violation(seat belt), having heard the dispatch, and had a good reason to believe Robinson was armed.
If a Police officer pulls me over, first words out of my mouth…”I have a CC permit and have a gun in the car.”
This ruling happened because a dumbass with a record, that had no business with a gun, was doing something he shouldn’t have been doing.
“Council” everything you said is correct.
AND everything you said is immaterial to the issue of whether the search was legal (the officers did not know Robinson was a felon when they searched him).
The issue before the court was the admissibility of the evidence found in the search.
The defense argued that the search was illegal (which it was, despite the court’s tortured logic to get around that so it could support your idea that the ends justify ANY means).
The prosecution tap danced trying to invent a way to make the search seem legal (using the kind of arguments you did).
The court should have laughed the prosecutor out of court for those arguments.
On the other hand, if the prosecutor had made the correct argument, the court should have reached the proper decision – that the evidence was admissible despite the illegal search.
There are a few exceptions where evidence obtained by an illegal search is still admissible – in this instance the Inevitable Discovery Exception should have applied because the police did recognize Robinson as a known felon, and AT THAT POINT they would have searched him and found the weapon. Since they would have found the weapon anyway, the fact that they found it without probable cause at the time of their initial search should have fallen within the Inevitable Discovery Exception.
@ Council,
While you have the luxury of hindsight to read the entire scenario all at once, you must accept the fact that law enforcement must instead operate based on the situation as it procedurally unfolds. It is my intention to address each of your numbered points in the eyes of the law, rather than a lay person’s conclusion.
You wrote, “1. Robinson had no business possessing a gun in the first place as a felon!”
Answer: You ARE correct. But this is completely irrelevant as a matter of law in this particular case (as further explained below).
You wrote, “2. It was concealed and un-announced to the officer upon being stopped — that makes it a potential threat.”
Answer: You are NOT correct. In West Virginia there is absolutely no requirement by law to announce that you are in possession of a firearm (concealed or not). As such, you cannot be considered a threat for announcing, or failing to announce to an officer that you are currently exercising your Second Amendment Right.
A good analogy is that every vehicle conceals a tire-iron, which is used in more crimes and murder than guns. Yet a tire-iron is never considered an “un-announced” threat to the officer or a reason to stop and frisk. So neither can a gun; especially given there is no constitutional protections to bear a tire-iron, but there is one to bear a gun.
You wrote, “3. The officer stopped the car for a legit violation(seat belt), having heard the dispatch, and had a good reason to believe Robinson was armed.”
Answer: This is a longer answer, but I ask that you bear with me as I explain the legalities as to why you are wrong. Before I continue, I need to remind you the order of events must be given the highest consideration to fully understand all the evidentiary procedures the officer violated leading up to the arrest:
You ARE correct that the seatbelt violation would have been legitimate. But the seatbelt stop was made illegitimate because the officer admitted he used it as a false pretense to gain access for the purpose of searching the passenger over a gun. Yet guns alone are not a lawful reason to search anyone given they are considered lawful to possess. Bear in mind, the officer had no idea at this point the passenger was a felon. In addition the officer also testified the passenger never gave reason to believe he was dangerous; thus a “Terry frisk” was not a legal option.
One of the biggest mistakes was the officer specifically admitting he searched out the vehicle over a report of a gun. But the simple fact remains that carrying a firearm is NOT illegal in West Virginia and thus the officer’s search for the vehicle was unwarranted from the very start.
The stop alone might have been warranted if the officer had naturally happened upon the seatbelt violation through the normal course of his duties, but he had already admitted the “gun call” is what initiated the response, rather than seeing the seatbelt violation first. As I’ve stated, guns are not illegal so the “gun call” does not make for a crime. So I must iterate that the officer’s search for that vehicle was not authorized.
Even if the “gun call” had come in the middle of the basic seatbelt stop, the officer would still have no lawful reason to initiate a frisk of the passenger over just a gun because as I said the passenger’s actions were calm and thus never triggered a legal “Terry stop”.
This officer makes hundreds of stops with lawfully armed citizens all the time. I can guarantee you he’d be out of a job if he unlawfully frisked every single one for no other reason than being armed. Thus the “gun call” is a totally moot point and cannot be a viable excuse to have randomly frisked that passenger.
So that just leaves the felon part. No one disputes the passenger’s prior felony conviction makes his possessing a firearm to be illegal. But it is completely irrelevant because at no time did the officer ever know or have reason to suspect the individual was a felon.
In the absence of the felony information, the officer had no justifiable reason to frisk the passenger over a simple seatbelt violation even if he did know he had a gun; guns alone are not a reason to frisk. Just because the officer discovered the felony aspect later in no way retroactively justifies his stop and frisk that had already unlawfully taken place.
I truly get why some of you feel this felon got what he deserved and you believe the Court made the right decision. But procedurally that is not how our legal system works and this liberal Court made a mockery of our judicial system by doing whatever they felt rather than upholding the law as it is written.
Worse is that in the process this Court issued a new Common Law Ruling that now says all persons with guns are automatically considered dangerous and now subject to “Terry frisks” regardless of their actions.
The bottom line is this liberal ruling will be overturned once it reaches the Supreme Court. I hope this clears things up for you and any others that have misunderstood it.
Thank you, Council, for your observation. I am delighted to read a considered and rational analysis such as yours. As a Virginia CC permit owner and an active gun wearer, I agree with the logic and the sensibility of the second appelate decision. I may not like the extra scrutiny it will earn me as a gun wearer, but I do not question its sense. When I am armed I am, both in logic and in fact, more potentially dangerous for the simple fact of being armed. I think it’s fair to say that anyone carrying is more dangerous than she would be if she didn’t carry; Indeed, why else would anyone carry save to bear a potential of threat to anyone who would threaten her, to be more dangerous than if she didn’t? So I would not be surprised that an officer stopping me would be concerned about the existence and location of my firearm as well as my intentions and be authorized to ascertain both. The court merely recognizes that reality. I would not place our police in the position of having to deal with any armed citizen without the ability to satisfy himself of his personal safety. My right to bear arms comes with responsibilities and demands a clear-eyed acceptance of the reality of the potential threat my firearm represents to law enforcement and to others.
@ Velox,
I am actually saddened and find it quite unfortunate your willingness to deprecate yourself over such falsehoods. It is neither “logic” nor “fact” that a person becomes more dangerous simply because they are armed.
The entire gun community has spent decades explaining to useful anti-gun idiots that there has never been a shred of evidence to prove a gun has ever murdered anyone on its own. In every single case it took the committed actions of an individual to make each gun go off.
I am very sorry that any time you decide to carry, that the gun itself somehow makes you into an out-of-control and dangerous maniac. Therefore, in the interest of public safety, I feel that since you are unable to control yourself – that you simply should never carry a firearm again.
I’d also highly recommend that you seek help since you don’t know how you’ll react around scissors, or even various lawn tools and kitchen appliances.
The fact that concealed carry permit holders are statistically more law abiding than police officers points to the fact that GMan is accurate in his comment.
This should alert officers stopping an off duty officer to be more cautious and alert to the fact that they potentially will need to arrest the fellow officer more often than if the individual is not a law officer.
The problem with this case is the timing of the police frisking and securing the weapon – prior to any knowledge that this guy was a felon.
Of course, if they had that prior knowledge, it would have been obvious that they should frisk this felon for any contraband (drugs, weapons, stolen jewelry shoved in a pocket… He lost those protections against search and seizure when he became a felon, and unless those rights were returned to him, he knows the score…it is not permitted and can likely send him right back to jail/prison.
If he had NOT been a felon, why did the police force him out and frisk him? This WOULD HAVE been a possible violation of a law-abiding citizen’s rights, but I always believe it is best to simply comply with the police officer, and then contact a lawyer as soon as possible if you believe your rights have been violated.
Not long ago, the US Supreme Court ruled that a motorist CANNOT be detained at a traffic stop in order to escalate the traffic offense into a drug search offence. That was a 4th amendment case. The case in discussion here is the same type of case. The police escalated Robinson’s traffic violation into an illegal gun search case.
Normally I support the police, but the courts are giving them too much power over life and death. The courts are so convoluted, no one understands or can predict what they will do next. Laws mean nothing in this country. We are NOT a “nation of laws.” The “nation of laws” fiasco is a smoke screen for the government to disregard the life and safety of any person found within the government’s power. The most dangerous life threatening encounter anyone can have, is when you are stopped by a policeman. Your life is in danger – count on it.
To fair— I wish everyone was as smart as you. You are a person of great wisdom.
It seems to me this entire trial comes down to deciding whether an armed individual is inherently a “danger” (and thus subject to other legal decisions — like the referenced Terry vs Ohio).
Personally I’d say that’s not the case for a few reasons:
1) It makes the assumption that individual bearing arms is bearing them with the intention of using said arms
2) It assumes that the bearer of said arms is inherently hostile (to some degree)
If those two assumptions had any basis in reality what-so-ever, then everyone should be absolutely terrified of cops, soldiers and fellow law-abiding citizens.
So while this instance involves a felon that (likely) should not have possessed a firearm in the first place, the officers may not have grounds for conducting the pat down (at least under the under the basis of the Terry v Ohio decision as that appears to requires the conditions of armed AND dangerous to be present together).
While I’m just an engineer, this really does seem to logically boil down to the question: Does being “armed” ALWAYS equate to being “dangerous”?
Unless the officers knew: that he was felon (which they did), that he was carrying a firearm (which they suspected based on the tip), and that his legal rights had not been fully restored (which is something that can be done) I think Robinson may actually have a valid case. …but again I’m just an engineer thinking through this logically and I may very well not know all the pertinent laws, and precedents that may apply.
I thought in too many parts of the country, every single motorist who’s stopped for a minor traffic infraction can already be treated by police officers as a lethal threat, at least if Driving While Black.
petedub keeps making very logical clear points, while gman seems to be screaming at windmills. Lawyer or not.
Guns Rights extremists don’t realize how they’re just pawns in the bigger game of building single-issue voting blocs. Rethinking your candidate yet?
You who know no history – try California in 1967, what was then the most restrictive gun-control law in the nation, the Mulford Act, which prohibited the carrying of loaded firearms in any public place in the state, and was intended to disarm the Black Panthers at a time when the New Left was the most vocal defender of the right to bear arms and conservatives promoted gun control – signed by governor Ronald Reagan(!), who then also supported a 15-day cooling off period for the purchase of handguns, and as president signed a law banning the interstate sale of handguns.
Read the “rest of the story” here: https://riversong.wordpress.com/the-nra-story/
Unless you don’t believe in Freedom of Speech, or Freedom of the Press, only good old #2.
@ Ol’ White Joe,
How despicably bigoted of you. The last thing this forum needs is another racist injecting their sad discriminatory slant on life into places it never belongs. Despite your disgustingly prejudicial rant, the balance of your diatribe doesn’t even fit within the context of anything we’ve discussed.
But even if you did think you had a fluid point somewhere in there, you used a nobody’s personal blog as your reference. That entire thing was blogged by an admittedly biased liberal anti-gun peacenik. His entire entry was rife with personal opinion and inaccuracies, which explains why he didn’t bother to offer a single source to back up anything he wrote.
Apparently it’s you that doesn’t know your history, so you have to quote another liberal that just makes it up in blogs. Like all you libs and your “fake news”, your moto will forever be, “If it’s on the Inter-webs then it must be true.” Do us all a favor buddy and go take your racist sludge somewhere else.
Could have stopped this article at black and armed. The 2nd and 4th amendments are white only.
G-Man,
The RULING is the result of the case — conviction upheld, because the evidence (a firearm in illegal possession by a FELON) was lawfully seized pursuant to a lawful Terry stop.
That RULING does not reference the 2nd Amendment. It is a 4th Amendment case, not a 2nd Amendment case — precisely because a FELON has no 2nd Amendment rights.
The mentions of 2nd Amendment you reference come from the opposing opinions of judges who LOST the argument because they had erroneously bought into a criminal defense lawyer’s dubious efforts to use otherwise-valid gun-rights arguments to overturn a conviction of his FELON client.
Given that this distinction between the majority’s RULING and minority opinion is not immediately obvious to you, you clearly are not competent to read a judicial opinion.
I am quite comfortable with my bona fides as an American, as a former active-duty combat officer who actually understands and cares about our Constitution.to fight for the Constitution on a daily basis for my entire adult life.
If you think being “American” means swallowing scare tactics hook, line and sinker as you did, you are a very sorry EXCUSE for an American. I do not care whether it is the DNC, Brady Campaign or NRA/ILA (and they are all guilty of this wrong), when an organization uses scare tactics for fundraising purposes, that fundraising effort is not credible. Any freedom-loving American would understand that.
I am certain that no competent attorney would agree that “this will easily be overturned in the Supreme Court.” To overturn the conviction, the Court would have to overturn Terry — which ain’t happening.
I dare you to have one of your supposed prosecutor buddies post to explain how the Supremes are going to overturn Terry — and how any alleged prosecutor or self-proclaimed “G-Man” could possibly support such an outright attack on the lives of police officers.
You still cannot tell me — and neither can anyone else — why the law should force every cop to just ASSUME that EVERY armed person is a “law-abiding citizen” without conducting a Terry stop, as the law presently allows, to answer that specific question.
The only way your stupid argument survives is by the United States Supreme Court deciding that hurt feelings are a good enough reason to begin sentencing cops to death by overturning Terry and forcing cops to ASSUME that all armed persons are “law-abiding citizens” until the bullets start flying.
To put this into a combat / rules of engagement scenario, you are expecting cops not to engage peacefully and safely so as to prevent hostility (Terry stop), but instead only to engage after hostility is commenced. Under your argument, cops only get to figure out who the law-abiding citizens are because they are the ones who don’t shoot, and the criminals are the ones who do shoot.
And the only reason you are putting that tremendous burden on cops, and letting the bullets fly, is to assuage the hurt feelings of un-American weaklings who are unwilling to do their part to fight crime by accepting the TINY risk (which has already been ruled to be constitutionally permissible under Terry) of being inaccurately “suspected” and questioned.
You un-American cop haters are WRONG as a legal, political and moral matter.
@ petedub,
I experienced a combination of total disappointment and then amusement seeing your refusal to address any of the impassible points I’ve specifically thrown at you.
I honestly thought you’d at least attempt a delusional stab at a defense. But then it dawned on me that while you are accustomed to getting away with spinning your warped jailhouse legalese on other forum members, you are probably at least smart enough not try that BS on someone as formidable as me.
Thus explains why you’ve evaded addressing any of my airtight points which prove this was more than a simply Terry decision. Instead you safely elect to continually revert to the same nonsensical rhetoric that you’ve repeatedly peddled to others in all your previous posts. Seriously though, I must ask that you please get a clue and realize that I’ve obviously already read all your tiresome drivel. There really is no point in repeating it over again to me.
The crux of the matter is that you smugly insist on playing this off to other readers as if you are some kind of subject matter expert. In so doing, you’ve tried to sell this as an open and shut “Terry case” without regard to the fact that it has actually been in appeal twice-over. There is a reason for that – and the obvious answer is that several other Judges simply don’t agree with you that it is an “open and shut Terry case”; but you ignorantly choose to ignore that fact.
I get that your ego allows you to put on a show for the other readers which you presume are less knowledgeable of the law than you, but given you know the extent of my legal background – you should knock off your crap and have some dignity when addressing me about the law. Were you and I to meet face-to-face over this, you know darn well you’d never attempt to pull the same crap in person.
I don’t wish to drown you in even more facts that you’ll never be able to address, but your latest comments beg for correcting. Despite the embarrassment your comments elicit, I must point out your erroneous statement that the Court somehow “upheld” this conviction.
In actuality the Court “vacated” their own partial Circuit’s ruling. This makes for a distinct difference. Anyone that claims to know federal law should understand the essential options available to the Appellate. These are to: “Vacate”, “Reverse” or “Affirm”.
As such, a “vacatur” has a significantly distinct definition from the others whereby all lower courts MUST deal with the new mandatory stipulations that actually changed or refined the previous law as set forth by the new “opinions” entered by the higher Court. This includes the current case itself, which requires the lower court to go back and enter a new record establishing their acceptance of the new law which was changed by the higher Court’s “opinion”.
Simply put, a lower court may only reinstate the vacated penalty if they can show a justifiable change in the previously known law. Incidentally in this case the law was originally interpreted in such a way as to have led to a successful appeal to begin with. But of course you’ve ignored this because it doesn’t fit your BS narrative.
Nevertheless, inarguably this requires the affected lower Court to take notice of the higher Court’s new dictum as a matter of record. Such notice of change is considered to be nothing short of new “case law”, or new “common law”, or a newly set “precedent”, and thereafter is expected to be used by all other lower courts as the new “precedent” when deciding similar future cases.
But rather honestly conceding to such reality you instead remain so pathetically consumed by your false sense of superiority that you’ve gone so far as to issue a challenge for me to waste other colleagues’ valuable time by requesting they post here just to prove their views align with mine. And yet you do so while ignorantly disregarding the simple fact that a magistrate, as well as a Fourth Circuit panel has already issued orders and opinions which are in complete support of my position.
So rather than bother my co-workers with your trivial challenge, I’d rather you use your brain and just accept the opinions of the higher authorities which were actually involved with the case and who subsequently concurred with me. When you have magistrates and Fourth Circuit Judges that support my position, I see no reason for you to bother the lower level federal attorneys that I like to do lunch with. So deal with that.
In closing I have to say that of all your un-American statements thus far, the most communistically revealing is that you think no one can tell you – “why the law should force every cop to just ASSUME that EVERY armed person is a ‘law-abiding citizen’ without conducting a Terry stop”. Sadly your average middle-schooler can tell you the reason is because in American every person is presumed innocent until proven guilty.
Oh and one last thing… it’s kind of hard to be a “cop hater” when I am a cop.
Gman, I read your post to your lawyer friend with a mix of amusement and respect. I am not a lawyer and don’t pretend to have even an iota of the knowledge that a lawyer has about certain things. However, even I, a lowly retired foundry worker by trade, am able to recognize certain facts. Fact number one is that if you are not able to sway someone with truth, then if you can dazzle them with enough rhetoric, you might sway them into thinking your way. That doesn’t impress me. Number two, even though I am not a lawyer, I do have a more than cursory knowledge of our constitution, and even understand what the first ten amendments are called. Wow, aren’t I smart. To presume that because he is a lawyer that petedub somehow has more authority than the judges who debated this issue, and the men who drafted the constitution, shows how inflated of an ego your friend has. I think that it is certainly within the legal right of the officers in this case to have patted down the individual in question. That is to me a prudent thing to do, if they had knowledge of a felon in possession of a firearm, and the chance that he would perhaps try to avoid an arrest for same by violence. It is then upon the judgement of the prosecuting attorney as to whether or not the gun is something that they could use at trial, and whether to just take it, dispose of it, and release the man. Nobody is asking a police officer to risk their life when they have reason to believe that a felon in possession of a gun could try to resist by shooting them. This does not mean that the Terry case should allow the “TINY” risk of us un-American weaklings to be stopped and searched simply because we might look at the cop funny. Stop and frisk might have been a very effective law enforcement tool for NY, but remember that just because something might work, that doesn’t mean it is legal. It would stop the violence in Chicago if we sent the military in and allowed them to kill any gang member that they found, summarily without trial. But that doesn’t mean that it would be legal, or desirable. Sometimes, the balance of rights is not even a close call. It is so obvious that the only one who doesn’t see it is a lawyer or a politician. I have no doubt that petedub is a very intelligent man. That does not impress me. What impresses me more is when someone realizes that the constitution is not a limit on the rights of citizen, but a limit on the powers of government.
@ pigpen51,
Thank you for taking the time to weigh in with some exceptionally valuable points.
I particularly relate to the part in which you wrote, “It is so obvious that the only one who doesn’t see it is a lawyer or a politician.” That statement is quite profound given that we are left with no choice but to trust the “politicians” who create our laws, and “lawyers” (turned Judges) to uphold and interpret them.
But the most resounding of your statements by far was when you essentially said that the Constitution was not written to bestow or limit the Rights of citizens, but rather its only purpose was, is, and will forever be to dictate to the government the limits of their authority and power over the People.
Far too many citizens do not know this, and the government itself has made sure of that.
So true. The Liberals don’t like it when we are knowledge about our rights and that it LIMITS Governmental overreach..thanks again g_Man for all your insight and EXPLAINING of why you say what you say. Glad you’re on our side.
It is the DUTY of a law enforcement officer to assume (within the legal parameters of action) that a person carrying a firearm IS doing so legally until such actions of information prove otherwise, as in any other potential legal situation. This is not to say officers should act in a foolish or naive manner. The fact that the center of attention in the article is a felon, of course renders some Second Amendment arguments void. But it does not relieve the concern that the tone of the court, and in particular one judge, is promoting. Contrary to some of the posts, the judge’s opinion DOES matter, and could and, very probably will, be used in further proceedings, whether or not it bares directly on the outcome of the case.
Pete you are so far off base as to practically be on another planet. The facts of the case clearly show that the individual in question was a felon in possession of a firearm which by itself is a crime, regardless of whether he had committed any other offense. You miss the point by being too focused on the lawfulness/unlawfulness of the ‘Terry-stop and fail to see the reversal of the court decision as the real issue. All we really need to see is the concurring opinion by Circuit Court Judge James Wynn (as a side note: where on earth did Wynn get his law degree, from a Cracker Jacks box?) to understand that he is NO friend to the 2nd Amendment or to our other Constitutionally protected rights.
I don’t know about you Pete, but I for one do not give up my other Constitutionally protected rights just because I happen to be lawfully carrying a concealed weapon or did you miss that part where Wynn states,… “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.” or
“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.” You see Pete THAT is the real issue here, so it IS about the 2nd Amendment and our rights as individuals.
Keith,
What Judge Wynn said has nothing to do with the decision. It is just his silly argument as to why the case should not have been decided the way it was. Everything he said is “obiter dictum” — which is a polite technical way of saying “BS” (look it up if you don’t believe me). Wynn LOST the vote on how the case was decided.
Wynn foolishly bought into the criminal defense lawyers’ disingenuous attempt to use 2nd Amendment arguments to overturn a perfectly-valid conviction for unlawful firearm possession by a felon. Wynn was wrong to frame it as a 2nd Amendment issue, just as the criminal defense lawyers were wrong, because a FELON has NO 2nd Amendment rights.
To make this a 2nd Amendment issue, you have to think FELONS have the same right to be armed as law-abiding citizens. That’s clearly WRONG. Neither this case, nor any other case involving a felon in possession of a firearm can EVER have anything to do with the 2nd Amendment or the basic human right of armed self-defense. It’s like arguing about whether Tom Brady is a better hockey player than Kobe Bryant.
There is no stronger advocate than me for the basic human right of armed self-defense, and the 2nd Amendment reminding us of that basic human right (which right would exist even if the 2nd Amendment had never been written, BTW). If you think FELONS should have the same 2nd Amendment rights as law-abiding citizens, on which premise your entire argument depends, you are simply wrong.
NOBODY gives up any constitutional rights by being subjected to a lawful Terry stop. If cops cannot stop and frisk people SUSPECTED of being involved in POSSIBLE crimes, then some cops will have to die at the hands of the violent criminals you don’t want them to be able to disarm. That is unacceptable to me, and to every other civilized person.
That is why the LAW (Terry v. Ohio) says cops CAN disarm people they are questioning, even if it turns out (with the benefit of the 20/20 hindsight courts have but cops do not) that the suspect actually did nothing wrong. That is the right answer — and has been since the Terry case was decided when I was in high school almost 50 years ago.
The basic human right of armed self-defense carries with it the responsibility to be a law-abiding citizen — and that includes “abiding” the LAW that says (a) cops can disarm people when they are questioning them, for the sake of safety, and (b) a cop cannot be expected to assume that any particular armed person is a law-abiding citizen without being allowed to question the armed person to find out the truth.
In the Robinson case, for example, the cops found out that Mr. Robinson was a felon who was illegally armed. The mere fact that he was armed was an element of the crime that gave the cops the RIGHT and RESPONSIBILITY under the law to find out if he also was a felon (or otherwise lawfully prohibited from being armed). I don’t know where you think the “law-abiding citizen” uniforms will come from so cops can immediately differentiate between armed criminals and armed law-abiding citizens, but let me know when you figure it out.
If some law-abiding citizens are such weaklings as to be unable to deal with the mere hurt feelings of being inaccurately SUSPECTED and QUESTIONED when they did nothing wrong (which the law allows) that person has no business engaging in the VERY SERIOUS business of being armed.
It is apparent reading these post that people either can not read
or will not read the Constitution for until it is amended the
2nd Amendment right to keep and bear Arms,
SHALL NOT be infringed no natter who you are.
If the suspect had a previous felony conviction he had no right to have a concealed firearm or any firearm at all and the police had probably ran his name and it came back he was a convicted felon so do not try n lump us law abiding CCW holding 100% legal choice tp arm ourselves as the law allows us too. And i willingly tell any officer that may stop me for any reason i have a valid permit and i am armed what are your commands officer? That is required by Ohio state law as well to inforn the officer or officers you are armed . He has no argument if he was an actual convicted felon and 0 rights to carry or possess in any way any firearm and he would have known that so to me this i feel in no way compares to legal law abiding gun carrying Americans in any way or form .
The Constitution was never designed to have all of its rights bestowed on anyone convicted of a felony. Many rights are surrendered after a court conviction and are replaced by special rights designed for the incarcerated. The Second Amendment is vital to any American’s liberty, but it is not, and never has been, limitless.
Never in my lifetime did I ever imagine there could be judges appointed that are so warped as to rule that in order to exercise our Second Amendment Rights we must give up our First and Fourth Amendment Rights. This is utterly insane and we are living in a liberal nightmare.
I read the NRA-ILA take on this ruling after they published it last week. The text is long and so I worry that many readers will not have the time to completely read through in its entirety. So for those short on time, the takeaway is that this ruling is monumentally detrimental to our livelihood and MUST be overturned in the Full Supreme Court.
Any armed person, law-abiding or not (and a cop does NOT know that answer at the beginning of a stop) is a POTENTIAL threat to a cop doing his/her job of investigating potential crimes.
So, it is and must be lawful for a cop to STOP and FRISK a person suspected of criminal activity — even if that suspicion turns out to be erroneous. The law allows this STOP and FRISK, solely for the purpose of securing the cop’s safety during a “Terry stop.”
Complaining about a Terry stop makes uninformed gun-rights advocates look like felons’ best friends and cops’ worst enemies. That’s the wrong side of the argument, both as a legal matter and as a political matter.
It is not and could never be lawful for a cop to use the fruits of a Terry stop to prosecute a law-abiding citizen for being armed. So, get your knickers out of a wad.
If you are not willing to live with the TINY risk of being inaccurately “suspected” and thus Terry-stopped, then you literally are willing to allow crime to thrive by preventing cops from doing their jobs. As for me, I WANT cops to be able to do their jobs — so long as THEY follow the law, as the cops did in this case.
It is and must be lawful for a cop to use the fruits of a lawful Terry stop to engage in further investigation of a suspect who ultimately is found to be illegally armed (felon, in the act of committing a REAL crime, etc.). That is what the court held, and it was the right holding — this has been the law for a long time, and only the willfully uninformed fail to understand it.
This court’s holding has NOTHING to do with the 2nd Amendment or the basic human right of armed self-defense. A criminal-defense lawyer did his job by cleverly trying to leverage on legitimate gun-rights arguments to clear his ACTUAL criminal client of a valid illegal-possession charge. The court did its job by rejecting the dubious argument.
Judge Harris is wrong to try to make this a 2nd Amendment issue, in the identical way Chief Judge Posner has been wrong in the past. This is NOT a 2nd Amendment issue, because law-abiding citizen status (the boundary of 2nd Amendment protection) CANNOT be presumed for every armed person, without literally sentencing some cops to death-by-criminal. I don’t want cops to have to die, just to protect me from having my feelings hurt by being inaccurately “suspected” and Terry-stopped.
It is ridiculous for law-abiding citizens to suggest that criminals are our constitutional equivalent in the context of a Terry stop. But that is EXACTLY what you all are doing by being unwilling to do your part in combating ACTUAL crime by accepting the TINY risk of having your feelings hurt by being inaccurately “suspected” and Terry-stopped.
@ petedub,
Unfortunately your entire dissertation was misguidedly based on Terry v. Ohio. But this article is instead addressing United States v. Robinson; which is yet another example of a case in which judges have hijacked previously settled law in order to inject their liberal opinions to create new “common law” precedents, (I believe you and I have had this conversation before).
Knowing reputable organizations like the NRA, Shooter’s Log and hundreds of other Gun publications find this ruling quite disconcerting, one would think you’d take pause to do a bit more research to find out why. Maybe then you would have realized the United States v. Robinson ruling does in-fact have new adverse and detrimental implications which directly affects our Second Amendment Rights.
So actually it is you that needs to “get your knickers out of a wad” and do better research. Had you done so you’d know one of the biggest concerns is where these judges opined in this ruling that citizens wishing to exercise their Second Amendment Rights must give up protections of their First and Fourth Amendment Rights (paraphrased).
So despite your comments to the contrary, I can’t think of a bolder statement directly making this into a Second Amendment issue.
G-Man,
Read the actual judicial opinion, as I have. It absolutely was a Terry stop case, and it absolutely had nothing to do with the 2nd Amendment. FELONS, like Mr. Robinson, have no 2nd Amendment rights.
You have a dubious way of getting accurate information. The NRA/ILA is definitely not a reputable organization when it comes to accurate portrayal of judicial opinions. Their job is to raise money. That is the ONLY reason they exist — to scare people into giving money. You have been suckered. Read the actual judicial opinion, rather than swallowing scare tactics — hook, line and sinker.
Talk to any competent lawyer who actually litigates cases — as opposed to Chris Cox who is paid handsomely to scare people into giving money — and you will understand.
@ petedub,
Before I continue I simply must ask if you even like being an American? I ask this because your intense animus towards organizations such as the NRA to characterize them as “definitely not reputable” simply because “Their job is to raise money” is a serious defamation of the entire American capitalistic system.
How do you not realize the carelessness of making such a preposterous and broad statement against literally thousands of hard working organizations? I think you should seriously reassess your existence if you feel there is no possible way these organizations can reputably raise money and still remain sincere and dedicated to their causes.
As to the issue at hand: I am flummoxed that you read my post and yet even with my blatant recommendation in which I stated that you should have done more research, you still somehow drew the conclusion that I did no research of my own. Of course I read the full opinion, so don’t be ridiculous.
However, I do question your claim to have read it… or at least to have comprehended what you thought you read. I say this because it would be impossible for anyone to have read this ruling properly and still say it “has NOTHING to do with the 2nd Amendment” – as you claimed in your original post. Especially given the irrefutable fact this ruling referenced the Second Amendment no less than 11 times.
I do see in another post where you eventually realized your blunder and then attempted to explain away the inclusion of Second Amendment language as mere “obiter dictum”.
While obiter dicta is publicly said to not influence the rationes decidendi used in final rulings, you and I both know it still offers an abundance of insight into the attitudes and thoughts of the judges deciding any final ruling.
Since obiter dicta are made permanently available, you should also know that even years later, whether they admit it or not, judges and attorneys alike privately use it to get a feel for the intent of rulings presented and reviewed as case law in future rulings. So whether we like it or not, obiter dicta does in-fact have a profound influence on future judicial outcomes – despite your claims.
Now on to the most important aspect of our entire exchange – which is, you screaming this is a simple affirmation of a Terry stop case, when it is not. You can ignore that reality all you want, but the rest of us know this ruling set a precedent by using new language that reaches beyond the original requirements for a Terry stop.
That new distinction says that simply being armed automatically makes you dangerous and therefore subjects you to Terry stops, Terry frisks and whatever else rookie officers interpret it to mean as they claim to fear for their lives. Prior to this new ruling that was never an element of Terry.
While reasonable suspicion that a crime has been committed or about to be committed is still a requirement in both rulings, under Terry an officer also had to have a reasonable and articulable suspicion that you had a weapon AND [emphasis on “and”] that you were acting dangerously. The weapon alone was not to be considered cause for an officer to deem a person dangerous if you were acting normal. In other words, you had to show reasonable signs of danger in addition to a weapon.
However, under this new United States v. Robinson ruling, the mere presence of the weapon now allows an officer to consider you dangerous no matter how you are acting, and therefore may lead to a frisk or worse. That makes for a very distinct difference over Terry because all an officer has to do now is ask if there are any weapons in the vehicle during a basic traffic stop and every single citizen lawfully exercising their Second Amendment right will automatically now be considered dangerous.
As for your -“Talk to any competent lawyer…” remark, I can only say you have a short memory if you’ve already forgotten what I do for a living. The three attorneys I did lunch with yesterday agree with me that this will easily be overturned in the Supreme Court.
The potential is the ability to commit a criminal act. It is not the act of actually having a firearm. A person enjoys the protection of a Constitutional right until there is REASONABLE , repeat REASONABLE, concern that a threat or criminal act is at risk and could occur. The mere fact of legally ‘packing’ in no way gives law enforcement carte blanche to frisk anyone just to ease their minds after a long day in the cruiser.
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.
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.
When the government including the courts ignore the rights of the people
they ask to be removed by the people.
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.
That’s a BINGO, Joe! When will they understand this simple construct?
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.
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.
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.
@ 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.
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.
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 .
I was thinking the same thing.
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?
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.