U.S. Constitution
See other U.S. Constitution Articles
Title: "Armed" is Same as "Armed and Dangerous" When it Comes to Police Searches, 4th Circuit Concludes
Source:
Reason
URL Source: http://reason.com/blog/2017/01/31/a ... ame-as-armed-and-dangerous-whe
Published: Feb 3, 2017
Author: Brian Doherty
Post Date: 2017-02-03 23:51:12 by Hondo68
Ping List: *Bill of Rights-Constitution* Subscribe to *Bill of Rights-Constitution*
Keywords: a bad decision, Judge Pamela Harris, dissent is correct
Views: 5837
Comments: 17
A decision last week in U.S. v. Robinson from the 4th Circuit Court of Appeals declared that being armed, even legally, is the same as being "armed and dangerous" and leaves you open to police search. It also implies, according to a concurring opinion, that gun carriers lose significant First Amendment as well as Fourth Amendment rights. Shaquille Robinson in March 2014 was a passenger in a car pulled over by police in Ranson, West Virginia. It was pulled over, ostensibly, because driver and passenger were not wearing seat belts. However, the police had received a tip that Robinson had been seen loading a gun and putting it in his pocket before he got in the car. He was in a 7-11 parking lot known to cops as a frequent site of drug sales. The police searched Robinson after pulling the car over and found the gun in his pocket, and arrested him for an illegal possession of a gun by a felon. Robinson sued to challenge the search. Since merely having the gun on his person, as the police already suspected from the call, could have been a perfectly legal act—he might have had a permit—the police, he insisted, had no legal grounds for the search that did find the (actually illegally possessed) weapon. To quote from the decision last week, Robinson argued as part of his appeals process that "Under the logic of the district court, in any state where carrying a firearm is a perfectly legal activity, every citizen could be dangerous, and subject to a Terry frisk and pat down." Last year, a panel of the 4th Circuit Court of Appeals agreed with Robinson and overturned his initial conviction. The government appealed for a decision of the full court, and now last week that full court disagreed with the panel decision. The whole case hinges, as the Court explains, in whether "armed" should legally be presumed to mean the same thing as "armed and dangerous," and they conclude that yes, it can be. The decision, by Judge Paul Niemeyer, says that Robinson "argues illogically that when a person forcefully stopped may be legally permitted to possess a firearm, any risk of danger to police officers posed by the firearm is eliminated....Robinson's position...fails as a matter of logic to recognize that the risk inherent in a forced stop of a person who is armed exists even when the firearm is legally possessed. " Niemeyer's majority opinion states that precedent all the way back to the 1968 Terry case that established current legal standards for police frisking make it clear that mere suspicion of gun possession, whether legal or not, is more than enough to justify a search. In that original case the Court, Niemeyer writes, "approv[ed] Officer McFadden's frisk of Terry that 'a reasonably prudent man would have been warranted in believing petitioner was armed and thus presented a threat to the officer's safety.' In this manner, the Court adopted the now well-known standard that an officer can frisk a validly stopped person if the officer reasonably believes that the person is 'armed and dangerous.'" A separate concurring opinion from the 4th Circuit in the case, also against Robinson, by Judge James Wynn tries to separate out the majority opinion's apparent belief that "armed" and "dangerous" mean essentially the same thing to declare more clearly that being armed with a gun specifically (not, for example, a wine bottle) is the thing that indeed takes away your constitutional right to be free from unwarranted search. As Wynn plainly writes, "individuals who choose to carry firearms forego certain constitutional protections afforded to individuals who elect not to carry firearms." In Wynn's opinion, in a statement that alarmed many in the gun rights community, the majority opinion as it stands has further (bad) implications for gun carriers and their constitutional rights: I see no basis--nor does the majority opinion provide any-- for limiting our conclusion that individuals who choose to carry firearms are categorically dangerous to the Terry frisk inquiry. Accordingly, the majority decision today necessarily leads to the conclusion that individuals who elect to carry firearms forego other constitutional rights, like the Fourth Amendment right to have law enforcement officers "knock-and-announce" before forcibly entering homes. See Richards v. Wisconsin...(1997) ("In order to justify a 'no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile." (emphasis added)). 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. See Schenck v. United States...(1919) (Holmes, J.) ("The question in every [freedom of speech] case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." (emphasis added)). A dissent written by Judge Pamela Harris disagrees, after noting that so many law-abiding citizens have carry rights that it just doesn't hold up to conflate "armed" (even with a gun) and "dangerous" the way the majority decision does, and that: unless and until the Supreme Court takes us there, I cannot endorse a rule that puts us on a collision course with rights to gun possession rooted in the Second Amendment and conferred by state legislatures. Nor would I adopt a rule that leaves to unbridled police discretion the decision as to which legally armed citizens will be targeted for frisks, opening the door to the very abuses the Fourth Amendment is designed to prevent. Harris' dissent also spells out what seems to this non-lawyer a clear circuit split on the question that the 4th Circuit has just created, one that might require the Supreme Court to hash out: We are not alone in this insight. In Northrup v. City of Toledo Police Dep't...(6th Cir. 2015), for instance, the Sixth Circuit held that where state law permits the open carry of firearms, the police are not authorized by Terry to conduct a stop – or an attendant frisk – of a person brandishing a gun in public. Where the state legislature "has decided its citizens may be entrusted with firearms on public streets," the court reasoned, the police have "no authority to disregard this decision" by subjecting law-abiding citizens to Terry stops and frisks.....; see also, e.g., United States v. Leo...(7th Cir. 2015) (rejecting "frisk" and search of backpack on suspicion that it contains gun in light of "important developments in Second Amendment law together with Wisconsin's [concealed-carry] gun laws"); United States v. Ubiles (3d Cir. 2000) (invalidating Terry stop based on suspicion of gun possession in open-carry jurisdiction). Wynn's boldly stated conclusions about all the rights that gun carriers lose based on this 4th Circuit judgment have been viewed-with-alarm by, among others, the National Rifle Association's Institute for Legislative Action and Ammoland. Poster Comment: Judge Pamela Harris' dissent is correct. There seems to be a number of conflicting decisions from various circuit courts. An armed, is not necessarily dangerous, ruling is needed from the supreme court. But that libtard gun grabber Gorsuch is plugging up the pipeline. He needs to be rejected quickly. Opinion from 4th Circuit Court of Appeals implies that exercising your Second Amendment rights means you inherently lose some of your Fourth and First Amendment rights.
John Biehler/Foter
Subscribe to *Bill of Rights-Constitution*
Post Comment Private Reply Ignore Thread
Top • Page Up • Full Thread • Page Down • Bottom/Latest
Begin Trace Mode for Comment # 9.
#9. To: hondo68 (#0)
[...] The police searched Robinson after pulling the car over and found the gun in his pocket, and arrested him for an illegal possession of a gun by a felon. Robinson sued to challenge the search. Since merely having the gun on his person, as the police already suspected from the call, could have been a perfectly legal act—he might have had a permit—the police, he insisted, had no legal grounds for the search that did find the (actually illegally possessed) weapon. To quote from the decision last week, Robinson argued as part of his appeals process that "Under the logic of the district court, in any state where carrying a firearm is a perfectly legal activity, every citizen could be dangerous, and subject to a Terry frisk and pat down." Last year, a panel of the 4th Circuit Court of Appeals agreed with Robinson and overturned his initial conviction. The government appealed for a decision of the full court, and now last week that full court disagreed with the panel decision. The whole case hinges, as the Court explains, in whether "armed" should legally be presumed to mean the same thing as "armed and dangerous," and they conclude that yes, it can be. The decision, by Judge Paul Niemeyer, says that Robinson "argues illogically that when a person forcefully stopped may be legally permitted to possess a firearm, any risk of danger to police officers posed by the firearm is eliminated....Robinson's position...fails as a matter of logic to recognize that the risk inherent in a forced stop of a person who is armed exists even when the firearm is legally possessed. " Niemeyer's majority opinion states that precedent all the way back to the 1968 Terry case that established current legal standards for police frisking make it clear that mere suspicion of gun possession, whether legal or not, is more than enough to justify a search. And the Court is right and Brian Doherty, whoever he his, is wrong and in conflict with about a half-century of precedent. Terry v. Ohio, 392 U.S. 1 (1968) This case presents serious questions concerning the role of the Fourth Amendment in the confrontation on the street between the citizen and the policeman investigating suspicious circumstances. Petitioner Terry was convicted of carrying a concealed weapon and sentenced to the statutorily prescribed term of one to three years in the penitentiary. Following the denial of a pretrial motion to suppress, the prosecution introduced in evidence two revolvers and a number of bullets seized from Terry and a codefendant, Richard Chilton, by Cleveland Police Detective Martin McFadden. At the hearing on the motion to suppress this evidence, Officer McFadden testified that while he was patrolling in plain clothes in downtown Cleveland at approximately 2:30 in the afternoon of October 31, 1963, his attention was attracted by two men, Chilton and Terry, standing on the corner of Huron Road and Euclid Avenue. He had never seen the two men before, and he was unable to say precisely what first drew his eye to them. However, he testified that he had been a policeman for 39 years and a detective for 35 and that he had been assigned to patrol this vicinity of downtown Cleveland for shoplifters and pickpockets for 30 years. He explained that he had developed routine habits of observation over the years and that he would "stand and watch people or walk and watch people at many intervals of the day." He added: "Now, in this case when I looked over they didn't look right to me at the time." His interest aroused, Officer McFadden took up a post of observation in the entrance to a store 300 to 400 feet away from the two men. 'T get more purpose to watch them when I seen their movements," he testified. He saw one of the men leave the other one and walk southwest on Huron Road, past some stores. The man paused for a moment and looked in a store window, then walked on a short distance, turned around and walked back toward the corner, pausing once again to look in the same store window. He rejoined his companion at the corner, and the two conferred briefly. Then the second man went through the same series of motions, strolling down Huron Road, looking in the same window, walking on a short distance, turning back, peering in the store window again, and returning to confer with the first man at the corner. The two men repeated this ritual alternately between five and six times apiece—in all, roughly a dozen trips. At one point, while the two were standing together on the corner, a third man approached them and engaged them briefly in conversation. This man then left the two others and walked west on Euclid Avenue. Chilton and Terry resumed their measured pacing, peering, and conferring. After this had gone on for 10 to 12 minutes, the two men walked off together, heading west on Euclid Avenue, following the path taken earlier by the third man. By this time Officer McFadden had become thoroughly suspicious. He testified that after observing their elaborately casual and oft-repeated reconnaissance of • the store window on Huron Road, he suspected the two men of "casing a job, a stick-up," and that he considered it his duty as a police officer to investigate further. He added that he feared "they may have a gun." Thus, Officer McFadden followed Chilton and Terry and saw them stop in front of Zucker's store to talk to the same man who had,- conferred with them earlier on the street corner. Deciding that the situation was ripe for direct action, Officer McFadden approached the three men, identified himself as a police officer and asked for their names. At this point his knowledge was confined to what he had observed. He was not acquainted with any of the three men by name or by sight, and he had received no information concerning them from any other source. When the men "mumbled something" in response to his inquiries, Officer McFadden grabbed petitioner Terry, spun him around so that they were facing the other two, with Terry between McFadden and the others, and patted down the outside of his clothing. In the left breast pocket of Terry's overcoat Officer McFadden felt a pistol. He reached inside the overcoat pocket, but was unable to remove the gun. At this point, keeping Terry between himself and the others, the officer ordered all three men to enter Zucker's store. As they went in, he removed Terry's overcoat completely, removed a .38-caliber revolver from the pocket and ordered all three men to face the wall with their hands raised. Officer McFadden proceeded to pat down the outer clothing of Chilton and the third man, Katz. He discovered another revolver in the outer pocket of Chilton's overcoat, but no weapons were found on Katz. The officer testified that he only patted the men down to see whether they had weapons, and that he did not put his hands beneath the outer garments of either Terry or Chilton until he felt their guns. So far as appears from the record, he never placed his hands beneath Katz' outer garments. Officer McFadden seized Chilton's gun, asked the proprietor of the store to call a police wagon, and took all three men to the station, where Chilton and Terry were formally charged with carrying concealed weapons. On the motion to suppress the guns the prosecution took the position that they had been seized following a search incident to a lawful arrest. The trial court rejected this theory, stating that it "would be stretching the facts beyond reasonable comprehension" to find that Officer McFadden had had probable cause to arrest the men before he patted them down for weapons. However, the court denied the defendants' motion on the ground that Officer McFadden, on the basis of his experience, "had reasonable cause to believe . . . that the defendants were conducting themselves suspiciously, and some interrogation should be made of their action." Purely for his own protection, the court held, the officer had the right to pat down the outer clothing of these men, who he had reasonable cause to believe might be armed. The court distinguished between an investigatory "stop" and an arrest, and between a "frisk" of the outer clothing for weapons and a full-blown search for evidence of crime. The frisk, it held, was essential to the proper performance of the officer's investigatory duties, for without it "the answer to the police officer may be a bullet, and a loaded pistol discovered during the frisk is admissible." After the court denied their motion to suppress, Chilton and Terry waived jury trial and pleaded not guilty. The court adjudged them guilty, and the Court of Appeals for the Eighth Judicial District, Cuyahoga County, affirmed. State v. Terry, 5 Ohio App. 2d 122, 214 N. E. 2d 114 (1966). The Supreme Court of Ohio dismissed their appeal on the ground that no "substantial constitutional question" was involved. We granted certiorari, 3§7 U. S. 929 (1967), to determine whether the admission of the revolvers in evidence violated petitioner's rights under the Fourth Amendment, made applicable to the States by the Fourteenth. Mapp v. Ohio, 367 U. S. 643 (1961). We affirm the conviction. [...]
#11. To: nolu chan (#9)
(Edited)
Shaquille Robinson was not a Terry stop. Terry doesn't apply to Shaquille Robinson. Pennsylvania v. Mimms is the applicable precedent.
Top • Page Up • Full Thread • Page Down • Bottom/Latest [Article] Shaquille Robinson in March 2014 was a passenger in a car pulled over by police in Ranson, West Virginia. It was pulled over, ostensibly, because driver and passenger were not wearing seat belts.
Mr. Chief Justice Warren delivered the opinion of the Court.
Replies to Comment # 9.
End Trace Mode for Comment # 9.
[Home] [Headlines] [Latest Articles] [Latest Comments] [Post] [Mail] [Sign-in] [Setup] [Help] [Register]