Fourth Circuit shreds civil liberties for public gun carry

The Hill – by E. Gregory Wallace

Should a person forfeit certain constitutional rights just because he or she chooses to carry a firearm lawfully in public? That’s exactly what a federal appellate judge declared this week in a case involving police stop-and-frisk.

The case is United States v. Robinson and it was heard by all 16 judges on the United States Court of Appeals for the Fourth Circuit.  

The facts in the case are not sympathetic to the criminal defendant. Police received a tip that a man was riding in a car with a concealed firearm in his pocket. Police stopped the car after observing that the occupants were not wearing seatbelts (a pretext, of course, but constitutional under Supreme Court precedent). Police frisked the defendant and discovered the gun, leading to his arrest for being a felon in possession of a firearm.

Police are permitted under the Fourth Amendment to frisk a person for weapons if they reasonably suspect him to be “armed and dangerous.” The defendant conceded that the stop was proper, but argued that the search was unconstitutional because when police officers conducted the frisk, they had no reason to believe he was dangerous—for all they knew, he had a concealed carry permit and was lawfully carrying the firearm. A three-judge panel of Fourth Circuit judges agreed.

The Robinson majority reversed the panel and ruled against the defendant, not on the specific facts of the case, but by establishing a bright-line rule that anyone who is armed also is per se “dangerous,” even if that person may be lawfully carrying a firearm and there’s nothing to suggest that he poses a threat to the police or public.

The majority reasoned that since guns are dangerous, anyone who carries a gun is dangerous, and police can act accordingly. It collapsed the conjunctive conditions “armed and dangerous” into a unitary concept—“armed and therefore dangerous”—thus stripping “dangerous” of any independent meaning and rendering it a mere redundancy.

Simply carrying a firearm, even lawfully, is enough to make you dangerous and subject to a police search and disarmament.

The decision is hard to square with an earlier Fourth Circuit case, United States v. Black, decided in 2013, in which the court of appeals held that in a state that allows the public carry of firearms, a person’s mere possession of a gun in public does not permit police to stop and briefly detain that person to investigate. Permitting such a justification for a stop, the court explained, “would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.”

Federal appellate courts in three other circuits have reached the same conclusion.

The Robinson majority never said whether it was overruling Black—astonishingly, it never even mentioned the case. So, in the Fourth Circuit, where public carry is legal, police apparently still cannot stop a person merely because they observe or have reason to believe that the person is carrying a gun.

This leaves the Fourth Circuit’s stop-and-frisk rules weirdly incongruous: the mere possession of a gun in public, where public carry is legal, does not justify stopping a person, but once that person is lawfully stopped, it is sufficient to justify frisking him. You would think if merely carrying a gun in public makes a person sufficiently dangerous to justify a frisk, it also would make the person sufficiently dangerous to justify a stop.

Judge James Wynn wrote a separate opinion agreeing with the result, but emphasizing that the case is really about firearms, not stop-and-frisk. To him, collapsing “armed and dangerous” into a unitary concept is permissible only when it comes to firearms, not other weapons.

Now comes the disturbing part.

Judge Wynn said that since persons who lawfully carry firearms are “categorically dangerous,” they “sacrifice certain constitutional protections afforded to individuals who elect not to carry firearms.” In other words, the price of exercising the constitutional right to bear arms will be the forfeiture of other constitutional freedoms — which include, according to Judge Wynn, certain free speech and search-and-seizure protections.

Judge Wynn did not identify what free speech rights persons lawfully carrying firearms might lose. The majority opinion said nothing about free speech, only stop-and-frisk. To support his point, Judge Wynn invoked the “clear and present danger” test applied in Schenck vs. United States, a 1919 Supreme Court decision upholding a conviction under the Sedition Act for speech merely critical of government. But that test referred to “danger” posed by words, not by carrying firearms, and the Supreme Court long ago abandoned it as a guide for free speech analysis.

Aside from free speech, Judge Wynn only made explicit what is implicit in the majority’s decision.

The decision allows police to frisk and disarm a person without any indication that the person is breaking the law. Exercise your legal right to carry a gun in public and you lose your Fourth Amendment protection against suspicionless searches. When you’re stopped for broken taillight, the officer can treat you as a lethal threat even if you’ve done nothing threatening.

To be sure, carrying a concealed firearm makes a person more dangerous. But dangerous to whom? Law-abiding citizens who legally carry firearms may be dangerous to bad guys, but pose no threat to police or the public.

Judge Pamela Harris, in a powerful dissenting opinion, explained that “where the state legislature has decided that its citizens may be entrusted to safely carry firearms on public streets and during traffic stops, and law-abiding citizens have availed themselves of these rights, I do not see how we can presume that every one of those citizens necessarily poses a danger to the police.”

Studies show that concealed-carry permit holders are far less likely to commit crimes than the general population or even law enforcement officers. Over the last 10 years, the number of concealed handgun permits in the US has soared to over 14.5 million—a 215 percent increase. Permit holders carry firearms regularly in restaurants, grocery stores, office buildings, shopping malls, movie theaters, and churches, without any increase in unlawful gun violence.

Police officers have a tough job, and the vast majority do that job heroically. They understandably are apprehensive when approaching someone they reasonably believe is armed.

The better approach—preferred by most courts—balances police safety with individual rights by permitting police to frisk a person who is armed if they have reasonable suspicion, based on the specific facts and circumstances at hand, that the person poses a danger to them or the public.

We shouldn’t penalize people who choose to exercise lawfully their constitutional right to bear arms by stripping them of other constitutional rights.

E. Gregory Wallace is a constitutional law professor at Campbell University School of Law in Raleigh, North Carolina. The views expressed are his own. Follow Campbell Law on Facebook at http://www.facebook.com/campbelllawschool and on Twitter at @CampbellLawSBA 

http://thehill.com/blogs/pundits-blog/civil-rights/316859-fourth-circuit-judges-turn-legal-contortionist-over-open