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U.S. v. Robinson: Have Concealed Carriers Lost the 4th Amendment?

U.S. v. Robinson: Have Concealed Carriers Lost the 4th Amendment?

If you CCW, don’t jump off the bridge yet just because of the 4th Circuit decision.

http://newsblaze.com/business/legal/a-concealed-carry-case-scotus-cant-refuse_73444/

So, this happened: the 4th Circuit released an en banc decision involving a traffic stop in which a concealed carrier passenger was frisked by police, and much of the gun owning community lost its mind in a manner reminiscent of Rachel Maddow.

The gist of much of the media coverage–particularly the coverage from the right–was the law abiding people who CCW have effectively been wholly stripped of their 4th Amendment rights.  Is there no Constitutional safe space for these poor folks?

Given the histrionics, it’s worth taking a look at the actual facts of the case (indeed, it’s worth reading the entire decision, including the concurrence and dissent, so I’ve embedded that below).

Before I begin, however, I feel that I ought to provide some context.  I, myself, routinely carry a concealed firearm for personal protection. You can read “routinely” to mean wherever and whenever lawful.  I’ve been doing so for my entire adult life.

Further, I think states requiring a permit in order for a law-abiding person to carry a concealed firearm for self-defense are engaging in conduct that is facially unconstitutional (can I get a “shall not be infringed” here?).  There should be no permit required for the exercise of any Constitutional right by a law abiding citizen, period.  I urge you–especially those of you on the right–to keep that in mind.

With that out of the way, let’s first take a look at the facts of this case.  First of all, Robinson (the decision) did not involve a someone lawfully carrying a concealed gun who was picked out for police abuse on a whim.  Were that the case, I’d be as outraged as anybody else.  Fortunately, that’s not what happened here.  In fact, Robinson (the man) was about as far from a typical lawful CCWer as one could get.

Here is the oral argument:

Here are some of the facts that distinguish what actually happened here from what many of us who CCW might mistakenly believe, and fear, had happened.

First of all, Robinson (the man) was brought to the attention of the police not merely because he was spotted with a holstered gun, either concealed or open carried. Rather, he was brought to the attention of the police because he was handling his firearm in a public parking lot, in view of the public.  As mentioned, I’ve carried a gun my entire adult life, and never once have I found it necessary to whip out my gun and handle it in a public parking lot.  I’m excepting, of course, such venues as gun ranges and matches where the handling of firearms is inherent to the environment–although I would point out that even in those venues the handling of a firearm where it is not expected or normal can get you sent home awfully quick.

Second, this was not merely the public parking lot of the local Target or Costco.  This was the parking lot of a convenience store known to police to be a particularly active open-air drug market for the sale of controlled substances.  The law has long been recognized that conduct in such environments warrants greater scrutiny and allows for the inference of greater concern on the part of police officers than would identical conduct elsewhere. Personally, not only have I never whipped out my gun to handle it in a public parking lot, I’ve certainly never done so in a drug market.

Third, Robinson (the man) was not a person lawfully CCWing.  Although he certainly was carrying concealed, he did no have a concealed carry license.  As much as I object to any requirement for such a license in order for a law abiding citizen to exercise their Second Amendment rights, if you have such a license you’re immediately distinguished from Mr. Robinson.

Fourth, even had Robinson wanted a license, he could not have gotten one.  In fact, Robinson was a convicted felon who could not lawfully possess firearms under any circumstances, much less out in public.  Further, he was recognized by the police involved as being a person known to them as a convicted felon.

Fifth, although the majority in the Robinson decision repeatedly refers to him as being compliant with the police, I would challenge that characterization.  Surely he did not physically resist the police.  He did also, however, did not respond to perfectly reasonable questions, such as whether he had identification or was armed.  I would say that he was, in fact, passively non-compliant.  Given the fact that he was a felon in unlawful possession of a firearm it was well within his Constitutional rights to decline to answer such questions, and indeed prudent of him to decline. It is equally true, however, that such refusal could reasonably be perceived by officers as grounds for suspicion.  Personally, unless required by law I don’t volunteer to an officer who has stopped me while driving that I’m armed.  Unless, that is, he asks me, or asks me to exit the vehicle.  I think that’s what any reasonable CCWer should do, and I expect it’s not unreasonable for most officers to expect that much consideration in carrying out an extremely dangerous task (a traffic stop).

Now that I’ve described the many ways in which the facts of the case greatly varied from the facts that would likely be in place during a similar stop of any of us licensed to carry concealed, we must set all of that aside.  While the decision does in fact discuss all those facts, they are also explicit that those facts are not essential to its finding (that is, they are dicta).

That finding, succinctly stated by the court, is that:

[W]e conclude that given Robinson’s concession that he was lawfully stopped and that the police officers had reasonable suspicion to believe that 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 rights.

Are you freaking out yet? Sure, I’ll wait a minute. Calmed down? Good.

There’s an expression in the legal profession that bad cases make bad law, and I certainly see that at play here.  Also, the majority decision is in my opinion over-broad in its finding. Nevertheless, I think it’s important that we recognize some simple realities at play.

Nobody has an absolute right to be secure in their person and papers against government inspection or seizure.  Rather ,the 4th Amendment protects against unreasonable searches and seizures. That right against unreasonable searches and seizures exists broadly, but can be overcome by various factors and methods–such as the government obtaining a search warrant, for example, or in the presence of exigent circumstances.

The relevant question, then is whether an officer knowing that a passenger in a lawfully stopped vehicle is armed with a gun has the power under the Constitution to relieve that passenger of their gun while the stop is taking place.

To my mind, and again as somebody who has carried concealed my entire adult life, if the worst thing that happens to me during a traffic stop is that the officer secures my handgun while the stop is taking place, and then returns it to me once he’s done writing me my performance award, I have a great deal of difficulty in being too outraged about that.

Context matters.  A person carrying a gun represents a potential threat to an officer that a person carrying, say, a controlled substance simply does not.  And if we’re going to be honest with ourselves as concealed carriers, we have to acknowledge this reality.

After all, why do we carry the gun in the first place? Is it not for the specific purpose of making ourselves substantially more dangerous than we would be without the gun? Certainly that’s why I carry.

And if we acknowledge that the possession of the gun makes a person a substantially greater prospective threat to the officer, is it really outrageous for the officer to secure that gun while he’s engaged in the stop?  Then returning the gun upon completion of the stop if there’s no lawful reasons not to do so?

None of that means that I like the finding in Robinson, nor does it mean that I couldn’t raise robust arguments against the majority opinion, particularly under certain facts not present here (e.g., if Robinson had in fact been licensed to carry and had proffered that valid license to the officer).

And certainly, as gun owners we’ve long ago learned that we have to be viciously jealous in defense of our rights, as protection against the ceaseless efforts of the fascists to crush those rights (I’m looking at you, California, New Jersey, Massachusetts, New York, Maryland, and a few tumors that have metastasized elsewhere).  And if you find yourself the actual subject of a wrongful 4th Amendment violation, feel free to drop me a line and we’ll gather up the resources to straighten that nonsense out.

Nevertheless, I don’t see Robinson as an example of that kind of blatant attack up the rights of gun owners.

So, if you CCW, don’t jump off the bridge yet. The world hasn’t ended, and concealed carriers haven’t had their 4th Amendment rights stripped from their Constitutional chests.

Anyway, that’s my view.

As promised, here’s the entire US v. Robinson decision from the 4th Circuit.

US v. Robinson by Law of Self Defense on Scribd

–-Andrew


Andrew F. Branca is an attorney and the author of The Law of Self Defense, 3rd Edition, and a host on The Outdoor Channel’s TV show, The Best Defense.

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Comments

I agree with you completely on this, and especially on the old saying “bad cases make bad law”. I am the holder of a Texas CCP myself, although I find I don’t need to avail myself of it too much these days.

In this particular case, I think most reasonable jurists would agree that the Police were justified in asking for and securing this weapon during the stop. So, it’s not the ruling in the case that is objectionable, it’s just all of that extra and unnecessary verbiage that the 4th circuit decided to write into their decision. As you say, the decision is unnecessarily overbroad.

On the bright side, this is just the 4th circuit, it isn’t a SCOTUS case. Overbroad decisions are often narrowed later.

    Miles in reply to Tom Servo. | January 27, 2017 at 8:22 pm

    From what I’ve heard elsewhere. The 6th Circuit had a similar case where their ruling was the opposite.

    Now, I’m not going to say that the only reason the 4th Circuit ruled this way was to make it more than likely to get before SCOTUS, via conflicting appellate rulings, but it sure smells like it might have been a significant one.

Great clarifying article…no need for us to act like the opposite of the lefty nuts that go off “half-cocked” these days.

Isn’t this basically a simple “Terry stop” ? Police had more than enough RAS, totality of circumstances, known felon in an open air drug market. I read the brief, it’s not much different from what I’ve been doing for the last 20 years. They’d have been foolish not to have done what they did.

“Constitutional rights to decline to answer such questions, and indeed prudent of him to decline. It is equally true, however, that such refusal could reasonably be perceived by officers as grounds for suspicion.”

Since reasonable police are always suspicious, then any search can be deemed reasonable; the 4th amendment is kaput.

The police did ‘know’ that Robinson was armed, all they know is that somebody said he was armed.

    If it turns out the police were being unreasonable, there is legal recourse afterwards that does not exist if it turns out they were being reasonable in suspicion but were unreasonably legally restrained and therefore got shot in the face.

    Shot. In. The. Face. Police die like this with some regularity on traffic stops.

    The Constitutional legalities can be addressed in court, and wrongs done to civil rights addressed retroactively

    The cop shot in the face can not be brought back to life.

    –Andrew

      Here is what I know from the article.

      1) Police receive (anonymous?) call about a weapon.
      2) Police alert issued.
      3) Police stop car for seat belt violation?
      4) Police question driver.
      5) Driver asserts his 5th Amendment right.
      6) Police assert claiming the 5th is suspicious?

      Item 3) indicates that the call to the police was not sufficient to stop and search the car and driver.
      Item 4) ditto for the seat belt violation
      Item 6) Driver asserting 5th Amendment was deemed sufficient cause to search car and driver.

      The court ruling, whatever the actual wording is, states that the call to the police raised suspicion of danger. The location of the gun sighting increased the suspician of danger. And the driver’s assertion of the 5th Amendment was the straw that broke the camel’s back.

      The implication here is that any concealed carry is seen as suspicious and dangerous. I suppose any newspaper reporter exercising the 1st Amendment would raise the same suspicion of danger. Yeah, I know, in many states, the concealed carry license is violated if the weapon is made visble in public.

      What any reasonable person would conclude is that the police were going to stop and search the driver regardless of the law. Not only is the 4th Amendment kaput, but worse, it’s dangerous to assert the 5th Amendment.

    For purposes of this discussion “know” and “have reasonable belief” amount to the same thing.

    If you’re speaking of “know” in an ABSOLUTE sense, no jury could ever convict anybody of anything, as no jury was there when the crime was committed. A required standard of ABSOLUTE knowledge would obviously be utterly idiotic.

    No offense.

    Jeepers. Think.

    –Andrew

This was much ado about nothing. People get their knickers in a twist because someone who is violating the law gets caught. In this case, the police did not plant evidence. They did not fabricate evidence. And they did not present false testimony concerning the evidence. What we have here is a convicted felon who was knowingly in possession of a firearm which he either knew or should have known was a violation of criminal law. He was carrying the weapon concealed w/o a license or permit. Again he either knew or should have known that this was a violation of a criminal law. He allowed a 3rd party witness to see that he was armed, in a public place, and that witness informed the police. The police, making contact with a person who was reportedly armed and acting in a suspicious manner [a Terry Stop], frisked him and found the gun. Sounds like everything worked out. An armed criminal was identified, located and taken into custody. This is how it is supposed to work.

Now, as to the regulation of the ownership and possession of firearms being unconstitutional, this is correct. The 3nd Amendment clearly states that the federal government may not infringe upon the keeping [ownership] and bearing [possessing or carrying] of arms [weapons including firearms]. And, the 14th Amendment applies the 2nd Amendment to the states. So, any law or regulation enacted by a government or any part of a government would be an unconstitutional violation of the 2nd Amendment. The SCOTUS, however, chose to rewrite the 2nd Amendment, in dicta, to allow for “reasonable restrictions”. Someday “reasonable restrictions” may be defined. Until then, common sense applies.

    Mac45 in reply to Mac45. | January 27, 2017 at 9:40 pm

    Correction: The reference to the 3rd Amendment should read the 2nd Amendment.

    MSO in reply to Mac45. | January 28, 2017 at 9:51 pm

    It’s not nonsense at all; it is about treating legal gun owners as suspicious and dangerous. In this case, it was not a legal gun owner, but the police did not know that at the time.

    Further, rather than pulling the car over and ordering the driver out of the car, the police played a very dangerous game. They made up an excuse to pull him over and then they chose to question him. Only then did they order him out of the car. The police unnecessarily prolonged a tense confrontation, increasing the risk to all parties.

      Legal gun owners ARE dangerous. Indeed, they carry guns IN ORDER TO BE DANGEROUS.

      When a person in possession of a gun who is the subject of a lawful stop declines to identify themselves as a legal gun owner, that certainly IS grounds for suspicion, and while perhaps not alone sufficient to justify a frisk may well be sufficient when in the context of other additional suspicious factors (e.g., reports to be handling a gun in public in the parking lot of a well-known open-air drug market).

      Even children understand this.

It’s late and I don’t have time to listen to the oral arguments or read the decision. So I won’t comment on that.

I simply want to say that Trump has said that this week he will announce his pick for SCOTUS. I hope to hear from you on how well he did on that.

“To my mind, and again as somebody who has carried concealed my entire adult life, if the worst thing that happens to me during a traffic stop is that the officer secures my handgun while the stop is taking place, and then returns it to me once he’s done writing me my performance award, I have a great deal of difficulty in being too outraged about that.”

Sorry, but the worst thing that can happen is that the policeman puts a round through you (or themselves) because they are unfamiliar with your firearm type, how it’s safety system works, or how your retention holster works.

It’s much better and safer for everyone if they don’t touch it.

A case that I believe occurred in Florida happened that after a traffic stop the driver stated that he had a CCW and was armed. At that point, he was told to get out of his car with his hands on the roof etc. Since then I have read from some law enforcement types that unless the concealed weapon will be an issue, the driver is told to leave the car, that it should not be mentioned. What is the best answer to this conundrum?

    The Packetman in reply to inspectorudy. | January 28, 2017 at 9:41 am

    “What is the best answer to this conundrum?”

    I’m not sure there is a ‘best’ answer, as the ‘best’ answer ultimately depends on the individual officer, absent any duty to inform. Some officers say that one should inform the officer that you are legally armed; others, as you mentioned, say one should keep silent unless it will be a problem … but what you think will be a problem might not be what the officer thinks will be a problem.

    Personally, my GA WCL is behind my driver’s license in my wallet, such that it must be removed first in order to get to my license, giving the officer a chance to see that I may be armed (and that I have the necessary permissions) and allow him to ask questions and decide how to proceed.

    Beyond all this, I simply try to conduct myself so that there isn’t any need to interact with law enforcement in an official capacity!

    the other rob in reply to inspectorudy. | January 28, 2017 at 10:05 am

    Here in Texas, the done thing is to hand the officer both your drivers license and your CHL (or LTC as they are now called).

    This notifies the officer that you may be armed, giving him the opportunity to decide how to proceed (my favorite was the lady State Trooper, who asked if I was carrying, got an affirmative response and replied “Good.”).

    It also has the happy side-effect of informing the officer that (at least at the time the license was issued) you had no serious convictions and are therefor likely to be a law abiding person. That, along with a polite and pleasant attitude, can often turn a ticket into a warning.

      Tom Servo in reply to the other rob. | January 28, 2017 at 12:11 pm

      It’s interesting that you write that. The scenario you outline, in every detail, happened to me about 6 months ago. Including the warning. (yeah, I was over the speed limit)

    The “best” answer depends somewhat on state law. Some states require you to inform a police officer that you are armed.

      THIS. Texas requires any CHL holder to show it to the officer along with license and tell the officer if he or she is carrying.

        Walker Evans in reply to SDN. | January 29, 2017 at 2:47 am

        Here in Kansas there is no requirement to notify so unless asked you may keep silent regarding being armed, unless you decide otherwise. However, if ordered out of the vehicle courtesy, common sense, and basic personal safety concerns dictate that you immediately inform the officer you’re armed, keep both hands in plain sight, ask how that officer wants you to proceed, and then (avoiding sudden moves!) follow his/her instructions to the letter.

        I know from experience that this is the best course of action. [And no, I hadn’t broken any laws, not even a traffic violation; my truck matched the description of one involved in a robbery a few blocks away.]

casualobserver | January 28, 2017 at 8:53 am

The more reasonable and rational 4th amendment supporters are the irrational and illogical gun control advocates appear. This was a good read.

I had hoped Andrew Branca would have gone into the actual decision and discussed whether Terry requires both dangerousness and armed or whether a person who is armed is therefore dangerous.

If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about. The States still retain their rights to this day to defy the federal judiciary, which has become an oligarcy. We just need strong statesmen as governors and legislatures to make that stand!

In writing to William Jarvis, Jefferson said, “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”

The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”

Not sure this is really relevant to this case, or maybe it is!

In reference to the second assertion, why would the police allow a open air drug market to operate? Isn’t it illegal? I realize I’m just a simpleton but it seems to me that if they know it is there, they should shut it down!

I’m not sure I like this in their finding…

“We reject Robinson’s argument and affirm, concluding that an officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile’s occupants is armed may frisk that individual for the officer’s protection and the safety of everyone on the scene.”

If Robinson was the passenger and at the time it was a traffic stop and he’s not the driver then he doesn’t have to identify himself, correct?

The courts finding states “ONE” of the occupants is armed which means there was no positive ID, then when is the officer allowed to search both or just the passenger in the traffic stop?

Why was the traffic stop a valid means to search for weapons if there wasn’t a positive ID of who had the weapon?

Did the driver get a ticket for seatbelt violation? If not, it was a bogus stop.

I’ve seen countless video’s (yes those You Tuber’s doing 2A audits) and the officer approaches and almost immediately wants to disarm the LAW ABIDING citizen of their weapon with the excuse of “for the officers protection”.

    “Did the driver get a ticket for seatbelt violation? If not, it was a bogus stop.”

    This is simply incorrect. A lawful stop is not made unlawful simply because an officer chooses to use his discretion to not issue a ticket.

    That’s just not how it works.

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