4th circuit decision

Lutherf · Feb 8, 2017

Opinion here
http://pacer.ca4.uscourts.gov/opinion.pdf/144902A.P.pdf

Article here
Gun Carriers Forfeit Rights According to Federal Appeals Court's Decision

Short version is that en banc panel of the 4th circuit has decided that, for purposes of a frisk incident to a Terry stop, there is no longer a distinction between being armed and being dangerous. According to the court, if you are armed you are, by definition, dangerous and therefore subject to a search at the officers discretion.

That may sound fine and all "common sense" but think about it for a minute. If you're lawfully open carrying a firearm and in compliance with all the state laws you can STILL be subject to a stop and a search. Furthermore, if you have a concealed permit and that comes up on the cops information screen you can be presumed to be carrying and are therefore considered to be dangerous and subject to search.

Even more crazy is that this decision comes at a time when there has been great political pressure on the courts to LIMIT Terry stops....well, at least to limit them when it comes to stopping an individual exhibiting signs of gang or drug activity.

Robinson argues that Mimms is distinguishable because the frisk there took place in a jurisdiction that made it a crime to carry a concealed deadly weapon. West Virginia, on the other hand, generally permits its citizens to carry firearms. From this distinction, Robinson argues that when the person forcibly stopped may be legally permitted to possess a firearm, the risk of danger posed by the firearm is eliminated. This argument, however, fails under the Supreme Court’s express recognition that the legality of the frisk does not depend on the illegality of the firearm’s possession. Indeed, the Court has twice explained that “[t]he purpose of this limited search [i.e., the frisk] is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law.” Williams, 407 U.S. at 146 (emphasis added); see also Long, 463 U.S. at 1052 n.16 (“[W]e have expressly rejected the view that the validity of a Terry search [i.e., a frisk] depends on whether the weapon is possessed in accordance with state law”). Robinson’s position directly conflicts with these observations.

You can see from the above excerpt that the court makes the argument that the firearm alone creates the danger and that the status of the individual in possession of the firearm is immaterial.

jamesrage · Feb 8, 2017

Lutherf said:
Opinion here
http://pacer.ca4.uscourts.gov/opinion.pdf/144902A.P.pdf

Article here
Gun Carriers Forfeit Rights According to Federal Appeals Court's Decision

Short version is that en banc panel of the 4th circuit has decided that, for purposes of a frisk incident to a Terry stop, there is no longer a distinction between being armed and being dangerous. According to the court, if you are armed you are, by definition, dangerous and therefore subject to a search at the officers discretion.

That may sound fine and all "common sense" but think about it for a minute. If you're lawfully open carrying a firearm and in compliance with all the state laws you can STILL be subject to a stop and a search. Furthermore, if you have a concealed permit and that comes up on the cops information screen you can be presumed to be carrying and are therefore considered to be dangerous and subject to search.

Even more crazy is that this decision comes at a time when there has been great political pressure on the courts to LIMIT Terry stops....well, at least to limit them when it comes to stopping an individual exhibiting signs of gang or drug activity.

You can see from the above excerpt that the court makes the argument that the firearm alone creates the danger and that the status of the individual in possession of the firearm is immaterial.

Last I checked there is not a one at a time clause in the bill of rights. Those judges should be impeached.

jet57 · Feb 8, 2017

Lutherf said:
Opinion here
http://pacer.ca4.uscourts.gov/opinion.pdf/144902A.P.pdf

Article here
Gun Carriers Forfeit Rights According to Federal Appeals Court's Decision

Short version is that en banc panel of the 4th circuit has decided that, for purposes of a frisk incident to a Terry stop, there is no longer a distinction between being armed and being dangerous. According to the court, if you are armed you are, by definition, dangerous and therefore subject to a search at the officers discretion.

That may sound fine and all "common sense" but think about it for a minute. If you're lawfully open carrying a firearm and in compliance with all the state laws you can STILL be subject to a stop and a search. Furthermore, if you have a concealed permit and that comes up on the cops information screen you can be presumed to be carrying and are therefore considered to be dangerous and subject to search.

Even more crazy is that this decision comes at a time when there has been great political pressure on the courts to LIMIT Terry stops....well, at least to limit them when it comes to stopping an individual exhibiting signs of gang or drug activity.

You can see from the above excerpt that the court makes the argument that the firearm alone creates the danger and that the status of the individual in possession of the firearm is immaterial.

Open carry does not necessarily mean that you are in compliance. Moreover, if the cops are looking for an armed suspect, and said carrier matches a description, the cops are obligated to investigate.

BretJ · Feb 8, 2017

jet57 said:
Open carry does not necessarily mean that you are in compliance. Moreover, if the cops are looking for an armed suspect, and said carrier matches a description, the cops are obligated to investigate.

Read the actual brief. It is not about open/CCW carry. What is spooky is the brief actually states that legal carriers forgo/lose 4A constitutional rights if they choose to legally exercise their right to carry. For instance, let's say someone "SWATs" you. Police in California know you own your 1911 and M1 carbine. The police are no longer required to knock on your door because according to the ruling, you are now considered "dangerous".

Lutherf · Feb 8, 2017

jet57 said:
Open carry does not necessarily mean that you are in compliance. Moreover, if the cops are looking for an armed suspect, and said carrier matches a description, the cops are obligated to investigate.

That's different. If someone called a complaint on you then the cops have an obligation to investigate. If the complaint cited a violent act then the cops would also be exercising reasonable action if they searched and disarmed you.

In this particular case it seems that the complaint was solely that someone possessed a firearm in public. I'm not even sure that the act of unholstering the firearm to load or unload it illegal in West Virginia but it's certainly not a dangerous act. In AZ the caller making such a complaint would most likely be told that there was no evidence of a crime but thanks for the information anyway.

jet57 · Feb 8, 2017

BretJ said:
Read the actual brief. It is not about open/CCW carry. What is spooky is the brief actually states that legal carriers forgo/lose 4A constitutional rights if they choose to legally exercise their right to carry. For instance, let's say someone "SWATs" you. Police in California know you own your 1911 and M1 carbine. The police are no longer required to knock on your door because according to the ruling, you are now considered "dangerous".

No; that's mindless rhetoric.

The author of the article is a pseudonym and in no way qualified to render anything other than an opinion. For instance:

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.

That is an hyperbolic and prejudiced opinion that has no basis in fact by any stretch of the imagination. So the credibility of the article is lost from the outset.

The thesis is about being "labeled" armed and dangerous as determined by on duty police officers in the course of an investigation of a suspect matching a description who is suspected of unlawful activity; which plays right into my open carry scenario as "open carry" is just more obvious.

Robinson was seen putting a gun into his pocket. CCW carriers are not, as a general rule, putting their guns into their pockets: gang bangers are... or under their belts. Had Robinson been seen "holstering" his gun under a coat, the assumption might have been that he was an undercover cop, or someone with a permit.

Perception is reality.

Therefore, when the officers approached a car that had two men in it, and one was suspected of carrying a gun, then officers - by way of competent training are going to presume that they are dealing with an armed and possibly dangerous individual: it happens ever single day in law enforcement.

The officer's hunch turned out to be correct, and the gun would have been found no matter how the search was conducted. When Robinson's reply to a direct and lawful question about possession of gun was "huh?" Then the cops knew that he was not a lawful possessor, and if he had not had a gun, then no harm no fowl, he goes on his way.

But that didn't happen. He was an ex-felon in the unlawful possession of a firearm - period, full stop.

His defense, was trying to go with an assumption of illegal search, but - drugs and other contraband are searched out through "legal stops" everyday.

The problem was, neither guy had their seat belts on, as gang bangers usually do not. So - they got stopped.

If an officer approaches anybody - in the course of an investigation and has prior knowledge that said person may be or IS armed, then until otherwise noted, that person will be presumed to be possibly dangerous. IF said person is an open carrier, it's just easier because the officer(s) can see his hands. They are however better advised to be vigilant to protect themselves.

The court did exactly the right thing.

American · Feb 8, 2017

jet57 said:
Open carry does not necessarily mean that you are in compliance. Moreover, if the cops are looking for an armed suspect, and said carrier matches a description, the cops are obligated to investigate.

Your broad statement means absolutely zero. Then you follow with excses

Sent from my SM-G920V using Tapatalk

jet57 · Feb 8, 2017

Lutherf said:
That's different. If someone called a complaint on you then the cops have an obligation to investigate. If the complaint cited a violent act then the cops would also be exercising reasonable action if they searched and disarmed you.

In this particular case it seems that the complaint was solely that someone possessed a firearm in public. I'm not even sure that the act of unholstering the firearm to load or unload it illegal in West Virginia but it's certainly not a dangerous act. In AZ the caller making such a complaint would most likely be told that there was no evidence of a crime but thanks for the information anyway.

That may be true, but I think we're really dealing with neighborhood / beat dynamics and past practices. If an Az caller was reporting something like that in a high crime area, the response I'm sure would've been different.

jet57 · Feb 8, 2017

American said:
Your broad statement means absolutely zero. Then you follow with excses

Sent from my SM-G920V using Tapatalk

It makes perfect sense and means everything with respect to the question of the OP.

It's about "approach to an armed person". That's the thesis of the OP.

Please remember; reading is fundamental.

BretJ · Feb 8, 2017

jet57 said:
No; that's mindless rhetoric.

The author of the article is a pseudonym and in no way qualified to render anything other than an opinion. For instance:

That is an hyperbolic and prejudiced opinion that has no basis in fact by any stretch of the imagination. So the credibility of the article is lost from the outset.

The thesis is about being "labeled" armed and dangerous as determined by on duty police officers in the course of an investigation of a suspect matching a description who is suspected of unlawful activity; which plays right into my open carry scenario as "open carry" is just more obvious.

Robinson was seen putting a gun into his pocket. CCW carriers are not, as a general rule, putting their guns into their pockets: gang bangers are... or under their belts. Had Robinson been seen "holstering" his gun under a coat, the assumption might have been that he was an undercover cop, or someone with a permit.

Perception is reality.

Therefore, when the officers approached a car that had two men in it, and one was suspected of carrying a gun, then officers - by way of competent training are going to presume that they are dealing with an armed and possibly dangerous individual: it happens ever single day in law enforcement.

The officer's hunch turned out to be correct, and the gun would have been found no matter how the search was conducted. When Robinson's reply to a direct and lawful question about possession of gun was "huh?" Then the cops knew that he was not a lawful possessor, and if he had not had a gun, then no harm no fowl, he goes on his way.

But that didn't happen. He was an ex-felon in the unlawful possession of a firearm - period, full stop.

His defense, was trying to go with an assumption of illegal search, but - drugs and other contraband are searched out through "legal stops" everyday.

The problem was, neither guy had their seat belts on, as gang bangers usually do not. So - they got stopped.

If an officer approaches anybody - in the course of an investigation and has prior knowledge that said person may be or IS armed, then until otherwise noted, that person will be presumed to be possibly dangerous. IF said person is an open carrier, it's just easier because the officer(s) can see his hands. They are however better advised to be vigilant to protect themselves.

The court did exactly the right thing.

It is obvious you did not read the actual court document referenced in the OP. I am not disagreeing that they made the right decision in the case of that asshat. However, read pages 28-32 of the actual court document referenced in the OP link. The judge states that if you carry, legal or not, by doing so, you lose your 4A rights.

jet57 · Feb 8, 2017

BretJ said:
It is obvious you did not read the actual court document referenced in the OP. I am not disagreeing that they made the right decision in the case of that asshat. However, read pages 28-32 of the actual court document referenced in the OP link. The judge states that if you carry, legal or not, by doing so, you lose your 4A rights.

I did read th pages that you are referring to. My conclusion is - yeah, so?

You're whole argument fall apart right here - again:

Thus, like most rights, the right protected by
the Second Amendment--which Defendant’s conduct may or may not implicate2--“is not unlimited” and therefore does not amount to
“a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Heller, 554 U.S. at 626

The decision goes on to state that a firearm, by its very nature is inherently dangerous, and thus so is a person who is in possession of one, as appearing inherently dangerous is the very purpose od possession in the first place.

I don't remember if it was you that mention coming into my house unannounced, but when firearms are suspected, or known to be there in the course of an arrest, then the police are obliged to look after themselves and the general public first, and answer up later if a mistake was made.

So my opinions for the outset have been right on target.

Lutherf · Feb 8, 2017

jet57 said:
I did read th pages that you are referring to. My conclusion is - yeah, so?

You're whole argument fall apart right here - again:

The decision goes on to state that a firearm, by its very nature is inherently dangerous, and thus so is a person who is in possession of one, as appearing inherently dangerous is the very purpose od possession in the first place.

I don't remember if it was you that mention coming into my house unannounced, but when firearms are suspected, or known to be there in the course of an arrest, then the police are obliged to look after themselves and the general public first, and answer up later if a mistake was made.

So my opinions for the outset have been right on target.

That's the whole problem with the decision. A firearm IS NOT inherently dangerous. It isn't inherently anything other than a hunk of metal (and maybe some polymer parts). Hell, that's been the problem with the whole "common sense" gun control thing from the beginning. They just can't manage to get it through their heads that guns are not living, breathing, walking, talking, thinking things.

BretJ · Feb 8, 2017

jet57 said:
I did read th pages that you are referring to. My conclusion is - yeah, so?

You're whole argument fall apart right here - again:

The decision goes on to state that a firearm, by its very nature is inherently dangerous, and thus so is a person who is in possession of one, as appearing inherently dangerous is the very purpose od possession in the first place. If one can believe that, it is not a stretch to prevent entry into the U.S. after exercising ones rights to free travel. Oh wait....

I don't remember if it was you that mention coming into my house unannounced, but when firearms are suspected, or known to be there in the course of an arrest, then the police are obliged to look after themselves and the general public first, and answer up later if a mistake was made.

So my opinions for the outset have been right on target.

So you have no notion how dangerous the notion is that it is OK to suspend ones 4A rights simply legally practicing another? You don't find that in the least bit spooky?

jet57 · Feb 8, 2017

Lutherf said:
That's the whole problem with the decision. A firearm IS NOT inherently dangerous. It isn't inherently anything other than a hunk of metal (and maybe some polymer parts). Hell, that's been the problem with the whole "common sense" gun control thing from the beginning. They just can't manage to get it through their heads that guns are not living, breathing, walking, talking, thinking things.

Well, that's your opinion vs a court isn't it? The purpose of a gun is inherently violent:

Inherently

adverb

in a permanent, essential, or characteristic way.

Is that the true definition of the word or not? Everything made by man for use by man has an inherent purpose: is that not a factual statement?

"Guns" in and of themselves were built for the purposes of war: is that too not a factual statement?

Guns are made to perpetrate an act of violence. That is a fact. You can claim that a specific gun is a work of art etc, etc, but the forensic fact is that a gun is a method to enact violence. The court therefore is absolutely correct in its analysis and findings for law enforcement.

jet57 · Feb 8, 2017

BretJ said:
So you have no notion how dangerous the notion is that it is OK to suspend ones 4A rights simply legally practicing another? You don't find that in the least bit spooky?

Sadi rights - as such - are not being thrreatened.

A gun is a dangerous device and as such they are treated that way; true or false?

True, of course. Therefore anybody possessing a gun on the street in the possession of a dangerous device and will be treated respectively by law enforcement.

A perfectly reasonable and accurate ruling.

The only thing left you now is to prove otherwise.

BretJ · Feb 8, 2017

jet57 said:
Sadi rights - as such - are not being thrreatened.

A gun is a dangerous device and as such they are treated that way; true or false?

True, of course. Therefore anybody possessing a gun on the street in the possession of a dangerous device and will be treated respectively by law enforcement.

A perfectly reasonable and accurate ruling.

The only thing left you now is to prove otherwise.

So in the state of California, if you are stopped for a traffic violation and they run your plates and find that you are a registered firearm owner, which you are, you feel they have the right to frisk you? After all, according to this ruling, you are dangerous simply because you own a firearm. Not because you have a firearm in your possession, we will assume you dont, but simply because you own a firearm.
Even better, I am stopped for speeding. Cop sees I have my Florida concealed permit, he can frisk me or search my vehicle based on what exactly?

TurtleDude · Feb 8, 2017

BretJ said:
So in the state of California, if you are stopped for a traffic violation and they run your plates and find that you are a registered firearm owner, which you are, you feel they have the right to frisk you? After all, according to this ruling, you are dangerous simply because you own a firearm. Not because you have a firearm in your possession, we will assume you dont, but simply because you own a firearm.
Even better, I am stopped for speeding. Cop sees I have my Florida concealed permit, he can frisk me or search my vehicle based on what exactly?

Hopefully, Trump judges will start putting the smack down on these anti gun policies that the Democrats have perpetrated

American · Feb 8, 2017

jet57 said:
It makes perfect sense and means everything with respect to the question of the OP.

It's about "approach to an armed person". That's the thesis of the OP.

Please remember; reading is fundamental.

Yeah, try getting familiar with that concept.

jet57 · Feb 8, 2017

BretJ said:
So in the state of California, if you are stopped for a traffic violation and they run your plates and find that you are a registered firearm owner, which you are, you feel they have the right to frisk you? After all, according to this ruling, you are dangerous simply because you own a firearm. Not because you have a firearm in your possession, we will assume you dont, but simply because you own a firearm.
Even better, I am stopped for speeding. Cop sees I have my Florida concealed permit, he can frisk me or search my vehicle based on what exactly?

God you can make things up.

If they stop me -because I match a description of somebody suspected of a crime that is alleged to be armed - you're damn right they're gonna search me. They'd be stupid NOT TO!

How about if you stick with rational material related to the subject; or :2wave:

BretJ · Feb 8, 2017

jet57 said:
God you can make things up.

If they stop me -because I match a description of somebody suspected of a crime that is alleged to be armed - you're damn right they're gonna search me. They'd be stupid NOT TO!

How about if you stick with rational material related to the subject; or :2wave:

Answer the question. Can they frisk you for a simple traffic stop if they believe you may be in possession of a firearm based upon firearms ownership records? Or are you saying they would only frisk you if they thought you matched a discription of some asshat? I can answer "of course" to the latter and they shouldn't on the former but that is not what the judges are saying.

jet57 · Feb 8, 2017

BretJ said:
Answer the question. Can they frisk you for a simple traffic stop if they believe you may be in possession of a firearm based upon firearms ownership records? Or are you saying they would only frisk you if they thought you matched a discription of some asshat? I can answer "of course" to the latter and they shouldn't on the former but that is not what the judges are saying.

I've explained this to you BretJ, and I'm using the decision and references therein to do it.

Having a registered firearm is not probable cause for a search. NOTHING in the decision, or Heller or any other references that the court used even remotely support such a an idiotic idea that you are trying to mold into some sort of reality here.

Being the subject of a police investigation who is suspected of a crime and alleged to be armed IS - did you get that? IS - probable cause for a weapons search. When a cop asks you to step out of car - the very first question you're going to get asked IS - "do you have anything in the car that I should be concerned about? Do you have any weapons on you?" And - you WILL be searched, and so will your car.

No cop, in the United States, is going to walk up to anybody - without probable cause, and search you for a weapon.

Your thinking is way out there.

TurtleDude · Feb 8, 2017

jet57 said:
I've explained this to you BretJ, and I'm using the decision and references therein to do it.

Having a registered firearm is not probable cause for a search. NOTHING in the decision, or Heller or any other references that the court used even remotely support such a an idiotic idea that you are trying to mold into some sort of reality here.

Being the subject of a police investigation who is suspected of a crime and alleged to be armed IS - did you get that? IS - probable cause for a weapons search. When a cop asks you to step out of car - the very first question you're going to get asked IS - "do you have anything in the car that I should be concerned about? Do you have any weapons on you?" And - you WILL be searched, and so will your car.

No cop, in the United States, is going to walk up to anybody - without probable cause, and search you for a weapon.

Your thinking is way out there.

this is why there should be no registered firearms.

cuban smokes · Feb 8, 2017

if a person is permitted to carry & carrying lawfully, no matter if open carry, or concealed, then they are in compliance with the law, period.

the court obviously erred in their decision & are in severe need of being remanded & disbarred ASAP ........

prosecution & prison time would also be an option for the court that made this error in judgement

cuban smokes · Feb 8, 2017

jet57 said:
I did read th pages that you are referring to. My conclusion is - yeah, so?

You're whole argument fall apart right here - again:

The decision goes on to state that a firearm, by its very nature is inherently dangerous, and thus so is a person who is in possession of one, as appearing inherently dangerous is the very purpose od possession in the first place.

I don't remember if it was you that mention coming into my house unannounced, but when firearms are suspected, or known to be there in the course of an arrest, then the police are obliged to look after themselves and the general public first, and answer up later if a mistake was made.

So my opinions for the outset have been right on target.

so, citizens shouldn't carry firearms because firearms are dangerous; only police should carry firearms because firearm are dangerous

Oh, I get it; it's kinda like this morning when Trump stated he was against violence directed toward law enforcement

Trump didn't say anything about violence directed at citizens by law enforcement; I get it

the agenda is just to further the desired police state .......

jet57 · Feb 8, 2017

cuban smokes said:
so, citizens shouldn't carry firearms because firearms are dangerous; only police should carry firearms because firearm are dangerous

Oh, I get it; it's kinda like this morning when Trump stated he was against violence directed toward law enforcement

Trump didn't say anything about violence directed at citizens by law enforcement; I get it

the agenda is just to further the desired police state .......

4th circuit decision

Lutherf

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