Thursday, February 2, 2017

Concealed Carry and the Fourth Amendment

With many states relaxing their gun laws, the issue is what impact, if any, will more people legally carrying guns have in regard to the Fourth Amendment. Or, as the Fourth Circuit stated in United States v. Robinson:

the question is whether the risk of danger to a law enforcement officer created by the forced stop of a person who is armed is eliminated by the fact that state law authorizes persons to obtain a permit to carry a concealed firearm.
Mr. Robinson argued that if police could frisk a person simply because they may have a gun, 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." He conceded that the police had reasonable suspicion to believe he was armed, but argued that the police lacked a basis to believe he was also dangerous.

The Fourth Circuit rejected Mr. Robinson's argument, holding 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."

There is a dissent in this case and it is an interesting read. The dissent reminds us that at the time of Terry it was clear that having a gun could be assumed to be dangerous and thus justify a safety pat-down. Things have changed, today "citizens are legally entitled to arm themselves in public, and there is no reason to think that a person carrying or concealing a weapon during a traffic stop – conduct fully sanctioned by state law – is anything but a law-abiding citizen who poses no threat to the authorities." Thus how could a state sanctioned activity - concealed carry of a gun - also be automatically dangerous?

The dissent follows Ubiles, a Third Circuit case, Northrup, a Sixth Circuit case, and Williams, a Seventh Circuit case setting up an interesting circuit split. The Tenth doesn't seem to have weighed in on this topic so you may have a chance to chart an interesting path.

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