4th Circuit: Because 2nd Amendment No 4th Amendment

[RicInOR]

http://www.nationalreview.com/artic...s-concealed-carry-permit-firearms-civil-right

Fourth Circuit Court of Appeals: you can have either 2nd amendment rights or 4th amendment rights. Pick one

In an en banc opinion, the court ruled that after a lawful traffic stop, the police may frisk any person who they believe may possess a firearm, regardless of whether that person possesses a concealed-carry permit. The court actually typed this sentence: "The danger justifying a protective frisk arises from the combination of a forced police encounter and the presence of a weapon, not from any illegality of the weapon's possession"

Indeed, Judge James Wynn, writing in concurrence, made the majority's reasoning terrifyingly clear: In sum, individuals who carry firearms — lawfully or unlawfully — pose a risk of danger to themselves, law enforcement officers, and the public at large. Accordingly, law enforcement officers may frisk lawfully stopped individuals whom the officers reasonably suspect are carrying a firearm because a detainee's possession of a firearm poses a categorical "danger" to the officers.

So, if concealed-carry permit holders are presumptively dangerous, does this mean that they forfeit other constitutional rights? Wynn explained (approvingly) that under the majority's reasoning they certainly do: 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. . . . 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.

In essence, the Fourth Circuit is declaring that gun owners lawfully exercising their constitutional rights are to be viewed with particular suspicion by law enforcement, regardless of any empirical evidence of danger. The court is relegating lawful gun owners to second-class-citizen status.

PDF of the Opinion
http://www.ca4.uscourts.gov/Opinions/Published/144902A.P.pdf
UNITED STATES OF AMERICA, Plaintiff - Appellee,
v. SHAQUILLE MONTEL ROBINSON, Defendant - Appellant

Non PDF format here:
Google Scholar

Read More

 

[Caveman Jim]

YGTBFKM!!!!!
I hate that the SCOTUS are picked in order of their political leanings but come on can't they be challenged for their blatantly biased opinions?

 

[Vendor Hidden]

YGTBFKM!!!!!
I hate that the SCOTUS are picked in order of their political leanings but come on can't they be challenged for their blatantly biased opinions?

The ruling appears to be from a Circuit Court, not the Supreme Court. I hope the Supreme Court will in the end over-rule it.

 

[Caveman Jim]

The ruling appears to be from a Circuit Court, not the Supreme Court. I hope the Supreme Court will in the end over-rule it.

I understood that when I deleted the first portion of my post which was "It's a shame that these judges are so PC motivated." I should have left it in.

 

[Vendor Hidden]

Seems like a crazy idea and a bad precedent that we should be forced to choose between our natural rights.

 

[ZigZagZeke]

Here's the underlying law. In 1968 SCOTUS ruled that people detained may be briefly searched for the officer's protection (not for the procurement of evidence) whenever the officer has articulable reasons to believe the detainee may be armed and dangerous. This is known as a "Terry search".

It appears to me that the 2nd Circuit did not expand upon Terry v. Ohio at all in this decision. The concurring opinion written by Judge Wynn carries no legal weight. His opinion is questionable and outlandish. Were attorneys to argue in the future based on his opinion before SCOTUS I believe they would be laughed out of the room. Wynn is clearly off the deep end.

This may be another example of whipping up outrage among the public in order to garner donations to pro-gun groups.

Terry v. Ohio, 392 U.S. 1 (1968), was a decision by the United States Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him or her without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person "may be armed and presently dangerous."[1]

For their own protection, after a person has been stopped, police may perform a quick surface search of the person's outer clothing for weapons if they have reasonable suspicion that the person stopped is armed. This reasonable suspicion must be based on "specific and articulable facts" and not merely upon an officer's hunch. This permitted police action has subsequently been referred to in short as a "stop and frisk," or simply a "Terry frisk". The Terry standard was later extended to temporary detentions of persons in vehicles, known as traffic stops; see Terry stop for a summary of subsequent jurisprudence.

The rationale behind the Supreme Court decision revolves around the understanding that, as the opinion notes, "the exclusionary rule has its limitations." The meaning of the rule is to protect persons from unreasonable searches and seizures aimed at gathering evidence, not searches and seizures for other purposes (like prevention of crime or personal protection of police officers).

 

[WALawyer]

Two things:

1. Carrying a firearm, either open or concealed, is not a constitutional right. The 9th Circuit already held so for concealed carry. Open carry has not yet been decided. The Second Amendment protects your right to possess one in your home for self-defense until SCOTUS says otherwise.

2. Law enforcement has been allowed to do a protective frisk on anyone they deem "armed or dangerous" since 1968, as pointed out above. There is nothing new or interesting in this case, although the concurring opinion quoted in the original post is suspect.

 

[Baseacegoku]

Two things:

1. Carrying a firearm, either open or concealed, is not a constitutional right. The 9th Circuit already held so for concealed carry. Open carry has not yet been decided. The Second Amendment protects your right to possess one in your home for self-defense until SCOTUS says otherwise.

I am not a lawyer but I am pretty sure there is a circuit split on this as the 7th ruled that it is a right in Moore v. Madigan. So until the supreme court rules on it, it is up in the air.

 

[Phather]

I read the published opinion on this case here:

http://www.ca4.uscourts.gov/Opinions/Published/144902A.P.pdf

So basically, the guy, a convicted felon, was observed loading a pistol in a convenience store parking lot and then placing it into his pocket, all in a known drug trafficking location. Officers lawfully stop the associated vehicle. When questioned about being armed, the guy gives an "oh $hit" look indicative of somebody being caught doing something they know they aren't supposed to be doing, so he is frisked and the pistol is discovered.

I would have to ask if any of you find the suspect's actions reasonable. I never leave the house with an empty gun, and I sure wouldn't be loading it in a parking lot if I accidentally did. I also wonder how many people carry in their pants pocket without some sort of holster or trigger guard. To me, the circumstances which would indicate to the officers that this guy posed a danger were pretty obvious.

Had the guy not been a felon, the pistol would have been returned at the end of the traffic stop. Traffic stops are inherently dangerous, and if an officer has reason to believe a person during a traffic stop (dangerous detention) is armed, they can remove that person from the vehicle and frisk them.

 

[Slobray]

http://www.nationalreview.com/artic...s-concealed-carry-permit-firearms-civil-right

Fourth Circuit Court of Appeals: you can have either 2nd amendment rights or 4th amendment rights. Pick one


PDF of the Opinion
http://www.ca4.uscourts.gov/Opinions/Published/144902A.P.pdf
UNITED STATES OF AMERICA, Plaintiff - Appellee,
v. SHAQUILLE MONTEL ROBINSON, Defendant - Appellant

Non PDF format here:
Google Scholar

This sounds exactly like something that would come out of the 9th Circus..........



Ray

 

[Slobray]

Two things:

1. Carrying a firearm, either open or concealed, is not a constitutional right. The 9th Circuit already held so for concealed carry. Open carry has not yet been decided. The Second Amendment protects your right to possess one in your home for self-defense until SCOTUS says otherwise.

2. Law enforcement has been allowed to do a protective frisk on anyone they deem "armed or dangerous" since 1968, as pointed out above. There is nothing new or interesting in this case, although the concurring opinion quoted in the original post is suspect.

It's "not a constitutional right", yet the Constitution states "the right of the people to keep and bear Arms, shall not be infringed". That is precisely why the 9th Circus has had so many of their cases overturned. These, so called justices, need to be considered domestic enemies of the Constitution and thrown in jail forever.


Ray

 

[ZigZagZeke]

Two things:

1. Carrying a firearm, either open or concealed, is not a constitutional right. The 9th Circuit already held so for concealed carry. Open carry has not yet been decided. The Second Amendment protects your right to possess one in your home for self-defense until SCOTUS says otherwise.

2. Law enforcement has been allowed to do a protective frisk on anyone they deem "armed or dangerous" since 1968, as pointed out above. There is nothing new or interesting in this case, although the concurring opinion quoted in the original post is suspect.

Anything coming out of the 9th Circuit has been suspect since I was in law school 40 years ago.

 

[WALawyer]

I am not a lawyer but I am pretty sure there is a circuit split on this as the 7th ruled that it is a right in Moore v. Madigan. So until the supreme court rules on it, it is up in the air.

Moore v. Madigan wasn't quite so on point with concealed carry specifically. It dealt with Illinois statutes that, read together, effectively banned all types of carry outside the home. The case became moot before it hit SCOTUS because Illinois passed a shall-issue law, but arguably the state could have done something else short of allowing concealed carry in order to pass constitutional muster, such as legalizing open carry. Also, since this is the Northwest Firearms forum, the 9th Circuit applies to basically everyone here and it's not always bad. The court did extend the Second Amendment to the purchase and sale of firearms.

It's "not a constitutional right", yet the Constitution states "the right of the people to keep and bear Arms, shall not be infringed". That is precisely why the 9th Circus has had so many of their cases overturned. These, so called justices, need to be considered domestic enemies of the Constitution and thrown in jail forever.


Ray

This rhetoric is not helpful at all.

 

[No_Regerts]

This is why its important to have constitutional carry. For instance, agreeing to purchase a hunting license greatly diminishes your 4th Amendment rights because hunting is a licensed privelege with stipulations. CPLs are basically the same thing as long as carrying a firearm isn't viewed as a right instead of a licensed privilege.

 

[Slobray]

Moore v. Madigan wasn't quite so on point with concealed carry specifically. It dealt with Illinois statutes that, read together, effectively banned all types of carry outside the home. The case became moot before it hit SCOTUS because Illinois passed a shall-issue law, but arguably the state could have done something else short of allowing concealed carry in order to pass constitutional muster, such as legalizing open carry. Also, since this is the Northwest Firearms forum, the 9th Circuit applies to basically everyone here and it's not always bad. The court did extend the Second Amendment to the purchase and sale of firearms.

This rhetoric is not helpful at all.

They've already set the wheels in motion to overturn this ruling exactly the same way they did in Peruta v. San Diego County: Have the case reheard En Banc and then they will stack the En Banc panel with a majority of anti-gun "justices" to get the ruling they desire.

How convenient that anti-gun/anti-constitution Chief Justice Sidney Thomas (who ruled twice against bearing firearms in Peruta and once in Baker v. Kealoha. He also ruled in favor of the PDRK's 10 waiting period (even for those who already own firearms and/or have a Concealed Weapon Permit) in Silvester v. Harris. ) is the En Banc Coordinator for the 9th and has approved the County of Alameda's request for rehearing the case En Banc (see below).

https://d3n8a8pro7vhmx.cloudfront.n...ting-Case-be-Reheard-En-Banc-1.pdf?1483740377

As for the rhetoric.... once someone shows me beyond a reasonable doubt that these so-called justices are basing their ruling on whats written in the Constitution of the United States of America and not on their personal opinions, I will tone it down, if not I will consider them enemies of the Constitution.


Ray