Are You Protected by the Fourth Amendment if You Carry a Firearm?

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Does the mere fact that you are carrying a firearm openly or concealed in a state where it is legal to carry a firearm openly or concealed mean that the Fourth Amendment right to be free from unreasonable searches and seizures doesn’t apply to you?

That question was before all fifteen judges of the 4th circuit court of appeals last week and that question will be before the 9th circuit court of appeals next year in my California Open Carry lawsuit.

In 1968, the US Supreme Court held in the case of Terry v. Ohio that if the police have a reasonable suspicion that a person has committed, is committing or is about to commit a crime and has a reasonable belief that the person is armed AND dangerous then the police can pat down the outer clothing of that person to see if he is carrying a concealed weapon.

When Terry v. Ohio was decided, it was illegal to carry a weapon concealed in Ohio. For that matter it was illegal in nearly every state to carry a weapon concealed as only a handful of states issued permits to carry weapons concealed and only one state, Vermont, did not require a permit to carry a weapon concealed. In nearly every state concealed carry was a crime.

Keystone Cops, 1912, Public Domain, Wikipedia
Keystone Cops, 1912, Public Domain, Wikipedia

That is no longer the case in most states and that is no longer the case in West Virginia where the present case before the 4th circuit court of appeals is to be decided in the case of U.S. v. Shaquille Robinson No.: 14-4902.

It is legal to openly carry a firearm in West Virginia and at the time of the arrest of Shaquille Robinson it was legal to carry a handgun concealed with a permit.

The questioning by the Fourth Circuit judges was illuminating. There was definitely one, perhaps two, of the judges who simply did not care about the Fourth Amendment right.

Fortunately, there were enough judges who asked pointed questions which forced the US attorney to concede that the mere sight of a firearm does not constitute probable cause for an arrest, inside or outside of an automobile.

The US attorney conceded that the mere possession of a firearm in a motor vehicle be it carried openly or concealed does not, in and of itself, constitute probable cause or reasonable suspicion that a crime has been committed.

The position of the US attorney is that if a motor vehicle is pulled over for a traffic violation, in this case it was for not wearing a seat belt then the legal presumption becomes that the passengers are both armed AND dangerous.

Shaquille Robinson had been seen loading a handgun in a parking lot, which is perfectly legal in West Virginia. He then entered an automobile and drove away, which is also perfectly legal in West Virginia. The police were notified and dispatched to track him down even though the police did not have probable cause, or even a reasonable suspicion that any crime had been committed, was being committed, or was about to be committed.

The driver was pulled over under the pretext of not wearing a seat belt. Robinson was searched and the handgun discovered. The fact that Robinson is a convicted felon is not relevant to this case because the police had no knowledge that Robinson was a convicted felon at the time he was stopped and searched.

In 1967, the State of California passed a law which made it a crime to openly carry a loaded firearm. Then, as now, it is illegal to carry a handgun concealed without a permit regardless of whether or not the handgun is loaded (with certain exceptions).

That law makes refusal to allow a police officer to inspect the firearm to see if it is loaded probable cause for an arrest.

In 1970, a California appellate court decision held that police do not need either probable cause or reasonable suspicion. The court held that the Fourth Amendment simply does not apply to you if you are openly carrying a firearm where it is legal for you to openly carry a firearm or if it is in a location where it is legal to possess a firearm, such as in the trunk of your motor vehicle.

For a decade or so the California courts embraced that decision to uphold a number of convictions which would not be upheld today by the California courts, and haven’t been for over two decades.

But in 1987 a lone three judge panel of the 9th circuit court of appeals cited that 1970 California court decision to conclude that the Fourth Amendment does not apply to automobiles despite the fact that its conclusion conflicted with prior panel decisions of the 9th circuit and conflicted with US Supreme Court binding precedents.

Two years ago a different three judge panel of the 9th circuit court of appeals held that the mere sight of a firearm either being carried by a person in public or left unattended in an automobile in a public place does not constitute probable cause or reasonable suspicion that the firearm is loaded in violation of California law.

Because that three judge panel in 1987 created a conflict with other holdings of three judge panels in this circuit, that is reason enough for my California Open Carry appeal to be initially heard before an en banc panel of eleven 9th circuit judges which potentially shaves several years off the time it would take my appeal to be decided.

Ironically, and amusingly, the California state’s attorney representing Governor Brown and Attorney General Harris never cited either the 1970 California state decision or the 1987 Federal decision which nullified the Fourth Amendment. It was the magistrate and district court judges assigned to my case who came up with them all on their own.

Federal judges are supposed to be impartial but that didn’t happen in my case. They had long since taken over arguing the State of California’s case and the California state’s attorney simply went along with them.

This gave the state’s attorney a win in the district court but that win is very likely to backfire on him now that we are going before the court of appeals. It is in the interest of the state to delay my appeal being heard for as long as it can, and it has delayed it for over two years, nearly three once my appeal is fully briefed and ready for oral arguments.

The delay was caused by the NRA’s concealed carry appeal, Peruta v. San Diego, which went down in flames. Now that an en banc panel has decided that there is no Second Amendment right to concealed carry, and mine is the only lawsuit which seeks to invalidate California’s Open Carry bans, the State of California ran out of reasons to stay my appeal.

And keep in mind that if I lose on appeal then my loss will conflict not only with binding US Supreme Court precedents but will create splits with other Federal circuits and state supreme court decisions which, in turn, is grounds for the US Supreme Court to grant my cert petition in order to resolve those splits.

If the State of California loses then its loss will not create a single circuit split nor will the states loss conflict with any US Supreme Court decision.

There would be no grounds for the US Supreme Court to grant the cert petition of the State of California.

Fourth circuit court of appeals en banc oral arguments U.S. v. Shaquille Robinson, No.: 14-4902 held on September 22, 2016.