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

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.



