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Can cops in states that allow concealed carry search you just because they think you’re armed?
The “extremely important” question—sparked by Shaquille Robinson’s federal gun prosecution in West Virginia—pits a multi-time felon, five Republican state attorneys general, and a coalition of 10 conservative and gun rights groups against the Republican and vocally pro-gun-rights Trump administration.
Robinson’s case reveals deep tensions between gun rights and Fourth Amendment rights, and these tensions may collide at the high court if the justices decide to take his case.
In a June 22 petition for review, Robinson argues that, even though he was a felon barred from having a gun, cops in West Virginia—a state that allows concealed carry—shouldn’t have searched him just because they thought he was armed. The cop didn’t know Robinson was a felon before he frisked him.
Robinson is represented by lawyers from the Stanford Law School Supreme Court Litigation Clinic, which boasted a highly successful record at the high court this past term.
The clinic has some interesting backup.
In addition to an unsurprising amicus brief from the National Association of Criminal Defense Lawyers, five state law enforcement officials and a bloc of conservative and gun groups also filed amicus briefs on Robinson’s behalf. All three outside briefs assail the Fourth Circuit’s ruling against Robinson and ask the high court to take his case, setting up a showdown between the Republican, conservative, and gun groups on one side and Trump’s solicitor general’s office on the other. The feds’ opposition brief is due August 23.
Court watchers are divided on whether the Supreme Court will take the case, as well as its Second Amendment implications. But they’re unanimous about the case’s significance.
It’s an “extremely important” case, professor Joyce Malcolm told Bloomberg BNA. Malcolm teaches at George Mason University’s Antonin Scalia School of Law in Arlington, Va. Her scholarship was cited by the Supreme Court several times in District of Columbia v. Heller, the landmark 2008 case that held the Second Amendment provides an individual right to bear arms unconnected to militia service.
Robinson’s case presents a “huge issue,” professor Adam Winkler of UCLA School of Law in Los Angeles, a constitutional scholar whose work was also cited in Heller, told Bloomberg BNA.
The case is a “fascinating intersection” between gun rights and minority rights, Winkler said.
One day in March 2014, police in Ranson, West Virginia received an anonymous phone tip. A black male had just loaded a gun and put it in his pocket before getting into the passenger seat of a “bluish greenish” Toyota Camry, the caller said. The Camry was driven by a white woman and had just left a 7-Eleven parking lot, the caller said.
The area of the 7-Eleven “was known for drug dealing, firearm violence, and other criminal activity,” police said.
After the anonymous call, an officer pulled over a blue-green Toyota Camry for a traffic violation. The Camry was driven by a white woman. She had a black male passenger: Robinson.
A cop asked Robinson if he had any weapons on him. Robinson didn’t say anything. But police said he gave an “oh, crap” look that the cops took to mean, “I don’t want to lie to you, but I’m not going to tell you anything either.” An officer frisked Robinson and recovered a loaded gun from his pocket.
The cop said he recognized Robinson after conducting the frisk, and recalled that he had previously been convicted of a felony. But the cop didn’t know Robinson was a felon before he frisked him.
But the en banc Fourth Circuit—sitting with 16 judges— reversed the three-judge panel and reinstated the ruling against Robinson.
The courts disagreed on how to interpret the Supreme Court’s 1968 decision in Terry v. Ohio, which said police can frisk for weapons when they reasonably believe someone is armed and dangerous.
“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,” Judge Paul V. Niemeyer wrote for the en banc majority in its ruling against Robinson. He was joined by 10 other judges: J. Harvie Wilkinson III, William B. Traxler Jr., Robert B. King, Dennis W. Shedd, Allyson K. Duncan, G. Steven Agee, Barbara Milano Keenan, Albert Diaz, Henry F. Floyd, and Stephanie D. Thacker.
Judge James A. Wynn Jr. wrote a separate concurrence. The majority ignored two key questions, he said: whether individuals who carry firearms pose a “categorical risk” to others and police officers, and whether those individuals give up certain constitutional protections afforded to people who don’t carry guns. The answer to both questions is yes, Wynn said.
Judge Pamela Harris dissented, joined by Chief Judge Roger L. Gregory, Judge Diana Gribbon Motz, and Senior Judge Andre M. Davis.
Harris’s “biggest concern” was that condoning searches based on lawful activity—carrying a gun in a state like West Virginia that allows concealed carry—means cops can search anyone they think has a gun, which would likely mean more minorities would be searched. She cited Justice Sonia Sotomayor’s dissenting opinion in Utah v. Strieff, where the justice noted the outsize effects of policing on minorities—"it is no secret that people of color are disproportionate victims” of police scrutiny, Sotomayor said.
Robinson’s case will “be of concern to liberals worried about the disproportionate effect of policing on minorities,” Winkler said.
The defense lawyer group’s amicus brief echoed that concern. The Fourth Circuit’s ruling “poses grave risks of discriminatory policing,” the brief said.
But that concern wasn’t only expressed by liberals. The brief from the five Republican state attorneys general—from West Virginia, Indiana, Michigan, Texas, and Utah—said the Fourth Circuit’s ruling “disproportionately burdens certain groups, like women and members of minority communities, that may especially benefit from the right to bear arms but may also be more sensitive to frisks by law enforcement.”
The state attorneys general cited Sotomayor’s dissent from Utah v. Strieff, too. They also noted Justice Clarence Thomas’s concurrence in McDonald v. City of Chicago, the 2010 case that said the Second Amendment right found in Heller applies to the states. “The use of firearms for self-defense was often the only way black citizens could protect themselves from mob violence,” Thomas said in McDonald.
And though the bloc of conservative and gun groups’ lively amicus brief—which warns of an impending police state, complete with boldface text, exclamation points, and references to the framers of the Constitution—focuses on the gun rights argument, a spokesman for the lead group on the brief, Gun Owners of America, told Bloomberg BNA that the group has supported minority rights in the context of gun rights in other cases. Some of that support came in an amicus brief filed in Heller, where the gun group noted that “blacks have been ignominiously denied their right to keep and bear arms because of the perceived danger to community safety or general unfitness.”
Robinson’s case “calls into issue the relationship between the Second Amendment and the Fourth Amendment,” Malcolm said.
The case presents an interesting question for some of the more “law and order” justices, like Samuel A. Alito Jr., who are less likely to second-guess police officers, Winkler said.
“There’s a good chance the Supreme Court will review the case and reverse the Fourth Circuit’s decision,” professor E. Gregory Wallace told Bloomberg BNA. He teaches constitutional law at Campbell University’s Norman Adrian Wiggins School of Law in Buies Creek, N.C.
Under the Fourth Circuit’s reasoning, “simply carrying a firearm, even lawfully, makes you dangerous and gives police sufficient reason to search and disarm you, even if there’s nothing to suggest that you pose a threat to the police or public,” Wallace said.
“Justice Gorsuch obviously is strong on Second Amendment rights,” Wallace said, referring to Neil M. Gorsuch, who arrived at the high court April 2017. “I also expect Justice Thomas to vote to review and reverse,” he said.
“I think if the Court hears the case, we will see an interesting split amongst the Republican appointees,” appellate attorney Adam Farra of Cohen Milstein Sellers & Toll PLLC in Washington told Bloomberg BNA, referring to Chief Justice John G. Roberts, Jr. and Justices Thomas, Anthony M. Kennedy, Alito, and, Gorsuch. Farra previously clerked for Davis, one of the judges who joined Harris’s Fourth Circuit dissent.
Niemeyer “is one of the more conservative judges on the Fourth Circuit and a Republican appointee, and his opinion takes a more law-and-order view that the presence of a gun during a traffic stop is dangerous regardless of what the law is in West Virginia,” Farra said.
“That reflects the split on this issue between law-and-order conservatives and right-to-carry conservatives, and I think we’ll see that split reflected in the five more conservative Supreme Court Justices,” he said, referring to the five Republican appointees.
But a different sort of split—or lack thereof—could prevent the justices from taking Robinson’s case in the first place.
The lack of a circuit split lessens the chances that the high court will grant review, professor Matthew Tokson, of the University of Utah S.J. Quinney College of Law in Salt Lake City, told Bloomberg BNA. Tokson, who teaches criminal law and procedure, clerked for two Supreme Court justices: Ginsburg and former Justice David H. Souter, who retired from the Supreme Court in 2009 but regularly sits by designation on the U.S. Court of Appeals for the First Circuit.
Robinson argues in his petition that the Fourth Circuit’s ruling “deepens a split among federal and state courts over whether, in states that allow residents to carry firearms, officers may conduct a Terry search of anyone they believe to be armed, without a particularized basis for believing the person poses a present danger to the officers’ safety.”
But Tokson is “skeptical that there is a real circuit split here,” he said. “In the absence of a clear federal split, I think it’s unlikely, though far from impossible, that the Court will grant this difficult and controversial case,” he said.
The Supreme Court “has been silent after Heller and McDonald on the Second Amendment, so we don’t have a definitive pronouncement of whether the Second Amendment protects concealed carry, although such a right is implied by Heller,” professor Robert J. Cottrol, a widely-published gun rights scholar at the George Washington University School of Law in Washington, told Bloomberg BNA.
Malcolm said she doesn’t know if the high court will take Robinson’s case, but she thinks the court has been “negligent” in taking Second Amendment cases since McDonald in 2010.
It would be good if the justices grant review in Robinson’s case, because the law needs to be clarified both for police and gun owners, Malcolm said.
“I suspect the Supreme Court will not take the case,” professor Nicholas Johnson, another widely-published gun rights scholar, of Fordham University School of Law in New York, told Bloomberg BNA.
One of the reasons Johnson doesn’t think the justices will take the case is that “the court has recently denied cert. in Peruta v. California, which posed a relatively simpler problem.”
The petitioner in Peruta had asked the court to decide whether the Second Amendment protects the right to carry a gun in public. The court declined to take the case June 26.
Thomas dissented, joined by Gorsuch. “The Court’s decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right,” Thomas said.
“For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous,” Thomas said. “But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it,” he said.
Regardless whether the Second Amendment is a “disfavored right,” Johnson and Cottrol both said Robinson’s case can be resolved without reaching the Second Amendment question.
The real question presented by the case is whether lawful activity—carrying a concealed gun in West Virginia—can serve as the basis for a search under the Fourth Amendment, Cottrol said.
“I see this not so much as tension between the Second and Fourth Amendments,” Johnson said. “It is more of an indication of how the Terry v. Ohio precedent has eroded the Fourth Amendment,” he said.
“At stake in this case is the scope of a person’s right not to be searched—in this case, not to be patted down,” Tokson, who teaches and writes about the Fourth Amendment, said.
“If the Fourth Circuit’s decision stands, then that expands Terry pat-downs to a greater number of situations, and reduces the scope of the Fourth Amendment,” Tokson said.
“If this case is granted and the Fourth Circuit’s decision is overturned, that would reduce the reach of Terry and potentially leave police officers at greater risk of being harmed,” he said.
It is unclear how the federal government will respond to Robinson’s petition.
It’s an “extremely challenging question” for the Trump administration, the libertarian Cato Institute’s Clark Neily told Bloomberg BNA. Along with another lawyer, Neily hatched the idea for the litigation in Heller, and he was initially the lead lawyer for the plaintiffs in that landmark case.
The tension in Robinson’s case—between gun rights and Fourth Amendment rights—is reflected in Trump himself, Neily observed.
The president’s recent remarks to a law enforcement crowd bear this out.
“I’m very happy to have gotten a great, great Justice of the United States Supreme Court, not only nominated, but approved,” Trump said July 28, referring Justice Gorsuch’s confirmation (at 25:12).
The president’s thoughts then immediately turned to gun rights. “And, by the way, your Second Amendment is safe,” he said, to applause.
“It wasn’t looking so good for the Second Amendment, was it, huh? If Trump doesn’t win, your Second Amendment is gone,” the president said, reflecting on his 2016 electoral victory.
But Trump also told the law enforcement crowd that, in the fight against deadly gang violence, the laws are stacked against them.
“And I have to tell you, you know, the laws are so horrendously stacked against us, because for years and years they’ve been made to protect the criminal,” the president said (at 30:25).
How the Trump administration balances the president’s stated ideals—pro-gun-rights and tough-on-crime—may be reflected in the solicitor general’s brief in response to Robinson’s petition.
The “smart play” for the solicitor general’s office is to “finesse” the collision between Second and Fourth Amendment rights, by arguing that the search of Robinson was justified under the specific facts of this case, Neily said.
A department of justice spokesperson declined to comment on the case, citing the department’s policy of not commenting on ongoing litigation.
To contact the reporter on this story: Jordan S. Rubin in Washington at email@example.com
To contact the editor responsible for this story: C. Reilly Larson at firstname.lastname@example.org
Full text of the Fourth Circuit en banc decision at http://www.bloomberglaw.com/public/document/United_States_v_Robinson_No_144902_2017_BL_18217_4th_Cir_Jan_23_2?doc_id=X13408NQ0000N.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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