Armed, but not “Dangerous,” Reasonable Suspicion in a State Where Anyone Can Carry a Gun, United States v. Robinson, No. 14-4902 (filed February 23, 2016).

This is a fascinating case, and one that will reverberate throughout our Circuit.  The take away is quite simple—in a state where it is legal to carry a gun in public, or carry a concealed weapon with a permit, and where permits are relatively easy to obtain, being armed does not mean “being dangerous” for purposes of a Terry frisk.

In this case, an anonymous caller informed law enforcement and reported that a black male was observed placing a gun into his pocket close to a “high-crime area.”  Based on this, law enforcement chose to follow the car the subject was in.  Observing a seatbelt violation, law enforcement pulled over the car.  The male subject was the passenger.  Law enforcement had him exited the car and then conducted a “pat-down search.”  Pat down searches are legal if, and only if, an officer has a reasonable and articulable suspicion that the person is “armed and presently dangerous to the officer or to others.”  United States v. Holmes, 376 F.3d 270, 275 (4^th Cir. 2004).  Here, there was no question that the defendant was armed, the pertinent legal issue was whether the officer had a reasonable and objective basis, considering the totality of the circumstances, to believe he was also “dangerous.”   The court notes that public possession and display of firearms has become lawful under more circumstances and that the Fourth Amendment must therefore adapt.  The court pointed to such recent United States Supreme Court cases, McDonald v. City of Chicago, 561 U.S. 742 (2010), and District of Columbia v. Heller, 554 U.S. 570 (2008) to illustrate the expanding right to carry guns in public.  Based on this, merely carrying a firearm does not necessarily entail that a police officer has a reasonable basis to think that a person is dangerous:

[W]e conclude that in states like West Virginia, which broadly allow public possession of firearms, reasonable suspicion that a person is armed does not by itself give rise to reasonable suspicion that the person is dangerous for Terry purposes.  Where the state legislature has decided that its citizens may be entrusted to carry firearms on public streets, we may not make the contrary assumption that those firearms inherently pose a danger justifying their seizure by law enforcement officers without consent.

Judge Niemeyer dissented.  In his view, the majority errs in requiring some evidence of dangerousness distinct from the mere possession of the gun.  In his view, the Supreme Court precedent is that a reasonable officer need have only a suspicion that an individual, lawfully stopped, is armed and thus dangerous. (“The majority achieves this position by dissecting the armed-and-dangerous requirement into two distinct requirements, holding that dangerousness must exists separately and to the a greater extent than the danger created by the person’s possession of a gun during a lawful but forced police encounter”).  Additionally, the dissent points to the policy considerations that underlie the Terry frisk stop in the first place—these kinds of stops are simply generally dangerous.  The dissent also states that, in his view, under the totality of the circumstances, the officer had reasonable suspicion to conduct the frisk.

In any event, with Judge Niemeyer’s dissent, this case may get some traction in the United States Supreme Court.  But for now, practitioners are well-advised to bone up on statutes regulating citizen possession and carrying of legal weapons to raise challenges like the one before this court.