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West Virginia, 4 other states ask SCOTUS to review gun decision

By LINDA HARRIS

The State Journal

CHARLESTON, W.Va. — West Virginia and four other states have asked the U.S. Supreme Court to review a federal appeals court decision that found police making a traffic stop can frisk any person in the vehicle if they believe that person to be armed, regardless of whether the individual has a concealed-carry permit.

In March 2014 an anonymous caller told police in Ranson he’d seen an African-American man in a drug-riddled area load a handgun and put it in his pocket before driving away with a Caucasian woman. Police located the vehicle in a high-crime area of town and, after observing the occupants weren’t wearing seatbelts, pulled the driver over. Aware of the tip that had been called in, an officer asked the passenger, Shaquille Robinson, if he was armed and, when he didn’t answer, frisked him and found the gun in his pocket. Another officer subsequently recognized Robinson as a prior offender and he was charged with being a felon in possession of a firearm.

Robinson moved to suppress the gun, claiming officers had no reason to suspect he posed a threat before the search and the gun could have been legally permitted. U.S. District Judge Gina Groh denied that motion, however, and Robinson eventually pleaded guilty to illegal possession of a firearm though reserving his right to appeal.

On appeal, Robinson argued the tip called in to police “described seemingly innocent conduct” and insisted he’d done nothing during the traffic stop to suggest he posed a threat to the safety of the officers. “Under the logic of the district court, in any state where carrying a firearm is a perfectly legal activity, every citizen could be dangerous, and subject to a … frisk and pat down,” he’d argued.

A three-judge panel at the U.S. Court of Appeals for the Fourth Circuit sided with Robinson, 3-2, the first time it was heard. However, the entire Fourth Circuit was subsequently asked to rehear the case and in January affirmed Groh’s decision, pointing out Robinson’s argument “presumes that the legal possession of a firearm cannot pose a danger to police officers during a forced stop.” Robinson “argues illogically” that an individual with a gun who is pulled over poses no risk to officers if he or she has a concealed-carry permit, the majority said.

In determining what constitutes a valid frisk, the appeals court held that a pat down is permitted based solely upon a reasonable suspicion that an individual is armed.

The states of Indiana, Michigan, Texas and Utah joined West Virginia in asking the Supreme Court to review the case, maintaining the Fourth Circuit erred in deciding the “potential presence of a weapon automatically makes an individual dangerous.”

The brief argues that the appellate ruling effectively forces an individual to choose between their right to bear arms and their right to be free from unreasonable searches. It points out that, no matter how cooperative the individual is or whether they have a permit to carry a firearm, the ruling allows a pat down so long as there is suspicion that a weapon is present.

Attorney General Patrick Morrisey contends it’s “wrong to deem an individual dangerous solely because they are armed,” calling the decision “particularly troubling” in states like West Virginia, which have high rates of lawful gun ownership and state laws that promote the lawful carry of firearms, such as the constitutional carry law passed by the Legislature in 2016.

The Supreme Court previously held a frisk is permissible when an officer has a reasonable suspicion that a detained individual is armed and dangerous.

The brief argues that the appeals court misinterpreted existing U.S. Supreme Court case law that an individual has to be both armed and dangerous before being frisked into a single requirement “based solely upon whether a person is armed.”

“The additional requirement of dangerousness means that an individual choosing to carry a weapon may not be searched simply for exercising that constitutional right, but rather only if (they give) law enforcement officers some additional reason to believe (they pose) an imminent threat,” the brief stated.

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