The NRA Institute for Legislative Action highlights an alarming decision coming out of the U.S. Court of Appeals for the Fourth Circuit which could have negative implications for Second Amendment rights going forward. Unfortunately, the case in question delivers a seriously flawed subject which makes the underlying argument a bit tougher to get behind. The case in question is United States v. Robinson and it deals with a West Virginia police stop which resulted in finding a weapon on the suspect and serious charges being filed.

Let’s start with the NRA’s brief description of how the event unfolded.

On March 24, 2014, an anonymous tipster called the Ranson, W. Va. police department claiming to have seen an African-American male in the parking lot of a 7-Eleven load a handgun, conceal it in his pocket, and leave the lot as a passenger in bluish-green Toyota Camry driven by a white female.

Within minutes, a police officer responded to the location and observed a vehicle less than a mile away from the 7-Eleven matching the description provided by the caller. The officer observed that the occupants of the car were not wearing seatbelts, which allowed him to execute a lawful traffic stop under West Virginia law. Mindful of the anonymous tip, the officer ordered Robinson, who was in the passenger seat, out of the car.

Meanwhile, back-up had arrived. The second officer approached the car, opened the passenger side door, and asked Robinson if he had any weapons. He would later testify that Robinson’s only reply was to give him a “weird look.” The officers then had Robinson place his hands on top of the car and frisked him for weapons, finding a firearm in his pants pocket.

Both the premise for how the arrest began and the far reaching interpretation of the law arrived at by the court are disturbing, so I agree with the NRA-ILA on that much… at least to a point. In West Virginia it’s legal to carry concealed assuming you’re legally entitled to do so. But if a citizen phones in a tip saying they saw somebody loading a handgun in the 7-11 parking lot and taking off, are the police supposed to ignore it? That’s the first troubling part of the question.

The way the arrest of the suspect played out was also bothersome, mostly because of the order of events. After the cops pull Robinson over he is, by their account, a cooperative suspect on all counts except for refusing to answer a question about whether or not he’s armed. Because he’s not wearing a seat belt they get him out of the car and pat him down, finding the gun. It’s only then that one of the cops (presumably the backup that arrived) recognizes him and realizes he’s a convicted felon who’s not eligible to own a firearm. He’s arrested and convicted.

The problem here is that they did the pat down and found the weapon before realizing he was a felon. Without that knowledge, the simple, anonymous tip saying he had a gun shouldn’t have been enough to warrant the search unless the police can claim that they had reasonable cause to believe that he might be armed and dangerous. But the tip only caused them to suspect he was armed and you’re legally allowed to be armed in West Virginia. Without any other action on the suspect’s part, we’re now facing the question of whether or not simply being armed makes you dangerous. That’s what one of the justices in a separate opinion used as a starting point to take this case off the rails.

“[T]he majority decision today necessarily leads to the conclusion that individuals who elect to carry firearms forego other constitutional rights,” Wynn wrote, “like the Fourth Amendment right to have law enforcement officers ‘knock-and-announce’ before forcibly entering homes.” He continued, “Likewise, it is difficult to escape the conclusion that individuals who choose to carry firearms necessarily face greater restriction on their concurrent exercise of other constitutional rights, like those protected by the First Amendment.”

If this decision holds up on appeal (assuming there is an appeal) it’s seriously bad news. The court is agreeing that a person can be considered dangerous solely for the fact that they are legally armed and as such have no right to complain if they are illegally searched. My big problem with this being the battleground for such a legal fight is that Robinson is the wrong “hero” to point to. He was, in fact, illegally carrying a gun because he was a felon. He should have been arrested and convicted. If the cops who did the initial stop had recognized him, their knowledge (or reasonable suspicion) of his status as a felon combined with the tip about seeing him loading a weapon should have been enough to support the conviction. But because the search was done before that realization we’re back to the entire (in my opinion, misguided) fruit of the poisonous tree argument. They have the bad guy in hand but we’re supposed to let him walk because of the order of events during the arrest. This makes no sense and is one reason why Robinson’s case seems a less than ideal standard bearer for this fight.

Still, the ball is already rolling and I certainly hope this gets reversed on appeal. If your state allows you to travel around while armed, the simple act of being armed does not make you “dangerous” in the sense that it opens you up for additional charges. (Assuming you weren’t doing something illegal to begin with, of course.)

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