Police Stop & Frisk Involving Citizen Firearm Carry
by H. Troy Nicks, J.D., Instructor, Central Virginia Criminal Justice Academy, Email: troy.nicks@lynchburgva.gov
In the 1968 landmark case of Terry v. Ohio, the U.S. Supreme Court ruled that the traditional practice of police to stop suspicious persons and conduct a patdown search did not violate 4th Amendment protections against unreasonable search and seizure, provided the circumstances met certain requirements.[1] In addition to having reasonable suspicion linking the detainee to criminal activity for the initial detention, the Court ruled that police must also have reasonable suspicion that the person is “armed and dangerous”, in order to conduct a patdown frisk for weapons.
Although the facts in Terry involved a daytime situation in an urban setting, a single officer suspected that he was confronting two men on the verge of conducting a robbery and, itself a violation of state law, armed with concealed firearms. Given that scenario, reasonable suspicion to think that the suspects were “armed and dangerous” seems clear.
Recent years have witnessed a surge in nationwide legislation easing restrictions on issuance of concealed handgun permits plus the increasing open carry of handguns by citizens. As a result, courts have struggled to apply Terry’s requirements to police encounters with citizens when there is no basis for suspecting criminal activity, or when at most a minor offense is involved, and when there is also a lack of factors establishing dangerousness other than the known or suspected presence of a firearm.
This article will summarize three appellate opinions involving these issues and will conclude by pointing out a few unresolved questions concerning police procedure in citizen firearm carry situations.
U.S. v. Black, 4th U.S. Circuit Court of Appeals, February 2013[2]
At night and in a general area known for violent crimes, police in Charlotte, North Carolina, saw a vehicle pull into a convenience store parking lot. The sole vehicle occupant sat for several minutes, not leaving his car, and then drove away. The officers thought the driver possibly was involved in drug trafficking and followed the car to an apartment complex parking lot. A check on the car’s license number returned no wants.
The driver got out of the car and walked to a group of several men talking among themselves. The group saw but did not react to the police vehicle’s approach. The officers drove past and arranged for another car with two officers to respond. Both police cars returned to the group of men. Exiting their cars, the four officers approached the group which included one man that an officer recognized as having a felony arrest record. At that point, another group member gestured to the officers that he himself was openly carrying a holstered handgun. An officer seized that firearm and secured it in a police car. The officer later testified that he knew that open carry was legal under state law but that he had never seen a citizen do so.
An officer approached defendant Black who volunteered his ID, which the officer pinned to his uniform. Officers then proceeded to frisk the remaining members of the group, later stating that they did so on the premise that “where there is one gun, there is usually another”. As others were frisked, Black stated that he was leaving and began to walk away. An officer blocked him and told him that he was not free to leave. Black then ran, was tackled and a handgun found on his person. He was indicted on a federal charge of possessing a firearm as a convicted felon. At trial, Black’s motion to suppress based on his detention lacking reasonable suspicion was denied and he was convicted.
The appellate court decided that Black had been seized when his ID was retained, at which point six officers were on scene, and it was obvious that the entire group was going to be frisked. Under those circumstances, the Court held, a reasonable person would have believed that he was not free to leave. Therefore, the men had been seized for purposes of the 4th Amendment. The Court then turned to the issue of whether that detention was supported by reasonable suspicion of criminal activity. The ensuing discussion covers several factors, the most relevant to this Article being the firearm openly carried by another group member and its arguable linkage with Black’s detention.
The Court placed conclusive weight on state law that permitted open carry of firearms. Regarding the possibility that a person carrying a firearm was doing so unlawfully because of being a convicted felon, as Black was, the Court stated that “(b)eing a felon in possession of a firearm is not the default status”. The opinion continued by noting that the officer who detained Black had no knowledge of his criminal history when Black’s detention occurred and stated that permitting police speculation of that nature to justify detention of citizens would “eviscerate” 4th Amendment protections for lawfully armed citizens. Finally, the Court aligned with the general unease expressed by other authorities regarding police practices in the context of racial and other demographics present in many high crime neighborhoods. The opinion concluded by declining to characterize otherwise lawful conduct as suspicious when coupled by mere presence in such a neighborhood. On those considerations, Black’s conviction was reversed.
Northrup v. City of Toledo Police Department, 6th U.S Court of Appeals, May 2015[3]
Plaintiff Northrup, accompanied by family members, was walking his dog along a neighborhood sidewalk and openly carrying a holstered handgun, thus prompting a 911 call. When approaching Northrup, a responding officer saw Northrup’s holstered pistol, ordered him to put his hands up and seized his handgun. The officer then handcuffed Northrup and placed him in a police car for about half an hour until it was confirmed that Northrup had a concealed handgun permit.[4] Northrup was then released with a citation for “failure to disclose personal information”, a charge that was later dropped.
Northrup subsequently filed a “Section 1983” federal civil rights lawsuit against several police officers involved, alleging the violation of various rights under the U.S. Constitution and state law. The trial court granted summary judgment in favor of all but two of the defendants. Those two officers filed an interlocutory (pretrial) appeal.
On appeal, the defendant officers argued that they should have been granted summary judgment because the pretrial record was clear that they were entitled as a matter of law to qualified immunity from suit. [5]
The Court’s opinion begins by noting that summary judgment in favor of the officers would be proper if they were entitled to “qualified immunity” from a 1983 suit. Under federal law, law enforcement officers are entitled to qualified immunity if either 1) they did not violate the plaintiff’s Constitutional rights, or 2) if the plaintiff’s rights were violated, the applicable law was not “clearly established” by the legislature or courts at the time of the alleged violation.
As to the issue of the violation of Northrup’s rights, the Court stated that, while officers could have lawfully approached him in a consensual encounter to ask questions, the facts instead show that he was involuntarily detained. The officer who detained Northrup took the position that Northrup’s open carry of a holstered handgun causing a 911 call created a reasonable suspicion that he was engaged in criminal activity, thereby justifying his detention and the seizure of his handgun. The Court, however, observed that state law permitted Northrup to do “exactly what he was doing” by openly carrying a firearm. The Court found no reason to believe he was dangerous [5], nor was there any other justification for detaining him and seizing his firearm. The officers’ argument that police responsibilities to protect the public required that they stop Northrup for investigation was dismissed, with the Court observing that a consensual encounter could have served that purpose.
The opinion concludes by ruling that Northrup’s rights to open carry were “clearly established” under state law. Therefore, the officer taking the foremost role in the incident was denied qualified immunity and the case was remanded to permit trial to proceed against that officer.
US v. Robinson, 4th U.S. Circuit Court of Appeals, January 2017[6]
Police in Ranson, West Virginia, received a 911 tip that a man had been observed loading a handgun, concealing it in a pocket and leaving a convenience store parking lot as a passenger in a described vehicle. The convenience store and adjacent apartment complex were known to police as a high crime area that included frequent drug trafficking. Police soon located the vehicle and conducted a traffic stop for seatbelt violations. A passenger, Robinson, and the driver matched the general description given by the tip. Several officers then confronted the driver and Robinson.
An officer ordered Robinson to get out of the car. When asked if he had any weapons on him, Robinson gave the officer a “weird look” but did not otherwise respond. An officer then proceeded to frisk him, recovering a handgun. Shortly thereafter, an officer recognized Robinson as a convicted felon and he was arrested and later indicted by a federal grand jury for possessing the firearm. At trial, Robinson’s motion to suppress evidence resulting from the frisk was denied and he was convicted.
A panel of the 4th federal Circuit reversed the trial court [7], holding that although Robinson’s detention was lawful, police erred in proceeding with a frisk because they did not have a reasonable suspicion that he was both armed and dangerous. (Here’s our first clue that this case will squarely address the central question addressed by this Article). The opinion notes that the facts of the Terry case involved a robbery suspect, as contrasted by the present case where the detention of the driver and Robinson was based on a minor traffic violation. Furthermore, the panel noted that Terry involved Ohio law that prohibited concealed weapons but that West Virginia law permitted concealed carry with a permit.
The panel then opined that police had no reason to believe based on the tip that Robinson’s possession of a firearm was unlawful, nor did the circumstances of his detention prior to the frisk provide such a basis. Specifically, the panel decided that Robinson’s “weird look” and his earlier departure from a high crime area were not sufficient to establish a reasonable suspicion of dangerousness – noting that law-abiding persons in high crime areas, especially, could be expected to arm themselves for protection. This discussion again raises the concern, expressed in Black - that police detentions and frisks not be conducted in a manner that raises issues of racial discrimination, which can come into play in the context of heavier police presence in high crime areas.
Following the panel’s decision, the government was granted a rehearing by the full Circuit court that resulted in the panel’s dissenting judge, Judge Niemeyer, delivering a majority opinion that reversed the panel’s decision. This opinion begins by noting that Robinson’s appeal brief conceded that he was lawfully detained and ordered out of the vehicle, and that the tip was sufficiently reliable to give police the reasonable suspicion that he possessed a concealed firearm.
The Court then elaborates on the theme that traffic stops are inherently dangerous to police and that the perceived risk level is elevated when the presence of a weapon is suspected. The opinion refers to U.S. Supreme Court and 4th Circuit precedents that approved police frisks during traffic stops where the only justification was an officer’s observation of a “bulge” in the detainee’s clothing that could have been created by a weapon. [8] Robinson had argued that the cited Supreme Court case, at least, involved state law prohibiting concealed weapons. The Court countered that position by stating that danger is created by the combination of a forced police encounter and the presence of a weapon, irrespective of any illegality of the weapon's possession, referring to Supreme Court language indirectly supporting that analysis.[9] In the view of the majority, the question of interpretation has been settled as being “if armed, then dangerous”.
In a sort of bonus round, the majority opinion further takes the view that Robinson’s loading and concealing a firearm in an area known for drug trafficking plus his “weird look” when asked about weapons increased the officers’ level of suspicion that he was dangerous.[10] The majority concludes by rejecting the panel’s analysis and upholding Robinson’s conviction.
A concurring opinion by Judge Wynn questions the majority’s discussion that sometimes refers specifically to danger created by firearms and at other times uses general terminology such as “armed” and “weapons”. Judge Wynn suggests that better reasoning would be to adopt the panel opinion’s analysis that considers “dangerousness” as a separate issue from being armed, referring to two other Circuits’ cases, including Northrup.[11] Following the majority’s imprecise language regarding weapons, the judge continues, would allow police to frisk any person suspected of possessing any object that could be used as a weapon – a construction worker might have a utility knife or screwdriver hidden from view, an accountant might have a pen in a pocket, etc. Judge Wynn believes that the analysis should focus on firearms, the leading weapon used in serious assaults on police and other victims and under most circumstances, the deadliest. Substantial precedent, his argument goes, has recognized the violent purpose for which firearms are manufactured and sold, and the resulting inherently dangerous nature of firearms.
Continuing to a striking conclusion, Judge Wynn weighs citizens’ rights to carry firearms against public and police safety and advances the proposition that persons who choose to carry firearms, even lawfully, are “categorically” dangerous. Such persons, the judge believes, present an inherently dangerous threat to police during a lawful stop and should be deemed to have waived a certain degree of their 4th Amendment rights. Under this different analysis, the concurring judge joins the majority in upholding Robinson’s frisk and subsequent conviction.
The vigorous dissenting opinion was delivered by Judge Harris, who authored the panel’s majority opinion that the full Court reversed. Judge Harris dwells at length on the implications of Constitutional and statutory recognition of lawfully regulated firearm carry. The judge sets forth the general legal principle that when certain conduct is presumptively lawful, police may not act based on the unfounded possibility that the presumption might not apply, e.g., that a person carrying a concealed handgun in a permit jurisdiction, in the absence of specific suspicious factors, might not have been issued a permit. Repeating the panel’s previous analysis, Judge Harris notes that there was no significant evidence linking Robinson to criminal activity, except that he and the driver were not wearing a seat belt. The opinion acknowledges that suspected illegal firearm possession supports an inference that the bearer is inclined to use the firearm to commit crimes but argues that there was no reason before conducting the frisk of Robinson to suspect that his possession of a firearm was unlawful.
The opinion further acknowledges the obvious fact that a lawfully possessed firearm can pose a threat – but counters that the real issue is not whether a presumptively lawful firearm could create a reasonable suspicion of dangerousness, but whether it necessarily and automatically does so in every circumstance. The dissent concludes with the view that in police stops for minor violations, when there is no reason to believe a citizen’s suspected possession of a firearm is unlawful, to give police unchecked discretion in deciding which armed citizens to frisk is to invite discriminatory treatment of citizens. Addressing the majority’s nod to Robinson’s presence in a high crime area, the dissent argues that allowing “automatic firearm frisks” only in high-crime areas would do little to mitigate discriminatory police practice. Instead, such frisks would impact disproportionately on racial minorities and the poor, those most likely to live and work in neighborhoods classified as high-crime.
Conclusion
What then are general guidelines that emerge from these three cases, regarding appropriate police procedure in situations that initially present as lawful firearm carry?
Clearly, it makes an almost conclusive difference if police initially have a lawful basis for handling the encounter as an investigative detention (Terry stop). Black and Northup both plainly hold that lack of grounds for a lawful detention deny police the authority to interfere non-consensually with a citizen who is openly carrying a firearm in jurisdictions, like Virginia, where that is lawful. Encounters of open or concealed carry must be handled on a consensual basis unless and until facts arise that form a suspicion of crime or specific danger other than the lawful presence of a firearm.
But a situation involving a legitimate police stop changes everything, regardless of the insignificance of the violation. It’s worth noting that the seatbelt violation in Robinson would in Virginia constitute a civil violation, punishable only by a $25 fine and as a “secondary” offense could not be the sole basis for a vehicle stop.[12] West Virginia police, however, having a basis to stop Robinson for that minor violation and also having a reasonable suspicion that he had a concealed weapon, justifiably concluded that he was armed and dangerous on those facts alone and regardless of the lack of reasons to believe he did not have a permit.
The Virginia Criminal Information Network (VCIN) and DMV databases match persons who have been issued concealed handgun permits with licensed vehicle operators and with registered vehicle owners.[13] So, an officer conducting a traffic stop in many situations will have independent knowledge that would prompt the officer to ask the driver whether he or she has a permit. If the driver produces the permit on request by the officer, as Virginia law requires, but declares that he or she is not carrying a firearm at the time, could the officer nevertheless have a reasonable suspicion that a firearm was concealed on the driver’s person or in the vehicle, and proceed with a frisk?
Robinson included expansive language referring to the inherent dangers presented by the suspicion of a firearm’s presence, even if lawful, during a traffic stop. That language suggests that in this hypothetical scenario involving VCIN information indicating that the driver might be a permit holder, the officer would have the authority to proceed with a frisk of the citizen and his or her vehicle.
One suspects that many concealed handgun permit holders in Virginia would be surprised, if not dismayed, to learn that such appears to be the current law. Development and interpretation of case law in this area ought to be challenging for the courts, law enforcement policy makers, police trainers and individual officers.
[1] 392 U.S. 1 (1968)
[2] 707 F.3d 531 (4th Cir. N.C. 2013)
[3] 785 F.3d 1128 (6th Cir. Ohio 2015)
[4} The opinion is unclear regarding any requirement of Ohio law that open carry required a permit – it can be inferred that no such requirement existed. Virginia does not require that a person openly carrying a firearm possess a concealed handgun permit issued pursuant to the Code of Virginia 18.2-308.1. Under Virginia law, open carry of firearms is lawful except for circumstances where firearm possession, open or concealed, is expressly prohibited by law. A detailed list of those circumstances may be found on the Virginia Citizens Defense League website http://www.vcdl.org/CarryInfo. Note also that firearm possession may be prohibited on private property by owners.
[5] There was some dispute between the detaining officer and Northrup and his wife regarding what movements Northrup may have made with his hands during the officer’s initial approach. The Court held that summary judgment may only be based on facts that are clear in the record, that Northrup as the non-appealing party was entitled to all favorable inferences from the record and that the issue should be resolved when the case proceeded to trial.
[6] 846 F.3d 694 (4th Cir. W. Va. Jan. 23, 2017)
[7] 814 F.3d 201 (4th Cir. W. Va. Feb. 23, 2016)
[8] Pa. v. Mimms, 434 U.S. 106 (U.S. Dec. 5, 1977), United States v. Baker, 78 F.3d 135 (4th Cir. Md. Mar. 13, 1996)
[9] Adams v. Williams, 407 U.S. 143 (U.S. June 12, 1972)
[10] This appears to be obiter dicta (by the way), that is, discussion that is not necessary to the court’s decision. Or, it could be viewed as disregard of the judicial principle of deciding cases on the narrowest possible ground.
[11] United States v. Leo, 792 F.3d 742 (7th Cir. Wis. 2015)
[12] Code of Virginia §46.2-1094
[13] COV §18.2-308.07