There’s an old saying that “bad facts make bad law.” In other words, the desire to punish bad people and prevent perceived miscarriages of justice can lead judges to craft overbroad or oppressive opinions that ultimately lead to far worse outcomes. But judges are supposed to wrestle with bad facts, tease out the true and appropriate legal standards, and keep in mind the consequences of their opinions. So, no, bad facts don’t make bad law. Bad judges do.
The Fourth Circuit Court of Appeals just suffered from an outbreak of bad judging. In an en banc opinion, the court ruled that after a lawful traffic stop, the police may frisk any person who they believe may possess a firearm, regardless of whether that person possesses a concealed-carry permit. The court actually typed this sentence: “The danger justifying a protective frisk arises from the combination of a forced police encounter and the presence of a weapon, not from any illegality of the weapon’s possession” (emphasis added.) The implications were clear: Even lawful gun owners are by definition “dangerous” and can be broadly treated as such by the state.
Before I get to the sad weakness of the court’s reasoning, let’s discuss the specific facts of U.S. v. Robinson, the case that brought us to this strange and perilous place. Police received a call that a man “in a parking lot well known for drug-trafficking activity” loaded a gun, put it in his pocket, and got in the passenger side of a car. Let’s pause for a moment and note that there is nothing inherently unlawful about any of that. It’s not unlawful to walk in a dangerous area, ride in cars in dangerous areas, or carry guns in dangerous areas. Indeed, it might well be prudent to carry where the danger is greatest.
Police later pulled over the car (the driver and passenger weren’t wearing seatbelts). Given the report that the passenger might be armed, the officer asked him to step out of the car rather than dig in his pocket for ID. The passenger, Shaquille Robinson, stepped outside. As he did, the officer asked him whether he was armed. Robinson gave the officer a “weird look,” an “Oh, crap” look that the officer interpreted as “I don’t want to lie to you, but I’m not going to tell you anything.”
The officer frisked Robinson, found that he was carrying a weapon, and then recognized that he was a convicted felon. The officer then promptly arrested him as a felon in possession of a gun.
Robinson challenged the frisk, claiming that it violated his Fourth Amendment rights. He acknowledged that the officer had the right to stop the car and ask him to exit. He also acknowledged that the tip that he was armed was sufficiently reliable for the officer to act on it. Robinson contested the notion that the officer had reasonable suspicion to believe that he was armed and dangerous. After all, he argued, putting a firearm in your pocket is “innocent behavior” that was not by itself “sufficient to indicate that he posed a danger to others.”
Here, Robinson is surely right. Putting a firearm in your pocket is just as innocent as getting in a car and turning the ignition. In states that require concealed-carry permits, carrying a gun and driving a car are both lawful activities that require a license, and you can no more presume that a person carrying a gun lacks a permit than you can presume that a person driving a car lacks a license.
Moreover, the evidence is simply overwhelming that holders of concealed-carry permits are extraordinarily law-abiding — perhaps even more law-abiding than the police. According to the Crime Prevention Research Center, police commit crimes at a rate of roughly 124 crimes per 100,000 officers. That’s an extraordinarily low rate (the general public’s crime rate is 31 times greater). In Florida, by contrast, concealed-carry permit holders committed misdemeanors or felonies at a rate of 12.5 per 100,000. In Texas, the rate was 20.5 per 100,000. In other words, “armed” does not equal “dangerous” when a person carries lawfully, with a permit. Lawful gun owners are not a threat to the public or to the police.
But don’t tell that to a majority of the Fourth Circuit. To them, armed is dangerous, and your decision to lawfully carry a weapon opens you to the possibility of a police frisk merely because you exercise a constitutional right. Indeed, Judge James Wynn, writing in concurrence, made the majority’s reasoning terrifyingly clear:
In sum, individuals who carry firearms — lawfully or unlawfully — pose a risk of danger to themselves, law enforcement officers, and the public at large. Accordingly, law enforcement officers may frisk lawfully stopped individuals whom the officers reasonably suspect are carrying a firearm because a detainee’s possession of a firearm poses a categorical “danger” to the officers.
So, if concealed-carry permit holders are presumptively dangerous, does this mean that they forfeit other constitutional rights? Wynn explained (approvingly) that under the majority’s reasoning they certainly do:
I see no basis — nor does the majority opinion provide any — for limiting our conclusion that individuals who choose to carry firearms are categorically dangerous to the Terry frisk inquiry. Accordingly, the majority decision today necessarily leads to the conclusion that individuals who elect to carry firearms forego other constitutional rights, like the Fourth Amendment right to have law enforcement officers “knock-and-announce” before forcibly entering homes. . . . 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.
In essence, the Fourth Circuit is declaring that gun owners lawfully exercising their constitutional rights are to be viewed with particular suspicion by law enforcement, regardless of any empirical evidence of danger. The court is relegating lawful gun owners to second-class-citizen status.
The court is relegating lawful gun owners to second-class-citizen status.
Even worse, it did so gratuitously. It could have analyzed Robinson’s claims on the facts, asking whether the fact that he loaded his gun in a high-crime area and acted suspiciously after the stop justified the frisk (probably not, which is likely one reason why the majority reached for a new standard). Or it could have noted that in jurisdictions that require concealed-carry permits, when officers reasonably suspect that a person is armed, they can ask to see the citizen’s carry permit and conduct a search if he can’t produce it. Instead, however, it wrote a new law.
Make no mistake, imposing a series of new and unconstitutional burdens on gun owners is a form of gun control. It’s a judge-made deterrent against gun ownership, concocted out of whole cloth. The court legislated from the bench, and federal, state, and so now local authorities in Virginia, West Virginia, North Carolina, South Carolina, and Maryland can treat lawful gun owners as toxic, depriving them of other constitutional rights, all in order to promote “the safety of persons and property.”
Beware, lawful gun owners, the court has branded you with a scarlet “G.” You are a danger to yourself, your neighbors, and the state. You exercised your rights, and now the court has deprived you of your liberties.