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.

So no law was being broken, but the officer was justified based on his own safety to violate the person’s right against illegal search and seizure, the right intended for situations just like this.  Now compare and contrast this decision with the Fourth Circuit’s opinion in the case of Nathanial Black.

Nathaniel Black was part of a group of men in Charlotte, North Carolina who local police officers suspected might be engaged in criminal activity. In particular, Officers suspected that after seeing one of the men openly carrying a firearm – which was legal in North Carolina – that there was most likely another firearm present. When police began frisking the men one by one, Mr. Black wished to leave, but was told he was not free to leave. Officers chased Mr. Black and discovered that he possessed a firearm; it was later discovered that he was a previously convicted felon. Mr. Black was charged with being a felon in possession of a firearm. Before the United States District Court for the Western District of North Carolina, Mr. Black moved to suppress the evidence against him. His suppression motion was denied, he entered a guilty plea preserving a right to appeal the denial of the suppression motion, and he was sentenced to fifteen (15) years imprisonment. The United States Court of Appeals for the Fourth Circuit, however, determined that the officers had improperly seized Mr. Black, suppressed the evidence against him, and vacated his sentence.

It’s legal to openly carry a gun in North Carolina, and the mere presence of a gun was no excuse for having detained him.  The Fourth Circuit reached the correct conclusion.

So I guess someone hit them on the head with a hammer and forced amnesia.  The Fourth Circuit opinion in the case of Nathaniel Black is a good one.  This most recent one is not, and if it wasn’t amnesia, perhaps they were drunk.