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Cops Can Frisk Anyone Armed, Regardless of Concealed Carry Permits

By Casey C. Sullivan, Esq. on January 25, 2017 | Last updated on March 21, 2019

The Fourth Circuit ruled on Monday, in an en banc decision, that police are justified in frisking individuals with concealed firearms, regardless of whether that individual could have a concealed carry permit or not. The fact that someone may have a concealed carry permit does not make it unreasonable for an officer to search them, "for the officer's protection and the safety of everyone at the scene," the Fourth ruled.

The decision, U.S. v. Robinson, is in tension with a Sixth Circuit opinion from 2015 and could result in the Supreme Court taking up this developing circuit split.

Concealed Carry Permits Are Inconsequential, Fourth Rules

The case arose after police stopped two men in Ranson, West Virginia, after getting a tip that one of them had loaded a firearm and slipped it into his pocket. During the stop, the police frisked Shaquille Robinson, found a gun, and arrested him for being a felon in possession of a firearm.

Robinson argued that the officers' search violated his Fourth Amendment rights against unreasonable search and seizure, as the officers had "no articulable facts demonstrating that he was dangerous since, as far as the officers knew, the state could have issued him a permit to carry a concealed firearm."

That is, that concealing a firearm alone doesn't render one dangerous, and thus does not justify a subsequent Terry stop and frisk. Under Terry v. Ohio, officers may stop and frisk someone when they reasonably suspect "that the person apprehended is committing or has committed a criminal offense." Since it's possible for the concealed weapon to be legal, Robinson argued, his conduct was "seemingly innocent" and thus didn't justify the search.

The Fourth Circuit rejected that argument, concluding that "an officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile's occupants is armed may frisk that individual for the officer's protection and the safety of everyone on the scene."

The ability to carry a concealed firearm legally is "inconsequential," the Fourth explained:

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.

Dissent Notes Circuit Split

The dissent, written by Judge Pamela Harris and joined by three others, argues that, while concealed weapons were once "hallmarks of criminal activity," they can no longer be treated as such, "at least in states like West Virginia," where concealed carry permits make concealed weapons potentially legal. Where such conduct is legal, "there is no reason to think that a person carrying or concealing a weapon during a traffic stop ... is anything but a law-abiding citizen who poses no threat to authorities."

That is, the dissent notes, similar to the position taken by the Sixth Circuit. In 2015's Northrup v. City of Toledo Police Dep't, the Sixth ruled that police could not conduct a Terry stop for open carriers, when the state law permits open carry. The Ohio legislature "has decided its citizens may be entrusted with firearms on public streets" and police have "no authority to disregard this."

Not only does the majority's decision clash with the Sixth, the dissent argues, but it collapses Terry's "armed and dangerous" standard into one -- to be armed is to be dangerous. The dissent further contends that the majority's expansive reading of Terry will lead to increased racial profiling.

There's no word yet whether Robinson will appeal to the Supreme Court, but some, including Texas Supreme Court justices and potential U.S. Supreme Court nominee Don Willett seems to think High Court review is likely:

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