I keep telling people if a story says appeals court did this or that, in regards to search and seizure your next stop should be Volokh Conspiracy or Legal Insurrection. Chances are if it is important enough you will get an informed discussion of the issues and decision.

Does-armed-automatically-equal-dangerous-in-a-court-of-law? This article discusses a poorly decided appeal, out of West Virginia, the U.S. Fourth Circuit and has to do with concealed carry.

Here is the fact situation. A caller described an individual, the car he was in and his starting point. The caller also stated that the suspect loaded a handgun and concealed it on his person before leaving the area.

The police stopped the car within a mile of the starting point and matched the descriptions of the car and individuals with the information they received. The officers proceeded under the assumption that suspect was “armed and dangerous.” They ordered him out of the car and conducted a frisk, finding the handgun in the process. The backup officer also recognized the suspect as a convicted felon, unable to legally possess a handgun.

The writer, Jazz Shaw, is unhappy with the decision and attempts to parse his way to a Fouth Amendment violation by reducing the term the court relied upon “armed and dangerous” to its parts.

I agree with Mr. Shaw that this is a poorly written decision, the wrong defendant, and fact situation, to put forward to raise the search and seizure issue framed by the court. Mr. Shaw starts by challenging the notion that an individual carrying a pistol is not “armed and dangerous” of course he is. Why carry if your potential to protect yourself is not enhanced? The potential is always there. A police officer is not a mind reader and should not be expected to differentiate between an “armed and not dangerous” from an “armed and dangerous” individual at a glance.

Part of the problem is that the various states have set up an obstacle course that must be negotiated each time to arrive at the conclusion that an individual is armed and acceptably dangerous. Police create problems by failing to consider the possibility is going in, that the individual they are dealing with is properly licensed.

Police officers needed to rethink their tactics.  With the advent of licensed concealed carry, it isn’t enough to possess a weapon. The weapon must be possessed contrary to current law. In Texas, drivers are required to self-identify if stopped and follow the directions of the officer. Theoretically, a registration/stolen check on the primary vehicle license for the CHL holder would impart the same information via dispatch or the patrol car computer.

I would agree with Mr. Shaw that once the legitimacy of the CHL is confirmed, there is no need for further police interest. As far as the handgun issue is concerned. There may be other issued that need to be resolved because of the contact, but if those issues have no bearing on the armed status then deal with what remains and move on. Drivers I stopped would often offer to retrieve their handgun and give it to me for the duration of the stop. My reply was frequently the same, regarding their pistol. “Do you intend to use it in the next five minutes or so? If not, why would I care?”

Some officers would claim that there is still an officer safety issue. I would disagree. Both parties know the other parties is armed. The officer should know where the other weapon is and tell the contact to refrain from reaching for it. On the other hand, requiring the license holder to produce the weapon or retrieving it by a frisk, introduces an unholstered weapon into the situation.

Part of the mistake Mr. Shaw makes is to conflate the terms “armed and dangerous” with other pairings such as: “breaking and entering” and “assault and battery.” Breaking and entering within the legal context describes two elements of the crime of Burglary. In some areas Burglary is reserved to describe residential break-ins, while breaking and entering targets commercial buildings and outbuildings. “Assault and battery” is a holdover from common law. The assault is the verbal abuse leading to an offer to inflict bodily injury, which is the battery. In each instance, we are dealing with two separate elements assault, breaking and battery and entering that are able to stand on their own. Armed without dangerous and dangerous without armed cannot stand on its own.

What I see in this case is a nicely formed Terry Frisk with all the bells and whistles a cop could hope for. The starting point for the suspect’s trip was a 7-11 where the surrounding area is known as a drug supermarket. He displayed a firearm in public. (In Texas this is a violation of CHL rules). Once he was stopped he was given the opportunity to explain but remained silent. The investigation, to this point, confirmed the description of the occupants, vehicle, relative position in the vehicle of the people, as provided by the caller. The only point that remained to be confirmed was, did the suspect have a weapon? The only way to resolve that question was via a Terry Frisk.

I was a police officer for thirty years. I spent fifteen of those years assigned to a narcotics task force. I acted in an undercover capacity on more than one occasion and operated from a covert posture constantly. I have been cuffed, stuffed and disarmed more times than I care to count.  The arrest (or detention) was the result of a sincere effort on the part of patrol or another investigative agency. When the dust cleared I always got to go home, without posting a bond. From that vantage point, I have a different view of what the Justice Wynn of the Fourth Circuit Court said so poorly. In my reading, it was an answer to a question that could have easily been dismissed, since the fact situation he was responding to did not exist. Here is Justice Wynn:

“[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.”

Since Jimmy Cagney first played tough guy and for eighty years afterward on stage, screen, short stories, novels, true crime, and newspaper the formula is simple, “Drop that gun!” then the discussion. Any other way and it winds up with Cagney on top of an industrial plant blazing away shouting,”Top of the World Ma, Top of the World!” There is a recognition that guns create a potential for violence that far exceeds a Three Stooges tea party where everybody gets a pie in the face. Possibly Jacob ‘Big Jake’ McCandles said it best: And now *you* understand. Anything goes wrong, anything at all… your fault, my fault, nobody’s fault… it won’t matter – I’m gonna blow your head off.”

For the sake of argument, I would take Justice Wynn to mean that within the gambit of public good or public safety when two forces interact one has to cede control to the other. Since the police have an obligation by statute intervene and investigate the armed civilian must yield. That is not giving up anything just an acknowledgment that cooperation rather than confrontation will achieve the desired result. It happens everytime two law enforcement agencies combine in an investigation. No matter what the Public Information Officer says one agency is always in charge.