Wednesday, July 28, 2021

Open Carry of Firearm “Plus” Is Sufficient for Terry Stop

Walker v. Donahoe: Walker was walking down a suburban West Virginia street (not far from my house, actually) toward a school while carrying an assault rifle and wearing “military-style clothing.” A week earlier, a gunman had killed 17 at a high school in Florida. With that context, someone called 911 about Walker. A pair of sheriff’s deputies responded, found Walker and “directed him to a nearby driveway.” While open carry of firearms is legal in West Virginia, that applies only to adults and the officers though Walker might be under 18 years old (he was actually 24). Walker was “polite bus assertive” with the officers, who eventually learned of his identity and did a check to see if he had any disqualifying convictions with regard to firearm possession. One deputy said “I have the absolute legal right to see whether you’re legal to carry that gun or not.” Not finding any reason Walker could not possess the gun, he was released. Ultimately, he filed a 1983 suit arguing that the stop violated his Fourth Amendment rights. The district court granted summary judgment to the officers.

On appeal, the Fourth Circuit affirmed the summary judgment. The court concluded that the officers had reasonable suspicion to stop Walker, noting that “possession of a firearm, though lawful, can contribute to reasonable suspicion in the totality of the circumstances.” In other words, “the possession of a firearm plus something more may justify an investigatory detention.” Here, the “more” was a combination of the context of the stop (shortly after the shooting in Florida), concerns that Walker wasn’t an adult, and the nature of the weapon involved, with the court concluding that “the proposition that an AR-15-style assault rifle may be treated differently than a handgun is consistent” with prior Supreme Court and Fourth Circuit precedent regarding firearms.

Judge Richardson concurred in the judgment and would have resolved the case on qualified immunity grounds.

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