US v. Brown: An officer in Richmond saw an Instagram video, posted a couple of hours before by a known gang member, in which that gang member and six others were “making hand gestures and wildly waving various firearms” in front of a building at a local apartment complex. Officers consulted live surveillance video of the complex and saw one person waring the same clothing as in the Instagram video and another carrying one of the same weapons in the same location.
When officers arrived at the complex, the two men (Brown and his codefendant McCullers) walked away, refusing to stop when ordered. One officer saw Brown “move his hands to the front of his torso while facing away” from the officer, leading to an order to “stop reaching.” Brown complied and was handcuffed, but a frisk did not produce a gun. Another officer confronted McCullers, who complied with orders to stop and get on the ground. He did have a firearm that was recovered during a frisk. More than 45 minutes passed, during which a search of the area for discarded guns turned up nothing. Before Brown was released, however, officers noticed a “bulge in Brown’s pants” that turned out to be a gun. He and McCullers were both charged with being felons in possession of firearms. They pleaded guilty to that office via conditional pleas after their motions to suppress were denied.
On appeal, a divided Fourth Circuit affirmed the denial of the defendants’ motions to suppress. First, the court held that officers had reasonable suspicion to stop Brown and McCullers and frisk McCullers (Brown didn’t challenge his frisk), as the Instagram video showed the offense of brandishing a firearm under Virginia law. In particular, as it was made by a known gang member and included the flashing of gang signs the video “was meant to communicate a message to members of other gangs in the area.” That the video was undated was unimportant, given the recent nature of its upload and the information gathered from the live surveillance video. Second, the court held that the officers did not impermissibly extend Brown’s stop. Although it took more than 45 minutes before they initially decided to release him, the court held that the record showed that the “officers acted in a reasonable manner throughout the stop.”
Judge Wynn dissented, arguing that the “majority opinion crafts out of whole cloth a new exception to the Second Amendment’s protections,” that it “apparently does not protect the individual right to keep and bear arms when an individuals lives in an area that is a ‘hot spot for gang violence.’”
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