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The Second Amendment vs. the Fourth Amendment


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#1 jimmy958

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Posted April 09 2017 - 07:11 PM

Hard to believe this article is in Slate.


"Does exercising your right to carry a gun diminish your other constitutional protections?


The American judiciary is currently engaged in a vigorous debate that can be summed up in one
question: Can you diminish your Fourth Amendment rights by exercising your Second Amendment
rights? The Fourth Amendment protects individuals against 'unreasonable searches and seizures';
the Second Amendment safeguards the right 'to keep and bear arms.' What happens, then, if police
officers search or seize a person solely because he is carrying a firearm? Is that 'unreasonable'
under the Fourth Amendment and therefore illegal?

Last week, an Illinois appeals court answered that question in the affirmative, ruling that mere
possession of a handgun does not justify a search or seizure. Liberals and conservatives alike
should cheer the court’s decision. Empowering law enforcement to curtail the Fourth Amendment
makes no one safer, even when it’s done in the name of controlling gun violence. And allowing
officers to target gun owners without suspicion of wrongdoing puts us all at greater risk of
harassment, discrimination, and brutality.

Unfortunately, not every court sees the issue that way. In January, the 4th U.S. Circuit Court
of Appeals found that when officers conduct a lawful traffic stop, they may frisk the driver if
they 'reasonably believe' him to be armed—'regardless of whether the person may legally be
entitled to carry the firearm.' Even if the individual holds a concealed-carry permit, the court
clarified, an officer may still search him without having any suspicion that he committed a
crime. In a trenchant critique of the ruling, National Review’s David French wrote that the
majority was 'relegating lawful gun owners to second-class-citizen status.' While that might
sound dramatic, Judge James Wynn admitted as much in a concurrence, declaring that gun owners
'forego other constitutional rights,' including freedom from unannounced police intrusion and
freedom of speech.

We didn’t have to wait long to see what Wynn’s theory looks like in practice. In March, the
11th U.S. Circuit Court of Appeals, sitting en banc, refused to reconsider a decision previously
issued by a panel of 11th Circuit judges. The panel had thrown out a lawsuit against a police
officer who suspected, without any good reason, that a criminal might be lurking inside a
particular apartment. In the dead of night, the officer banged on the apartment door. (He did
identify himself as law enforcement.) The startled resident retrieved the firearm that he
lawfully owned and slowly opened the front door. When he saw a shadowy figure holding a gun, he
retreated inside. The officer shot him dead as he was attempting to close the door.

Read more: http://www.slate.com..._amendment.html

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#2 2edgesword

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Posted April 09 2017 - 07:37 PM

I would think the guiding principle would be you don't have to waive one Constitutional right in order to exercising another Constitutional right. In practical terms abiding by this principle could be complex.

Since there are individuals that are prohibited from owning a firearm is the presumption that anyone openly or obviously carrying a weapon is legally allowed to possess that weapon or is that person if questioned by police obligated to prove they are not a prohibited person by identifying themselves?

In some states you're not required to have I.D. and you're not required to provide I.D. to a police officer unless they have reasonable suspicion that you have, are or are about to commit a crime. In an open carry state where I.D. is not required a police officer really has no grounds for stopping you and requesting I.D. if you are doing nothing else that would raise suspicion that you've committed a crime. The principle is you're allowed to carry unless proven otherwise (you're a prohibited person) and if there is no I.D. requirement the officer has no way of knowing if the individual is prohibited or not.

#3 samwag

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Posted April 10 2017 - 06:13 AM

I would think the guiding principle would be you don't have to waive one Constitutional right in order to exercising another Constitutional right. In practical terms abiding by this principle could be complex.

Since there are individuals that are prohibited from owning a firearm is the presumption that anyone openly or obviously carrying a weapon is legally allowed to possess that weapon or is that person if questioned by police obligated to prove they are not a prohibited person by identifying themselves?

In some states you're not required to have I.D. and you're not required to provide I.D. to a police officer unless they have reasonable suspicion that you have, are or are about to commit a crime. In an open carry state where I.D. is not required a police officer really has no grounds for stopping you and requesting I.D. if you are doing nothing else that would raise suspicion that you've committed a crime. The principle is you're allowed to carry unless proven otherwise (you're a prohibited person) and if there is no I.D. requirement the officer has no way of knowing if the individual is prohibited or not.

I think you bring up valid points,however my understanding of the Constitution is it limits what the government can do to its citizens .Its design was not to grant us rights but to limit the governments intrusion on those rights.The government has the burden of proof when it wants to limit those not the other way around. 


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#4 zzrguy

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Posted April 10 2017 - 07:42 AM

It will be interesting to see how this played out if the national concealed carry bill actually pass .


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#5 2edgesword

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Posted April 10 2017 - 09:28 AM

I think you bring up valid points,however my understanding of the Constitution is it limits what the government can do to its citizens .Its design was not to grant us rights but to limit the governments intrusion on those rights.The government has the burden of proof when it wants to limit those not the other way around.


I think you are correct but not being a lawyer I'm not sure what language has crept into legislation over the years that might have usurped this fundamental principle.
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#6 ProGodProGunProLife

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Posted April 10 2017 - 10:08 AM

I don't think the 2 decisions are in conflict at all.

 

In the first case, the police used the mere fact that the man was carrying a gun as probable cause for a search.  The court correctly ruled that this was wrong.

 

The second case dealt with a frisk, not a full search, during a lawful stop (in this case a traffic stop).  It has long been settled law that the police can do pat downs for weapons, during lawful stops, for officer safety.  

 

Now if they had found a legal gun on the suspect and searched his person, car, home or whatever based merely upon the legal gun, that would be a different story.  

 

I think the law in the 2nd case is fairly straightforward and makes total sense.

 

In the first case, it is a bit dicier.  While we certainly don't want lawful gun owners being unreasonably searched for merely, legally carrying guns, I think we also don't want the hands of the police to be tied when a person who is suspicious is carrying a gun.  IMO, the key is coming up with some standard of "suspicious", to guide the police.   


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#7 samwag

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Posted April 10 2017 - 11:56 AM

I don't think the 2 decisions are in conflict at all.

 

In the first case, the police used the mere fact that the man was carrying a gun as probable cause for a search.  The court correctly ruled that this was wrong.

 

The second case dealt with a frisk, not a full search, during a lawful stop (in this case a traffic stop).  It has long been settled law that the police can do pat downs for weapons, during lawful stops, for officer safety.  

 

Now if they had found a legal gun on the suspect and searched his person, car, home or whatever based merely upon the legal gun, that would be a different story.  

 

I think the law in the 2nd case is fairly straightforward and makes total sense.

 

In the first case, it is a bit dicier.  While we certainly don't want lawful gun owners being unreasonably searched for merely, legally carrying guns, I think we also don't want the hands of the police to be tied when a person who is suspicious is carrying a gun.  IMO, the key is coming up with some standard of "suspicious", to guide the police.   

you explained much better than i could



#8 Steyr AUG man

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Posted April 10 2017 - 01:08 PM

I don't think the 2 decisions are in conflict at all.

 

In the first case, the police used the mere fact that the man was carrying a gun as probable cause for a search.  The court correctly ruled that this was wrong.

 

The second case dealt with a frisk, not a full search, during a lawful stop (in this case a traffic stop).  It has long been settled law that the police can do pat downs for weapons, during lawful stops, for officer safety.  

 

Now if they had found a legal gun on the suspect and searched his person, car, home or whatever based merely upon the legal gun, that would be a different story.  

 

I think the law in the 2nd case is fairly straightforward and makes total sense.

 

In the first case, it is a bit dicier.  While we certainly don't want lawful gun owners being unreasonably searched for merely, legally carrying guns, I think we also don't want the hands of the police to be tied when a person who is suspicious is carrying a gun.  IMO, the key is coming up with some standard of "suspicious", to guide the police.   

 

you beat me to it. it is really no different than what the police can already do in new york, based on section 140.50 of the CPL, as well as Terry v. Ohio.

 

keep in mind, 140.50 does not apply to routine VTL stops, only felonies or misdemeanors in the Penal Law.

 

read the paragraphs at the end of the Terry case, they are instructive.

 

 

example:  you have a constitutional right to carry a screwdriver. that right being, that which is not prohibited, is therefore legal.

 

upon a stop in the street for questioning, a cop can frisk you for his safety, and remove anything dangerous and hold it until the end of the encounter, at which time it will be returned, or the subject arrested.

 

the cop can hold onto that screwdriver, box cutter, hammer, firearm, etc... until the end of the encounter.

 

ARREST WITHOUT A WARRANT140.50 -

Temporary questioning of persons in public places; search for weapons.

 
 

§ 140.50 Temporary questioning of persons in public places; search for
weapons.
1. In addition to the authority provided by this article for making an
arrest without a warrant, a police officer may stop a person in a public
place located within the geographical area of such officer's employment
when he reasonably suspects that such person is committing, has
committed or is about to commit either (a) a felony or ( b )a misdemeanor
defined in the penal law,
and may demand of him his name, address and an
explanation of his conduct.
2. Any person who is a peace officer and who provides security
services for any court of the unified court system may stop a person in
or about the courthouse to which he is assigned when he reasonably
suspects that such person is committing, has committed or is about to
commit either (a) a felony or ( b )a misdemeanor defined in the penal
law, and may demand of him his name, address and an explanation of his
conduct.
3. When upon stopping a person under circumstances prescribed in
subdivisions one and two a police officer or court officer, as the case
may be, reasonably suspects that he is in danger of physical injury, he
may search such person for a deadly weapon or any instrument, article or
substance readily capable of causing serious physical injury and of a
sort not ordinarily carried in public places by law-abiding persons. If
he finds such a weapon or instrument, or any other property possession
of which he reasonably believes may constitute the commission of a
crime, he may take it and keep it until the completion of the
questioning, at which time he shall either return it, if lawfully
possessed, or arrest such person.

 

 

From the Terry decision:

 

Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous [p3] regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed.

 

An officer justified in believing that an individual whose suspicious behavior he is investigating at close range is armed may, to neutralize the threat of physical harm, take necessary measures to determine whether that person is carrying a weapon.

 

The officer's search was confined to what was minimally necessary to determine whether the men were armed, and the intrusion, which was made for the sole purpose of protecting himself and others nearby, was confined to ascertaining the presence of weapons.



#9 2edgesword

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Posted April 10 2017 - 02:30 PM

you beat me to it. it is really no different than what the police can already do in new york, based on section 140.50 of the CPL, as well as Terry v. Ohio.
 
keep in mind, 140.50 does not apply to routine VTL stops, only felonies or misdemeanors in the Penal Law.
 
read the paragraphs at the end of the Terry case, they are instructive.
 
 
example:  you have a constitutional right to carry a screwdriver. that right being, that which is not prohibited, is therefore legal.
 
upon a stop in the street for questioning, a cop can frisk you for his safety, and remove anything dangerous and hold it until the end of the encounter, at which time it will be returned, or the subject arrested.
 
the cop can hold onto that screwdriver, box cutter, hammer, firearm, etc... until the end of the encounter.

ARREST WITHOUT A WARRANT140.50 -

Temporary questioning of persons in public places; search for weapons.

 
 
NY Crim Pro L § 140.50 (2012)
§ 140.50 Temporary questioning of persons in public places; search for
weapons.
1. In addition to the authority provided by this article for making an
arrest without a warrant, a police officer may stop a person in a public
place located within the geographical area of such officer's employment
when he reasonably suspects that such person is committing, has
committed or is about to commit either (a) a felony or ( b )a misdemeanor
defined in the penal law,
and may demand of him his name, address and an
explanation of his conduct.
2. Any person who is a peace officer and who provides security
services for any court of the unified court system may stop a person in
or about the courthouse to which he is assigned when he reasonably
suspects that such person is committing, has committed or is about to
commit either (a) a felony or ( b )a misdemeanor defined in the penal
law, and may demand of him his name, address and an explanation of his
conduct.
3. When upon stopping a person under circumstances prescribed in
subdivisions one and two a police officer or court officer, as the case
may be, reasonably suspects that he is in danger of physical injury, he
may search such person for a deadly weapon or any instrument, article or
substance readily capable of causing serious physical injury and of a
sort not ordinarily carried in public places by law-abiding persons. If
he finds such a weapon or instrument, or any other property possession
of which he reasonably believes may constitute the commission of a
crime, he may take it and keep it until the completion of the
questioning, at which time he shall either return it, if lawfully
possessed, or arrest such person.

 
 
From the Terry decision:
 
Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous %5Bp3%5D regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed.
 
An officer justified in believing that an individual whose suspicious behavior he is investigating at close range is armed may, to neutralize the threat of physical harm, take necessary measures to determine whether that person is carrying a weapon.
 
The officer's search was confined to what was minimally necessary to determine whether the men were armed, and the intrusion, which was made for the sole purpose of protecting himself and others nearby, was confined to ascertaining the presence of weapons.

I've always wondered about the wiggle room these phrases provide...

"REASONABLE SUSPECTS that such person is committing, has committed or is about to commit either[b] (a) a felony or ( b )a misdemeanor defined in the penal law" and "REASONABLY prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a REASONABLE search for weapons of the person BELIEVED by him to be armed and dangerous".

There seems to be a potential for a lot of gray area in defining what "reasonable" might mean. Gray area means potential for abuse. Dash cams, body cams and personal vehicle cams all help to cut down on the potential for abuse. I've even heard some lawyers recommending that every encounter with police should be recorded for the officer's and the individual's safety. What's your take on this?

#10 Steyr AUG man

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Posted April 10 2017 - 03:33 PM

I've always wondered about the wiggle room these phrases provide...

"REASONABLE SUSPECTS that such person is committing, has committed or is about to commit either[b] (a) a felony or ( b )a misdemeanor defined in the penal law" and "REASONABLY prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a REASONABLE search for weapons of the person BELIEVED by him to be armed and dangerous".

There seems to be a potential for a lot of gray area in defining what "reasonable" might mean. Gray area means potential for abuse. Dash cams, body cams and personal vehicle cams all help to cut down on the potential for abuse. I've even heard some lawyers recommending that every encounter with police should be recorded for the officer's and the individual's safety. What's your take on this?

 

theres alot of case law on the "reasonable man" standard. It usually hinges on what information that cop had in that circumstance, at that time, and would it be reasonable for a professionally trained policeman to respond to the situation as he did, knowing what he knew when he knew it.

 

For example - If he found out after the fact that the guy he shot was an escaped cop killer who vowed to never be taken alive, the cop could not, in court later, point to that fact to demonstrate he was justified in killing him.

 

Reasonableness basically centers on the cop's actions in light of what the cop knows at the time, and how likely it would be that an average cop acting appropriately under the law would do the same thing, knowing the same thing.



#11 Steyr AUG man

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Posted April 10 2017 - 03:53 PM

In street encounters in NYS, cops can stop you, frisk you, and temporarily detain you if they reasonably suspect that you are involved in committing a crime there. This power comes from the NYS Criminal Procedure Law, as stated in a prior post. They can keep you from walking away, they can detain you for, again, a reasonable time to conduct their investigation. They can demand your name and ID all they want, but you do not have to comply. You are free to remain silent. You are not free to walk away, however, if they have an articulatable reason to suspect criminality. All this can only legally occur if the criminality suspected is a felony in any law, or a misdemeanor in the NYS penal law. In other words, the stop cant be for drinking in the street,

 

If they approach under probable cause, the above doesnt apply. Probable cause is enough proof to charge you with, and no further investigation is necessary. If the cop sees you throw a brick through a McDonalds drive up window, he can arrest you on the spot. He doesnt have to flesh out an investigation to determine if he has enough of a standard of proof for the arrest. He can stop and hold you and arrest you. But if he sees you hanging around a broken window at a closed store in the middle of the night, he can stop you and hold you for awhile, and do a short investigation to determine if you are involved.If he thinks you are just being nosey, he will release you. If he determines that you were trying to break in or just damage property, he can arrest you.

 

A trained cop's idea of "reasonable suspicion" will likely be different than that of a deli clerk who never considered the subject.


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#12 ProGodProGunProLife

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Posted April 10 2017 - 04:34 PM

In street encounters in NYS, cops can stop you, frisk you, and temporarily detain you if they reasonably suspect that you are involved in committing a crime there. This power comes from the NYS Criminal Procedure Law, as stated in a prior post. They can keep you from walking away, they can detain you for, again, a reasonable time to conduct their investigation. They can demand your name and ID all they want, but you do not have to comply. You are free to remain silent. You are not free to walk away, however, if they have an articulatable reason to suspect criminality. All this can only legally occur if the criminality suspected is a felony in any law, or a misdemeanor in the NYS penal law. In other words, the stop cant be for drinking in the street,

 

If they approach under probable cause, the above doesnt apply. Probable cause is enough proof to charge you with, and no further investigation is necessary. If the cop sees you throw a brick through a McDonalds drive up window, he can arrest you on the spot. He doesnt have to flesh out an investigation to determine if he has enough of a standard of proof for the arrest. He can stop and hold you and arrest you. But if he sees you hanging around a broken window at a closed store in the middle of the night, he can stop you and hold you for awhile, and do a short investigation to determine if you are involved.If he thinks you are just being nosey, he will release you. If he determines that you were trying to break in or just damage property, he can arrest you.

 

A trained cop's idea of "reasonable suspicion" will likely be different than that of a deli clerk who never considered the subject.

 

I was wondering, either under the law or in practice is the threshold for "reasonable suspicion" any different when the suspect is carrying what under normal circumstance would be or could be a legal weapon (gun, knife, etc.), due to the increased urgency of the situation?  



#13 Steyr AUG man

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Posted April 10 2017 - 04:47 PM

I was wondering, either under the law or in practice is the threshold for "reasonable suspicion" any different when the suspect is carrying what under normal circumstance would be or could be a legal weapon (gun, knife, etc.), due to the increased urgency of the situation?  

 

 I dont know if consideration of the fact that full carry licenses do not generally exist in NYC might be enough, whereby the mere possession of a firearm by an individual on the street, will rise to the level of reasonable suspicion. That is, the standard of proof possessed by the cop will give him a valid reason to stop and investigate. It hasnt been tested, as far as i am aware, in the city.

 

in other words, i dont know if a defendant charged with CPW ever made the motion to suppress based on the argument  that the cop had no way of knowing that the deft was not carrying the firearm with a permit, and therefore, should have remained unmolested.






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