Tuesday, July 25, 2017

Texas AG: Carrying a gun doesn't justify 'Terry' frisks

Texas Attorney General Ken Paxton has signed onto an amicus brief aimed at the US Supreme Court to argue that carrying a firearm in a state where that's legal does not justify a "Terry frisk" based on officer safety. Here's the full text of his press release:
Attorney General Ken Paxton yesterday joined West Virginia’s amicus brief in Robinson v. United States along with Indiana, Michigan and Utah in the United States Supreme Court to protect against unjustified frisk searches occurring on the suspicion that a citizen is armed. The basis for this search places a burden on the Second Amendment right to carry a firearm. 
In 1968, Terry v. Ohio determined that a law enforcement officer may both stop and frisk an individual when “specific and articulable facts” lead an officer to reasonably believe criminal activity is occurring. This search is justifiable when the officer believes the detained individual “is armed and presently dangerous to the officer or others.” However, an en banc Fourth Circuit recently interpreted Terry to require only a reasonable suspicion that the individual is armed. This interpretation allows officers to justify a frisk search solely on the suspicion of possessing a weapon during a lawful stop, regardless whether there is a reasonable belief that the individual is dangerous. 
“The Fourth Circuit interpretation places an unlawful burden on Second Amendment rights. The Constitution plainly guarantees law-abiding citizens the right to bear arms, whether through open or concealed carry,” said Attorney General Paxton. “We must ensure the Court continues to protect the constitutional rights of law-abiding citizens.”
The issue to be decided in this case:
Whether, in a State that permits residents to legally carry firearms while in public, a law
enforcement officer’s belief that an individual stopped during a lawful Terry stop has a firearm on his or her person provides a sufficient basis — standing alone — for the officer to conclude that the armed individual is “presently dangerous” and thus allow the officer to lawfully engage in a warrantless “frisk” of that individual.
The implications are significant: Possibly carrying a gun is the main justification for Terry frisks, so if that's no longer sufficient, it could virtually end the practice.

Ken Paxton may be the most unlikely Fourth Amendment advocate imaginable, which may explain why he only reached these questions when a Second Amendment right was at stake.

1 comment:

KBCraig said...

Terry has been distorted beyond all recognition.

The case itself allows for a pat-down through the outer clothing of someone that an officer has reasonable articulable suspicion to believe is engaged in a crime AND is armed AND is dangerous.

Today’s reality is that police and most courts treat Terry as if it allows a search not just for weapons felt through outer clothing, but carte blanch permission to search pockets, baggage, and vehicles for anything at all, even without RAS that crime is afoot.