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State Fourth Amendment Cases Implicating the Second Amendment


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#1 skinnyb82

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Posted 16 May 2017 - 08:33 AM

Wonder if this could be a placeholder for all state 4A cases involving carriage of firearms as the cases are beginning to collect. People v. Horton, Illinois and now Pinner v. State, Indiana. In Pinner v. State, the Indiana Supreme Court jumped on the "carrying a loaded firearm is a presumptively lawful activity" bandwagon by invalidating a frisk after a cabbie called police after a man dropped a gun in his cab, the cabbie thought he had been robbed (he hadn't), police showed up, frisked the defendant and found a gun. Court states, in no uncertain terms, that a simple "MWAG" (man with a gun) call is insufficient for reasonable suspicion as the carriage of a loaded firearm is a presumptively lawful activity and the state must have more than a simple "he's got a gun." "In the case before us, the tip provided by the taxi driver made no 'assertion of illegality,' rather it merely had a 'tendency to identify a determinate person' who was in possession of a handgun. J.L., 529 U.S. at 272 (citation omitted). Even taking his tip as true and assuming that Pinner was the man the taxi driver described, the officers had no reason to suspect that Pinner did not have a valid license to carry the handgun, an illegal act in this jurisdiction. This is not a case where, through independent investigation or personal experience, the officers had reason to believe that Pinner’s possession of a weapon was in violation of Indiana law. In essence, other than the taxi driver’s claims of being fearful because he had a seen an individual matching Pinner’s description 'drop a handgun' there is no evidence in the record from which an inference of criminal activity can be drawn. And a 'bare boned tip[] about guns' is insufficient." State of Indiana argues that reasonable suspicion existed because Pinner was "acting nervous." The Court summarily disposes of that argument, citing common sense case law stating nervousness is normal when interacting with law enforcement. "The State contends that because Pinner 'acted nervous' when being questioned the officers possessed additional facts to support reasonable suspicion. Br. of Appellee at 16. Even assuming that 'rocking back and forth' and 'wringing' one’s hands is indicative of nervous behavior, Tr. at 8, the question is whether this behavior gave rise to reasonable suspicion of criminal activity. There is no crime in rocking back and forth and wringing one’s hands. And Officer Palmer did not find these actions to suggest anything more than 'nervous maybe, in [his] experience just you know uneasy with the question, maybe not you know telling the truth.' Tr. at 9 (emphasis added). As this Court has explained, 'nervousness is of limited significance when determining reasonable suspicion[.]'" State of Indiana argues that the police had the right to detain Pinner to investigate the legality of the weapon and activity. Court doesn't bite on that either. "We also disagree with the State that 'the officers were permitted under the Fourth Amendment to briefly detain Defendant to ascertain the legality of the weapon and dispel any suspected criminal activity.' Br. of Appellate at 19. The United States Supreme Court has previously declared that law enforcement may not arbitrarily detain an individual to ensure compliance with licensing and registration laws without particularized facts supporting an inference of illegal conduct. (citing Delaware v. Prouse, citation omitted)." Court speaks of a "weapons exception" adopted by other courts (*cough*Fourth Circuit*cough*). "In like fashion, we decline to endorse such behavior to ensure compliance with Indiana’s gun licensing laws. This is precisely the type of 'weapons or firearm exception' that other jurisdictions refuse to employ and the United States Supreme Court expressly disapproved of in J.L." "[T]he proper exercise of authority does not determine the constitutionality of a suspect's detention or the propriety of the evidence seized. We are mindful, for example, that 'the Fourth Amendment was intended to protect the citizen from the overzealous and unscrupulous officer as well as from those who are conscientious and truthful.' White, 496 U.S. at 333 (Stevens, J., dissenting). At stake here is whether the evidence obtained by the conscientious officers in this case can be used against the Defendant without violating his Fourth Amendment rights. On the facts of this case, we find that it cannot." http://www.in.gov/ju.../05091701RR.pdf Sent from my VS987 using Tapatalk
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#2 Sweeper13

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Posted 17 May 2017 - 06:56 AM

Thanks Skinny.



#3 skinnyb82

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Posted 17 May 2017 - 02:51 PM

This is a judgment by a state court of last resort, which conflicts directly with CA4 in Robinson. Supreme Court Rule 10(B) applies when considering a petition for writ of certiorari. "(B) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;" Illinois appellate courts have decided this issue multiple times, different circumstances surrounding the unlawful seizure but (absent exigencies like brandishing) same result. Unlawful seizure, reversal of denial of motion to quash arrest and suppress evidence. SCOTUS needs to pick up Robinson and issue a nasty GVR order. The Court would not benefit from oral arguments. It wouldn't even benefit them to have briefs as Robinson is so clear-cut that only a group of idiots/activist judgescould screw it up. The whole forfeiture of a right as a condition of exercising another garbage has been shot down, time and time again by SCOTUS. Sent from my VS987 using Tapatalk
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#4 borgranta

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Posted 25 May 2017 - 11:24 AM

Being stopped by multiple police might make someone nervous
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#5 JTHunter

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Posted 28 May 2017 - 09:53 PM

Being stopped by multiple police might make someone nervous

 

Also an over-bearing or over-arrogant officer that is being a pompous @$$ can make many people nervous and anxious.


Edited by JTHunter, 28 May 2017 - 09:53 PM.

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#6 skinnyb82

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Posted 01 June 2017 - 12:34 PM

Courts have explicity stated that nervousness alone does not give an officer reasonable suspicion to conduct a Terry frisk or whatever the cop wants to do. The simple fact that, at a traffic stop, there's an armed man with a badge, who has seized you, and has the power to arrest without a warrant, and is standing at your driver's side (or passenger, whatever) window is enough to make anyone nervous. Add in another LEO, or two, four, whatever, and it compounds the level of nervousness even for someone who hasn't done anything illegal (as in didn't even commit the offense for which they have been stopped) or has committed a minor traffic infraction. Same goes with interacting with multiple officers in an encounter on the street. Still need to find that Texas Court of Criminal Appeals case where the court ridiculed the officer for actually stating that practically every behavior is indicia of drug trafficking. Looking at or away. Nervousness, calmness. Only the driver in the car, multiple people in the car. New car, old car. Sent from my VS987 using Tapatalk
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#7 skinnyb82

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Posted 02 June 2017 - 03:39 PM

Duffie v. City of Lincoln. Eighth Circuit ruled that the mere act of carrying a gun is not reasonable suspicion for a Terry stop. More on this later or I may create a new thread. Great read.

http://media.ca8.usc.../08/152431P.pdf

"Officer Kaiser relied on an incident report that did not contain information sufficient to create reasonable suspicion that Duffie had already, was, or was about to commit a crime. See United States v. Hensley, 469 U.S. 221, 227 (1985) (extending Terry to the investigation of completed crimes). Nebraska law permits individuals who are at least 18 years old to open carry handguns in public. See Neb. Rev. Stat. §§ 28-1202, 28-1204 (2009). The City of Lincoln does not restrict an individual's right to open carry except in certain locations. See Lincoln, Neb., Mun. Ordinances § 9.36.130. Moreover, the mere report of a person with a handgun is insufficient to create reasonable suspicion. See Florida v. J.L., 529 U.S. 266, 272 (2000)."

Even better, Obama's classmate at Harvard, Judge Jane Kelly, was in the majority, reversing the grant of summary judgment on qualified immunity by the district court. Ha ha ha Obama.

Oh, hey, since this is a 1983 action I figure I'd point out what Cornyn and Cruz are up to in the Senate with their new "Back the Blue Act" which limits 1983 damages to out of pocket expenses (cop unlawfully kills someone, he/she would only have to pay funeral expenses...cop beats someone until the person is a vegetable, liability will be limited to medical expenses). It also eviscerates Section 1988, will remove the provision providing for attorney's fees for the victim of the constitutional infringement(s) even if he or she prevails. This proposed law is DEEPLY disturbing and does not make police more safe. It only limits the liability for their unlawful acts, takes the gloves off and allows them to do what they want, when they want, how they want, and never be held accountable.

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Edited by skinnyb82, 02 June 2017 - 03:48 PM.

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