Judge Neil Gorsuch’s nomination to the Supreme Court caused a minor kerfuffle among Second Amendment advocates. Judge Gorsuch’s philosophy of textual originalism and strict adherence to precedent prompted comparisons between the Colorado jurist and the late Antonin Scalia. However . . .
Some say the few cases Gorsuch handled that touch the Second Amendment suggest that he might embrace the stoic formalism of text and precedent, even if it means allowing small infringements to the Bill of Rights.
That’s how Gun Owners of America (GOA) Executive Director Larry Pratt sees it. Mr. Pratt wrote an article the day Gorsuch was nominated, expressing concern the would-be Supreme Court Justice had gone along with the other members of a 10th Circuit panel in the 2013 case U.S. v. Rodriguez.
Mr. Pratt complained that the Rodriguez decision allowed police responding to a ‘man with a gun’ call to “treat every law-abiding gun owner like a criminal . . . grabbing him, twisting his arm behind his back, slamming him down on the ground, and handcuffing him.” Further, he feels that the opinion will have a negative impact on the law going forward.
Of course, hard cases make bad law. But…[by n]ot bothering to figure out the legality of Rodriguez’s firearm before detaining and disarming him, the officer’s initial actions would have been the same even if Mr. Rodriguez had been a lawful gun owner.
That makes the Gorsuch nomination sound like something less than an unalloyed boon for gun rights advocates. Are Mr. Pratt’s concerns justified?
Gun rights advocate and attorney Andrew Branca thinks not. He responded to Mr. Pratt in a National Review article. Essentially, Mr. Branca said Rodriguez was really a Fourth Amendment case. Law abiding gun carriers do not need to worry, because the police have not been empowered to perform unreasonable searches on them.
Branca believes that the police had acted reasonably. Since there are plenty of reasonable regulations on the Second Amendment (e,g,, barring “violent felons” and the insane from possessing guns), Rodriguez was a reasonable ruling that does not infringe the core of either the Second or Fourth Amendments.
As much as I respect Mr. Branca’s work, I think he dismisses Mr. Pratt’s concerns too breezily. A matter in which police detain a law-abiding concealed carrier just because he’s been ‘made’ by a cop has to be Second Amendment concern.
So I decided to look more closely at the Rodriguez case, as recounted in the District Court’s decision in 2011, and the Appellate Court’s opinion from 2013 (Gorsuch participated in the latter.)
Manuel Rodriguez was an employee at a convenience store in a high-crime area of Albuquerque, New Mexico. One day, he decided to carry a firearm concealed in the waistband of his trousers (sans holster) to work. Rodriguez, however, was an ex-felon prohibited by federal law from possessing a firearm. Further, his .357 Magnum revolver was stolen property.
Rodriguez apparently took to showing off this shiny revolver to a friendly co-worker. A woman noticed this display, and called 911 to report that two “Arabic” people in the convenience store were showing handguns to each other.[1]
When Frank Munoz, the responding police officer, entered the convenience store, Rodriguez was bending over stocking shelves. Coincidentally, Rodriguez’s shirt rode up just enough so that the officer could see the revolver. Munoz asked Rodriguez to step outside, disarming him on the way out “for officer safety.”
During their conversation outdoors (the words of which were captured by Munoz’s belt recorder,) Rodriguez explained that he was carrying a firearm for self-defense because he had almost been shot by someone the other day. Rodriguez also admitted that he did not have a license to carry.
To the amazement of open-carry activists everywhere, Officer Munoz explained that while under New Mexico law, law-abiding persons did not need a license to openly carry a firearm, they did need one to carry a concealed firearm.
Noticing that Rodriguez had “tattoos that would have been done inside a prison facility,” Munoz asked if Rodriguez had ever done time. Rodriguez admitted that he had.
Shortly thereafter, Munoz arrested Rodriguez, and he was charged with violating New Mexico’s law against carrying a concealed loaded firearm as well as possession of a stolen firearm.
The relevant part of New Mexican law states:
A. Unlawful carrying of a deadly weapon consists of carrying a concealed loaded firearm or any other type of deadly weapon anywhere, except in the following cases:
(1) in the person’s residence or on real property belonging to him as owner, lessee, tenant or licensee….
(5) by a person in possession of a valid concealed handgun license issued to him by the department of public safety pursuant to the provisions of the Concealed Handgun Carry Act….B. Nothing in this section shall be construed to prevent the carrying of any unloaded firearm.
C. Whoever commits unlawful carrying of a deadly weapon is guilty of a petty misdemeanor.
The lower court held that the fact that the officer saw the gun on Rodriguez gave the police sufficient ‘reasonable suspicion’ to justify the stop and disarmament that led to the arrest.[2]
Rodriguez appealed, claiming that Munoz’s initial detention of him was not justified; even though the Officer saw that Rodriguez had a firearm on his person, the officer had no idea whether or not the gun was stolen, that Rodriguez was a felon, that he didn’t have a license to carry, or even that the firearm was loaded.
None of those facts had been communicated by the woman who called 911 to report that she saw “Arabic” men with a gun, and the fact that he was carrying a gun wasn’t enough to create reasonable suspicion of a crime that would justify Munoz’s detention (and disarming) of Rodriguez.
A three judge panel – including Judge Gorsuch – heard the case. They unanimously affirmed the lower court’s decision. (The decision written by Judge Bobby Baldock; Gorsuch did not write a separate opinion.)
The Court held that Munoz had all the reasonable suspicion he needed to detain and disarm Rodriguez because he saw with his own eyes that Rodriguez was carrying a concealed firearm.
They didn’t care that Munoz could not have had knowledge of whether or not Rodriguez might have had a license, or any of the other factors that could’ve made the behavior innocent, essentially saying that since New Mexico had criminalized concealed carry of a firearm, the fact that it had carved out exceptions to the crime (excluding people who had a license,) did not matter.
When an officer observes potentially criminal behavior, he does not have to negate the laundry list of possible exceptions to every law; he just has to reasonably suspect that a crime may be in progress.
In this case, Rodriguez was attempting to conceal a firearm. Since that’s the exact thing that is outlawed in New Mexico (with a few exceptions, including having a license), that’s all Munoz needed to have enough reasonable suspicion to justify the temporary detention. The stop passed constitutional muster.
The 10th Circuit also held that the disarming of Rodriguez was justified in terms that even Col. Jeff Cooper might appreciate, despite everything.
A prudent officer under the circumstances confronting Officer Munoz could reasonably suspect Defendant’s handgun was loaded rather than waiting to find out, thus providing the officer all the suspicion he needed to seize Defendant based on a violation of § 30-7-2(A).
One of the basic rules of gun safety promulgated worldwide is to “[a]ssume every gun to be loaded…and treat it accordingly….” Moreover, that Defendant’s handgun was probably loaded is simply a “common sense conclusion[] about human behavior” that Officer Munoz reasonably could draw from the fact Defendant sought to conceal the gun on his person.
The principal purpose of carrying a concealed handgun is to assail another or defend oneself. An unloaded firearm serves neither of those purposes well, making the fact that Defendant’s handgun was loaded a distinct possibility.
After all is said and done, I agree with Mr. Branca — to a certain extent.
The decision was correct in finding that the stop was reasonable under the Fourth Amendment. If you’re going to criminalize concealed carry of a firearm, it’s pretty reasonable to let police occasionally detain law-abiding citizens when the LEO notices that someone’s trying to conceal a firearm. How’s the law supposed to be enforced otherwise?
At the same time, I don’t see how this case doesn’t implicate the Second Amendment.
Mr. Pratt is also right: the result of this decision is that police in the 10th Circuit will have a much free-er hand in stoping and frisking law-abiding gun owners just because the Five-O happened to notice a concealed heater.
I’ve had a conversation like that in the past year, and while everything went fine, it wasn’t the most enjoyable five minute chat I’ve ever had. Afterward, I had to do some fast talking with the work colleagues present when I was “briefly detained.”
It’s not fun. It raises the personal, emotional, and (if things go sideways) financial costs of carrying a gun for self-defense purposes. The phrase “chilling effect” comes to mind.
With all that said, though, after reviewing Rodriguez, my attitude of cautious optimism toward Gorsuch hasn’t changed. Here’s why:
First of all, the Second Amendment was never actually raised by Rodriguez’s lawyer as a defense. In fact, the 10th Circuit went out of its way to note that fact:
Defendant has never challenged Officer Munoz’s actions, or the state law applicable thereto, as contrary to the Second Amendment.
U.S. v. Rodriguez, 739 F.3d 481, 484 n.1 (10th Cir. 2013).
If there’s one thing I learned in my own years of practice, it’s that you can’t expect a court to point out and embrace defenses for your client that you could, and should, have raised yourself.
That’s not how the system works. The burden is generally on each party (through their counsel) to present to the court all of the relevant facts and law (yes, with a bit of spin indicating how it proves their side of the case).
As it happened, the lower court had taken notice of the Second Amendment, but dismissed it, essentially saying: we can’t let it get in the way of police who gotta police. United States v. Rodriguez, 836 F.Supp.2d 1258, 1284 (D.N.M. 2011).
Here’s why I draw comfort from this:
The 10th Circuit could’ve openly endorsed the lower court’s off-the-cuff remark here. They also could’ve simply remained silent on the issue, since no one briefed the issue for them. They didn’t do that.
Instead, they pointed out the fact that defendant never even mentioned the Second, so everyone was on notice that it didn’t enter into their evaluation of the case. They were actually going a little above and beyond here.
It would’ve been great if Gorsuch had written a separate opinion and talked about how the Second Amendment might’ve impacted this case, just as he did in the Games-Perez case I discussed earlier.
He didn’t, though, and that’s okay. Gorsuch appears to be a judge who sticks to the facts, applicable law, and the arguments presented in the case. If you want a judge who makes a habit of going beyond, who looks for legal rationales beyond what’s in front of him, who will ignore precedent when it suits him, and who will dismissively wave aside counsel’s arguments in favor of what he would’ve said, had he been making the argument…well, what you’re looking for is an so-called ‘activist’ judge along the model of Justice Stephen Breyer, who believes that the Constitution itself is a malleable, “living” document, the meaning of which evolves depending on the mores of our times.
That also presents gun rights advocates with a little bit of a dilemma.
For all the rhetoric put forth, do we really want a conservative textualist who follows precedent? Or are we all secretly okay with the concept of an activist judge, but just want one who will be on our side?
The dilemma is illustrated in a little anecdote that historian Shelby Foote recounted during Ken Burns’ Civil War miniseries (paraphrasing from memory here:)
A young Confederate private in the Army of Northern Virginia was brought to General Robert E. Lee for some infraction of the rules. He was obviously nervous and intimidated to be hauled before such a personage as the great General.
“You don’t need to be afraid, son,” the General assured him, “you’ll get justice here.”
“Yes, General, sir, that’s what I’m afraid of, sir,” the young Private replied.
As much as it would feel good to have an activist court smash down a few cherished left-wing precedents, the law has a long memory, and justices only get more liberal as they get older. Once a bad precedent is set, it can take generations to get rid of it. Perhaps someone with a conservative legal style and temperament is a safer bet all-around.
Despite all of the progress made in the past generation, the Second Amendment (and arguably the rest of the Bill of Rights) has already suffered a thousand cuts, many of which are embedded in prior Supreme Court decisions. Even Justice Scalia, Antonin Magnus, the great liberator of the Second Amendment, famously wrote in the Heller decision:
nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms
Think about that: even if we had a Supreme Court full of Scalias, they would still give the benefit of the doubt to laws like New Mexico’s.
That’s why the 10th Circuit’s decision in Rodriguez is pretty logical: a certain act is outlawed, the cop saw it being done, so he briefly detained the suspect to investigate. Guns can be dangerous, so he disarmed the suspect along the way. The defendant didn’t bother putting forth an argument about the Second Amendment, so that’s that. Easy decision, let’s all go home for lunch while the law clerks check the citations.
At root, it isn’t the Court who’s empowering police to stop law-abiding gun owners; actually, it’s the New Mexico legislature, the Michigan legislature, the Texas legislature, the Pennsylvania legislature, the Florida legislature, and yes, the New York and California legislatures, who have passed laws generally outlawing concealed carry of a firearm even by otherwise law-abiding citizens not prohibited from owning a gun by federal and state law.
It is the fault of we, the people, who continue to elect state legislators that are either indifferent or hostile to our rights.
If you want to avoid the issues about which Mr. Pratt is concerned, what we need is a nationwide push for Vermont-style Constitutional Carry. Get rid of the crime itself, and law-abiding gun owners won’t be thrown up against the wall just because their 1911 was exposed when they reached for a box of cereal at the Whole Foods.
We now have nine states in which full, permitless carry is the law of the land, and two others in which it is limited to residents. The issue has been a winner in New England, the South, the Mid West, and the far West. We now have more states in the Union that have Constitutional Carry than there were ‘shall issue’ states when I was born.
As much as an end-run around New York City via the courts would feel good, the truth is, there’s no more surer way to protect our liberties than to persuade the electorate at the grass roots level to take our side.
So on Judge Gorsuch, to the extent there’s a legitimate take-away from Rodriguez, it has reinforced my feeling that he’ll give us justice as demanded by the text of the Constitution, the text of the laws and precedent. I don’t think we can or ought to ask for more than that.
Just don’t forget: sometimes the law is an ass, and it isn’t always the responsibility of the Courts to un-ass it.
Notes
1. The other person involved was Akmal Awwad, who was either the owner of the convenience store, or the nephew of the owner (neither the lower court’s decision nor the 10th Circuit’s made clear which was the case.) Awwad was not charged with any crime arising out of the incident.
2. A good way to think about reasonable suspicion, is that it’s a hunch based on specific and articulable facts (and reasonable inferences from those facts,) that would lead a reasonable person to believe that a crime might be underway or might have taken place, which can justify, under American constitutional law, an officer’s brief detention of a person.
This is distinguished from probable cause, the much-higher standard which is used, constitutionally, to justify an officer’s arrest of a person. The arrest is justifiable if it is based on knowledge that would lead a reasonable person to believe that a specific person, more likely than not, has committed a crime.
A “reasonable suspicion” scenario would be if I drove my beat-up old Chevy Beretta repeatedly around the block in front of a bank, slowing down to look carefully at the bank’s front entrance and take pictures with my cell phone. Arguably, an officer would have reasonable suspicion to pull me over and ask what’s what.
“Probable cause” would come into play if the officer did a check on my driver’s license and found that I was wanted in the state of Texas for murder. Which, of course, I’m totally not.