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Does a Concealed Gun = Reasonable Suspicion?

Orin Kerr, who is the Volokh Conspiracy’s resident 4th Amendment Guru, talks about a recent decision in federal court in New Mexico. I was always under the impression that whether and officer has RAS for a stop if he spots a concealed handgun depended on the wording of the statute. If carrying concealed was generally unlawful, except if you had a permit, then an officer would be permitted to stop to ensure the person fell under the exception. Professor Kerr says otherwise:

The court’s analysis seems wrong to me. The officers saw a guy with a gun. A crime would be afoot only if the man lacked a proper permit. But the officers had no idea if the man had a permit to carry the gun at the time they made the stop: They didn’t inquire, and instead initiated the stop only upon seeing the gun. Obviously, if the officers had asked Rodriguez if he had a license before the stop, and he had said no, the officers would have had both reasonable suspicion and even probable cause to make the arrest. But I think they have to ask first and get evidence of the crime before the stop, not stop first and then get evidence to justify it.

This decision also is in contrast to a Pennsylvania Supreme Court decision which suggests that the presence of a firearm does not amount to RAS for an officer to conduct a stop. I’m glad Professor Kerr is making the case for this decision being wrong. I don’t believe the exercise of a constitutional right should be subject to stops from police. They should need to have RAS you’re committing a crime, and the mere presence of a firearm, concealed or otherwise, should not amount to that.

4 Responses to “Does a Concealed Gun = Reasonable Suspicion?”

  1. Jake says:

    Like you say, in most states carrying a concealed weapon is a crime, and a CCW license creates an exception. So my assumption was the same as yours, that if carrying concealed was generally unlawful, except if you had a permit, then an officer would be permitted to stop to ensure the person fell under the exemption. As I commented there:

    I think I can see at least part of where the court is coming from here. The conclusion requires three specific premises/assumptions.

    1) Under the state law, the default is that CCW is a crime, and licensed CCW is a narrow and specific exemption to the law. Thus, there is reasonable suspicion that anyone carrying concealed is involved in a criminal activity (CCW) until the person’s exemption (CCW license) is confirmed.

    2) With that reasonable suspicion, a Terry stop (rather than simply asking for a person’s CCW license as otherwise allowed by statute) is legally justified.

    3) If there is reasonable suspicion that a person is involved in criminal activity, and that person is known to be armed, it is reasonable to assume that the person is also dangerous. Thus giving “reasonable articulable suspicion” for a “stop and frisk” under Terry.

    If CCW is the only crime suspected, then #3 is likely a very shaky assumption – though the lack of a proper holster may give that assumption some additional support. I think this is a point that can easily and most appropriately be fixed with legislative action, by simply amending the statute to specify that if CCW is the only indication of criminal activity an officer cannot confiscate the weapon or “stop and frisk” before verifying that the person is licensed.

    Of course, this could not happen in a Constitutional Carry state, and (as a matter of personal opinion) I think that would be the best possible solution.

    In the currently existing framework of legal interpretation, I think it’s a matter better handled by the legislature than the courts. In a properly Constitutional framework there wouldn’t even be a question that it was an illegal seizure.

    Guess which option I prefer.

    • mikee says:

      The visit by police to the store was at the supposed behest of a concerned citizen who saw two store employees comparing their guns, i.e., brandishing them, perhaps.

      The police then observed a firearm on a store employee, validating the possibility that the report by the concerned citizen was correct.

      The employee voluntarily left his place of employment to talk with police, which may or may not have anything to do with the local NM law, or may have been done to separate the two employees by police for individual questioning.

      The person with the previously concealed handgun turns out to be a felon. Jackpot!

      No notice is taken in the decision of the 2nd employee – wonder what happened to his gun, or what happened when the police arrived at the store?

      The question could better be framed as: Is purposeful exposure of a concealed handgun to the general public a cause for police questioning? Then the RAS exists, the police might be able to make the claim that the suspected crime they are investigating is not concealed carry but brandishing a firearm, and the line between police action and inaction is found in the legality of public but consensual firearm exhibitions, not concealed carry.

      Because concealed carry should be legal without permit in the US by all law abiding citizens.

  2. Chas says:

    Should the police stop any motorist they please and check for a license because it’s illegal to drive without a license? There’s not even a constitutional right to drive, but the idea of the police doing that is still absurd.

  3. JR says:

    The right to drive is not explicitly enumerated in the constitution, it is a penumbra of the right to travel (14th, P/I clause) at best, and covered by the 9th at worst.

    Those who argue that any mode of modern transportation is not a right would find intellectual sympathy with those who say the 2A only applies to muskets.

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