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 courtâ€™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 didnâ€™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.