The three-judge panel will decide whether a district court erred in granting qualified immunity to officers who conducted an investigatory stop of a West Virginia man who was openly carrying an AR-15 within a mile of a school.
RICHMOND, Va. (CN) — The Fourth Circuit heard arguments on Wednesday over whether officers had reasonable suspicion to briefly detain a man for openly carrying an AR-15 rifle in West Virginia.
In February 2018, Michael Walker, 24, was stopped by two Putnam County Sheriff’s deputies while strolling down Route 33 in West Virginia with an uncased AR-15-style rifle strapped to his back.
Corporal Brian Donohoe and Deputy Brandon Pauley, listed as defendants in Walker’s lawsuit over the stop, had responded to a 911 call from a concerned citizen who reported Walker for open carrying the semi-automatic rifle in a residential area within a mile of a school.
Walker, who says he was going coyote hunting the morning of the incident, claims that the brief roadside detention violated his rights.
“Lawful firearm possession and use in West Virginia can not alone form the basis of reasonable suspicion to perform a stop and investigatory detention of a pedestrian, period, whether it is eight minutes long with name-calling such as we have here, or whether it’s 18 minutes long with polite and respectful treatment,” John Bryan, an attorney arguing on behalf of Walker, told the three-judge panel.
Circuit Judges Robert King, a Bill Clinton appointee, Barbara Keenan, a Barack Obama appointee and Julius Richardson, a Donald Trump appointee, heard arguments from both sides Wednesday over the case.
“The legality of open carry in West Virginia is nothing new, it’s not on the table at all. It can not be disputed,” Bryan said. “The fact that he had a legal-to-possess rifle safely and non threateningly strapped over his shoulder without more, cannot be reasonable suspicion to support an investigatory detention.”
The judges are set to determine whether a district court correctly held that the officers were entitled to qualified immunity for stopping Walker.
The panel must also determine whether the lower court was required to “treat the presence of an AR-15-style rifle, which is commonly and notoriously used in indiscriminate public gun violence, the same as it would treat the presence of a firearm more commonly used for hunting or self-defense, in determining whether reasonable suspicion existed to stop Mr. Walker in the underlying case.”
Walker filed the motion for summary judgment in December 2019.
Carrying underage is a misdemeanor in West Virginia, Adam Strider, who represents the officers in the case, told the panel.
His clients argue that, even though Walker was 24 at the time, they were concerned that he might be underage.
Bryan had told the panel that video evidence shows Walker was clearly not underage. But Judge Keenan retorted that the youthfulness of his appearance is in the eye of the beholder. In this instance, she said, a middle-aged officer could have likely perceived Walker to be younger than he was.
“It’s not, as Mr. Bryan was trying to frame it, it’s not solely based on his appearance, which perception of age based on appearance is subject to reasonable disagreement anyway, but additionally, Mr. Walker was walking, rather than driving, in an area where foot traffic is uncommon and younger people are less likely to have a driver’s license or own a car.”
He noted that Walker was wearing a backpack in close proximity to a school, which also gave the deputies cause to question his age and initiate a stop.
Complicating this case is that Walker’s detention within a mile of a private school occurred less than a week after the deadly shooting at Stoneman Douglas High School in Parkland, Florida.
“The Parkland shooting so saturated national media coverage, the way that it was carried out, the details of it, that not only does this demonstrate to would-be shooters that this kind of activity generates this kind of national notoriety, but it also essentially gives a how-to manual. It shows what kind of a gun kills this many people in this short of a time period,” Strider said, furthering his argument that the district court had rightfully considered the totality of the circumstances surrounding Walker’s detention when it sided with his clients.
He told the judges that the gun Walker had been carrying is the “hallmark gun of mass shootings.”
“The fact that it is lawful is not a prohibition on it contributing to reasonable suspicion,” Strider said. “Different guns have different uses and they draw different implications in different contexts.”
Judge Keenan summarized Strider’s arguments, stating that “lawful behavior can contribute to reasonable suspicion combined with other factors.”
“So why don’t we have those other factors in this case?” she asked Bryan.
“It’s a fascinating topic,” Bryan responded. “There is some conflicting case law even from the Supreme Court on this. I think the important distinction is that, yes, it’s possible for otherwise legal observances to, together with looking to the totality of circumstances, to form reasonable suspicion. However, there still has to be some reasonable suspicion that there is an underlying crime and that’s the difference in this case.”
Maintaining that Walker should not have been stopped for the legal activity of carrying his gun, Bryan said that “these subjective, hunch-type theories have been repeatedly shot down, including by this court.”