I don't think this is all that new. Accelerated but not new. About 25 years ago I was stopped by California Highway patrol for speeding. I was working in mineral exploration so it was fairly remote as California goes, near Bodie if I remember right. I had an NRA sticker on my truck. I watched the highway patrolman come up all cautious like in the rear view mirror. I asked him why he was acting like that. He said "because I saw the NRA sticker." I remember being taken aback and wondering why he would think like that. Because in my mind NRA members were the good guys. Of course I did have a condition 1 1911 on the front seat under a shirt. Since then I have never had any stickers on a vehicle.
The good news is the fifth circuit isn't having any of this nonsense:
Although we do not definitively decide today whether the presence of an NRA sticker could ever contribute to a "reasonable suspicion" of danger calculus, we do find that Peace's utilization of the NRA sticker in his "reasonable suspicion" of danger calculus was unwarranted when viewing the facts in the light most favorable to Estep.
I liked this part:
First, as far as we know, there is no law which prevents a citizen from carrying a camouflage jacket, carrying a key chain with mace, or displaying an NRA sticker in his vehicle. Indeed, if the presence of an NRA sticker and camouflage gear in a vehicle could be used by an officer to conclude he was in danger, half the pickups in the state of Texas would be subject to a vehicle search.
And here's the takeaway:
Here, viewing the facts in the light most favorable to Estep, there were no specific articulable facts from which Officer Peace could have lawfully concluded that he was in danger. The contention that a citizen poses an immediate danger because he possesses a key chain containing mace, camouflage gear, an NRA sticker, and does not answer questions in exactly the manner the officer desires is not suspicious enough behavior to justify a Long "frisk" of a vehicle. Thus, the search violated the Fourth Amendment.
The best part is, they also stripped the jackbooted thugs of their qualified immunity:
Viewing the evidence in the light most favorable to Estep, this is not a case where a reasonable officer could conclude he was in danger. It is a case where an officer targeted a citizen and allowed a vehicle search because the citizen had an NRA sticker in his vehicle. For the aforementioned reasons, we reverse the grants of summary judgment to Officer Peace and Officer Quillen on qualified immunity grounds. We affirm the grant of summary judgment to Officer Conley. This case is remanded back to the district court for a trial.
That means that the precedent is that under facts that are on point, the courts have determined that there is not qualified immunity for this behavior.
Nice that the court ruled against the stop, but it's what the LEO thinks that matters, when you're out there alone on a dark deserted highway. Three amendments with one stone. First, Second, Fourth. You have to wonder, as with the radar certification story below, whether the command officers and local politicians know this attitude is out there. OOOOkay, just kidding. Making more "domestic extremists" is all they're doing. Ones who wear no buttons or bumperstickers, write no emails, post on no blogs, attend no rallies. It would spoil the surprise.
Here is a nicer to read link, from an ftp, no less.
No ads!
The opinion is worth reading; excerpts:
This case has an unusual procedural history to say the least. In 1995, Estep filed this Section 1983 action against the defendants-appellees for violating his right to be free from an unreasonable search of his vehicle under the Fourth Amendment to the United States Constitution.
...
As Estep stood by his truck, Officer Peace approached and initiated the first words. Officer Peace asked "Do you have a gun in the car?" Estep hesitated a second and said "No. Why do you ask?" Estep then asked Officer Peace why he had been stopped. Officer Peace did not answer Estep's question, but asked again "Do you have a gun in this vehicle?" Estep said "No" but then told Officer Peace that he had mace on his key chain. Estep then took his keys from the ignition, showed Peace the mace, and asked Peace if he considered mace a weapon. Peace said no, but again told Estep that he better tell him if he had a gun in the vehicle. Estep then said he did not have a gun and asked again why he had been stopped.
...
Officer Peace subsequently placed Estep under arrest and took Estep to the police car. While sitting in the police vehicle, Peace admitted to Quillen (in Estep's presence) that the NRA sticker was what tipped him off to the weapon in the vehicle.
...
Thus, for purposes of determining whether the Fourth Amendment was violated, the question is: was it reasonable for Officer Peace to think Estep was dangerous and might gain immediate control of a weapon based upon (1) Estep's vehicle containing an NRA sticker; (2) Estep's vehicle containing camouflage gear; (3) Estep showing Peace that he had a key chain which contained mace; (4) Estep getting out of the car to hand Peace his identification; and (5) Estep's manner in answering Peace's questions?
...
The answer to that question is no for several reasons. The presence of the NRA sticker in the vehicle should not have raised the inference that Estep was dangerous and that he might gain immediate control of a weapon. Regardless of whether there is some correlation between the display of an NRA sticker and gun possession, placing an NRA sticker in one's vehicle is certainly legal and constitutes expression which is protected by the First Amendment. A police officer's inference that danger is afoot because a citizen displays an NRA sticker in his vehicle presents disturbing First and Fourth Amendment implications.
...
Indeed, if the presence of an NRA sticker and camouflage gear in a vehicle could be used by an officer to conclude he was in danger, half the pickups in the state of Texas would be subject to a vehicle search.
Is it just me, or is Judge King a complete and utter a-hole? He he even cracked a law journal in the last 20 years? He's one of the "Only Ones" that needs to be impeached and put out to pasture.
I covered my NRA sticker with a "Peace Through Superior Firepower" sticker, and the other stickers are all Emergency Management/Public Safety agency related, so it's kind of my "get out of a ticket free" pass as long as I'm not being completely stupid on the road.
Hmmm - I guess my big orange 5" diameter "Guns Save Lives" and my equally large VCDL (Virginia Citizens Defense League) magnets are going to land me in jail someday.
I don't think this is all that new. Accelerated but not new. About 25 years ago I was stopped by California Highway patrol for speeding. I was working in mineral exploration so it was fairly remote as California goes, near Bodie if I remember right. I had an NRA sticker on my truck. I watched the highway patrolman come up all cautious like in the rear view mirror. I asked him why he was acting like that. He said "because I saw the NRA sticker." I remember being taken aback and wondering why he would think like that. Because in my mind NRA members were the good guys. Of course I did have a condition 1 1911 on the front seat under a shirt. Since then I have never had any stickers on a vehicle.
ReplyDeleteThe good news is the fifth circuit isn't having any of this nonsense:
ReplyDeleteAlthough we do not definitively decide today whether the presence of an NRA sticker could ever contribute to a "reasonable suspicion" of danger calculus, we do find that Peace's utilization of the NRA sticker in his "reasonable suspicion" of danger calculus was unwarranted when viewing the facts in the light most favorable to Estep.
I liked this part:
First, as far as we know, there is no law which prevents a citizen from carrying a camouflage jacket, carrying a key chain with mace, or displaying an NRA sticker in his vehicle. Indeed, if the presence of an NRA sticker and camouflage gear in a vehicle could be used by an officer to conclude he was in danger, half the pickups in the state of Texas would be subject to a vehicle search.
And here's the takeaway:
Here, viewing the facts in the light most favorable to Estep, there were no specific articulable facts from which Officer Peace could have lawfully concluded that he was in danger. The contention that a citizen poses an immediate danger because he possesses a key chain containing mace, camouflage gear, an NRA sticker, and does not answer questions in exactly the manner the officer desires is not suspicious enough behavior to justify a Long "frisk" of a vehicle. Thus, the search violated the Fourth Amendment.
The best part is, they also stripped the jackbooted thugs of their qualified immunity:
Viewing the evidence in the light most favorable to Estep, this is not a case where a reasonable officer could conclude he was in danger. It is a case where an officer targeted a citizen and allowed a vehicle search because the citizen had an NRA sticker in his vehicle. For the aforementioned reasons, we reverse the grants of summary judgment to Officer Peace and Officer Quillen on qualified immunity grounds. We affirm the grant of summary judgment to Officer Conley. This case is remanded back to the district court for a trial.
That means that the precedent is that under facts that are on point, the courts have determined that there is not qualified immunity for this behavior.
Nice that the court ruled against the stop, but it's what the LEO thinks that matters, when you're out there alone on a dark deserted highway.
ReplyDeleteThree amendments with one stone. First, Second, Fourth.
You have to wonder, as with the radar certification story below, whether the command officers and local politicians know this attitude is out there.
OOOOkay, just kidding.
Making more "domestic extremists" is all they're doing. Ones who wear no buttons or bumperstickers, write no emails, post on no blogs, attend no rallies. It would spoil the surprise.
Here is a nicer to read link, from an ftp, no less.
ReplyDeleteNo ads!
The opinion is worth reading; excerpts:
This case has an unusual procedural history to say the least. In 1995, Estep filed this Section 1983 action against the defendants-appellees for violating his right to be free from an unreasonable search of his vehicle under the Fourth Amendment to the United States Constitution.
...
As Estep stood by his truck, Officer Peace approached and initiated the first words. Officer Peace asked "Do you have a gun in the car?" Estep hesitated a second and said "No. Why do you ask?" Estep then asked Officer Peace why he had been stopped. Officer Peace did not answer Estep's question, but asked again "Do you have a gun in this vehicle?" Estep said "No" but then told Officer Peace that he had mace on his key chain. Estep then took his keys from the ignition, showed Peace the mace, and asked Peace if he considered mace a weapon. Peace said no, but again told Estep that he better tell him if he had a gun in the vehicle. Estep then said he did not have a gun and asked again why he had been stopped.
...
Officer Peace subsequently placed Estep under arrest and took Estep to the police car. While sitting in the police vehicle, Peace admitted to Quillen (in Estep's presence) that the NRA sticker was what tipped him off to the weapon in the vehicle.
...
Thus, for purposes of determining whether the Fourth Amendment was violated, the question is: was it reasonable for Officer Peace to think Estep was dangerous and might gain immediate control of a weapon based upon (1) Estep's vehicle containing an NRA sticker; (2) Estep's vehicle containing camouflage gear; (3) Estep showing Peace that he had a key chain which contained mace; (4) Estep getting out of the car to hand Peace his identification; and (5) Estep's manner in answering Peace's questions?
...
The answer to that question is no for several reasons. The presence of the NRA sticker in the vehicle should not have raised the inference that Estep was dangerous and that he might gain immediate control of a weapon. Regardless of whether there is some correlation between the display of an NRA sticker and gun possession, placing an NRA sticker in one's vehicle is certainly legal and constitutes expression which is protected by the First Amendment. A police officer's inference that danger is afoot because a citizen displays an NRA sticker in his vehicle presents disturbing First and Fourth Amendment implications.
...
Indeed, if the presence of an NRA sticker and camouflage gear in a vehicle could be used by an officer to conclude he was in danger, half the pickups in the state of Texas would be subject to a vehicle search.
Is it just me, or is Judge King a complete and utter a-hole? He he even cracked a law journal in the last 20 years? He's one of the "Only Ones" that needs to be impeached and put out to pasture.
ReplyDeleteI covered my NRA sticker with a "Peace Through Superior Firepower" sticker, and the other stickers are all Emergency Management/Public Safety agency related, so it's kind of my "get out of a ticket free" pass as long as I'm not being completely stupid on the road.
King says:
ReplyDeleteI am dismayed by the probability that Estep has received a free pass in this case because his pick-up truck sports an NRA sticker.
I'm sure lots of cops would agree.
Scary.
Hmmm - I guess my big orange 5" diameter "Guns Save Lives" and my equally large VCDL (Virginia Citizens Defense League) magnets are going to land me in jail someday.
ReplyDelete1st & 4th amendments? What about his 2nd amendment rights? I didn't see where that was addressed.
ReplyDelete