He cares about donald. Let me ask you, because the times of said that they talk to lawyers and if he did have a billion dollar loss that all of this would be legal. They also done a that he actually did it. Assuming he did dino vanunu pays more taxes than they have to . That is not the point. The point here is his idea of fixing the tax code is to take care billionaires and his losses were something he used to avoid taxes but those losses represent real pain to many people who never got paid. He said that he uses bankruptcy as a business tool. To bring personality into it, hillary. Your husband has a history and your history of attacking women the only womens victim she doesnt believe at the one to say theyre victimized by her husband. We of 20, 30, this is come up in campaigns of the past House Republicans pursuing it. Your advisors when you thinking of running for senator said it would been a bad idea to bring it up. A bad idea tois focus on his personal empanada batted to point out her hypocrisy. Is attacking donald trump about he deals with women, respond by how she does which is to take money from governments womenill women and stone and that have women that can drive cars. Not just money, millions and tens of millions of dollars from countries in which women are treated like property and killed and get raped. Dont, basically, it is lecture me on feminism, hillary because you are a phony. Tweeted thismp comment i know our complex tax laws better than anyone was ever run for president and and the only one who can fix them. Ahead of tuesdays Vice President ial debate we take a look back at the candidates virginia senator tim kaine and indiana governor mike pence using the cspan video library. I have turned on the television and seen the bad news of a shooting or a weather emergency or famine. I have seen the stories and there will be more of them. There was something in the story asserted that was different and it was you, your spirit even in a dark day of optimism. The presidency is the most visible thread that runs to the tapestry of the american government. More often than not for good oriole it sets the tone for the other branches and spurs the expectations of the people. Its powers are vast and consequential. Its requirements and the outset and by definition impossible for mortals to for phil without fulfill without humility a look at it met of the Vice President of debate monday night on it on eastern on cspan. Watch anytime on cspan. Org and listen at 8 00 p. M. On the cspan radio app. Now, the Fourth Circuit court of appeals in Richmond Virginia hears oral argument in the case examining police stop and frisk policies in West Virginia with the incident took place. The law allows citizens to arm themselves with concealed guns but the court said previously world that Police Officers must have a reasonable suspicion that a person is armed and dangerous before frisking them. This is an hour and 10 minutes. Good morning, counsel. I hope youre ready. Mr. Compton may it please the court. My name is Nicholas Compton and i represent shaquille robinson. Id like to reserve seven minutes for rebuttal which i see the clerk has done. Thank you, your honor. Your honor, the facts in this case are not in dispute. On march 24, 2014, the Jefferson County, West Virginia, Sheriffs Office received an anonymous tip that an africanamerican male was in the parking lot of the 7eleven in ranson, West Virginia, loading a firearm, concealing that firearm in his pocket and then entering a bluishgreen toyota camry driven by a white female and heading out of the 7eleven parking lot south on north mildred street. Upon receiving that tip, officer Kendall Hudson and chief Robbie Roberts of the Jefferson CountySheriffs Office left the station and went to track down this bluishgreen toyota camry. Officer hudson came upon the camry on north mildred street, stopped the vehicle for a seat belt violation. He exited his vehicle, drew his weapon upon exiting the vehicle and approached the drivers side. When he approached the drivers side he asked for the drivers license and he questioned the driver. In your view over here in your view, when the officer stops a car with probable cause and the driver of the car has a concealed weapon permit, does that make does that make the stop less dangerous or more dangerous . Mr. Compton i dont believe it makes the stop any more or less dangerous, your honor. Judge shedd so it doesnt matter . Mr. Compton well, its not like it doesnt matter. Judge shedd it sounds like what you said. No, i mean as far as making to more or less dangerous. Mr. Compton which is a fact to consider. Judge shed does it make it more dangerous or less dangerous . Mr. Compton i think in this instance, when you factor judge shedd im talking generally. Mr. Compton if they are complying with the law of the state judge shedd we dont know that. We know if he has a concealed weapon permit. Mr. Compton if he has a concealed weapon permit and that permits him to carry that weapon legally, then i think that does that would take away from the factors that the officer has to the officer doesnt know. The officer on the street making the stop. Mr. Compton he may not know he has a permit and that in states where you are required to have a permit, the default is not the default standard is not you are possessing it illegally without a permit. Even if he does, if the stop is legal, i know you described pretextual, there is no dispute the stop was legal. Mr. Compton there is no dispute it was legal. Judge diaz and a gun is no less dangerous. Mr. Compton every firearm has some aspect it could be used in a manner that could cause harm. But i dont believe that is just one factor to consider when trying to determine the dangerousness aspect of the armed and dangerous to do the patdown search. We probably would spend our time better by getting directly to the issue. You mentioned pretextual. Thats not an issue. You dont have to go there. This case really comes down to the whole budge about a concealed weapon. I dont know what that means the term conceal weapon if you can possess the gun lawfully and walk out with it or even if its concealed, the question is, do you have to show a permit in an instance or is it presumed that you have one . It really comes down to the question of having a gun by having a gun, is that does that mean you are armed and dangerous, at least from my perspective . And i dont know what the implications beyond this case means by that. Mr. Compton i dont think having a gun means necessarily other than you are armed. I dont believe in and of itself possessing a gun, particularly when you are possessing a gun legally under the laws of the state, either by permit, concealed or by open carry or as is now the law in West Virginia concealed without a permit which is i will ask one question. I understand that position, but why is it safety for these officers, really the paramount concern here . I mean, if hes got a gun, the safety of an officer, we know the statistics in terms of officers being shot. We know the probability how things can happen. How is it we can say if he has a how is it we can say if he has a tip, this guy has a gun, he stops him, pretextual or not, why is it that point that something further like a frisk cant happen . Mr. Compton we are all concerned with officers safety. Its no just the safety of the officers. Its the safety of everybody there. Mr. Compton thats correct. Safety with the fellow with the gun too. Mr. Compton thats correct, your honor. And the person in the car. Everybodys safety is of concern. What can state law have to do with this . The standards here is fixed by the Supreme Court of the united states. Mr. Compton i think state law goes to, your honor it doesnt change the supremacy clause. It doesnt change the decisions of the Supreme Court. Mr. Compton they cannot, your honor. They cant. So how could it have anything to do with it . Mr. Compton it goes to whether or not the state legislature can make a determination as to whether or not its citizens are legally allowed to possess a firearm and what circumstances. If they are not if they possess a firearm openly and are not committing a crime by doing so, then that takes away from the dangerousness aspect of it. Mr. Compton, but arent you ignoring the facts of this case . You said if they possess a gun openly, this man was concealing a gun and we have the factual circumstances of the case that provide the Additional Information that he was loading a firearm in a public place in broad daylight at, what, 2 30 in the afternoon, and he then concealed the weapon on his person. Now, why isnt that indicative of suspicious behavior irrespective of any laws allowing him to carry a gun . Mr. Compton because none of that is illegal activity in West Virginia, your honor. It doesnt have to be illegal to incite reasonable suspicion. All the police have to do, as i understand the laws of frisking, stopping and frisking, the police, when you are talking about a stop, the police are looking for evidence of illegal activity and thats one thing. I think thats what youre pointing to, but when you talk about whether they have a right to frisk somebody whom they lawfully stopped, you are not talking about illegal activity. Youre talking about someone is armed and dangerous. Isnt that correct, under the Supreme Court los angeles the breakdown of those two concepts . If so, why isnt this indicative that somebody may be dangerous . That this conduct of loading a weapon in a public place, in a high crime area, why isnt that something more than just a citizen arming himself . Mr. Compton i think your honor has stated it correctly, but i think illegal activity, yes, goes to the first part, can you stop . Its also a factor to consider. We dont have to consider the illegal aspect of gun ownership in this case and whether its lawful or not because there was a reason for the stop. And thats conceded in this case. That the stop was valid, correct . Mr. Compton correct. Judge keenan and then we look to the frisk. We look to whether this person was armed and dangerous. There is certainly he was armed. And why isnt their suspicion of dangerous activity when youre loading a gun, again, in a public place, in a place where drug activity is apparently frequently conducted . Mr. Compton your honor, i am not saying its not a factor to consider in the dangerousness aspect. It is a factor to consider, but if the what how do you consider . And this goes back, i think, to judges original question. You said in response to a question of whether one makes it more or less dangerous, that it was a factor to consider. It would be helpful for me to understand or to have you play out how you would consider the fact that the person was armed. And who is supposed to be considering this, the officer making the stop or is it a judicial determination . Mr. Compton i think the officer has to consider the totality of the circumstances at the time of the stop. The officer has done a legal stop because of the seat belt. He has information that this individual is armed. So we have the stop and the armed part of the armed and dangerous. So now he has to consider the the factors that make that could make him dangerous. One of those is this guy has a gun. What is he doing with that gun . Has he pointed at somebodys head . Is it illegal . Did he hold somebody up with it . Did he rope a bank . Thats illegal activity. To follow up on judge duncans question, it seems to me what youre saying, all this factor or consider, youre leaving officers completely at sea and i dont understand, this is a rapidly evolving situation and you dont know, you know, when its going to turn hostile or deadly, and all youre saying is, well, its a fact to consider and everything. Thats no help in the practical situation on the road. There are factual aspects to this question. The facts, question go into whether theres reasonable suspicion for a stop, and then there are the facts which go into the question of whether theres reasonable suspicion to believe someone is armed. But once you have reasonable suspicion to believe those two things, the Supreme Court has said numerous cases that the frisk can then proceed as a protective measure and something thats designed to lessen the tension of the situation and lessen the prospect or possibility theres going to be what none of us want which is the use of lethal force. And instead of this fairly relatively clear path, youre just throwing up factors toe consider and i can only factors to consider and i can only imagine an officer scratching his head by the side of a road and wondering whether he can take the step of assuring himself that the situation is not potentially lethal before he goes forward. What are you leaving officers with . How is this going to be taught to them . How is this going to be communicated to them . Mr. Compton i think it has to be communicated to them very carefully because i think they are tasked with making a decision, a very important decision whether to interfere with the personal liberty of an individual who they wish to stop for whatever reason and then put hands on. I think thats a very important decision. Does the presence of the gun change that calculus . Does the presence of a gun change that calculus on what an officer can and should do . Mr. Compton it can. It is a factor to consider in terms of the dangers. Judge shedd listen, does it alone change it . Mr. Compton i dont think alone. I dont think having the firearm alone, particularly when you are in a situation, as we have described, where the judge shedd your view is when an officer stops a person legally, the officers approach should be the same to the driver when the driver when he knows the driver is unarmed and when he knows the driver is armed . Mr. Compton in situations, your honor, when judge shedd not situations. It should be exactly the same and the officer should just simply ignore the fact there is a weapon present. Mr. Compton if its in the jurisdiction where the individual is allowed legally to possess a firearm, the what youre saying is different in West Virginia than it is perhaps in maryland or pennsylvania or virginia, all those are very close by. So he has to know which jurisdiction he is in and the state law. So youre saying the West Virginia legislature could change the Supreme Court decisions and the constitution. What do you do with the supremacy clause . Mr. Compton no. Judge king well, West Virginia law cant have anything to do with it. Mr. Compton i think, sir, in terms of the calculus. I think the panel of the majority was alluding to this when they said in he has to be looking out for the safety of himself and everybody else there in order to carry out his duties. Mr. Compton yes, sir. The Supreme Court has repeatedly said in terry v. Ohio and michigan v. Long and case after case after case that, yes, the frisk is, as you said earlier, an indignity. Theres no question about that. But it serves in many, many cases to deescalate the situation and lessen the tension. Thats what you want to do here is to the degree you can lessen the tension so that the use of lethal force, which is something no one wants, will prove unnecessary, that an officer will be simply not as uptight and everybody will be not as uptight if they know theres not a chance of gunfire breaking out. So the Supreme Court cases talk about this in terms of a deescalation measure and taking some of the tension out of the situation because its the tension that leads to the worst of all outcomes which is the use of this lethal force. How can we come back to judge kings question. How can we question that sort of rationale that has been given us in case after case after case . We dont have that authority. Mr. Compton your honor, i understand the court saying that what we have to were trying to deescalate the situation here, but when an individual is exercising a right that they have given to them by the legislature of the state that they are in, i dont see how infringing upon that right in some way by padding them down, what happens if they find the gun when they pat them down . They dont just let them keep it, which they are allowed to do. The officer then takes the gun all of because, for instance, a seat belt violation. Certainly you are saying the state can grant a right that the Supreme Court cant restrict . Mr. Compton no, your honor. I am not saying that West Virginia has the power to overturn a Supreme Court decision. Youre saying they could modify it. Youre saying they circumscribe it and they can. Mr. Compton im not suggesting that. Judge king you are saying thats a factor they have to take into account. Mr. Compton well, under the standard. Judge king the local ordinance or the local statute, when the officer is trying to determine to frisk somebody, hes legitimately stopped on the side of the road. And here he knows he has a loaded firearm in his belt. Mr. Compton, is it part of your answer for 200 years states have been recognized to create privacy interests, and when a state legislature creates a privacy interest in the possession of personalities, such as a handgun, that personality is entitled to exactly the same protection that any other person who is on the possession of a citizen of West Virginia and that therefore state law has everything to do with whats protected under the Fourth Amendment, isnt that right . Mr. Compton i think thats right and clearly the court has articulated it a lot better than ive been able to for the last several minutes. Let me followup on that, too, because i think there is another right and you havent mentioned the words Second Amendment just yet and yet there is a string of cases that is increasingly allowed for citizens to possess guns and to possess them in Public Places that have been state laws have expanded on the right saying citizens have right. So where we come to now is, what happens when citizens exercise their right to carry a gun that we call dangerous but does the dangerous gun make the person dangerous . Thats the connection here. Armed and dangerous, what is the dangerous, the person is armed is the person also dangerous . Thats the question here, dangerous. A person is armed is the person also dangerous . It seems to me we go in the direction we are headed, and it seems like we are, we are saying that individuals with a gun, by definition, are dangerous persons. That has implications beyond this felon who is carrying a gun. It deals with everybody who exercises a Second Amendment right and if it doesnt, id like to know how were going to differentiate and carve out an exception just for this instance. Every person who has a gun, a hunter, doesnt matter if he has it in his home or wherever, is armed and dangerous. Mr. Compton i think thats exactly they didnt walk up to mr. Robinson simply because he was carrying a gun. Thats another part of the activity and stopped and frisked him for that action alone themselves initial stop which you can see, gives the officers the right to encounter that. It seems to me the compromise here is, sure, the citizens of West Virginia are entitled to exercise their Second Amendment rights and Police Officers cant stop them for doing that but if you do Something Else that warrants a reasonable suspicion, reasonable cause to stop, it seems to me that Police Officers ought to be assured that if they conduct a stop and find an individual who is armed, that as a result of that, theyre entitled to protect themselves and protect others. Why isnt that a reasonable compromise . I want to also add to that factual scenario, this is not just an officer ride do you think the road, seeing a seat belt violation. Hes going because hes been told this man has a gun and he put it in, lets look at the reality of whats happened here. They stopped this guy because of the tip. Tip of what . Theres no tip. They got some information and they track it and i am everybody here knows, if you want to find a reason to stop a car, you just follow long enough, it might cross a line, might go a different place and you can do it. This is the thinnest of reasons to stop a car, for a seat belt violation, because of a tip. But i want you to answer just this, we cannot divorce that action from this case. Mr. Compton your honors response those facts arent relevant. You can see the facts, the stop is legitimate. Mr. Compton we have conceded that the you have conceded that. Mr. Compton i think judge wynn is correct are you withdrawing your concession. You did not concede that this was not this was a the officer testified i stopped the car to investigate the gun tip. I also had a seat belt violation. It is a justified stop. Mr. Compton correct. Perhaps i misunderstood what judge king was saying. It is a pretextual stop. I think my time has expired. You may proceed. Mr. Compton i think judge wynn is correct in that was going to be essentially my answer to you, your honor, in that it was the when the Panel Majority addressed this, it was the seat belt yes, that got him to stop, but the whole reason officer hudson and captain roberts left the station in the first place was because of the gun. The officer took the call, testified at the hearing that no illegal activity was conveyed to her by this tip. They left because of the gun. They left because of the gun. And the Panel Majority talks about how youre sort of in this weird sort of because of loading a gun in broad daylight in a high crime area. Not just the gun. Mr. Compton none of that is illegal activity in West Virginia. It doesnt have to be illegal activity. Over here, mr. Compton. If it is evidence of suspicious behavior that would indicate a person is dangerous. It doesnt have to be illegal. It can be perfectly legal. But if and this is what im concerned about. Youre trying to deconstruct and this is what the Supreme Court has told us not to do, dont deconstruct every fact in the case and say that fact doesnt matter. Its the totality. Its the facts taken together. And the testimony was this was a high crime area, drug activity. Not constant but persistent in the area. This man was this loading a gun ancon sealing it in a parking lot. Why isnt that object i evidence of suspicious behavior, bearing on the issue of dangerousness at the time that he validly stopped the vehicle . Mr. Compton when youre considering the totality of the circumstances, your honor, i think the officer can consider those factors when determining if this individual is dangerous. I think that why isnt that objective evidence that dangerous activity, loading a gun in the parking lot in the middle of the day where there are drug deals going on. Mr. Compton we dont know theres a history of drug deal, why isnt that something that activates the officers concern. Mr. Compton youre correct, there was no drug activity at the time. There was daylight, not night. There were two individuals in the car. Not four or six or eight. There was one a oneon a onetoone ratio between officers and individuals in the vehicle. The loading of the gun and concealing it was not a illegal activity. Yes they described it as a high crime area. I dont mean to sort of poopoo that but we hear high crime area all the time and the officers testified that all of Jefferson County is a high crime area. 7eleven and apple gardens is a particular high crime area. We could get to multiple tiers of high crime and the officers just the scribed the entire state of West Virginia as high crime area. That gets to be the point where i dont think the high crime area, when they loading a gun in the parking lot you pull into for your big gulp and theres a guy in the car next to you, ive been to that 7eleven. And somebody is loading his weapon as you go in for your drink. Can you really, objectively say thats not suspicious behavior. Mr. Compton i would think its suspicious. The state legislature thinks its not. The state of West Virginia says you can carry a gun on your person. It doesnt talk about what facts are suspicious in their to tallity. Mr. Compton it sounds like we disagree. Even so, it seems to me that were going to go in that direction, i dont see why we should cap it at the high crime area. Seems to me, someone who goes to a church peck nick and pulls out a gun and starts lowing loading it seems like a dangerouslooking person to me. If were going to go in that direction, we ought to call it what it is. Not just limit what we call high crime areas which definitely specifically means a particular type of neighborhood. Yes, sir, i agree. Thank you, mr. Compton. Mr. Compton thank you. Booth. Mr. Booth may it please the court, under pennsylvania vs. Mimms, they decided, the officer said, mimms was armed and thus posed a serious and present danger to the safety of the officer. An open carry state, the officer noticed a bulge in someones pocket would that be reasonable suspicion to make a stop . You have asked two distinct questions which are at the heart of this case. What reasonable suspicion do you need to have to make a stop . And what reasonable suspicion do you need to make a frisk. At the time of that case, pennsylvania was not an open carry state, right . You are correct. Im going to continue that argument in a minute. I do want to get to a point do answer the question now. The question is, what is the impact of a state law that allows for the open carry of a firearm in the context of a frisk and my answer is nothing. And the reason is because the Supreme Court has said twice, both in adams vs. Williams, and then again in michigan versus long, that the validity of a terry frisk does not depend on whether or not the state gives the individual who has been stopped a right to carry a firearm. In this case, the officer essentially stop Police Department robinson. Thats why i wanted to differentiate between a stop and a frisk. In both these cases, we werent dealing with states that had open carry. I agree with you. The reason i believe that it doesnt change the calculus is because again, the Supreme Court has said adams vs. White. In adams, counsel, the question was, given numerous conditions of grave suspicion, the middle of the night, the guy is in the car by himself, they had reasonable suspicion to suspect hes involved in drug offenses, and he has a gun. Under those circumstances is the possibility that the gun is legally owned sufficient to make all the rest of it evaporate . And the answer is no. Nobody is arguing that in this case. Everybody agrees on the facts, there was reasonable suspicion that that gun, and the person with that gun presented a danger to the police and he refused to cooperate, wouldnt talk to the police. Thats a different question. Here the question is, not do the gun itself and legally possessed gun make the owner of the gun a danger to the police if hes not sit big himself in a car in the middle of the night, not refusing to cooperate with police. Its a different question. Mr. Booth my answer to that, in adams vs. Williams, the Supreme Court said, and connecticut did allow it, the Supreme Court said it didnt make a difference. Lets assume they just did it once in adams vs. Williams. Lets go back now to michigan vs. Long where they say it the second time. My answer is, the Supreme Court having said that twice, its up to the Supreme Court to decide whether or not in the wake of heller state laws that allow individuals to carry firearms in public, its up to them to decide whether that makes a difference. Let me ask this. Do you think any of the factors in this case are necessary for your argument other than the belief theres a gun present . In other words, does your argument rest at all on loading the weapon, high crime area, or any of that . Or is it just the presence of the weapon that authorizes whatever you propose . We made two arguments in this keas. Our first primary argument is that under pennsylvania versus menz, valid traffic stop, reasonable suspicion, dangerous. No further fact new york further evidence of dangerousness is required. However, if the court is the answer to the question yes . Its a direct question. Is it the presence is that enough . Mr. Booth yes. If you are armed, you are dangerous. But our second argument is that assuming that the court does not agree with our submission of mimms in this case, our secondary argument is if you need proof of case specific dangerousness factors, in this particular case you have you think under the law you dont need anything other than the presence of the weapon . Mr. Booth the presence of the weapon. And the reason why mimms equated being armed with being dangerous is because it reflects the reality that traffic stops are inherently dangerous. A slight variation on judge shedds excellent question. Counterfactually, lets assume they were wearing seat belts. And contrary to judge wynns reasonable hypothetical they never touched the lines they never exceeded the speed limit no, Traffic Offense that even the best officer in the could pretextually come up with. An honest officer who absolutely testified, i stopped the car because of the anonymous tip that there was an armed individual in the car. Would your argument be exactly the same . Because thats what judge shedd is asking you. What else do you need to succeed . For a stop or for a frisk . Thats the point. Theres no evidence of reasonable suspicion of a crime until you get to the seat belt violation. Thats correct. So judge shedd is asking you, as i rendered his question, take the seat belt violation out of the case, do you have reasonable suspicion of the commission of an offense . Mr. Booth for purposes of the stop, no. If he hadnt come up with the seat belt violation, the mere fact the governments position here is, the mere fact that in a high crime area, middle of the day, 7eleven parking lot a man loaded a weapon, put it in his pocket and got in a car that would not constitute reasonable suspicion to effect the stop . Most likely yes. Weve conceded that, yes. Theres can i just go right ahead. In that situation, you would not regard the person as armed and dangerous . Exactly the same situation except no pretext for the stop. Mr. Booth the armed an dangerous formulation, judge motz, comes up once you have a valid carry and you have reasonable suspicion that hes armed. As i was trying to explain to judge diaz earlier when he asked me the question, theres a fundamental difference in evaluating the significance of an open carry provision in dealing with whether an individual can be stopped for an offense. Will you saying that are you saying that it depends on whether or not the facts require an encounter, so for instance, under judge motzs proposed set of facts, you could see a man with a gun in a parking lot get in a car and drive away but once you had the seat belt violation and the stop that brought the two necessarily together and created the danger . Is that mr. Booth i agree with that. Im not im really not asking for agreement. Im asking for an assessment of whether how can that be . Driving away at a lawful speed with your seat belt on makes you armed and dangerous. Mr. Booth no. No, youre not armed and dangerous when you d that, but if you dont have the seat belt on, you are. That cant be your answer. But it is. Thats the thing. Hypothetically, remember, robinson is a passenger. And so if two blocks down the road the car pulls over, he gets out and walks away, can the police stop him as a pedestrian . Mr. Booth no, there wouldnt be an offense. So hes no longer armed and dangerous. Or armed thus dangerous. Hes armed at the reasonable suspicion level but hes no longer dangerous because hes a pedestrian. But at the passenger but as a passenger in a car, stopped far seat belt violation, hes armed and thus dangerous under the governments scenario. Mr. Booth and the reason for that, judge davis, as im trying to explain, is that the Supreme Court has said that traffic stops are inherently dangerous. As the Supreme Court said in rodriguez, they are especially fraught with but whats the sense that you can treat a passenger with the same level of suspicion for the protection of the officer. So in terms of the danger of a traffic stop, it doesnt make any difference whether its the motorist himself or herself or a passenger. You can order a passenger out of the vehicle, as the officer did here, treating the passenger as you would the motorist when it comes to the dangerous analysis. Your submission is, once hes a pedestrian, unconnected to the vehicle, hes no longer dangerous, though the level of belief that hes armed is exactly the same. What if he were a jaywalking pedestrian . What if we stepped off the sidewalk, that violates municipal ordinances in a lot of places. Hed become dangerous again. Hes wavering in and out of being dangerous. Mr. Booth my submission would be that even in the case of a municipal ordinance, you have a valid stop if off valid encounter. Not encounter. Nothing like a consensual encounter. Only with respect to tarry stops, there has to be reasonable suspicion that an individual has committed a crime. Our submission goes will go even further to say, in that situation even, if reasonable suspicion, you committed a crime, even if its a municipal ordinance, and you have reasonable suspicion that the suspect is armed, she dangerous. And you can frisk him. That takes away from your traffic stop, takes away from your rationale you said the Supreme Court said a traffic stop is inherently dangerous. Mr. Booth the level of dangerousness in traffic stops far exceeds i know, but the justification in your answer earlier, i think your position might well be that a valid stop and an encounter or stop or whatever you want to call it, justifies interaction with that personal who you have reasonable suspicion to believe is armed might create a dangerous situation that would allow, so its reasonable suspicion not just of criminal activity but reasonable suspicion of armed and dangerous. And you think you could make that assessment in a valid stop if theyre just walking down the street, being armed would not be enough to stop him. But youre using the justification a little earlier, you kept reading that the traffic stop is inherently dangerous. Mr. Booth i said earlier, im trying to maybe im not succeeding as well as id like to be. Theres a difference in the reasonable suspicion calculus in deciding whether a stop is lawful. Ive got that already. Im talking about when you were saying that the counselors own reasonable suspicion for armed and dangerous is in large measure, you get the benefit because the Supreme Court has said a traffic stop is inherently dangerous. Thats what you kept saying. But these scenarios, we could come up with others, when it has nothing to do with a traffic stop. Thats correct. But your answer is the same. Mr. Booth my answer also applies in terry vs. Ohio, did not involve a traffic stop but did involve a burglaryrobbery and in that particular case, the Supreme Court basically said the same thing, that you are armed so you dont think it requires a traffic stop, you just think those are the facts of this case. Mr. Booth well, this is a traffic stop. I know that. Mr. Booth under mimms, the danger inherent in a traffic stop is exceedingly high. Thats not my question. So you think in this case, we have the law on the traffic stop, which justified the pat down, and these fact, but you dont think you need this scenario with the exceedingly dangerous situation of the traffic stop. You think, i think youre saying this, that just a lawful encounter that includes reasonable suspicion of a weapon would be enough for a pat down. Thats not what you said. If the drive ore they have vehicle was the one that had the seat belt violation and not the defendant, your answer is the same, is what youre saying. Mr. Booth if you could repeat that . Here the defendant had the seat belt violation , he stopped the car because of that but if the driver of the car had the seat belt violation not the defendant the answer is the same . Hes armed and dangerous because the car has been stopped. Mr. Booth any time you have a traffic stop did you understand my question . Its either yes or no. What if the defendant didnt do anything wrong. Hes wearing his seat belt. Hes wearing his, the driver does not. The car is stopped by the officer. Same scenario . Same answer . Mr. Booth in the event that you have one person does not have the seat belt and if its a violation of West Virginia law, the officer can stop the car, or if a passenger doesnt the answer is either yes or no. I understand the explanation. The answer is either yes or no. Mr. Booth the answer is if anybody in the car is is reasonably suspected of being armed you can frisk him, yes. What about the case where he got out of the car . All the same facts, the tip, the driver is driving along, he sees a seat belt violation, theyre a couple of blocks ahead of them, our defendant gets out of he car and out of the car and stops walking down the street. Mr. Booth if the officer is making a traffic stop a couple blocks later, he stops the car, the defendant is no longer out of the car. Mr. Booth thats a tougher question if hes gotten out of the car. You see the problem there . If youre having a problem with it, it suggests that his if theres nothing about him concealing a weapon that makes it armed and dangerous. Mr. Booth any time you have anybody in the car who, well, you have an individual in the car who is suspected of being armed and hes in a car and theres a legitimate stop. Your point but hes no longer in the car. An officer as well as a driver in this particular case, the evidence in this case was, it was the male that had the firearm. It wasnt the female. The government, we would not agree that the female, the driver could have been frisked under terry because there was nothing to believe she was armed. I understand. But you understand why i wont belabor it. Stop at a traffic light. The cop is a couple of cars bind him, doesnt stop him then. The guy gets out of the car and starts walking. Hes going to go get a soda. So hes gotten out of the car, theres no seat belt in that case, theres no reasonable suspicion to stop him. Hes no longer armed and dangerous. Theres no reasonable suspicion. The armed and dangerous formulation only comes up once you have had a legitimate stop of that individual and reasonable suspicion to believe he is armed. We do all these hypothetical heres and there, the danger, i think, of moving away from the base exthrust of the Supreme Court decisions in case after case after case. And that is, when you get in a situation where a gun is present and where you have a stop which is the traffic stop, particularly, but other stops, they have a certain level of potential they have a certain level of tension. But the Supreme Court says when you get in these confrontational situations or tense situations, a policeman is justified in taking a small protective step that may save a life, whether its his or someone elses. Or the suspects. These are situations that are inherently tense. Theyre inherently have a certain degree of confrontation. Theres apprehension about what the police may find. Theres anger at being stopped. And so the situation can turn on you. And given the dynamics of these situations as a general rule, it makes sense to just allow a small, protective step that may very well be lifesaving. It was some time ago but i must challenge your last statement you said, and your whole argument turns on this notion that it is the stop, the legal i have to the stop that informs the arm and dangerous analysis. But in fact, as im sure youll recall, the famous officer mcfadden in the terry case didnt stop at all. Remember . The defendants, mr. Katz in particular, was walking back and forth in front of that business and mcfadden walked up to him, he was a pedestrian. Mcfadden had reasonable suspicion they were casing the joint for a robbery as someone earlier suggested. Mcfadden said a few words, katz mumbled something in response and mcfadden immediately laid on hands and produced a handgun from inside the overcoat pocket when he patted him down. One of the ironies of terry and the socalled stop and frisk , in terry, there was no stop. It was an encounter between peed pedestrian screens in downtown cleveland. So the Supreme Court is that coming back to you now . So the whole armed and dangerous, the ideology, the origin, the genesis of the notion that a Police Officer can frisk an individual with whom the officer is entitled to have an encounter, that whole doctrinal background arises out of a case that didnt involve a stop. That involved only a frisk. And chief Justice Warren was clear this was supposed to be a limited intrusion on less than proximate cause because you want Police Officers to one, prevent crime, and two protect themselves. So honestly, its not true that every stop is ok to give rise to a frisk. Those are two separate analyses and dangerous. Youre arguing its armed or dangerous that gives rise to the frisk. Thats not what the Supreme Court has ever said. He patted him down, felt the bulk, reached into the pocket and pulled out the handgun. I think they stopped him at that point. Terry has always been viewed as a carry stop and tarry frisk case. Absolutely incorrect. Look it up. There was no stop in terry. It was a consensual encounter between mcfadden and katz outside the business. There was not a stop. One of the ironies of terry, we call it stop and frisk but it was only about the frisk. Remember justice hollings concurrence go into the first we have to talk about whether its ok for a Police Officer to be in the presence of an individual. Its ok for a Police Officer to be in the presence of an individual provided theres a basis. But the majority in terry didnt have to go through that analysis because they were standing on the street and mcfadden was peeping around the telephone pole watching them. I have to disagree with you. I have always understood terry to be a case about a stop. Youre not alone. You were relying also on pennsylvania vs. Mimms, correct . Yes. Is it your point then, sir, that the Supreme Court took terry and then applied it to different situations . I dont know. Im not clear from what youre saying. Never really talked about the progression of the law over time here. And what the Supreme Court did in adams vs. Williams what it did in pennsylvania vs. Mimms and the evolution of this concept through i guess maybe arizona vs. Ganz. But the different case, how the Supreme Court has talked about that, isnt that something we have to consider how this law that is evolved and not just consider as a frozen concept . It seems to me maybe youre youre leaving that out of your analysis. Are you talking about the legit ma soif the armed and dangerous out outside of the traffic stop. This is a traffic stop. Thats why im relying on that. If it was limited in some way in terry, the court has expanded it. And they extend it even further in michigan vs. Long when the court held that what you could do is actually if you have a stop of a car you could go into the passenger compartment to go ahead. Sips you brought up michigan vs. Long, the Supreme Court uses the term potentially dangerous to refer to someone armed. You agree that the tip driver is the defendant, hes alone, seat belt on, there would be no reason to stop the car, correct . Same tip, person driving is the defendant, hes driving. Has the seat belt on. No other Traffic Violations. If theres no other Traffic Violations, all you had was a tip and no Traffic Violations. Same tip, driving lawfully, no reason to stop, right . That would amount to reasonable suspicion to stop the car. So dangerousness armed is already there. Theres reasonable suspicion hes armed. The conjunctive of dangerousness, Police Officer creates that by his presence or her presence. Dangerousness is solely based on the presence of a Police Officer, not anything he was doing. Its the presence of the officer that creates dangerousness. Thats what happens when you have a force thats what happens when you have a forcible encounter doesnt matter if its forcible or not. You talk to someone on the street, and you believe that someone told you that theyre armed. In that circumstance, dangerousness is created by the Police Officer encountering them. When youre having a Police Encounter alone, not a terry stop, the fact that an individual is armed doesnt give rise to the armed and dangerous formulation. It wouldnt make him dangerous . Youd have a gun a person and a Police Officer that triangulates with dangerousness, doesnt it . Just having a firearm in and of itself doesnt make you dangerous. My purpose, for purposes of this case youre leaving out the other part. The Police Officer makes it dangerous. The presence. Right . The Police Officer opportunity theres im trying to understand the Police Officer is encountering you, wouldnt the Police Officer have the same interest in being safe because he knows you have a gun based on his tip or whatever. What difference does it make . Youre there, you have the gun, doesnt it make it dangerous in every instance . You have to have a justification for doing the frisk. Hasnt the Supreme Court said that Police Officers can encounter people without walking down the street, Police Officer said, hey, sir, maam, can i speak to you for a minute . Are you telling me a Police Officer cant do that . Of course. He or she is present and you have a gun, doesnt it make it dangerous . Youre using dangerous in a cloak wall sense. Might be killed, is that cloak wall . What do you call it then . It sounds to me youre backing yourself off your original position, youre saying there has to be plus factor. The fact that youre armed opportunity make you dangerous in a traffic stop. I didnt say that. Let me go back to the consensual encounter. I said from the begin what does consent have to do with dangerousness . The judge said you can be shot on a consensual as one you interdict, what difference does that make . Thats what the case is about. Youre creating dangerousness by the police presence. So that doesnt make any difference whether its consensual or not. It makes a difference in order for the police to frisk an individual, to forcibly take a gun away from him. Thats what they did here. In a, as im trying to explain to judge keenan, under mimms, theres a valid traffic stop but tell me i think this is consistent with what everyone else is asking you. You are conceding, right that if its a consensual encounter, we have held in black that just because you are carrying a gun you cant be stopped and you agree with that, right . You cant be stopped because youre carrying a gun in a public area. That is what happened here. The officer testified, i stopped this car because of a tip that the guy was carrying a gun. That is why i stopped the car. Understood it was justified because also there was a seat belt violation. But my question for you, and this goes back to what judge wynn asked, given how easy it is as a practical matter for the police to pull over a car because theres proximate cause of a Traffic Violation or something that the Police Officer mistakenly but reasonably believes was a Traffic Violation, how much is left of the rule that you cant stop a person for carrying a gun . If all you have to do is wait for them to waver over the middle line or step off the curb right before the light turn, then you can stop them and frisk them. S that practical matter what is left of our rule that you cant be stopped that youre carrying a gun . Mr. Booth what is left is there has to be a violation. How hard will it be for the police to find one . A practical mr. Booth i have a feeling that youre question is more directed to the merits of renn and as long as renn remains in the book, as long as theres a rehe jatej it mat traffic stop, even if the officer had a pretextual motive, officers can do that. All you had in mimms was an expired license plate. Yet the stop was justified. Theres something unusual about this case, usually when the Police Conduct, renn as well, when Police Conduct a renn stop theyre limited in what they can do by the justification for the stop. They may have a huge youre dealing drug, pull you over for running a traffic signal they can write you a ticket, they cant search you for drugs. This is a unique case. In this case, under your position, they pull you over because they have a hunch that the gun you possess may be possessed illegally and they can now investigate the underlying hunch in the course of the pretextual stop. This is an unusual application of renn. I understand its an unusual application but this is on virtually all fours with mimms. As far as the legitimacy of the tip, i know that hasnt been raised yet, but i mentioned the First Circuit decision. I dont think anybody would argue about the legitimacy. If i could get to one question, weve been an active group this morning. You know, you rely on adams, mimms, michigan, all those cases were decided before the Supreme Courts rediscovery of the Second Amendment, right . Do we have anything from the Supreme Court that is telling us how we are to balance Fourth Amendment rights versus Second Amendment rights . Thats why i said, judge motz , in light of the decision in adams and michigan vs. Long that state law doesnt matter, we think its up to the Supreme Court to decide whether or not keller makes a difference. But we have keller too. Its not just adams and mimms and michigan vs. Long. We have keller and its progeny the Supreme Court has decided. One thing i would like to say. I may not have much time left. You dont have any time left. One thing and then ill sit back. Theres no Second Amendment claim in this case. Second amendment, when an officer takes a gun away during the stop he gives it back to him afterwards so the deprivation is extremely limited. Stops take usually only 30 minutes or so. Any deprivation under the Second Amendment we would say is not a violation of this, to take the gun for a brief period of time. The situation comes up because of the resurgence of the Second Amendment. Thats why West Virginia, you talk about we dont, you said we dont Pay Attention to West Virginian law. But West Virginian law has evolved because of the evolution of the Second Amendment. Jurisprudence. Wouldnt you agree . Im out of time. Would you like me you can just say whether you agree or not. For purposes of terry frisk law where the Supreme Court says state law doesnt count, we say its up to the Supreme Court to change the law. Let me ask you, why do we need to limit it if we follow your analysis. You say its deprivation for a short period of time but its an individuals right to have a gun under the Second Amendment. Why limit it just to this . Under your analysis that officer is no less in danger when he encounters an individual in any situation if he has a tip he has a gun, whether high crime or a Church Picnic i spoke about. So why dont you just advocate that we say everybody who possesses a gun, lawfully, unlawfully, whatever, if you have that gun and police have a tip to it, theres reasonable suspicion, they can be frisked . Only if theres a valid stop in advance. I understand that but why . Whats the big deal about a valid stop . Hes still dangerous. If that officer encounters him with an invalid stop or any other situation, the same factors that the judge alluded to about being dangerous and protecting the citizens and everybody else exist. Why dont we just broadly say, anybody that exercises a Second Amendment right, they do so with the knowledge that theres a Fourth Amendment and therefore you are going to be subject to being searched and whatever else is necessary for the safety of citizens, officers and yourself. Is that ok . Mr. Booth i would like to again say it would be up to the Supreme Court. Is that ok . Is that a good analysis . Mr. Booth right now the officers can frisk the individual if they have a reasonable suspicion to believe that hes armed even if the individuals state allow him to carry firearm. But the latitude that, you going as far as the latitude the Supreme Court has given you. I wouldnt go any further. Thank you very much. Thank you, mr. Booth. Mr. Compton the government in their petition for rehearing argued that the standards should be armed and if youre armed then youre automatically dangerous. I think my understanding of the governments presentation just now and perhaps this was judge keenans inquiry to the government is that the government is now saying that just having a firearm doesnt make you dangerous. And that has been our position, that the standards should be armed and dangerous and that those are separate analyses. Is it armed and is armed and dangerous a unitarian concept . Mr. Compton i dont believe so, sir. I think thats a key point. Its not onesided. You say its not. Mr. Compton i dont believe its a unitary concept. I believe theres analysis for armed and then theres analysis for dangerousness. Thats present. Some of the hypotheticals the court pointed out go to that. If the defendant is, as judge motz was say, sitting in the car and all of a sudden hes armed and according to the government would thus be dangerous. But as soon as he steps out of the car or if he jaywalks or if hes at a church peck nick, hes not dangerous anymore. Its entirely possible that at least for purposes of terry frisk, the frisk analysis that the Supreme Court has linked the two and said under the circumstances presented by the forcible encounter, a person who is armed is thus dangerous, so there is some am i not correct that the Supreme Court has created some linkage between those two . Mr. Compton i dont think they have created a direct link as your honor suggests. I thought they used that language. Theres no thus in these Supreme Court cases . The court said, quote, the bulk of the jacket permitted the officer to conclude that mimms and thus was armed and thus posed a serious danger to the safety of the officer. In those circumstance any man of reasonable caution would likely have conducted the pat down and thus posed a serious and present danger of safety. Thats the Supreme Court. We cant change that. And they dont purport to ever try to change it. Thats consistent with what terry said. And to follow up, what the Supreme Court has done, it seems to me that to strike a very careful balance and what theyve said is, you have to police are not free to run wild. They have to have number one reasonable suspicion for a stop and they have to have, number two, reasonable suspicion that someone is armed and those two things protect the rights of the citizen, the motorist. And theres a third prong which protects imbalances, protecting the safety of the officer. You protect the rights of the citizen through the first two prongs of the reasonable suspicion for the stop and reasonable suspicion theyre armed. If those two criteria and conditions are met you have to balance the situation by protecting, according some protection to the safety and life of an individual officer. What the Supreme Court, it seems to me, didnt want to happen is what i worry will happen with your argument because youve all youve given, i dont know how Something Like this, would ever be taught at the Police Academy because we want them to obey our decisions and in turn, weve got to give them something that can actually be communicated to them. What youve given is just put the ball back in the air. That seems to me to require an officer whose life could be on the line to make a very fine shaven totality of the