MICHAEL WALKER, individually v. B. E. DONAHOE, in his individual capacity; B. W. PAULEY, in his individual capacity
No. 20-1547
United States Court of Appeals for the Fourth Circuit
Argued: March 10, 2021; Decided: July 7, 2021
PUBLISHED
Before KING, KEENAN, and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Judge King wrote the majority opinion, in which Judge Keenan joined. Judge Richardson wrote an opinion concurring in the judgment.
ARGUED: John Hague Bryan, JOHN H. BRYAN, ATTORNEY AT LAW, Union, West Virginia, for Appellant. Adam Ketner Strider, BAILEY & WYANT, PLLC, Charleston,
Michael Walker initiated this
I.
A.
On February 14, 2018, a week before Walker was stopped and detained, a 19-year-old gunman in Parkland, Florida, opened fire inside Marjory Stoneman Douglas High School with an AR-15-style assault rifle. The Parkland school shooting claimed the lives of 17 persons and wounded several others. That massacre received extensive national news coverage and was one of the deadliest school shootings in American history. The Parkland shooting serves as background for the events giving rise to this § 1983 action.
Also pertinent is that it is generally legal in West Virginia to openly carry firearms, including AR-15 and other semiautomatic assault rifles. Nevertheless, eligibility to possess
The record reflects that Corporal Donahoe‘s investigatory detention of Walker arose from a 911 call on February 21, 2018. Specifically, a concerned citizen called 911 and reported a man with an assault rifle walking westbound along Route 33 (known as Teays Valley Road) through a suburban residential and commercial area in the unincorporated Scott Depot community of Putnam County. Donahoe and his colleague, Deputy Brandon W. Pauley, were dispatched to locate the armed man described by the 911 caller. From the caller‘s report, Donahoe and Pauley knew that Teays Valley Christian School was less than a mile ahead of the armed man. The school has about 300 students and operates as a kindergarten through high school.
From his vehicle, Deputy Pauley soon spotted the armed man — Walker — and directed him to a nearby driveway away from the Teays Valley Road traffic. Corporal Donahoe arrived in a separate vehicle at about that same time and stopped Walker before he reached the driveway. The Putnam County officers observed that Walker was heading toward Teays Valley Christian School, that he was wearing military-style clothing (including a black sleeveless shirt and camouflage pants), that he was carrying a backpack,
Walker began using his cell phone at the outset to film his encounter with Corporal Donahoe and Deputy Pauley.1 Walker‘s video shows that Donahoe, the senior officer on the scene, engaged with Walker while Pauley stood by. The video further reveals that Walker was largely polite but assertive, that he refused to answer several of Donahoe‘s questions, and that he challenged the officers’ authority to stop and detain him. Walker said of his destination only that he was walking “up to a buddy‘s,” and he initially declined to produce his identification papers but soon relented and provided them to Donahoe. Meanwhile, Walker steadfastly refused to provide information about his assault rifle and his reason for carrying it, though he proclaimed that he had “done nothing wrong” and was simply “walking up the road.” Walker also said that he had walked along Teays Valley Road while armed several times before and that walking was his only means of transportation. He repeatedly asked Donahoe why he was stopped, whether he had broken any law or was suspected of a crime, and whether he was free to go or being detained.
For his part, Corporal Donahoe became heated toward Walker and even swore at him during their encounter. Donahoe got physically close to Walker but did not restrain
The Sheriff‘s dispatch office promptly responded to Corporal Donahoe‘s request for a criminal history check and reported that Walker had been convicted of a misdemeanor drug offense and acquitted of a charge of obstructing a law enforcement officer. Thus believing that Walker was eligible to carry a firearm, Donahoe returned Walker‘s identification papers and told him that he was free to go. The entire encounter lasted less than nine minutes.
Notably, during his interaction with Walker, Corporal Donahoe referenced the 911 caller‘s report of an armed man walking along Teays Valley Road. Donahoe did not mention any suspicion that Walker might be heading to Teays Valley Christian School to perpetrate a mass shooting. In these proceedings, however, Donahoe testified that he “knew [the Parkland school shooting had just] happened” and it was “in the back of [his] mind.” See J.A. 166. Indeed, both Donahoe and Deputy Pauley said they were on heightened alert for possible “copycat” crimes. See id. at 173-74, 235. Donahoe
In his testimony in these proceedings, Walker explained that he was not licensed to drive because he suffered from epilepsy. According to Walker, when he was stopped and detained on February 21, 2018, he was in the midst of a 15-minute walk from his home to a friend‘s house to go coyote hunting. He stated that he did not know where the coyote hunt was to occur and that it did not happen because his friend was not “able to find his coyote call.” See J.A. 240. Walker also testified that, in addition to the “AR-15 on [his] back,” he was carrying a concealed “side arm.” Id. He admitted that the Parkland school shooting had “occurred the same week,” that he was walking “less than a mile away from Teays Valley Christian School,” that “open carry in West Virginia is only legal for people over the age of 18,” and that he was regularly “carded” while buying cigarettes. Id. at 242, 244. Nonetheless, Walker insisted that there was no reason to suspect him of committing any crime.
B.
On December 17, 2018, Walker filed his Complaint in federal court in Huntington, West Virginia, alleging the § 1983 claim against Corporal Donahoe, in his individual capacity, that the investigatory detention contravened the Fourth Amendment. After pretrial proceedings that included discovery, the parties submitted cross-motions for
The district court ruled that Corporal Donahoe‘s seizure of Walker was not unconstitutional in that there was “reasonable suspicion to stop Walker and the extent of the intrusion and length of the stop were reasonable.” See Opinion 10. In assessing the justification for the investigatory detention, the court considered the facts known to Donahoe under the “objective reasonable suspicion standard.” Id. at 5. The court was also mindful of the principle that “where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.” Id. (quoting United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013)).
According to the district court, there was “something ‘more‘” to justify Corporal Donahoe‘s investigatory detention of Walker for two reasons. See Opinion 6. The court first determined that “Donahoe had reasonable suspicion that Walker was violating
The district court next concluded that “the facts within Donahoe‘s knowledge constituted reasonable suspicion that Walker posed an imminent threat to students and staff
Because Corporal Donahoe‘s investigatory detention of Walker was supported by reasonable suspicion (and because the scope of the investigation and duration of the detention were reasonable), the district court ruled that Corporal Donahoe was entitled to summary judgment on Walker‘s Fourth Amendment claim. See Opinion 10.3
II.
On appeal, Walker challenges the district court‘s ruling that Corporal Donohoe did not violate Walker‘s Fourth Amendment rights, as well as the court‘s alternative ruling that Donahoe was at least entitled to qualified immunity. As Walker would have it, the court‘s conclusion that reasonable suspicion supported Donahoe‘s investigatory detention of Walker was patently contrary to controlling precedent, particularly our decision in United States v. Black, 707 F.3d 531 (4th Cir. 2013). Notably, Walker does not contend that the
We review de novo the district court‘s award of summary judgment to Corporal Donahoe, viewing the facts in the light most favorable to Walker. See Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 340-41 (4th Cir. 2000). Because we affirm the summary judgment award on the ground that there was reasonable suspicion for the investigatory detention and therefore no constitutional violation, we do not reach and review the court‘s alternative qualified immunity ruling.
A.
As a background for our analysis, we begin with a review of relevant legal principles. The Fourth Amendment safeguards “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures.” See
In our Black decision in 2013, we were called upon to determine whether reasonable suspicion supported the investigatory detention of the defendant (Black), who was convicted under
We rejected the government‘s theory that Troupe‘s possession of a firearm was a circumstance creating reasonable suspicion to stop and detain Black. In so doing, “we refuse[d] to find reasonable suspicion merely by association.” See Black, 707 F.3d at 540. Of particular relevance here, we also concluded that Troupe‘s firearm was an insufficient basis to stop and detain Troupe himself. Id.
In that regard, we emphasized that it was “undisputed that under the laws of North Carolina, which permit its residents to openly carry firearms, Troupe‘s gun was legally possessed and displayed.” See Black, 707 F.3d at 540. We also recognized that the
As for whether there was something “more” about Troupe‘s possession of a firearm to justify an investigatory detention, we concluded that there was not. We specifically ruled that it was insufficient that Troupe was the first person an officer had seen openly carrying a firearm in that police division of Charlotte. See Black, 707 F.3d at 540. That was because “the laws of North Carolina . . . apply uniformly and without exception in every single division, and every part of the state.” Id. We separately dismissed as insufficient circumstances related directly to Black, including that Black at first seemed “‘overly’ cooperative,” that he volunteered his identification papers to the officers, and that he lived outside the division. Id. at 541-42. Consequently, we determined that the evidence of Black‘s firearm must be suppressed and his conviction vacated.
B.
We turn to Walker‘s argument that our Black decision compels the conclusion that Corporal Donahoe‘s investigatory detention of Walker contravened the Fourth Amendment. According to Walker, Black holds that “[l]awful firearm possession and use in West Virginia cannot form the basis of reasonable suspicion to perform a stop and
Contrary to Walker‘s interpretation, the Black decision does not dictate that, in a state like West Virginia where it is legal to openly carry a firearm, the act of openly carrying a firearm can never engender reasonable suspicion. Indeed, Black explicitly allows that the possession of a firearm, though lawful, can contribute to reasonable suspicion in the totality of the circumstances. That is, the possession of a firearm plus something “more” may “justify an investigatory detention.” See Black, 707 F.3d at 540 (articulating that “where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention“).
The notion that lawful conduct can contribute to reasonable suspicion is hardly shocking or controversial. The Black decision itself cautions against the “misuse of innocent facts as indicia of suspicious activity,” but acknowledges that “factors ‘susceptible of innocent explanation,’ when taken together, may ‘form a particularized and objective basis’ for reasonable suspicion.” See 707 F.3d at 539 (quoting United States v. Arvizu, 534 U.S. 266, 277 (2002)). In his appellate brief, Corporal Donahoe helpfully points to cases in which the possession of a baseball bat and a golf club, when viewed in the context of all the circumstances, justified an investigatory detention. See United States v. DeJear, 552 F.3d 1196, 1201 (9th Cir. 2009) (“[T]he backseat passenger was holding an object that could be used as a weapon — a baseball bat.“); United States v. Ivy, 224 F. App‘x 461, 464 (6th Cir. 2007) (“Ivy was loitering [in a gas station parking lot] with a golf club . . . .“). It mattered not that baseball bats and golf clubs — like firearms in West Virginia — have a multitude of “innocent uses” and “are indisputably legal to possess” and “legal to carry in public.” See Br. of Appellee 43.
Walker is also incorrect in reading the Black decision to prohibit consideration of the type of firearm at issue in the reasonable suspicion inquiry. Plainly, the type of firearm being openly carried in Black — a handgun in a hip holster — was relevant to our conclusion that “Troupe‘s lawful display of his lawfully possessed firearm cannot be the justification for Troupe‘s detention.” See 707 F.3d at 540. That relevance is evidenced, in part, by our invocation of a New Mexico district court decision “finding no reasonable suspicion where the plaintiff arrived at a movie theater openly carrying a holstered handgun, an act which is legal in the State of New Mexico.” Id. (citing St. John v. McColley, 653 F. Supp. 2d 1155, 1161 (D.N.M. 2009)).
Moreover, the proposition that an AR-15-style assault rifle may be treated differently than a handgun is consistent not only with Black, but also with the Supreme Court‘s decision in District of Columbia v. Heller, 554 U.S. 570 (2008), and this Court‘s subsequent decision in Kolbe v. Hogan, 849 F.3d 114 (4th Cir.) (en banc), cert. denied, 138 S. Ct. 469 (2017). In Heller in 2008, the Supreme Court determined that the Second Amendment guarantees “the individual right to possess and carry weapons in case of confrontation.” See 554 U.S. at 592. The Court emphasized, however, that “the right secured by the Second Amendment is not unlimited,” in that, inter alia, it “extends only to certain types of weapons.” Id. at 623, 626. The Court easily concluded that the District of
Thereafter, in Kolbe in 2017, we considered the constitutionality of the State of Maryland‘s ban on AR-15 and other semiautomatic assault rifles. Applying Heller, we formulated the dispositive question as follows: “Are the banned assault weapons . . . ‘like’ ‘M-16 rifles,’ i.e., ‘weapons that are most useful in military service,’ and thus outside the ambit of the Second Amendment?” See Kolbe, 849 F.3d at 136 (quoting Heller, 554 U.S. at 627). Based on the evidence before us, we observed that the banned assault rifles have “military combat features” according “a capability for lethality — more wounds, more serious, in more victims — far beyond that of other firearms in general, including other semiautomatic guns.” Id. at 125 (internal quotation marks omitted). We therefore recognized that the banned assault rifles “are clearly most useful in military service,” leaving us “compelled by Heller to recognize that those weapons . . . are not constitutionally protected.” Id. at 137.
Of course, whereas the Heller and Kolbe decisions concerned the constitutionality of firearm prohibitions under the Second Amendment, Walker raises the issue in this case of whether the lawful possession of a firearm, and the type of that firearm, can contribute to reasonable suspicion under the Fourth Amendment. Nevertheless, Heller and Kolbe are
C.
Finally, having determined that Walker‘s possession of a firearm can be a circumstance justifying Corporal Donahoe‘s investigatory detention of Walker, we assess whether there actually was reasonable suspicion of criminal activity based on the totality of the circumstances. That is, we consider whether there was something “more” than the fact that Walker was openly carrying a firearm to warrant the seizure. See Black, 707 F.3d at 540. Our examination of the record leads us to agree with the district court that Donahoe had reasonable suspicion that Walker was intent on perpetrating a mass shooting at Teays Valley Christian School.
The 911 call about Walker — though insufficient alone to create reasonable suspicion — substantiates the perception that something was amiss. And indeed, the totality of the circumstances made it reasonable for Corporal Donahoe to suspect that a school shooting was afoot. Cf., e.g., Deffert v. Moe, 111 F. Supp. 3d 797, 809 (W.D. Mich. 2015) (concluding that reasonable suspicion for an investigatory detention existed where the plaintiff “was walking in a residential neighborhood across the street from a church in service on a Sunday morning“; “[h]e was wearing camouflage pants and an FNP-45
First, as heretofore explained, it is proper to consider the type of firearm that Walker was carrying — an AR-15-style assault rifle. As Corporal Donahoe emphasizes, such rifles have been “the weapon of choice for the deadliest mass shooters of the past decade.” See Br. of Appellee 27-28 (explaining that “AR-15 style rifles give the wielder the capability to kill more people in a shorter amount of time than more commonplace [firearms], making it an appealing choice for a would-be mass shooter . . . and a greater danger to public safety than would more commonplace, less-powerful, lower-capacity firearms, such as shotguns or handguns“). Donahoe points to the massacres since 2012 at a movie theater in Aurora, Colorado; at Sandy Hook Elementary School in Newtown, Connecticut; at a holiday party in San Bernardino, California; at the Pulse nightclub in Orlando, Florida; at a music festival in Las Vegas, Nevada; at a church in Sutherland Springs, Texas; and at Marjory Stoneman Douglas High School in Parkland, Florida.
Second, the Parkland school shooting occurred just a week before Walker was stopped and detained while carrying an AR-15-style rifle. As would be expected, Corporal Donahoe said that he had been on heightened alert for possible copycat crimes. And significantly, the Parkland shooter used an AR-15-style assault rifle to kill and injure his victims. Cf. Kilpatrick v. United States, 432 F. App‘x 937, 939 (11th Cir. 2011)
Third, Walker was walking toward and within a mile of Teays Valley Christian School. Although Walker argues that location is an improper consideration under our Black decision, Black did not so hold. Rather, Black ruled that no reasonable suspicion arose from the mere fact that a handgun was being openly carried in a location where an officer had not seen that done before. See 707 F.3d at 540. Moreover, the Supreme Court has recognized that “officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.” See Illinois v. Wardlow, 528 U.S. 119, 124 (2000).
Fourth, Walker was dressed to look like a soldier, in a black sleeveless shirt and camouflage pants. See Embody v. Ward, 695 F.3d 577, 580-81 (6th Cir. 2012) (concluding that military-style clothing contributed to reasonable suspicion justifying investigatory detention of plaintiff while he was openly carrying firearm); Deffert, 111 F. Supp. 3d at 809 (same).
And fifth, Walker was walking rather than driving, suggesting that he might be a minor and perhaps a student at Teays Valley Christian School. According to Corporal Donahoe, Walker had a youthful appearance, though Walker contends that he did not have such an appearance and that there is a genuine issue of material fact as to how old he
Walker is left with the argument that because Corporal Donahoe did not mention any potential criminal activity related to Teays Valley Christian School during his investigatory detention of Walker, Donahoe cannot now rely on the existence of reasonable suspicion that Walker posed a threat to the school. That argument is foreclosed, however, by the principle that “reasonable suspicion is an objective test” based on “the facts within the knowledge of the officer and not the officer‘s ‘subjective beliefs.‘” See Foreman, 369 F.3d at 781; see also United States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008) (explaining that “if sufficient objective evidence exists to demonstrate reasonable suspicion,” an investigatory detention “is justified regardless of a police officer‘s subjective intent“). Here, there is ample objective evidence demonstrating reasonable suspicion.
Pursuant to the foregoing, we affirm the summary judgment award made by the district court in favor of Corporal Donahoe.
AFFIRMED
I would affirm the district court‘s grant of summary judgment based on the officer‘s qualified immunity. Cf. United States v. Black, 707 F.3d 531, 539-40 (4th Cir. 2013).
Notes
In ruling that the excluded evidence would not affect Corporal Donohoe‘s entitlement to summary judgment, the district court accepted that “[e]stablishing that the stop occurred near 6:00 p.m. would lessen reasonable suspicion that Walker posed a threat of a school shooting.” See Opinion 10. The court explained, however, that “reasonable (Continued) suspicion that Walker was violating