West Virginia Attorney General Patrick Morrisey, joined by Indiana and three other states, has asked the U.S. Supreme Court to overturn an appeals court ruling they say infringes on gun rights.
In a brief Tuesday, they say the 4th U.S. Circuit Court majority erred in concluding police can frisk someone they believe has a weapon.
Morrisey, joined by attorneys general from Indiana, Michigan, Texas and Utah, says innocent gun owners have the right to carry weapons "without the fear of being unreasonably searched."
They argue that existing case law requires police determine someone is dangerous as well as armed. Otherwise, people will have to choose between their right to bear arms and freedom from unreasonable searches
"It is wrong to deem an individual dangerous solely because they are armed," Morrisey said.
The brief notes that half the people own guns in West Virginia, which is one of a dozen states that don't require a permit for carrying a concealed weapon. Another 25 states' laws say authorities shall issue permits for concealed guns provided they meet certain statutory requirements.
The Supreme Court has not yet decided whether to hear the case.
It involved Shaquille Robinson, a felon with an illegal gun in his pocket. He was arrested by Ranson police in West Virginia's Eastern Panhandle after an anonymous tip about someone seen loading a handgun in a parking lot known for drug trafficking. Police responding to the tip stopped the car in which Robinson was a passenger because neither he nor the driver was wearing a seat belt and searched Robinson.
His attorney argued the search was illegal and violated Robinson's civil rights, that the tip identified seemingly legal conduct and the traffic stop provided no basis for frisking him.
The 4th Circuit Court, in a 12-4 decision in January, rejected that argument and concluded that "an officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile's occupants is armed may frisk that individual for the officer's protection and the safety of everyone on the scene."
Judge Paul Niemeyer wrote for the majority: "The danger justifying a protective frisk arises from the combination of a forced police encounter and the presence of a weapon, not from any illegality of the weapon's possession."