Michael Walker v. B. Donahoe ( 2021 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1547
MICHAEL WALKER, individually,
Plaintiff – Appellant,
v.
B. E. DONAHOE, in his individual capacity,
Defendant – Appellee,
and
B. W. PAULEY, in his individual capacity,
Defendant.
Appeal from the United States District Court for the Southern District of West Virginia, at
Huntington. Robert C. Chambers, District Judge. (3:18-cv-01523)
Argued: March 10, 2021 Decided: July 7, 2021
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,
West Virginia, for Appellees. ON BRIEF: Charles R. Bailey, BAILEY & WYANT,
PLLC, Charleston, West Virginia, for Appellees.
2
KING, Circuit Judge:
Michael Walker initiated this 42 U.S.C. § 1983 action in late 2018 in the Southern
District of West Virginia against Corporal Brian E. Donahoe of the Putnam County
Sheriff’s Department. Walker was stopped in Putnam County, West Virginia, in February
2018 while walking along a public road with an AR-15-style assault rifle. Corporal
Donahoe briefly detained Walker to question him and confirm his eligibility to carry a
firearm. By his lawsuit, Walker seeks damages for the allegedly unconstitutional seizure
of his person. In March 2020, the district court ruled that there was reasonable suspicion
supporting Donahoe’s investigatory detention of Walker and awarded summary judgment
to Donahoe. See Walker v. Donahoe, No. 3:18-cv-01523 (S.D. W. Va. Mar. 2, 2020), ECF
No. 63 (the “Opinion”). Walker has appealed and, as explained below, we affirm.
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
3
and carry firearms is subject to some limitations. For example, a state statute bars “a person
under the age of 18 years who is not married or otherwise emancipated [from] possess[ing]
or carry[ing] concealed or openly any deadly weapon.” See W. Va. Code § 61-7-8(providing exceptions for minors possessing deadly weapons on private property or for
purposes of hunting). Moreover, federal law broadly prohibits the possession of firearms
and ammunition by a person who has been convicted of a felony. See 18 U.S.C.
§ 922(g)(1).
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,
4
and that he had an uncased AR-15-style assault rifle on his back. Upon seeing Walker, the
officers each believed that he could be under the age of 18. That was so, they later
explained, because of Walker’s youthful appearance and the fact that he was walking rather
than driving. As it turned out, Walker was actually 24 years old.
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
1
A copy of Walker’s video was provided to the district court and then submitted in
this appeal with the parties’ Joint Appendix (hereinafter abbreviated in citations as the
“J.A.”).
5
him, pat him down, or otherwise touch him or his assault rifle. After receiving Walker’s
identification papers showing his age, Donahoe called the Sheriff’s dispatch office for a
criminal history check to ascertain whether Walker had any criminal conviction that would
disqualify him from carrying a firearm. Donahoe suggested to Walker that a law
enforcement officer possesses the authority to conduct a background check on any person
carrying a firearm. At one point, Donahoe advised Walker that “I have the absolute legal
right to see whether you’re legal to carry that gun or not.” When Walker asked Donahoe
if he was being detained, Donahoe indicated that Walker could not leave until Donahoe
gave permission.
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
6
acknowledged having been aware that, once he let Walker go, Walker “was still going to
be heading that way [toward the school] with an assault rifle.” Id. at 175. Donahoe and
Pauley did not make any effort to follow or further investigate Walker, and the officers
have since expressed the belief that there was nothing more they could do once Walker’s
criminal history check revealed no ground for his continued detention.
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
7
summary judgment. For reasons explained in its Opinion of March 2, 2020, the district
court awarded summary judgment to Donahoe. 2
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 West
Virginia Code § 61-7-8, which prohibits minors under the age of eighteen from carrying
firearms.” Id. That was because of Walker’s “youthful appearance and the fact that he
was walking rather than driving.” Id.
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
2
In his Complaint, Walker also named Deputy Pauley as a defendant and asserted
that he was liable under § 1983 as a bystander of Corporal Donahoe’s unconstitutional
conduct. The district court granted summary judgment to Pauley, and Walker does not
contest that ruling on appeal.
8
at Teays Valley Christian School.” See Opinion 6. In so concluding, the court emphasized
the following: the Parkland school shooting had just occurred, “prompting Donahoe and
any reasonable officer to be on heightened alert for copycat crimes”; the sight of Walker
caused “a concerned citizen [to call 911] to report seeing a man with a gun walking down
the street”; Walker was stopped “less than a mile from [Teays Valley Christian School] as
[he] headed in the school’s direction”; he “was dressed in a black shirt and camouflage
pants”; he was carrying an AR-15-style assault rifle, a type of firearm “frequently used in
mass shootings, including the school shooting in Parkland”; and Walker’s youthful
appearance and the fact that he was walking suggested that he could be “of high-school age
and a student at Teays Valley Christian School.” Id. at 6-7.
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
3
The district court further ruled that Corporal Donohoe would yet be entitled to
summary judgment even if the court considered evidence that Walker had belatedly sought
to introduce. See Opinion 10. The court recounted that it had “denied admission of the
evidence because Walker was inexcusably negligent by not producing the evidence
earlier.” Id. The excluded evidence — that the investigatory detention occurred around
6:00 p.m. — contradicted Walker’s prior testimony that he had encountered Donahoe
during the morning hours of February 21, 2018. See J.A. 241 (Walker’s testimony that the
encounter occurred in the morning and that “it was a beautiful day” and “sunny”).
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)
9
Alternatively, the court ruled that Donahoe was protected by qualified immunity, in that
his conduct did not violate a clearly established constitutional right. See id. at 12
(explaining that “[i]f a constitutional violation may have occurred, the Court considers
whether the constitutional right was ‘clearly established,’ meaning ‘it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted’” (quoting
Saucier v. Katz, 533 U.S. 194, 201-02 (2001)). Walker has appealed, and we possess
jurisdiction pursuant to 28 U.S.C. § 1291.
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
suspicion that Walker was violating § 61-7-8 would still apply.” Id. Additionally, the
court recognized that “the circumstances of the encounter were sufficiently unusual to
arouse suspicion that Walker posed a threat.” Id. The court elaborated that “there was no
obvious reason” for “Walker’s possession of an AR-15-style rifle under these
circumstances,” as “AR-15s are not commonly carried for self-defense” or “traditionally
used for hunting.” Id. at 11. Addressing the excluded evidence, the court also observed
that “[s]eeing Walker at 6:00 p.m. in February in an urban area would further diminish an
inference that Walker possessed the rifle for hunting because the sun would soon set and
hunting after dark is generally prohibited.” Id.
10
court erred in deeming the scope of the investigation and the duration of the detention to
be reasonable.
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 U.S. Const. amend. IV.
To be constitutional, a warrantless investigatory detention generally requires “a reasonable
and articulable suspicion that the person seized is engaged in criminal activity.” See Reid
v. Georgia, 448 U.S. 438, 440 (1980). In assessing reasonable suspicion, “we view the
totality of the circumstances to determine whether the officer had ‘a particularized and
objective basis for suspecting the particular person stopped of criminal activity.’” See
United States v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009) (quoting United States v. Cortez,
449 U.S. 411, 417-18 (1981)). “Because reasonable suspicion is an objective test, we
examine the facts within the knowledge of [the officer] to determine the presence or
nonexistence of reasonable suspicion; we do not examine the subjective beliefs of [the
11
officer] to determine whether he thought that the facts constituted reasonable suspicion.”
See United States v. Foreman, 369 F.3d 776, 781 (4th Cir. 2004).
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 18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm. See
707 F.3d at 536-37. Black had been carrying the concealed firearm while among a group
of six men who were stopped, questioned, and frisked by police officers in Charlotte, North
Carolina. Id. at 534-36. He sought to suppress the evidence of the firearm, which the
officers found during the investigatory detention, as the fruit of the illegal seizure of his
person. Id. at 536. The government identified several circumstances that arguably
engendered reasonable suspicion to support the officers’ investigatory detention of Black,
including that one of the other men in Black’s group (Troupe) was openly carrying a
handgun. Id. at 535 (relating that Troupe “had a firearm in a holster on his hip, in plain
view”).
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
12
officers’ lack of knowledge as to “whether Troupe was lawfully in possession of the gun”
could not warrant a criminal history check, in that “[b]eing a felon in possession of a
firearm is not the default status.” Id. Rather, we pronounced that “where a state permits
individuals to openly carry firearms, the exercise of this right, without more, cannot justify
an investigatory detention.” Id. “Permitting such a justification,” we explained, “would
eviscerate Fourth Amendment protections for lawfully armed individuals in those states.”
Id.
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
13
investigatory detention.” See Br. of Appellant 24. Walker further contends that “[t]here is
no lawful basis . . . to treat an AR-15 style rifle with any less measure of protection under
the holding of . . . Black as is granted to any other lawful firearm under state law.” Id. at
28.
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.
14App’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
15
Columbia’s prohibition against the possession of handguns in the home was
unconstitutional, as handguns are “the most preferred firearm in the nation to keep and use
for protection of one’s home and family.” Id. at 628-29 (internal quotation marks omitted).
But the Court concomitantly specified that “weapons that are most useful in military
service — M-16 rifles and the like — may be banned” without infringement upon the
Second Amendment right. Id. at 627.
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
16
instructive. Along with Black, they convey that different firearms have different features,
capabilities, and typical uses — particularly when comparing handguns to AR-15 and other
assault rifles — that are appropriately considered in a reasonable suspicion analysis. See
Br. of Appellee 43 (asserting that the same is true of sporting equipment like baseball bats
and golf clubs, in that “it would be silly to require police to treat their presence the same
as they would that of a badminton racquet or a ping pong paddle”).
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
17
Tactical pistol secured in a leg holster, with a TLR-2 rail mounted tactical light with a laser
sight attached to the pistol”; and his “appearance and behavior, which included singing
‘Hakuna Matata’ loudly enough to be heard from a police cruiser, was sufficiently alarming
to a resident to call 911”). Simply put, the circumstances of Walker’s firearm possession
were unusual and alarming enough to engender reasonable suspicion.
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)
18
(recognizing that “[i]t is not unreasonable for a law enforcement officer to be sensitive to
copycat crimes” and concluding that officers “had more than adequate Fourth Amendment
grounds to stop Kilpatrick after she drove her van, covered with negative written references
to the ATF and Waco, through the ATF parking lot on the anniversary of the Waco fire
and the Oklahoma City bombing”).
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
19
looked. In any event, there is no suggestion that Walker appeared older than he actually
was (24 years) or that his age somehow excluded him from reasonable suspicion of being
a prospective school shooter. 4
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.
4
Because we agree with the district court that Corporal Donahoe had reasonable
suspicion that Walker was intent on perpetrating a mass shooting at Teays Valley Christian
School, we do not unnecessarily decide the issue of whether Donohoe had reasonable
suspicion that Walker was under the age of 18 and thus illegally carrying a firearm. We
also do not review the court’s exclusion of belatedly introduced evidence as to the time of
Walker’s encounter with Donahoe, see supra note 3, as Walker has not preserved any
challenge to that ruling on appeal.
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III.
Pursuant to the foregoing, we affirm the summary judgment award made by the
district court in favor of Corporal Donahoe.
AFFIRMED
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RICHARDSON, Circuit Judge, concurring in the judgment:
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).
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