CBS 6 EXCLUSIVE: Police take guns from armed Obama protester

Posted at 3:15 PM, Aug 27, 2013
and last updated 2013-08-28 14:47:17-04

HOPEWELL, Va. (WTVR) – A local Tea Party member has been protesting perched above busy overpasses, with his assault rifle and semi-automatic handgun in plain sight.

He says he’s part of a grassroots movement across the country: American citizens holding signs on busy overpasses demanding President Obama’s impeachment.

Tea-partier Brandon Howard is a member of the Tri-Cities Liberty Alliance.

“We have a tyrant in office right now; he thinks he’s a king.”

So Howard says he's exercising his First Amendment right to criticize the president. He’s deviating a little from the national protests by also exercising what he considers his Second Amendment right to bear arms.

Police describe their concerns as safety issues.

"If we don't exercise these rights, the rights have no value,” Howard proclaims.

On Monday, Howard strapped his assault rifle to his back, a semi-automatic handgun to his waist and stood on the I-295 overpass on River Road in Hopewell, holding up an Impeach Obama sign.

He said the guns were loaded during the demonstrations. The group did its Impeach Obama display on Sunday in Colonial Heights without incident, and Howard had a loaded gun.

Not only is Howard packing heat over the busy overpasses, he was also just feet from Ft. Lee in the city of Hopewell. But he doesn’t think that scared anyone.

"…We’re a nation of laws; the law of Virginia is that I can carry my weapon openly."

Hopewell police officers didn't see it that way initially.

"There was about five or six officers,” he recollects, and "they had their weapons out, trained on me."

"I was illegally searched, my weapons were illegally taken from me, I was illegally detained. I was publicly humiliated."

The Hopewell police chief says no charges will be filed against Howard, and an investigation is underway to determine if officers acted appropriately.

However, the chief says, and legal experts agree, that there's a fine line between individual rights and public safety. University of Richmond law professor Jack Preis references Oliver Wendell Holmes, Jr. opinion in Schenck v. United States, often paraphrased as “shouting fire in a crowded theater.”

Holmes ruling addressed the opposition of free speech and "clear and present danger.” Thus, even if citizens have the right to free speech, falsely yelling fire could incite panic and create danger. The ruling was later overturned by a 1969 case that limited the scope of banned speech to that which may incite lawless action.

We asked Howard if he escalated the demonstration for publicity. He said “no.”

"If you're a sworn officer to uphold the law, it might make sense to know the law you're trying to uphold,” was his retort.

The Hopewell Commonwealth's Attorney tells the police chief that in this case, Howard was within his rights. However, if someone had been hurt or he had caused a big disruption, it's possible that charges could have been filed.