Court upholds police pointing gun at lawful carrier


boscoman

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Court upholds police pointing gun at lawful carrier

It's open season on gun carriers.

A case out of the First Circuit has some painful lessons for gun carriers in Georgia. A United States Circuit Court of Appeals last week upheld the constitutionality of pointing a gun at any citizen daring to carry, lawfully, a concealed weapon in public.

The First Circuit Court of Appeals is the Court just below the United States Supreme Court in the New England states. The case stems from a lawyer who sued a police officer after he was detained for lawfully carrying a concealed weapon while in possession of a license to carry concealed. According to the case opinion, the lawyer, Greg Schubert, had a pistol concealed under his suit coat, and Mr. Schubert was walking in what the court described as a "high crime area." At some point a police officer, J.B. Stern, who lived up to his last name, caught a glimpse of the attorney's pistol, and he leapt out of his patrol car "in a dynamic and explosive manner" with his gun drawn, pointing it at the attorney's face.

Officer Stern "executed a pat-frisk," and Mr. Schubert produced his license to carry a concealed weapon. He was disarmed and ordered to stand in front of the patrol car in the hot sun. At some point, the officer locked him in the back seat of the police car and delivered a lecture. Officer Stern "partially Mirandized Schubert, mentioned the possibility of a criminal charge, and told Schubert that he (Stern) was the only person allowed to carry a weapon on his beat."

For most people, this would be enough to conclude that they were being harassed for the exercise of a constitutional right, but the officer went further, seizing the attorney's pistol and leaving with it. Officer Stern reasoned that because he could not confirm the "facially valid" license to carry, he would not permit the attorney to carry. Officer Stern drove away with the license and the firearm, leaving the attorney unarmed, dressed in a suit, and alone in what the officer himself argued was a high crime area.

The attorney sued in federal court, but the District Court threw out his suit, ruling that Officer Stern's behavior is the proper way to treat people who lawfully carry concealed pistols. Mr. Schubert appealed, and the First Circuit upheld the District Court's ruling. The court held that the stop was lawful and that Officer Stern "was permitted to take actions to ensure his own safety."

The court further held that the officer was entitled to confirm the validity of a "facially valid" license to carry a concealed weapon. The problem for Officer Stern was that there is no way to do so in Massachusetts, where this incident occurred. As a result, the court held that Officer Stern "sensibly opted to terminate the stop and release Schubert, but retain the weapon."

Georgia is not in the First Circuit, but this case holds some harsh lessons for Georgians who exercise their right to bear arms. Recall that in the MARTA case here in Georgia, the court held that the officer was entitled to take measures to protect himself, including disarming the person carrying, and entitled to investigate further for a half hour even after Mr. Raissi produced a Georgia firearms license. Although the officers in that case did not actually point a gun at Mr. Raissi's face, as Officer Stern did to attorney Schubert, it is a logical conclusion that the court would have upheld the constitutionality of them doing so. The vast majority of the cases MARTA cited in its briefs to the federal court included an officer pointing a gun at the person stopped. In addition, carrying a concealed weapon onto the MARTA system is a felony, and no court is going to hold that an officer violated any constitutional right by pointing a gun at an armed felon.

Furthermore, it must be recalled that Georgia, like Massachussetts and the vast majority of states, has no system to confirm the validity of a Georgia firearms license. The similarities between the MARTA federal opinion and the First Circuit opinion are startling, and the implications for Georgia are clear.

This First Circuit case is a logical extension of the MARTA case here in Georgia, and it shows what armed Georgians can expect if the General Assembly does not take action soon to correct the presumption of criminality that federal judge Thomas Thrash attached to the exercise of the right to bear arms.

Welcome to the new "right" to bear arms.
 

In Oregon a valid carry permit advisory is automatic when an L.E.O. runs somebody’s drivers license or their name and D.O.B. It shows up on the return.

Mass doesn’t have some kind of system in place to check carry licenses in the field? :confused:
 
As I read the opinion the only decision was on the 4th amendment grounds because:

"Schubert did not assert a violation of his Second Amendment right in his original complaint. Nor did he file an amended complaint to alert the court and the other parties to such a claim. He also did not raise the claim in his written opposition to summary judgment. The issue was first raised by Schubert at oral argument on the motion for summary judgment. Having reviewed the transcript, we conclude that his counsel's references to a Second Amendment issue were extremely brief and were unsupported by citations to specific case law. In addition, counsel did not frame his comments on the issue as providing an additional, specific ground for liability against Stern and the City.

We thus conclude that Schubert failed properly to raise a Second Amendment claim in the court below, and we therefore decline to entertain his appellate argument on this issue."


Also, his state clains were dismissed without prejudice so he is free to continue them in the state courts.
 
I've read of and heard of way too many AD/ND's made by LEOs to be comfortable with them having the right to point their gun at anyone legally carrying. If they feel the need to take posession of my gun for the duration of the stop, that's fine. If they want me in the back of their car while they find out that I'm 100% legit, that's fine. But for fux sake, once it's determined that I''m legit, let me go and and return my firearm to me. This is inexcusable and quite frankly, makes me a little nauseous.
 
I've followed this thread on another site as well and I've read the latest Court determination. I'm sympathetic to the Plaintiff's complaint but I feel he's being excessive in his zeal for retribution at the Officer's "offense". The bottom line (for me) is that he was carrying under a concealed carry permit . . . the first consideration for me, then, is that he allowed the sidearm to be seen and didn't keep it concealed. IMO, he has no one to blame for the ensuing BS but himself.
 
I've followed this thread on another site as well and I've read the latest Court determination. I'm sympathetic to the Plaintiff's complaint but I feel he's being excessive in his zeal for retribution at the Officer's "offense". The bottom line (for me) is that he was carrying under a concealed carry permit . . . the first consideration for me, then, is that he allowed the sidearm to be seen and didn't keep it concealed. IMO, he has no one to blame for the ensuing BS but himself.

I disagree. Define concealed. If the bulge under my shirt is too obvious for a cop, or the bottom of my holster should show does that give a cop the right to draw down on me? I don't think so. This becomes a matter of interpretation & I'm not comfortable with that in the hands of most cops (sorry to say but I work with a lot of them).
I can only imagine some off duty officer having one of his ilk drawing down on him & screaming at him not to move or to shut up when he tries to explain that he is a cop. I'm not saying that this is what happened here, but I sure can see it happening.Just my 2 cents.
 
I disagree. Define concealed. If the bulge under my shirt is too obvious for a cop, or the bottom of my holster should show does that give a cop the right to draw down on me? I don't think so. This becomes a matter of interpretation & I'm not comfortable with that in the hands of most cops (sorry to say but I work with a lot of them).
I can only imagine some off duty officer having one of his ilk drawing down on him & screaming at him not to move or to shut up when he tries to explain that he is a cop. I'm not saying that this is what happened here, but I sure can see it happening.Just my 2 cents.

Your exactly right! The behavior from this Cop was completly unwaranted, he took the man's gun after seeing his permit. And I highly doubt that the cop actually thought the guys permit was fabricated. As far as I'm concerned this was an infringment of our Second Ammendment rights, and an example needs to be made in court, that will demonstrate that this kind of Police behavior will not be tolerated by our citizens. ''Absolute power corrupts absolutley''
 
I've followed this thread on another site as well and I've read the latest Court determination. I'm sympathetic to the Plaintiff's complaint but I feel he's being excessive in his zeal for retribution at the Officer's "offense". The bottom line (for me) is that he was carrying under a concealed carry permit . . . the first consideration for me, then, is that he allowed the sidearm to be seen and didn't keep it concealed. IMO, he has no one to blame for the ensuing BS but himself.

As I understand it, it is not illegal to openly carry a firearm in Massachusetts. If the gun was considered concealed, he had a permit for that. If it was considered unconcealed, he wasn't breaking the law.

Even if open carry were illegal, concealed carry is legal so the crime on his part would be one of carelessness not malice or willful law breaking (since he was carrying under a jacket, presumably he intended/thought the firearm was concealed). That might be reason for the cop to stop and question him, or even haul him in for illegally open carrying, but it's not reason to pull a gun on him. The cop has no more reason to fear for his life in that situation than when pulling over someone who was speeding. If the driver had been trying to smash into the officer's car, then sure, pull a gun. If this guy had been waving his gun around, sure, pull yours. But he was just minding his own business. Carelessly perhaps, but not dangerously.

As it is though, it's not the case that he broke or could be suspected of breaking any law, even through carelessness. Open carry is legal, concealed carry, for him, was legal, and as far as we know he wasn't acting threateningly, there was no justification in detaining him let alone pointing a gun at him.

If you need to interact with someone peacefully carrying a gun, this is a good example of how to do it:

YouTube - Sunnyvale DPS Check Peaceful Open Carriers

No aggression, polite, professional, weapon holstered at all times, not even a hand on the grip. No need to act like someone is a likely cop killer just because they have a holstered weapon showing.
 
OK, I concede. Fact is I was measuring the Laws in Mass. against the Laws in some other States where allowing your concealed weapon to be seen can be construed as 'brandishing' and can have negative repercussions. In light of the fact that Mass. allows open carry (THAT'S a surprise!!), I can see where, if the firearm were exposed there, the legality of the Plaintiff's position is pretty much a non-issue.
 
I may be bucking a trend in the replies but 1) concealed means concealed means concealed--if the LEO can see it--it is not concealed and 2) I will trust the LEO before I will trust an attorney. I do not know to what extent a video camera and audio recorded this incident but it sure sounds like a lot of "he said he said" and "blustering attorney comments" tend to magnify situations dramatically w/o regard to the real story. Just the idea that this case went all the way to high courts is evidence enough for me to believe that the attorney and not the LEO brought this matter to a level that it never should have been at. If there was video and audio and it proves the attorney's case--I apologize--but I can almost feel this attorney's belligerance from the getgo and if I am an LEO, I will not stand for it.
 
I may be bucking a trend in the replies but 1) concealed means concealed means concealed--if the LEO can see it--it is not concealed and 2) I will trust the LEO before I will trust an attorney. I do not know to what extent a video camera and audio recorded this incident but it sure sounds like a lot of "he said he said" and "blustering attorney comments" tend to magnify situations dramatically w/o regard to the real story. Just the idea that this case went all the way to high courts is evidence enough for me to believe that the attorney and not the LEO brought this matter to a level that it never should have been at. If there was video and audio and it proves the attorney's case--I apologize--but I can almost feel this attorney's belligerance from the getgo and if I am an LEO, I will not stand for it.


The Last time that I checked, as US citizens we are supposed to be presumed innocent until proven guilty. This man was treated as if he were a criminal, EVEN AFTER HE PRESENTED HIS PERMIT, AND WAS RELEASED, HIS WEAPON WAS STILL CONFINSCATED BY THE COP!

Perhaps if you were walking down the street and a cop happened to see your little Kel-Tec- you wouldn't mind if the cop pointed a firearm at you, and subsequently took your pistol away from you even after you presented your permit and were released?
 
Yeah, this is BS. Unless you use "deep concealment", at some point, someone is gonna recognize that you're carrying or printing. Here in ND, we have no statutory requiremnt for "complete" concealment, just "reasonable" concealment. Give the guy his freakin' gun back, at any rate! :angry: This is LE out-of-control, IMHO.
 
First thing my ccw instructor

<<< "the first consideration for me, then, is that he allowed the sidearm to be seen and didn't keep it concealed." >>>

TAUGHT ME IS, CONCEALED MEANS CONCEALED! (I am one of Patti's students)




Some men learn from experience, a few by observation, the rest have to piss on the electric fence and find out for theirselves. --- Will Rogers
 
<<< "the first consideration for me, then, is that he allowed the sidearm to be seen and didn't keep it concealed." >>>

TAUGHT ME IS, CONCEALED MEANS CONCEALED! (I am one of Patti's students)




Some men learn from experience, a few by observation, the rest have to piss on the electric fence and find out for theirselves. --- Will Rogers

That is irrevalent in this case, because the state in which this occured does not prohibit open carry by CCW permit holders. This cop was abusing his authority and should be held accountable for his actions.

If there's one thing that history has taught us, it is that..... ''Absolute power corrupts, absolutly''
 
I feel that the problem with the case is not that weather or not he was legal (he was) In GA it is a firearm license not a Conceal carry permit how ever the problem is with the GFL. it is in fact just a piece of laminated paper with your name and stuff and a thumb print with a blue stamp under the lamination. It really does look like something that a 5th grader could make on your everyday computer and is nothing but a joke to me. I do not trust it outside the state of GA and is why I am getting my TN one. Did I mention there is not even a picture on the license? if you think I am kidding look at the permits page and they show you a picture of it you will laugh. I dont feel like trying to explain to a cop in TN or anyother state that this is a permit to carry and that it IS legit. GA needs a new permit period and this is why. I still do not feel that the officer had the right to do half of what he did and wish he would be repermandid for it. but it is what it is because of the GFL.
 
I rather like this quote from the Examiner discussion.

Aaron on Examiner.com said:
I love that no one here bothered to actually read the ruling, which goes out of its way to point out that the case has NOTHING to do with the Second Amendment!

Why? Because the *lawyer* who was arrested *forgot* to bring up the 2nd Amendment in his original claim!

He mentioned it briefly at oral arguments, but without any backing case law. So the trial court and both appeals courts ONLY considered whether the stop and seizure was legal.

As a Fourth Amendment case, it's still a troubling ruling -- using the state's logic, it would be legal to seize your car during a traffic stop if the driver's license database was down. But it appears the lawyer never made that observation either.

Bottom line: This whole mess is an embarrassment for the gun-toting lawyer, but not a threat to the rest of us.
 
Hey Y'all: I guess more posters disagree with my comments than agree and thats OK---many of you brought out points that tend to back up your replies. I guess from an overview point of view, I have seen many more arrogant and self-important attorneys than I have LEOs and as soon as I read the overview of this story, this made more sense to me than the reverse possibility. I still believe, however, that short of actual video/audio of the event or a trail of reliable witnesses (yes or no?--I do not know) there is a lot of he said, he said and I find it harder to believe that the LEO went off on the attorney without an arrogant and smartass attitude by the attorney that started this whole incident. I can be wrong and if I am so be it and I apologize to the attorney in abstentia--no one has ever accused me of being closed mouth and quiet
 
There seems to be some thing(s) missing from this story. How exactly did the officer see the gun - under the suit coat - from his cruiser?
Why hasn't the firearm been returned?
On what basis the the court find the officer was in danger?
Maybe because it is a synopsis these points are missing/??
 

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