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  1. #1
    lewisipso's Avatar
    lewisipso is offline Injustice/Indifference/In God we trust
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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
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  2. #2
    213th's Avatar
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    Sounds like something a liberal douchebag would do. I think this is bullshit. I guess I wouldn't have as much of a problem if the officer was just checking to make sure the man was legally carrying, but taking off with the man's weapon and license (which was valid I might point out) is way overboard and out of line. In my opinion. As far as I know, atleast around here, police can't stop someone driving a car, just to find out if they have a license. There has to be some probable cause. Driving a car is a priviledge, carrying a weapon is a right. So I still have a problem with officers being allowed to arbitrarily make sure someone is carrying legally. Just not as much of one.
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  3. #3
    CTR man's Avatar
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    Massachusetts??? First Circuit??? Geez, and I thought that California and the Ninth Circuit was bad. Granted, the man stopped was a lawyer, but that's way out of line.


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  4. #4
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    Now I think you could articulate a guy walking through a high crime area wearing a suit as reasonably suspicious, and if i noticed the gun, I would secure while talking to him. I would question him, he would have produced his CCW license. I would have ran him and the gun, and when they came back clean, I would let him go with his gun and license. Granted I would probably hand him the gun in three or more pieces, and then give him his bullets. The Office may have been a little bit of an ass, but I bet that lawyer was aswell.

  5. #5
    MacLean's Avatar
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    Once you have established his license is valid, your continuing seizure is unconstitutional if the possession of the firearm was your basis for stop.

    Run his gun? Are you serious? For what?

    You're in the habit of giving law abiding citizens their property back in multiple pieces?
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  6. #6
    CTR man's Avatar
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    Quote Originally Posted by maclean View Post
    Once you have established his license is valid, your continuing seizure is unconstitutional if the possession of the firearm was your basis for stop.

    Run his gun? Are you serious? For what?

    You're in the habit of giving law abiding citizens their property back in multiple pieces?
    Maybe he just has something against lawyers who have attitudes against LE.


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  7. #7
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    Yeah, I'd take his gun until I verified his CCW. Whether I drew on him would entirely depend on the circumstances, but I would lean toward having a pistol out in most situations just because of reaction gap.

    I'd also likely remove the mag/ammo while I was running the check if I didn't have a good place to secure it while I ran the check.

    He has a good CCW, he gets his gun back. I let him reload it and resecure it and send him on his merry way.

    While I'm running the CCW check, I'll also run the serial number on the gun to check for stolen. Why you may ask? Because just because someone pays the money, takes the bunny class, and passes a felony/Domestic check to get a CCW it doesn't mean they're not in possession of a stolen gun they bought off a "buddy". Hell, one of our former officers bought a gun at "Court Days" a kind of city wide flea market in a small city in KY and when he got back to our PD he ran it only to find it was entered stolen. Would you let him keep it because he is an otherwise law abiding citizen?

    I would never keep a persons property that wasn't going to be used as evidence unless it was by court order. I don't want to be responsible for your stuff if I don't have to be.

  8. #8
    MacLean's Avatar
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    I *may* or *may not* take a gun from someone depending on the reason for the stop and what I see at the time.

    I also have no trouble handing it back unloaded, if needbe, but that is situational.

    The fact is, stopping someone *merely* for carrying a gun evaporates once you establish that person is acting within their rights.

    To continue the stop for any other reason is how these court cases happen, and some times they go badly. Gant anyone?

    If you have some other reason to detain and can accomplish running a serial number, great.

    Put yourself in place of the other guy, and recognize that not everyone you stop with a gun is a criminal.

    I am not suggesting you relax officer safety or trust anyone, but the fact of the matter is we are not the only people entitled to carry firearms unmolested.

    In my State, I cannot even stop someone for merely carrying a gun. If this lawyer had been walking down the street with a gun on his hip exposed, I would be violating his rights if I seized him.
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  9. #9
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    Here in Florida, even if he has a CCW license, it must remain concealed at all times until such a time he needs to use it for defense. Maybe the lawyer type flashed it or carried the weapon very carelessly and caused it to be viewed too easily. Cant really second guess what the officer did, because we only have the perspective of the sheister. Here, it is a misdemeanor to carry the weapon in the open, license or not. Of course law enforcement being the exception..
    Last edited by ex401mp; 01-03-10 at 03:11 PM. Reason: typo
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  10. #10
    CTR man's Avatar
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    Quote Originally Posted by ex401mp View Post
    Here in Florida, even if he has a CCW license, it must remain concealed at all times until such a time he needs to use it for defense. Maybe the lawyer type flashed it or carried the weapon very carelessly and caused it to be viewed too easily. Cant really second guess what the officer did, because we only have the perspective if the shiester. Here, it is a misdemeanor to carry the weapon in the open, license or not. Of course law enforcement being the exception...
    Yes, all depends on whether or not your state allows open carry. Some do, some don't.

    Of course, why would someone want to open carry when they can carry concealed is beyond me.


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  11. #11
    Captain America's Avatar
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    Quote Originally Posted by APA View Post
    Now I think you could articulate a guy walking through a high crime area wearing a suit as reasonably suspicious, and if i noticed the gun, I would secure while talking to him. I would question him, he would have produced his CCW license. I would have ran him and the gun, and when they came back clean, I would let him go with his gun and license. Granted I would probably hand him the gun in three or more pieces, and then give him his bullets. The Office may have been a little bit of an ass, but I bet that lawyer was aswell.
    Quote Originally Posted by Aegis View Post
    Yeah, I'd take his gun until I verified his CCW. Whether I drew on him would entirely depend on the circumstances, but I would lean toward having a pistol out in most situations just because of reaction gap.

    I'd also likely remove the mag/ammo while I was running the check if I didn't have a good place to secure it while I ran the check.

    He has a good CCW, he gets his gun back. I let him reload it and resecure it and send him on his merry way.

    While I'm running the CCW check, I'll also run the serial number on the gun to check for stolen. Why you may ask? Because just because someone pays the money, takes the bunny class, and passes a felony/Domestic check to get a CCW it doesn't mean they're not in possession of a stolen gun they bought off a "buddy". Hell, one of our former officers bought a gun at "Court Days" a kind of city wide flea market in a small city in KY and when he got back to our PD he ran it only to find it was entered stolen. Would you let him keep it because he is an otherwise law abiding citizen?

    I would never keep a persons property that wasn't going to be used as evidence unless it was by court order. I don't want to be responsible for your stuff if I don't have to be.
    + 1 I don't trust lawyers with pens let alone a handgun.
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  12. #12
    Jks9199 is offline The Reason People Hate Cops & Causer of War
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    From the articles on this I've seen, the gun became visible. I don't have a problem with the cop stopping the guy and investigating.

    Apparently, there is no way to verify the CCW is valid and real; I don't know if there was something suggesting it wasn't or not. I don't know how the lawyer was carrying it, either. Might be different if he was carrying it bandit-style, tucked into the waistband w/o holster, or it might not...

    I'm not 100% supporting taking the gun from the guy when you cut him loose -- but I think there may be room where it is justifiable. It seems that the officer took the gun to the station until the CCW could be verified; I assume it was subsequently returned. But with no apparent way to verify the CCW card... I can see where his actions could be justified. Not what I'd have done, with a card valid on its face and matching ID and someone being reasonably cooperative... and I don't like the reports about the cop's attitude. I think if he'd run the guy, made sure he wasn't wanted, wasn't prohibited (no domestic charges, etc.), he should have ideally returned the gun then and there, and accepted the card on its face.
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  13. #13
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    Yes I'd run the gun. I run every gun and person I come across. The fact that he was wearing a suit and had a CCW doesn't mean that the gun may not be stolen. And I would keep it until the end of our contact for officer safety. Not to deny him of any constitutional rights. Plenty of people, and cops have been killed by legally owned guns. I've got no problem with the guy packing, even if he was a lawyer ;-P I wish more people carried, it may help deter the constant crap and itay make people be more polite too. Oh well maybe in my little world they would be more polite.

  14. #14
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    Quote Originally Posted by Maclean
    The fact is, stopping someone *merely* for carrying a gun evaporates once you establish that person is acting within their rights.
    I'm 100% in agreement with this statement, but I bolded one section for emphasis. A person flashing a card at me and telling me they have a CCW does not meet the criteria for me to cut you loose in KY. We can check your CCW status through dispatch to verify that it is valid and has not expired or been revoked.

    It's the same type of thing in determining if the person that just crawled through the window of a house is really the homeowner or just a thug trying to lie his way out of a felony. I'm going to ask for ID and probably run it to log the encounter in the CAD.

    I'm as pro gun as any NRA member, and I cheered when CCW passed in KY and LEOSA passed federally. I just try to do the right thing and still go home at the end of shift. I respect peoples right to carry and have vocally supported it. We have to strike a balance of safety to the community, safety of ourselves, and upholding the constitutional rights of the people.

    I feel that the officer in the OP went over the line in taking the firearm and his attitude during the encounter if the lawer represented the facts truthfully.

  15. #15
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    This has all kinds of ramifications for both police and ciitizens. If this officer's every contact is conducted at gunpoint...how does he expect the citizens he is sworn to protect to support him and his department when they need it? Sound foolish?....maybe...but all we do know for a fact is that based on a glimps of a gun on an otherwise decent looking human being, he exploded from his patrol car, drew his sidearm and screamed ,"Up against the wall, motherfucker!".

    In Oregon, the new law recently discussed on this board, would allow the attorney to draw his own gun and defend himself. What fun....a cop kills an innocent attorney or an innocent attorney kills an officer.....for NOTHING. The attorney knows he is within is rights so what can he deduce? He is about to be shot by a police officer.....for what, he asks?

    Lets all try to get a grip here folks....I want you all to go home at the end of the shift but a little reason and common sense could do wonders for everybody concerned.

    The truth is that MOST people carrying guns have a legal right to do so. In my state alone, there are tens of thousands of legal guns on people's bodies.....not one of which is interested in killing anyone, let alone a police officer. Caution is always wise....but this kind of nonsense defeats all the good work we otherswise do.


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  16. #16
    Jks9199 is offline The Reason People Hate Cops & Causer of War
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    I'm not absolutely defending the cop's taking the lawyer's gun to the station. But I can't help but consider that we have only part of the story, presented by a group with a particular agenda. I've said that taking the gun and card back to the station MAY have been justifiable, as a temporary seizure while it's verified. For example, if there was some minor defect on the permit that called it into some sort of question -- maybe even just being an old (or brand new) format.

    To me, on the facts at hand, the best course would have been to take control of the gun during the encounter, run the lawyer thoroughly, run the gun, and when all returned appropriately, returned the gun to him. The lawyer probably still would have bitched -- but the cop would have been on better grounds.

    I do like that the court has apparently given recognition that a cop making a dumb move doesn't automatically lose their qualified immunity. (Unlike that ruling from the Ninth Circus on Tasers...)
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  17. #17
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    There's clearly more to this story than the article provides.

    Assuming it is accurate as it is presented (which I doubt it is) this officer is completely out of line, and should be disciplined. And the attorney should get a hug from the mayor or something.

    I can understand drawing down on the guy.

    But once he hands you a valid CCW, which, apparently the attorney did, you need to cut the guy loose. Like Mac said, anything further is an unlawful detention. And in terms of officer safety, I'd prefer the guy keep the gun in his holster so he and I aren't handling a loaded firearm on the side of the road. That gun is going to have to pass hands at least twice. The likelihood of an AD isn't huge, but it's much higher if the gun is removed from the holster.

    In addition to that, in MN we can run a "QPC" on someone to find out if they have a permit to carry (Query Permit to Carry=QPC). I always assumed this was part of the national NCIC, but...apparently it's Minnesota specific? Can anyone shed some light on this? If it's part of NCIC (national) this officer could have had his dispatcher run a QPC on the guy, and let him, his gun, and his CCW card go.
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  18. #18
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    He may have been suspended or fired in some Texas departments. I'm not shocked because it was Massachusetts, though.

    I've always questioned the Supreme Court's ruling that someone just being present in a "high crime area" gives the police any extra reasonable suspicion to detain anyone - A lot of people in "high crime areas" simply live there, after all. Detaining for being present in a high-crime area is very close to racial profiling.

    Same for seeing a buldge that "may' be a gun. Unless the lawyer was doing something else suspicious, then I don't think that alone should be an excuse, either.

    Unless there was an actual reason to believe a crime actually occured (besides my appearing to exercise the RIGHT to bear arms), then I would have certainly complained, and probably would have written an editorial about it, just so my complaint wouldn't be ignored.

    I probably wouldn't have sued though unless there was some hassle in getting my gun back. Neither do I think it's worth someone's job - Just an appology would suffice, plus a promise to not do that to anyone else. Lacking that, I might have very well sued.

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  19. #19
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    Here's kind of a spin I can put on it. A CCW usually requires, per state law, that the gun remain concealed at all times unless you pull it out to use it. If the officer saw it, then he definitely at least had reasonable suspicion that an infraction of law occurring...maybe the guy is unlawfully carrying it, or maybe he's violating the statute that requires it to be hidden (thus preventing an alarmed response from officers or the public at large).

    That being said, I don't agree with gunpointing anyone, just because I see a weapon on their hip, unless I discover the weapon unexpectedly, while patting down someone who's already answered "No" to the question of "Do you have any weapons?" It's the totality of the circumstances, like so much else on this job. If I see the weapon and they start to make furtive movements, disobeying verbal direction, etc, then absolutely. But jumping out of my car and screwing my gun in someone's ear doesn't make our jobs any easier, and doesn't win us fans in the public. Yes, when I'm doing what's necessary to do my job safely, I don't give a shit about public perception. But you have to draw a line...we're employed by the public, and to a large extent are controlled by the politicians, and the judges that they elect. You can't go around treating everyone like an asshole just because you CAN by justifying it with "officer safety."

    By the way, does it seem weird to ANYONE else that Massachusetts cops can't confirm the validity of a CCW via NLETS or NCIC and their state databases? When I do a Query All or a QCW here through CCIC/NCIC, anyone with a CCW pops a record up that I can read, similar to what jmur said. There's probably so few of them in MA though, and people are so afraid of guns, that no one thought it would be a good idea to implement a system to confirm the CCW validity.
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  20. #20
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    Quote Originally Posted by jmur5074 View Post
    There's clearly more to this story than the article provides.

    Assuming it is accurate as it is presented (which I doubt it is) this officer is completely out of line, and should be disciplined. And the attorney should get a hug from the mayor or something.

    I can understand drawing down on the guy.

    But once he hands you a valid CCW, which, apparently the attorney did, you need to cut the guy loose. Like Mac said, anything further is an unlawful detention. And in terms of officer safety, I'd prefer the guy keep the gun in his holster so he and I aren't handling a loaded firearm on the side of the road. That gun is going to have to pass hands at least twice. The likelihood of an AD isn't huge, but it's much higher if the gun is removed from the holster.

    In addition to that, in MN we can run a "QPC" on someone to find out if they have a permit to carry (Query Permit to Carry=QPC). I always assumed this was part of the national NCIC, but...apparently it's Minnesota specific? Can anyone shed some light on this? If it's part of NCIC (national) this officer could have had his dispatcher run a QPC on the guy, and let him, his gun, and his CCW card go.
    Reps.

    We can run the same query. Apparently they can't in Taxachusetts.

    Given that, I'd have accepted the permit on it's face unless it looked altered, expired, or forged.
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