Interesting court ruling on a case involving concealed carry ... [View All]

[spin]

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."

The officer eventually released Schubert but confiscated both his concealed carry license and his firearm. The court, of course, ruled that all of Stern's actions were appropriate to "ensure his own safety" and because he could not confirm the "facial validity" of the license.

http://www.examiner.com/x-5619-Atlanta-Gun-Rights-Examiner~y2009m12d31-Court-upholds-police-pointing-gun-at-lawful-carriers

SCHUBERT v. CITY OF SPRINGFIELD
Schubert is a prominent criminal defense attorney who has worked in Springfield, Massachusetts for approximately thirty years. On July 21, 2006, Officer Stern, seated in his patrol car near the Springfield courthouse, observed Schubert walking toward the courthouse. The location is considered a high-crime area. Schubert was dressed in a suit with an unbuttoned jacket and was carrying a briefcase. Stern noted that Schubert was also carrying a handgun in a holster. Despite the very hot weather that day, Schubert was wearing his suit jacket, apparently in order to conceal the handgun; however, he had the jacket unbuttoned, which allowed the officer to see the weapon. According to Stern, several passers-by also noticed Schubert's gun and alerted the officer to the firearm by waving and pointing. However, a subsequent investigation of the incident by the police department produced no witnesses or other proof of Stern's allegation regarding the passers-by.

On Schubert's account of the events, once Stern noticed Schubert's partially concealed weapon, the officer leaped from his cruiser in a "dynamic and explosive" manner, with his gun un-holstered. Stern then pointed his weapon at Schubert's face. The officer ordered Schubert to stop and put his hands in the air. Schubert complied. When asked if he had a weapon, Schubert responded that he did and that he had a license to carry. While still pointing his gun at Schubert, Stern reached inside Schubert's jacket and removed the weapon from its holster. Stern then walked backward toward his cruiser, set his gun down, and removed the clip and chambered round from Schubert's gun. Schubert replied in the negative when Stern asked if he was carrying any other weapons. Stern then frisked Schubert and asked him for his license to carry. Schubert produced his "Class A" gun license, which also indicated that Schubert was an attorney. He also handed over his driver's license.

***snip***

Stern continued to attempt to verify the validity of Schubert's weapons license, but because Massachusetts lacked a centralized database containing such information, the officer soon realized that the inquiry could take a significant amount of time. Thus, about five minutes after moving Schubert into the cruiser, Stern told Schubert that he was free to go, but that Schubert would have to retrieve his gun and gun license from the Springfield police department. The entire stop took about ten minutes.

Schubert also contends that the manner and length of the stop exceeded the circumstances which justified the stop in the first place. Schubert reasons that once he produced his license to carry, the officer should have released him and ended the encounter. Schubert also takes issue with the manner in which Stern suddenly emerged from the police cruiser with his weapon drawn. Further, Schubert questions Stern's subsequent five-minute detention of Schubert in the rear of the cruiser, during which time he partially Mirandized Schubert and mentioned the possibility of charging him with a crime. Finally, Schubert argues that Stern unreasonably confiscated his weapon, requiring Schubert to retrieve it from the police department.

However, as the district court correctly concluded, once Stern had reasonable suspicion justifying a stop, he was permitted to take actions to ensure his own safety. See Schubert v. City of Springfield, 602 F.Supp.2d 254, 257 (D. Mass. 2009). The officer took several reasonable steps given that Schubert was an unknown armed man walking in that particular location: he emerged quickly from his vehicle, drew his gun, executed a pat-frisk, requested identification and a gun license, attempted to confirm the validity of the licenses, and escorted Schubert into the cruiser after Schubert moved from the position in which the officer had instructed him to remain. All these actions were related in scope to the circumstances that justified the initial stop, namely, Schubert's open possession of a weapon in front of a courthouse. Stern's concern for his own safety and for the safety of others was the context for this stop. It is "clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm." Stanley, 915 F.2d at 57 (quoting Terry, 392 U.S. at 24).< 5 >

Further, we do not agree with Schubert's contention that the gun license was valid on its face and therefore the several minute delay during which Stern attempted to confirm the validity of the license was unreasonable. Just as an officer is justified in attempting to confirm the validity of a driver's license, such a routine check is also valid and prudent regarding a gun license. As it happens, Massachusetts did not have a simple way for police officers to conduct such a check, so Stern's effort to do so took several minutes. But the entire stop took only ten minutes and when Stern realized that he would not be able to confirm the gun license within a reasonable time, he sensibly opted to terminate the stop and release Schubert, but retain the weapon.

We thus conclude that the district court correctly held that Stern acted within the permissible scope of his initial Terry stop of Schubert. Therefore, having already determined that the initial stop complied with Terry, we affirm the district court's grant of summary judgment on Schubert's Fourth Amendment claim.
http://www.leagle.com/unsecure/page.htm?shortname=infco20091223098

It's always a good idea for anyone who carries a concealed weapon to make damn sure that it is concealed.