Court upholds police pointing gun at lawful carrier

[ChunkyMonkey]

Something to be aware of for those with concealed carry permits.

Court upholds police pointing gun at lawful carrier
December 31, 6:49
Atlanta Gun Rights Examiner

Ed Stone

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.

http://www.examiner.com/x-5619-Atlan...awful-carriers

[KFinn]

From what I gathered, I feel like the ruling was a crock of shit. its a sad day.

[Batteriesnare]

+1. That is BS.

[SA Friday]

This is bad, the seizure part. I doubt you can ever win the rest of this suit.

The cop does have a way to confirm, but it requires his dispatcher to call the individuals home state and run a check that takes all of 30 seconds. The problem is confirming the status of the calling dispatcher to validate release of the info.

Some states have the ability to check other state's databases, but it's tough and real hit and miss. CA has some of that ability. CO's sucks for this IMO. The only other option to stop the seizure is to get the CCW's into NCIC for national review. Every LE agency has access to that regardless.

[Ranger353]

Maybe the ACLU will pick it up and appeal to the US Supreme Court.

But, maybe not.

[KFinn]

well yes, I do agree that the officer does have the right to draw his weapon and check out the individual. DId he over react a little much with his theatrics? possibly. at least with cuffing him and putting him in the back seat. During a traffic stop I have been disarmed and the gun was emptied (mag and chamber) and placed in my back seat behind me when I was talking with the officer. Did I mind? No. Can I appreciate the officers perspective and actions in that case? By all means.

But in no way can I see him having the right to take the weapon AND permit and sending him on his way. WTF! The officer should have some respect and pride in his job and he should do it well and to the fullest. Check out the validity of the permit if you are that concerned about it being fraudulent and give the citizen back his crap!

[theGinsue]

Further proof that our Constitutional Rights are being trampled day after day with no recourse for "We the People".

I was particularly alarmed to read the comment "ruling that Officer Stern's behavior is the proper way to treat people who lawfully carry concealed pistols." Then tell me, just what is the point of having a CCW permit in the first place.

I firmly believe that most LEO's are only looking to do the right thing but it's those that choose to violate our rights and play Wyatt Earp that scare the hell out of me. When the court system, whose duty it is to dispense legal and Constitutional JUSTICE, chose to ignore our rights and protections as citizens, we can no longer expect that we have any rights or protections.

While I understand that this occured in Massachusetts where the common citizen has been reduced to a peasant in regards to rights (particularly as they apply to the Second Amendment), thanks to this court ruling, we should all expect to hear of more instances of this sort of behavior from around the country. I find it ironic that, in the birthplace of American Liberty, where the use of firearms was central to establishing those liberties, so many of the liberties we declared fundamental and inherant to human life are now just buzzwords of yesteryear.

What do you suppose will happen when (not IF) a legally carrying, law-abiding, citizen gets killed by an over-zealous LEO for doing nothing worse than exercising their right to bear arms? I expect that the officer will be cleared of any wrong-doing and the innocent victim will be buried as a criminal in th eyes of the government. I believe that this is the point where we will all be able to clearly declare that LIBERTY IS DEAD IN AMERICA.

Just my $.02

.

[KFinn]

+1!

I just find myself disgusted with some of the direction the Good Ole US of A is taking.

Why is it we have to fight so hard to keep one amendment right over another? We aren't cutting out the tongues of those that want their first amendment right. So why is it that we have to justify our second amendment right?

[Troublco]

This is another way for them to cut back on the average citizen's ability to defend oneself. After all, the only way to effectively rule the unwashed masses is after they're disarmed. They are pursuing this in the "Death of a thousand cuts" manner. A cut here, a slice there. If military personnel are not trusted with weapons outside a combat zone, why would they trust the peasantry with weapons?

Good thing I'm not cynical.....

[Bailey Guns]

The funny (ironic) thing is, if Schubert had been some dirtbag carrying concealed illegally, he would have been arrested and taken to jail. He would have posted bond, probably plea bargained for some slap on the wrist punishment and been free to illegally carry concealed again.

This guy, a law-abiding citizen, basically gets screwed by the gov't and can do nothing about it. He's probably spent a small fortune in legal fees pursuing justice that is apparently unobtainable.

I don't have much positive to say about Officer Stern or our system of "justice" in this instance.