Court upholds police pointing gun at lawful carrier

Discussion in 'Concealed Carrying & Personal Protection' started by jeffxc, Jan 2, 2010.

  1. jeffxc

    jeffxc Member

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    I read this article this afternoon:
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    Is this the reaction concealed carry should bring from the police? Oleg Volk, A Human Right

    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.
    For more info: Read the full text of the First Circuit opinion by clicking here.
    http://www.ca1.uscourts.gov/pdf.opinions/09-1370P-01A.pdf
     
    Last edited: Jan 2, 2010
  2. spittinfire

    spittinfire New Member Supporter

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    I honestly can't believe that was upheld but then again I can.
     

  3. themyst

    themyst New Member

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    According to Police state Definition | Definition of Police state at Dictionary.com:

    "police state -
    n. A state in which the government exercises rigid and repressive controls over the social, economic, and political life of the people, especially by means of a secret police force."

    I don't understand why the public in general isn't outraged by hearing something like this. When it starts happening over a lawfully concealed weapon, it will happen with other things, too. :mad:

    ETA: I went back to the link and carefully read the entire document. UNBELIEVABLE. It is clear to me that these judges are not thinking reasonably. Using the lame logic of the judges, it would be perfectly reasonable to hassle the ordinary citizen at random just in case he is doing something illegal. But you know, while typing that last sentence, it seemed outrageous - but the more I think about it, it is already happening like that. Don't DUI checks operate that way? I've never hit one before, but I think they just pull you over for no reason, right? This just all makes me sick. It really does.
     
    Last edited: Jan 2, 2010
  4. dunerunner

    dunerunner New Member

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    Looks like there is some heavy work to do with respect to 2A!!
     
  5. General_lee

    General_lee New Member

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    I would be banned if I said the words I want to say about this outrage.
     
  6. c3shooter

    c3shooter Administrator Staff Member

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    Well, today the Grandurchin was bumming around with grandad. We were visiting a few places for the fun of it, quiet but cold Sunday afternoon here in Virginia. One of the places we visited was the tour of the Virginia State Capitol. When we entered, on the right was a Capitol Police Officer standing by the metal detector/ package Xray unit. The Grandurchin put her cell phone and pocket knife in the dish for x ray, walked through the detector. I handed the officer my concealed carry license. He checked it over, handed it back, said thank you sir, please walk through, and have a good day. The detector beeped loudly as I walked through due to the Model 36 in the IWB. But here in Virginia, citizens are not forbidden to carry in the Capitol. Kinda like it here. :)
     
  7. Glasshartt

    Glasshartt New Member

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    I don't understand why they hav no system to confirm the valdiity if the permit. In Texas, the info is available when a LEO does a driver's license check.
     
  8. General_lee

    General_lee New Member

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    So, here in Georgia, a person legally licensed to carry is considered a criminal?? WHAT THE FRENCH, TOAST!!?????
     
  9. Jess

    Jess New Member

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    that is no good at all.
     
  10. lukeisme

    lukeisme New Member

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    I guess yes the officer has a right to defend himself, and yes the attorney had the right to carry the weapon, but the attorney also had the right to defend himself. I guess no matter who is pointing a weapon in my face I consider that a threat to my life. Hum makes ya wonder if the attoney would have taken steps to defend himself against an out of control officer what would the outcome have been. Constitutional rights were clearly violated here. What would have happened if the attoney would have pointed his weapon at say someone who was going to mug him. Would he have been burned there for defending himself? An officer of the law is just that, they are not there to be dirty harry or take a personal stand based on personal beliefs. Geeze I thought they had all kinds of testing to weed out these less then stable people?? What is the point of law enforcement when it turns out to actually be personal will enforcement that is held just barely in an obvious grey area. Now I have no problem with the fine men and women that put theirs lifes on the line for you and me everyday!! I am very grateful to these wonderful souls. What disturbs me is that more and more all the time we are seeing where they are crossing the line and getting away with it. Rules and regulations for the common man are getting more and more unreasonable every day. Government like any other life or entity will always try and grow and try to control everything. It is the job of those of us the common man and those in law enforcement to help keep this pruned and functioning the way it was ment to. A healthy productive tree is a pruned tree.
     
  11. themyst

    themyst New Member

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    That's a really good point.

    It doesn't surprise me that there was a rogue officer running about, naturally that will happen as some of us just go nuts from time to time. What is upsetting me here is that the judges sided with the rogue officer. If you read the transcript, it seems so obvious that the officer was in the wrong. It's as if the judges were afraid to or just didn't want to usurp the officer's authority for some reason. What on earth is happening here? :confused: Why can't judges be held more accountable for their actions?
     
  12. gorknoids

    gorknoids New Member

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    I can understand asking for the license, since the firearm clearly wasn't "concealed". I can even understand verifying it. What I do NOT accept is doing the second-most dangerous thing you can do with a firearm; Aiming it at a person.
    The cop is a f*cking idiot and should be let go for....idiocy.
     
  13. robocop10mm

    robocop10mm Lifetime Supporting Member Lifetime Supporter

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    OK, here in Texas, you are required to keep a concealed handgun "concealed". If the officer saw it, it was not kept concealed. Did the officer have a right to disarm the attorney at gun point? Yes. Was that the best way to handle the situation? Probably not. Have you ever tried to confirm the validity of a Massachusetts CHL? When in a different, non-contiguous state? Confirming a Texas CHL is easy, when in Texas.

    Was this legal? I guess so. Was it smart? NO!
     
    Last edited: Jan 4, 2010
  14. Kage0113

    Kage0113 New Member

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    Well said robocop. I usually agree with the police in most situations, seeing as how I am aspiring to be an officer. But this situation was handled terribly. The attorney should have properly concealed his firearm, but also was not posing a threat. The officer shouldn't have flipped out the way he did, he could have caused more harm then good if the guy actually wanted to shoot him. Poorly handled situation.
     
  15. Louisville

    Louisville New Member

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    Got to disagree with you. Pointing a firearm at someone is using deadly force. If the attorney did not threaten the officer then the officer had no right to aim in on him.

    Now it is going to depend on what part of NE it happened. But all of the area allows open carry. Some parts are licenced others are not. So it does not matter if he was printing, or if his pistol was seen for a brief second.

    It is sh1t like this that makes me want to continue migrating farther south.
     
  16. Dzscubie

    Dzscubie New Member

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    Louisville,

    I will have to disagree with you on this statement. You observance that pointing a weapon at someone is using deadly force is an old military mind set. Using a weapon is deadly force. I will not wait until someone shoots at me to be proactive. I will not shoot someone for just seeing a weapon, BUT, I will go home to my family every night and won't give a possible BG the edge by having my firearm in the holster. As for aiming at him, bad guys don't carry signs or have criminal tattooed on their forehead so covering a possible armed criminal ... yeah, I would have covered him with my weapon also, and I would have re-holstered when the subjects weapon was secured.

    Now carrying concealed is different from open carry. Criminals carrying concealed even in open carry areas. Criminals carry concealed because they don't want possible victims to be aware of the gun until they strike.

    Cops don’t have a way to interdict a criminal except stopping questioning and interviewing people when they see something out of the ordinary, could this have been handled better... yes, could it have been handled worse... yes.
     
  17. hillbilly68

    hillbilly68 New Member

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    An ego and a badge are a bad mix. Somehow we have lost our way, haven't we?
     
  18. Louisville

    Louisville New Member

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    You might want to check your local laws then. Because in many states, NC included, simply pointing a firearm at a person is considered using lethal (civilian verbage for deadly) force.

    I would not wait till someone shoots at me to be proactive either. But I will not react until there is a clear and imminent danger to myself. Seeing someone that has a gun does not place me in imminent danger.

    No they do not but you are innocent until proven guilty. In this Cop's eyes he was guilty the second he saw the gun and you can see that by his actions. If he made no threat then there was no reason to initate the use of deadly force.

    I am very sorry to hear that. Cause if you behaved that way where I came up your family would be missing you very much. Where I come from folk dont care to have their lives threatned when they are obeying the law.


    Thats fine stop and question him. That is what a cop is supposed to do. But to initate the use of deadly force because he saw a gun is not only wrong, but should be illegal. Cops are supposed to be held to a higher standard than this. So are judges.
     
  19. Dzscubie

    Dzscubie New Member

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    Another stupid statement to me, but what the hell I've only been on the streets for 34 years what the hell do I know compared to your justification. We are held to a higher standard and civilians like you and your assinine beliefs have contributed to many a funeral I have attended. Walk a mile in my shoes here and then come back and we can talk.