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View Full Version : Appeals court say terry stop of CCW permit holder Okay


SteveH
01-02-2010, 8:44 PM
Cop spotted the "concealed" gun and gunpointed the permit holder. He sued. Court said it was reasonable for the cop to detain the man when he saw the gun and gun pointing him was a reasonable step to take for the cops protection

http://www.ca1.uscourts.gov/pdf.opinions/09-1370P-01A.pdf

anthonyca
01-02-2010, 9:06 PM
Only Stern can carry on his beat. Then the old it's ok to point a gun in someone's face as long officer saftey is the reason.

SteveH
01-02-2010, 9:11 PM
Only Stern can carry on his beat.

That statement was even dumber than the "I was wearing a suit and carrying a briefcase, he should have known I was a good guy" arguement. Sounds like a collision of two idiots to me.

BigDogatPlay
01-02-2010, 9:11 PM
Schubert is a prominent criminal defense attorney who has
worked in Springfield, Massachusetts for approximately thirty
years.

And the officer didn't recognize him..... was he tunnel visioned on the firearm?

anthonyca
01-02-2010, 9:16 PM
That statement was even dumber than the "I was wearing a suit and carrying a briefcase, he should have known I was a good guy" arguement. Sounds like a collision of two idiots to me.

I agree. Sounds like the 1% of cops and lawyers that give all a bad name bumped into each other.

hoffmang
01-02-2010, 9:50 PM
The court specifically refused to even respond to the 2A claim - probably in violation of FRCP.

-Gene

snobord99
01-02-2010, 9:52 PM
And the officer didn't recognize him..... was he tunnel visioned on the firearm?

1. Just because someone has been a defense attorney for 30+ years doesn't mean that every cop should recognize him.

2. Even if the cop recognized him, it doesn't mean he should know that he poses no threat. People shoot up their places of employment all the time. I'm sure the people there recognized the shooter.

snobord99
01-02-2010, 9:56 PM
The court specifically refused to even respond to the 2A claim - probably in violation of FRCP.

-Gene

If the opinion is accurate, I don't think so. It doesn't seem like he properly raised the claim. If you don't properly raise the claim, you waive it. But I'm not sure what the standard for a properly raised claim is.

artherd
01-02-2010, 10:17 PM
He should have focused on the 4A and 2A claims. The taking of the legally owned and carried gun is the only real constitutional violation here. The courts erred on the 4th issue properly, because of the 2A issue they refused to hear.

(Ideally he also should not have voluntarily left the scene w.o his gun.)

Hunt
01-02-2010, 10:27 PM
Only Stern can carry on his beat. Then the old it's ok to point a gun in someone's face as long officer saftey is the reason.

the State knows best don't forget it

hoffmang
01-02-2010, 10:58 PM
If the opinion is accurate, I don't think so. It doesn't seem like he properly raised the claim. If you don't properly raise the claim, you waive it. But I'm not sure what the standard for a properly raised claim is.

Raising something in oral argument in the District Court raises the claim. Now, that said:

1. I'm glad they ducked it because he didn't brief it.
2. He shouldn't have raised it if he wasn't going to brief it. That's crappy lawyering and proof that even a lawyer pro-se has a fool for a client...

-Gene

artherd
01-02-2010, 11:17 PM
If the opinion is accurate, I don't think so. It doesn't seem like he properly raised the claim. If you don't properly raise the claim, you waive it. But I'm not sure what the standard for a properly raised claim is.

It's on (or just over into touchdown) the line. If he raised it in Orals it's raised. Albeit poorly and without detail.

So poorly that it could have resulted in a ruling against 2A. The appellate didn't want to touch the 10 foot pole they wouldn't touch that issue with...

snobord99
01-03-2010, 1:33 AM
Raising something in oral argument in the District Court raises the claim.

Generally, I agree. However, I'm not so sure in this case. According to the court, there was no reference to any case law during the motion. I think this is at least a good argument that it wasn't properly raised. I'm not sure that any mention is sufficient to preserve the argument for appeal. For example, if the only thing they say at the motion regarding the Second Amendment was, literally, "Second Amendment!" Then I would think that there was no argument raised. But, again, I'm not familiar with the exact standard as to what constitutes being raised. I just have a hard time imaging that "Second Amendment!" or "Miranda!" by themselves is enough to raise those issues.

aileron
01-03-2010, 10:08 AM
.... People shoot up their places of employment all the time.

No the really don't. But I get your point.

snobord99
01-03-2010, 11:33 AM
No the really don't. But I get your point.

I didn't mean that literally ;)

navyinrwanda
01-03-2010, 12:40 PM
This is an unusually brief and harshly worded opinion. It seems likely this court had some history with this attorney they barely followed (if at all) their own standard for reviewing summary judgments.

The alternative is that the 1st Circuit is extremely hostile to any public carrying of weapons. Giving the emerging circuit splits, it now seems probable that, post-McDonald, the Supreme Court will take a case on when and how the police can stop someone suspected of "carrying a concealed weapon without a license."

IrishPirate
01-03-2010, 12:47 PM
I think this could have ended MUCH worse for "us"

artherd
01-03-2010, 1:17 PM
^ +1

artherd
01-03-2010, 1:22 PM
...I'm not familiar with the exact standard as to what constitutes being raised. I just have a hard time imaging that "Second Amendment!" or "Miranda!" by themselves is enough to raise those issues.

Miranda (http://en.wikipedia.org/wiki/Miranda_v._Arizona) is the case law :) so yes.

I don't know that simply saying 'Second Amendment' would be sufficient, but "I object to Summary Judgement on Second Amendment Grounds, via Heller." sure is.

It's not a GOOD argument without citing the part of Heller that he thinks applies, however it is sufficient to compel the court to, you know, read Heller and see...

(I am glad this time - they didn't. Could have resulted in some bad law for us.)

Gray Peterson
01-03-2010, 1:37 PM
As horrific as this ruling is, it could have been much worse if they brought in 2A or 14A.

fd15k
01-03-2010, 1:46 PM
Cops are way too jumpy. Unless they've recognized a possible suspect, why would they have a such encounter in the first place ? Possession of a gun on one's body in US is not a crime, and unless there is additional information to suggest one is breaking the law, cops should just suck it up!

haodoken
01-03-2010, 2:22 PM
Cops are way too jumpy. Unless they've recognized a possible suspect, why would they have a such encounter in the first place ? Possession of a gun on one's body in US is not a crime, and unless there is additional information to suggest one is breaking the law, cops should just suck it up!

Would you go up to someone who you knew had a loaded firearm and ask him if he had a gun in his possession without knowing who he was or knowing what his intentions were? Anyone can wear a nice suit and not look the part of a criminal or someone who is about to go shoot a place up.

If you want to take a chance and roll the dice everytime you come up to someone with a gun in his possession, remember luck eventually runs out.

The cop is just making sure he gets to go home that evening. You may not interested in that, but I'm sure the cop wants going home at the end of the shift. You may call it "Jumpy", but I see it as life insurance.

My $0.02.

fd15k
01-03-2010, 2:24 PM
And how does it work with loaded checks right now ? I say get used to it, especially once we get our 2A in California...

Would you go up to someone who you knew had a loaded firearm and ask him if he had a gun in his possession without knowing who he was or knowing what his intentions were? Anyone can wear a nice suit and not look the part of a criminal or someone who is about to go shoot a place up.

If you want to take a chance and roll the dice everytime you come up to someone with a gun in his possession, remember luck eventually runs out.

The cop is just making sure he gets to go home that evening. You may not interested in that, but I'm sure the cop wants going home at the end of the shift. You may call it "Jumpy", but I see it as life insurance.

My $0.02.

nobody_special
01-03-2010, 2:51 PM
I want to go home safely as well, which means I don't want a police officer pointing a gun in my face when I'm simply exercising a constitutional right.

SteveH
01-03-2010, 2:58 PM
And how does it work with loaded checks right now ? I say get used to it, especially once we get our 2A in California...

I think the cops have kept it pretty low profile with the E checks so far. I havent heard of anyone being proned out at gunpoint for a E check yet. Though this case may idicate it would be lawful for the cops to do so.

snobord99
01-03-2010, 3:04 PM
Miranda (http://en.wikipedia.org/wiki/Miranda_v._Arizona) is the case law :) so yes.

Hahahah. Ok, good point. I'll amend this to "THE FIF!" then ;).

I don't know that simply saying 'Second Amendment' would be sufficient, but "I object to Summary Judgement on Second Amendment Grounds, via Heller." sure is.

It's not a GOOD argument without citing the part of Heller that he thinks applies, however it is sufficient to compel the court to, you know, read Heller and see...

(I am glad this time - they didn't. Could have resulted in some bad law for us.)

Yea. My impression from the opinion is that they didn't even do that.

hoffmang
01-03-2010, 3:13 PM
I think the cops have kept it pretty low profile with the E checks so far. I havent heard of anyone being proned out at gunpoint for a E check yet. Though this case may idicate it would be lawful for the cops to do so.

It has happened though not very recently.

-Gene

fd15k
01-03-2010, 4:09 PM
I was also told by LAPD and DA dudes that it is a not a good idea to OC, because one will definitely end up with his face in the asphalt, and they reason for that is "oh, I don't know who you are, and what your intentions are".

Well, how did it work in all other states for all these years ? And there are a lot more states where people have their 2A rights atm. So I guess we should train them not to draw on every person who carries open or concealed, like people train their dogs not to bark on people passing on the street ;)

GrizzlyGuy
01-03-2010, 4:25 PM
I'm surprised that the court didn't explicitly discuss applying the 3-part test that SCOTUS said was appropriate for assessing if excessive force was used (in Graham v. Connor (http://supreme.justia.com/us/490/386/case.html)). This article (http://policelink.monster.com/training/articles/11456-reasonable-force) from PoliceLink explains it pretty well:

In the Graham case, the Court instructed lower courts to always ask three questions to measure the lawfulness of a particular use of force. First, what was the severity of the crime that the officer believed the suspect to have committed or be committing? Second, did the suspect present an immediate threat to the safety of officers or the public? Third, was the suspect actively resisting arrest or attempting to escape?


That third question would seem problematic for this court to decide that the officer didn't use excessive force. I can understand why he would have his gun drawn, and having it drawn would likely pass muster based on the first two questions. But to point it at the guy's head for as long as he did when the guy wasn't running and was complying fully with his orders? Dunno, that seemed a bit over the top.

cadurand
01-03-2010, 4:47 PM
So it's OK to seize the pistol because the cop was unable to verify the license to carry.

Seems like a bad decision to me. If a person goes jumpsd the hurdles of getting officially license to carry, then whatever document he is given by the state should be enough to satisfy the police. If they can't verify the document, that's the state's problem.

I know, I'm being naive here.

WeRmany
01-03-2010, 4:49 PM
As a guy that has had a CA CCW for a few years, I'm having a hard time understanding why this is such a big deal.

The permit is for a concealed weapon. As soon as it's not concealed, you have a problem. I'd expect it to be a huge problem if I was walking into a courthouse and a cop saw it. Nobody carries in a courthouse except the bailiffs. A lot of really bad things happen in and around courthouses.

The cops first problem is going home that night. It's our problem too unless you like paying survivors benefits to his family and the salary of the guy that replaces him.

His second problem is everybody lies to him all day, why should he believe you? In God we trust, everyone else show me your hands. The fastest way out of "Sir, for your protection and mine I'm going to place you in handcuffs and seat you in the back of the car" is to simply comply and act embarased it's come to that.

Getting baited into a hateful exchange with a defense attorney isn't too hard to imagine, especially if the attorney is doing the naration after the fact.

The attorney screwed up when his weapon was spotted, I hope he gets nailed for court costs for the frivolous suit. This isn't a second ammendment issue, it's just another lawyer with some time on his hands.

fd15k
01-03-2010, 5:00 PM
So every time you bend to fix your laces, you're okay with having a cop holding
you at gunpoint ?


The permit is for a concealed weapon. As soon as it's not concealed, you have a problem. I'd expect it to be a huge problem if I was walking into a courthouse and a cop saw it. Nobody carries in a courthouse except the bailiffs. A lot of really bad things happen in and around courthouses.

hoffmang
01-03-2010, 5:51 PM
The attorney screwed up when his weapon was spotted, I hope he gets nailed for court costs for the frivolous suit. This isn't a second ammendment issue, it's just another lawyer with some time on his hands.

I completely disagree. Let's replace "handgun" with Al Qeada Bomb Making Manual. Does the officer still have the right to put him at gunpoint? Let's leave the Manual concealed under his coat.

Reasonable men may be able to differ about putting him at gunpoint - since carrying a firearm clearly isn't an illegal act in his jurisdiction. No reasonable person can agree with the unreasonable seizure of his firearm after the LEO had his carry license in his hands. Taking someone's gun away who is licensed to carry is definitely a violation of the core 2A right to bear.

-Gene

bigcalidave
01-03-2010, 5:59 PM
In no way in this situation should the officer have taken the lawyers gun. That was absurd. Once found to be within the law, everything should have been returned to the lawyer and he should have been on his way. Can't really say anything about the overreaction of the officer in holding the guy at gunpoint, maybe he was having a bad day, it was uncalled for, etc... But taking the gun for a few days? That was obscene.

snobord99
01-03-2010, 6:12 PM
I'm surprised that the court didn't explicitly discuss applying the 3-part test that SCOTUS said was appropriate for assessing if excessive force was used (in Graham v. Connor (http://supreme.justia.com/us/490/386/case.html)). This article (http://policelink.monster.com/training/articles/11456-reasonable-force) from PoliceLink explains it pretty well:



That third question would seem problematic for this court to decide that the officer didn't use excessive force. I can understand why he would have his gun drawn, and having it drawn would likely pass muster based on the first two questions. But to point it at the guy's head for as long as he did when the guy wasn't running and was complying fully with his orders? Dunno, that seemed a bit over the top.

It's most likely because this wasn't "force" in the legal sense, let alone "excessive force."

artherd
01-03-2010, 7:55 PM
I completely disagree. Let's replace "handgun" with Al Qeada Bomb Making Manual. Does the officer still have the right to put him at gunpoint? Let's leave the Manual concealed under his coat.

Well, the cop can point a book at him :) (and probably can stop him on a hot day rushing towards a courthouse in a jacket. He can probably stop him without the book or gun actually...)

Reasonable men may be able to differ about putting him at gunpoint - since carrying a firearm clearly isn't an illegal act in his jurisdiction.

Totality of circumstances. There's a general prohibition against carrying firearms, that alone probably allows detention to determine wether a crime is happening. Under current law, Reasonable Suspicion is satisfied here if generally walking about with a gun in your shirt is illegal.

No reasonable person can agree with the unreasonable seizure of his firearm after the LEO had his carry license in his hands. Taking someone's gun away who is licensed to carry is definitely a violation of the core 2A right to bear.
-Gene

Exactly, and that's what this case should have revolved around. Stop was justified, unlawful taking most certainly was not!

MP301
01-04-2010, 12:44 AM
I think the cops have kept it pretty low profile with the E checks so far. I havent heard of anyone being proned out at gunpoint for a E check yet. Though this case may idicate it would be lawful for the cops to do so.

This is because they are starting to get desensitizes to the "people carrying guns" sorta thing...that, and the legitimate fear of getting a legal foot stuck in thier backside. I would like to think the former, but its probably the latter.

And yes Virginia, many LEO's do over react to the presence of firearms and that is mainly because of both the cuture here in CA and similar places AND what they were taught in the Academy and in training.

When I went to the Academy in the early 90's, I had to chuckle at the "wet down your leg, point your gun and prone out people with evil guns" mentality they were teaching there. I found it amuzing instead of going along with it because I had previously spent a good deal of time in Arizona where they dont teach that attitude to thier LEO's. Same with my experiences in Navada.

Barring some additional circumstances or information, the mere presence of a gun should never be enough reason for Police to react in this fashion. Officer safety is not enough reason to put a member of the public at risk by pointing your loaded firearm at them without some other factor to consider (i.e., person acting suspiciously, matches the description of a suspect your looking for, being someplace they shouldnt be, etc.). If an officer thinks that this is too dangerous, then he needs to look into other employment options. No one likes a gun pointed at them, Police and citizen alike.

Now, on the flip side, if your mr. average gun toting citizen and your not acting right, doing something stupid, someplace you shouldnt be, become combative/aggressive at the sight of the Police, etc, then STFU because YOU are responsibloe for your trip to the pavement.

Each and every person with a gun that I sent to the pavement had it coming by thier actions and the circumstances. Those that had a gun but were not doing anything wrong did not have to do the cement shuffle. Its not rocket science. Really.

Can this still go horribly bad if you dont prone out everyone you see with a gun? Sure it can, but it can go just as bad the other way as well. Most jobs come with risks, especially the protection/enforcement type ones. But in taking the job, it is understood that you are taking a calculated risk and that S*** happens. The fact that S*** happens should not entitle LE to act unreasonably. And just as importantly, the fact that mr citizen has rights, doesnt mean he does not have to go along with a REASONABLE program to assist in safety for an officer.

Anyone disagree?

davescz
01-04-2010, 10:16 AM
What is meant by "terry stop"?

fd15k
01-04-2010, 10:21 AM
No, you've put it very nicely, and that's how it should be.


Anyone disagree?

davescz
01-04-2010, 10:40 AM
This is because they are starting to get desensitizes to the "people carrying guns" sorta thing...that, and the legitimate fear of getting a legal foot stuck in thier backside. I would like to think the former, but its probably the latter.

And yes Virginia, many LEO's do over react to the presence of firearms and that is mainly because of both the cuture here in CA and similar places AND what they were taught in the Academy and in training.

When I went to the Academy in the early 90's, I had to chuckle at the "wet down your leg, point your gun and prone out people with evil guns" mentality they were teaching there. I found it amuzing instead of going along with it because I had previously spent a good deal of time in Arizona where they dont teach that attitude to thier LEO's. Same with my experiences in Navada.

Barring some additional circumstances or information, the mere presence of a gun should never be enough reason for Police to react in this fashion. Officer safety is not enough reason to put a member of the public at risk by pointing your loaded firearm at them without some other factor to consider (i.e., person acting suspiciously, matches the description of a suspect your looking for, being someplace they shouldnt be, etc.). If an officer thinks that this is too dangerous, then he needs to look into other employment options. No one likes a gun pointed at them, Police and citizen alike.

Now, on the flip side, if your mr. average gun toting citizen and your not acting right, doing something stupid, someplace you shouldnt be, become combative/aggressive at the sight of the Police, etc, then STFU because YOU are responsibloe for your trip to the pavement.

Each and every person with a gun that I sent to the pavement had it coming by thier actions and the circumstances. Those that had a gun but were not doing anything wrong did not have to do the cement shuffle. Its not rocket science. Really.

Can this still go horribly bad if you dont prone out everyone you see with a gun? Sure it can, but it can go just as bad the other way as well. Most jobs come with risks, especially the protection/enforcement type ones. But in taking the job, it is understood that you are taking a calculated risk and that S*** happens. The fact that S*** happens should not entitle LE to act unreasonably. And just as importantly, the fact that mr citizen has rights, doesnt mean he does not have to go along with a REASONABLE program to assist in safety for an officer.

Anyone disagree?

let them fight crime, but have them stop violating Civil Rights. We have too many cops that are too fast to pull there gun and shoot. the BART train cop is a perfect example of that, the man that he murdered was unarmed. the excuse by the cop was he thought his gun was a taser. the man is dead. opps!

my own local police dept has a record of engaging in illegal activity in writing tickets, even after the city attorney told them it was illegal, they kept writing the tickets.

with the training as you have discribed that they get, it is no wonder they are are so bad. they should be tought the Constitution and Bill of Rights


this is not to say bad things about all cops, but with the large number of liberal police chiefs in the liberal cities, you can understand why the police have misplaced priorities. I am sure the situation is much better in more conservative areas of the state.

Can i respect my local sheriff, the one that refuses to grant a conceled carry permit to otherwise good citizens? The answer is NO, NO respect to them, it tarnishes the reputation of the entire police force. When they go after hate crimes I cringe, another civil rights violation.

GrizzlyGuy
01-04-2010, 10:44 AM
What is meant by "terry stop"?

Summary from Wikipedia (http://en.wikipedia.org/wiki/Terry_v._Ohio)

The Case (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=392&invol=1)

Google it and you'll find much more info.

CSDGuy
01-04-2010, 11:02 AM
While I don't necessarily agree that carrying a handgun (concealed or not) should be looked at as an illegal act, I can see a Terry Stop being basically reasonable IF there's something (other than the gun) that would make me contact/detain that individual anyway. It wouldn't (at first) mean that I'd be starting the whole encounter by drawing my own weapon and proning out the person...

Pretty much this ->
Barring some additional circumstances or information, the mere presence of a gun should never be enough reason for Police to react in this fashion. Officer safety is not enough reason to put a member of the public at risk by pointing your loaded firearm at them without some other factor to consider (i.e., person acting suspiciously, matches the description of a suspect your looking for, being someplace they shouldnt be, etc.). If an officer thinks that this is too dangerous, then he needs to look into other employment options. No one likes a gun pointed at them, Police and citizen alike.

Now, on the flip side, if your mr. average gun toting citizen and your not acting right, doing something stupid, someplace you shouldnt be, become combative/aggressive at the sight of the Police, etc, then STFU because YOU are responsibloe for your trip to the pavement.