Court upholds police pointing gun at lawful carrier

Posted: January 5th, 2010 by Militant Libertarian

by Ed Stone, Atlanta Gun Rights Examiner

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.


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