Green Room

Disgrace: Circuit Court rules MA concealed carry permits are worthless

posted at 10:57 am on January 6, 2010 by

I’ve lamented the struggle for people who openly carry firearms, particularly in Wisconsin where that’s our only option to carry. However, Massachusetts, like 47 other states, observes the right of their citizens to carry a concealed weapon – with a permit, of course. However, to cops on a power trip, the law means nothing. Apparently, the same goes for the courts:

The First Circuit Court of Appeals in New England just handed down another horrible Second Amendment ruling, very similar to the ruling that recently came out of Georgia. In the case in question, the court ruled that a police officer acted appropriately when he not only detained a man for lawfully carrying a concealed firearm but confiscated his gun. From the Atlanta Gun Rights Examiner:

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 leaped 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.

Let’s take a look at the case. In order for Stern’s actions to be at all justifiable, there has to be reasonable suspicion, articulable by Stern. In other words, he has to be able to say exactly what Schubert was doing that made him suspicious enough to jump out of his patrol car and point his weapon at Schubert’s face and disarm him.

First, Stern claims that he noticed the gun under Schubert’s jacket. Not good enough. Around 200,000-250,000 concealed carry permits are issued in Massachusetts every year. While I have not been able to find an exact count, the fact that the permits last for four years means there are around a million residents of Massachusetts legally carrying a concealed weapon at all times. In a state with seven million people, that means it’s not uncommon for a person to be armed. Stern claims that several other people also saw the weapon and alerted Stern to it. Oh, wait…

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.

Hm. When I was stopped for open carrying, there were two people who reported me to the manager, and the Madison police got both of their names, as well as the name of the manager of the store where I was carrying. Apparently this Dirty Harry couldn’t even stop one witness. Tells you a lot, doesn’t it?

Apparently, the “high crime area” was right in front of a damned courthouse. Schubert was wearing a suit and carrying a briefcase. Schubert brought this up. The court’s response?

We are not persuaded. A Terry stop is intended for just such a situation, where the officer has a reasonable concern about potential criminal activity based on his “on-the-spot observations,” and where immediate action is required to ensure that any criminal activity is stopped or prevented.

Well, too bad we’ve been unable to determine that he had any reasonable suspicion. All we’ve got so far is an older man, in a suit, with a briefcase, with a concealed firearm under his coat. That was enough for the officer to immediately point his weapon at the man’s face and disarm him. Did he ask to see a permit? Why, yes he did…and it didn’t do Schubert a damn bit of good to have it:

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.

Then what the hell is the point of the concealed carry permit??? All this proves is that any law-abiding citizen confronted by a police officer can have their weapon unlawfully confiscated along with their permit if the officer decides that “he’s the only person allowed to carry a weapon on his beat”. The permit is effectively worthless. Exactly what did we do about permits and licenses of various types before we expected to have a computer database at our fingertips?

So a cop on a power trip stops a man in a “high crime area”, makes a scene out of the fact that he is legally carrying a weapon, disarms him, and leaves him defenseless in that same “high crime area”. Who exactly did Stern “protect”? This is utterly appalling. The real kicker?

On July 26, 2006, Schubert filed a citizen’s complaint against Stern for his conduct on July 21. As a result of the report, the Springfield Police Commissioner recommended that Stern be retrained on Massachusetts firearms law but found no specific wrongdoing on Officer Stern’s part and did not recommend disciplinary action.

RE-trained? This is an admission that Stern had already been trained on firearms law, and ignored it. That no disciplinary action was taken is disgusting. That no wrongdoing was found is horrific. Ultimately, the fact that the courts upheld this unlawful stop, unlawful search, and unlawful confiscation, is an affront to both the First Circuit Court and the Massachusetts District Court. They view the Constitution as toilet paper.

Keep taking it higher, Mr. Schubert. Maybe we’ll see what the folks who struck down the DC gun ban think of your case.

UPDATE: Thanks to commenter RadClown for correcting me on the number of CCW permit holders in Massachusetts. I misinterpreted what the article stated. There are closer to 250,000 total holders. However, it still means the carrying of a concealed weapon is not uncommon.

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Mainstream firearms doctrine regarding safeties on weapons like the 1911 says the safety isn’t disengaged until the weapon is being pointed in at the target and the decision to shoot has been made.

G M on January 7, 2010 at 12:08 PM

Funny. In my experience, mainstream firearms doctrine dictates that keeping your finger off the trigger until you’re on target is your true safety. In the heat of the moment, particularly with your adrenaline pumping like crazy, you can forget to disengage the safety. Trigger discipline is what averts “accidents”, which are not truly accidents at all. Having been in police stations where there are holes in the ceiling as a result of lack of trigger discipline is a testament to the lesser role safeties play. According to many cops I’ve talked to, a great deal of police officers only complete the bare minimum of range practice with their firearm.

Hence why I’m very, very glad that I’ve never had a weapon pulled on me by an officer. As a cop, are you required to produce proof of your firearms proficiency to the person you’re pointing your weapon at? Then how does that person know you’re not going to have an “accident”? You have been arguing from a perspective of “the cop is the only one in danger”, and that is where your position falls flat.

MadisonConservative on January 7, 2010 at 12:17 PM

Finger off the trigger is the true safety, yes. However, as you correctly point out, there are big variances in the skill, training and ability of the law enforcement officers responding to calls. There are former mil spec ops SWAT jocks that possess the 99th percentile of skill in handling high risk calls and there are those on the other side of the spectrum who are filled with adrenylin and have undisciplined trigger fingers. I personally expect that with my luck, it’s the second kind that will be covering me in some sort of off duty/plainclothes incident. So, it’s not a matter of being a “sheep”, it’s a matter of trying not to get shot in a “friendly fire” incident that is way too common.

G M on January 7, 2010 at 12:35 PM

Aside from basic academy training and departmental inservice training, i’ve done the following:

Calibre Press Street Survival Seminar 1994/1997
Calibre Press SCAT (Defensive Tactics) Seminar 1994
Modern Warrior Confrontational Handcuffing Instructor
Course 1997
Modern Warrior Tactical Edged Weapon Defense
Instructor Course 1995
Modern Warrior Firearm Retention and Gun Disarming
Instructor Course 1995
Modern Warrior Firearm Alternative Survival Tactics
Instructor Course 1997
Yavapai Firearms Academy Tactical Shotgun Course 1995
Yavapai Firearms Academy Tactical Handgun Course 1997
NRA Security/Law Enforcement Firearms Instructor
Development School 1992
Front Sight Firearm Instructor Development School 2002
Front Sight One Day Submachine Gun School 2002
Nevada Pistol Academy Concealed Carry School 2002
Front Sight 4 Day Defensive Handgun School 2003
Front Sight 1 Day Concealed Carry School 2003
Front Sight 4 Day M-16 Select Fire Weapon School 2004
Front Sight 4 Day Defensive Handgun School 2004
Front Sight 2 Day Handgun Skill Builder 2004
Front Sight 2 Day Edged Weapons School 2004
Front Sight 2 Day Empty Hand Defense 2004
Front Sight 2 Night Defensive Handgun School 2004
Front Sight 2 Day Advanced Tactical Handgun 2004
Front Sight 2 Day Tactical Shotgun School 2004
Front Sight 2 Day Practical Rifle School 2004
Front Sight 4 Day Submachinegun School 2005
Front Sight 4 Day Tactical Shotgun School 2005
AAPO Flying While Armed Course 2006
Counterterrorism: Critical Skills for Line Level Officers Front Sight 4 Day Defensive Handgun School 2008 (Distinguished Graduate)2007

G M on January 7, 2010 at 12:48 PM

The vast majority of that training was done on my own time and dime. Not so I could whip it out in a debate, but to give me the skills to effectivly protect the public to the best of my ability. I don’t go out to do my job saying “I want to make life worse for John or Jane Q. Taxpayer”. I got out looking for the predators that prey on innocents.

The vast majority of working cops support the right to keep and bear arms and self defense. I certainly do. Understand as well that the laws and the courts grant law enforcement the authority to control contacts while we investigate potential criminal incidents. You can’t just assume that because someone is well groomed and wearing a suit, he’s a good guy. Complacency kills.

G M on January 7, 2010 at 1:08 PM

I personally expect that with my luck, it’s the second kind that will be covering me in some sort of off duty/plainclothes incident. So, it’s not a matter of being a “sheep”, it’s a matter of trying not to get shot in a “friendly fire” incident that is way too common.

G M on January 7, 2010 at 12:35 PM

And that’s completely understandable, but at the same time should make you understand that it’s not just the officer that is at risk. That’s why I referenced readying the weapon rather than drawing it. Stern was facing a man with a weapon in a concealed holster. Do we know what level holster it was? No. Do we know the situation of its safety, whether it was cocked and/or had a round in the chamber? No. Therefore, it’s entirely proper for the officer to put his weapon in its most readily drawable state. That way he knows that he is as prepared, or more prepared, to draw his weapon than the person he is confronting. From there, while he should be cautious, he also would not want to escalate the situation. Pointing your weapon when no other circumstances indicate any suspicious activity is dangerous and unnecessary escalation. We don’t know if Stern’s safety was on or not, or whether his finger was on the trigger. All we know is that he drew on a civilian who was carrying a holstered weapon, concealed.

The mindset of “I expect to be manhandled and disarmed” for legally carrying a holstered weapon, ESPECIALLY if you’ve had to pay the state a hefty fee to do so, is a sheep-like attitude. It’s the yielding of your rights to a figure in authority, when there is no need to do so. For the last time, GO HERE. Many, many accounts of police interactions, many of which weren’t even stops. A good number of police officers(unlike Stern, who, as noted, was required to be retrained on firearms law) see people with firearms, evaluate whether they’re being carried properly, look at the rest of the circumstances, and don’t even question the person doing so. I’m not saying that’s what should always be done. I’m simply saying that plenty of police officers handle the situation with much better judgment and behavior than Stern did, and he is not an example to follow.

MadisonConservative on January 7, 2010 at 1:17 PM

The vast majority of that training was done on my own time and dime.

All of my training was done on my own time and dime.

Not so I could whip it out in a debate,

G M on January 7, 2010 at 1:08 PM

Funny, but you’re the only one throwing out lists of your accomplishments here.

MadisonConservative on January 7, 2010 at 1:19 PM

“Do we know the situation of its safety, whether it was cocked and/or had a round in the chamber?”

Who carries a defensive handgun with an empty chamber in this country? Unless you’re a fan of the Israeli method….

G M on January 7, 2010 at 1:48 PM

Not so I could whip it out in a debate,

G M on January 7, 2010 at 1:08 PM

Funny, but you’re the only one throwing out lists of your accomplishments here.

Yes, so I can show that I have credible training on the topic. I didn’t start all those years ago anticipating this debate, funny enough.

G M on January 7, 2010 at 1:50 PM

Who carries a defensive handgun with an empty chamber in this country? Unless you’re a fan of the Israeli method….

G M on January 7, 2010 at 1:48 PM

Actually, not long ago I was in a long, drawn out quarrel(sort of like this one) with a self-proclaimed ex-military weapons expert, who determined that I knew nothing about weapons, or ever carried one, because I think not having a round in the chamber is foolish. Apparently all the real experts, in a panic situation, will always remember to rack the slide in between drawing and pulling the trigger. Then again, he also thought open carrying was irresponsible and a public threat.

MadisonConservative on January 7, 2010 at 1:54 PM

I didn’t start all those years ago anticipating this debate, funny enough.

G M on January 7, 2010 at 1:50 PM

Nor did I, so kindly chuck the condescension. You’ve spent this discussion speaking only in regards to the safety of the policeman, not the civilian. Either you’re unaware of that, or you’ve been purposely avoiding it. I hope it’s not the latter, because that’s an even more dangerous attitude.

MadisonConservative on January 7, 2010 at 1:57 PM

Military weapons doctrine is different than what we have CONUS. Modern handguns for defensive carry are designed to be carried with a round in the chamber.

Why? Because one hand may be injured or trying to keep a knife from your throat as you dig for your handgun.

G M on January 7, 2010 at 1:59 PM

Military weapons doctrine is different than what we have CONUS. Modern handguns for defensive carry are designed to be carried with a round in the chamber.

Why? Because one hand may be injured or trying to keep a knife from your throat as you dig for your handgun.

G M on January 7, 2010 at 1:59 PM

In all fairness, in one course, we were taught to be able to rack the slide on an item of clothing or our shoe, particularly if you have an FTF.

MadisonConservative on January 7, 2010 at 2:06 PM

It’s one thing to clear a malfunction while behind cover one handed, it’s different when an assailant ambushes you at close range with a contact weapon trying to crush your skull or stab you in the eyes. You may need to sacrifice one limb while you bring your gun into the fight. The bad guy or bad guys won’t be nice enough to to give you a sporting chance to prepare your weapon for use before the assault begins.

G M on January 7, 2010 at 5:44 PM

But OK, it is within the realm of proper police procedure.

How the stop goes is dependendent on the totality of the circumstances……

G M on January 7, 2010 at 10:20 AM

Thank you for responding. Note that my last sentence of that paragraph was to concede the legitimacy of the action, if in a snarky or questioning way.

You failed, however, to respond to the last 2 paragraphs which is the real point I was driving at.

Next the officer asks for and is handed the CCP. These things have photos and expiration dates on them, just like a driver’s license. At that point, it is game over. Hand back the license (and the gun if you have taken it) and thank the citizen for their cooperation. Maybe give them a little lecture on doing a better job concealing it next time.

Anything past this point is pure power tripping and a gross violation of the citizen’s rights. To verify this, do not ask your police buddies what they think. Ask 100 CCP possessing private citizens. I’m one.

GnuBreed on January 7, 2010 at 1:53 AM

I am still interested in your view.

GnuBreed on January 7, 2010 at 7:21 PM

BTW, ever consider how things will play out should you rightiously use deadly force for self defense? Say two predators decide to take your openly carried weapon from you and club and stab you for your troubles. Despite the odds, you are standing and your two assailants are dead and dying amidst empty casings on the ground. 911 is getting mutiple calls of three males fighting, then multiple “shots fired!” calls. You figure the responding officers will do what, exactly?

G M on January 7, 2010 at 7:27 PM

In the scenario where I spot a concealed weapon, if after detaining the person I determine the person is legally carrying, I cut them loose, explain why I did and give them my business card so they can complain if they so wish.

G M on January 7, 2010 at 7:39 PM

BTW, ever consider how things will play out should you rightiously use deadly force for self defense? Say two predators decide to take your openly carried weapon from you and club and stab you for your troubles. Despite the odds, you are standing and your two assailants are dead and dying amidst empty casings on the ground. 911 is getting mutiple calls of three males fighting, then multiple “shots fired!” calls. You figure the responding officers will do what, exactly?

G M on January 7, 2010 at 7:27 PM

So you’re comparing a guy walking into a courthouse with a holstered weapon under his coat, not threatening anyone, carrying a briefcase, looking like a lawyer…

…to a situation where a man is brandishing a weapon, that has clearly been fired and has killed two men, who are lying dead at his feet.

What the hell is wrong with you?

MadisonConservative on January 7, 2010 at 10:06 PM

In the scenario where I spot a concealed weapon, if after detaining the person I determine the person is legally carrying, I cut them loose, explain why I did and give them my business card so they can complain if they so wish.

G M on January 7, 2010 at 7:39 PM

Thanks again for responding. Now view what actually happened as reported in this commentary:

Did he ask to see a permit? Why, yes he did…and it didn’t do Schubert a damn bit of good to have it:

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.

From your own commentary, Officer Stern acted poorly at the end of this incident. Yet the court and his superiors did not agree, even to the point of disciplinary action. This rankles ordinary people.

Just as you wish to have citizen cooperation in the performance of your duties, citizens wish to have their constitutional guarantees honored as they go about their lives. We are not your enemies or adversaries. But we expect respect as well.

BTW, my dad is a retired cop.

GnuBreed on January 8, 2010 at 1:01 AM

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