1/02/2010

Court Cases let Police Arrest permit holders

It doesn't seem like these cases will be very common, but they do impose a real cost on those who carry permits. That said, I do understand a police officer's desire to be careful. Checking on whether someone has a permit seems quite reasonable, as long as it isn't done to simply harass permit holders. But the Massachusetts case involved holding the permit holder AND then taking away his gun, which goes too far.

One from Georgia:

Christopher Raissi holds a Georgia firearms license and frequently carries a handgun concealed. On October 14, 2008, he was carrying concealed on MARTA. He did not know that a MARTA police officer observing the parking lot had seen him holstering and concealing his firearm while still at his car. Therefore, he was surprised when he was surrounded by police officers who yelled "Police!" and ordered him to stop. The officers then seized his firearm from his holster and began questioning him, asking, according to the court's written opinion, "[W]hat are you doing with a gun?"
After seeing Raissi's firearms license and driver's license, the officers ran background checks on Raissi and held him, according to Raissi, for half an hour. The officers transported Raissi to a locked area out of the public eye before finally releasing him and returning his firearm and other property.
In the ruling today, Judge Thrash held that merely carrying a concealed firearm justifies such detention and disarmament. He wrote in his opinion that "possession of a firearms license is an affirmative defense to, not an element of, the crimes of boarding [MARTA] with a concealed weapon and carrying a concealed weapon."
"After Raissi concealed his handgun and started walking to toward the MARTA station, he had committed all of the acts required for the crime of boarding with a concealed weapon and the crime of carrying a concealed weapon."

As a result, Judge Thrash concluded that the officers had reasonable suspicion that Raissi was committing two crimes. As a result, the officers were justified in using force to detain him, and the "officers were entitled to take Raissi's handgun because they knew Raissi had concealed it on his person and would have easy access to it while they questioned him." The officers were also entitled to ask him for his social security number and transport him to a locked area out of the public view. . . .


Another case from Massachusetts.

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." . . .
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." . . .

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4 Comments:

Blogger Nashville Beat said...

I was a sergeant with a major metropolitan police department and now have a concealed weapon permit from the State of Virginia. My first permit as a civilian was obtained in Arizona. The statute there required some training on how to interact with police officers, and officers in that state are given some guidance on how to deal with permit holders.

My only encounter so far with an officer while I was carrying was in Phoenix. A Mesa Police officer stopped me for an expired tag and when I handed him my driver's license I offered him my permit and told him that I had my weapon in a dayplanner on the seat next to me and asked him how he would like to proceed. He got a little tense but did not overreact. He asked me to step out and wait at the rear of my car and then secured my pistol while we talked. After receiving my ticket, I complimented him on his professional demeanor and he visibly relaxed, telling me I was the first permit holder he had stopped. With the ice broken, we chatted for a few minutes about the relative virtues of Glocks versus Berettas and bade each other goodbye.

Allowing for the fact that there are always a few badge-heavy officers (Officer Stern’s statement that he was the only person allowed to carry a weapon on "his" beat suggests that he may have exhibited such a tendency) I believe that training for both permit holders and officers would minimize the number of unfavorable encounters. Officers who are far more accustomed to dealing only with lawbreakers can benefit from good leadership in learning to use a different communications skillset to deal with lawfully armed citizens.

Mr. Raissi's case in Atlanta seems less egregious, though still not optimal. Under the circumstances, the officers appeared to be legally justified in temporarily detaining him and investigating the validity of his permit. A half hour's detention is at the long end of reasonable, but is comfortably within the envelope of most court decisions. In the end they did the right thing, and the court's reasoning in upholding the propriety of their action seems sound. But a course of action that is lawful is not always the wisest or most professional, and the MARTA police could benefit from a review of how to handle similar situations in the future.

That said, my personal strategy in dealing with officers less comfortable with armed citizens than those in Arizona would be to display a cooperative attitude at all times and get very zen about the interruption in my plans. One never knows the full context of the situation, such as whether an armed offense has recently been committed in the area. The time to object to the propriety of the officer's action is not at the time he or she is trying to maintain control of the situation. Because of my experience, if an officer was gratuitously discourteous, I would probably ask him or her to call a sergeant or line supervisor to join us, but I believe I would wait until after the encounter to attempt to change his or her behavior.

If I were still working the street and an interaction with one of my people caused a bad reaction, I think a request from the citizen to talk with me and the officer a day or two later would be welcome, particularly if the citizen took the approach of asking what the police would suggest doing to make the next encounter less distressing for both. That might lead to some informal training that would improve the next interchange.

I realize from my background and my permit training that carrying a weapon may mean that in exchange for the increased security, I may have to put up with some temporary interference by a law enforcement officer. By thinking through how to deal with an officer who behaves inappropriately before being immersed in the stress of such an encounter, an armed citizen is far more likely to be able to resolve the situation favorably.

1/02/2010 3:16 AM  
Blogger it_mike said...

Now lawful carry is a quasi-criminal act?

If you can't get the government to change the law, just abuse the citizens.

1/02/2010 8:02 AM  
Blogger tmh said...

It appears that "police" are getting away with "gestopo" tactics in the two cases cited. I find it ironic that "police" don't do the same to criminals. Maybe it's easier to pick on the law abiding public.

1/02/2010 8:42 AM  
Blogger smn said...

The Terry analysis in both cases was quite poor, given that Raissi and Schubert did not exhibit any dangerous behavior (Terry has an armed AND dangerous threshold before a seizure take place.

Looking at the totality of the circumstances for Schubert's case, Stern was literally grasping at straws to make it appear as if someone with a CCW was going to do bad things. Schubert failed in his part to go for the jugular, with both 2A and 4A claims on his seizure. His seizure took place in a "high crime area" and the cop disarmed him.

I'm not about to offer my weapon to a cop unless there's a damn good reason to. I'm a citizen and the cop is a citizen with a badge. Both of the opinions want to elevate cops to a super-citizen status where they can stop anyone and ask for papers. Both opinions leave you with the feeling that we are presumed guilty of something before proven innocent, and that's not the America I know.

1/02/2010 7:59 PM  

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