Disturbing CCW case involving overzealous deputy

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There was a previous case in GA dealing with MARTA having to do with stopping a person carry concealed but the circumstances are different than the Mass case. In the Mass case a lawyer was walking down the street towards a court house flashed his gun, had a suit coat on but did not cover completely the holstered gun, police officer saw the gun, jumped out held the lawyer at gun point. After getting his ID and permit, held him for 10 minutes then took the gun away. Claim for taking gun was that he could not verify the permit. The lawyer sued and lost. In the Georgia case the person placed his weapon in a concealed holster and got on MARTA, a police officer that saw him in his car holster the weapon, followed him on to MARTA and asked to see his permit, confiscated his weapon and locked him up for 30 minutes while running a check. After the check came back OK, he let him have his gun and leave, The complainant sued the PD and lost. In both cases the possession of a gun was illegal in the specific circumstances under the law unless you had a permit. The courts basically said the police had the right to stop and verify that the carrier had a permit for the weapon.


I sent a PM to Antipitas that there was only one case being discussed in two separate papers, but I was partially mistaken. The main point of both stories was the Mass case but the Georgia paper did mention the MARTA case.
 
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I misread the two stories and jumped the conclusion gun! Mea Culpa!

Thanks to both JohnKSa and wally626 for setting me (and this thread) straight. :o
 
And here lies the rub........

posted by Wally626
"After getting his ID and permit, held him for 10 minutes then took the gun away. Claim for taking gun was that he could not verify the permit. The lawyer sued and lost."

So, if law enforcement can't verify a permit to carry in the state of Massachusetts then

of what use is the permit?

This statement from page 13 of the decision:

"As it happens, Massachusetts did not have a simple way for police
officers to conduct such a check, so Stern's effort to do so took
several minutes. "



Incident took place in July 2006.......decision handed down Wednesday before last 12/23/09.

I think the "did" is telling. I bet they can now.
 
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The first thing everyone is assuming is that the LEO/deputy actually did see the

lawyers gun. Prove this first.... just to jump a little, assume the deputy knew that the lawyer had a concealed weapons permit and probably was carrying... that is not too hard for a LEO to determine.... then they could always claim they saw the weapon and etc.....
 
Posted by blume357:

".... just to jump a little, assume the deputy knew that the lawyer had a concealed weapons permit and probably was carrying... that is not too hard for a LEO to determine...."

Actually in Springfield, Mass in July 2006 it was not very easy.

This statement from page 13 of the decision:

"As it happens, Massachusetts did not have a simple way for police
officers to conduct such a check, so Stern's effort to do so took
several minutes. "

and.... Officer Stern never successfully verified the permit resulting in confiscation of Mr. Schubert's SD weapon. Then Stern left Schubert in a "high crime area" with no SD weapon.

And... Mr. Schubert was a well known criminal defense attorney of 30 years in Springfield.
 
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Probably not, but I wasn't there and this story is one sided from the attorney's point of view. And it was posted in a gun rights newspaper, not exactly unbiased. Would I jump out of my car and point a gun at the head of someone carrying a gun? Probably not, I can think of cases where I would and where I wouldn't, depends on the situation. A well dressed man carrying a briefcase on the steps of the courthouse? Probably not, but I find it hard to buy the lawyer's story at face value when the courts are all upholding the actions of the officer and his department found no wrongdoing in their investigation.

Two sides to every story, this story, IMO, is painted to put the lawyer in the best possible light, published in a gun rights newspaper. Some will say I would back a cop no matter what, and I have given up trying to convince people otherwise, but I don't buy the story as its told.
 
On Schubert's account of the events, once Stern noticed
Schubert's partially concealed weapon, the officer leaped from his
cruiser in a "dynamic and explosive" manner, with his gun unholstered.

In Schubert's version of the facts,
Schubert stayed in front of the cruiser for several minutes, then
moved to ask Stern if he could stand in the shade because it was a
hot day.2 Stern denied the request. Shortly thereafter Stern
escorted Schubert into the back of the cruiser. Inside the
vehicle, Stern partially Mirandized Schubert, see Miranda v.
Arizona, 384 U.S. 436, 478-79 (1966), 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.

Taken from the appeals court decision. The bold portion is the part I find interesting. No mention is made of police reports or officers testimony, just the lawyers side of things. Still don't buy the story, neither did the police department, the state courts and the federal appeals court.
 
Trooper with respect sir

I absolutely respect and appreciate most police officers because they do what is in many cases a thankless job.

I do not have the same respect for the justice system. This case is a good example of why I feel this way.

I have known of cases where you guys went way beyond what was required to try and put a really bad person in the pokey only to be frustrated by the court.

This case happens to be one of those where a good guy was wronged because the system could not execute it's own rules.

The following from the case which was stipulated by the court on page 13. NOT just contended by Schubert.

" But the entire stop took only ten minutes and
when Stern realized that he would not be able to confirm the gun
license within a reasonable time, he sensibly opted to terminate
the stop and release Schubert, but retain the weapon."

The officer gave up after 10 minutes?????? Schubert was innocent of the charge of carrying without a permit because he had one and presented it to the officer.
However, he was found guilty in 10 minutes and lost the right of SD because it was a sensible option. !?

No, the officer was wrong to illegally confiscate Mr. Schubert's weapon.

It's just sad the court found otherwise.
 
" But the entire stop took only ten minutes and
when Stern realized that he would not be able to confirm the gun
license within a reasonable time, he sensibly opted to terminate
the stop and release Schubert, but retain the weapon."

The officer gave up after 10 minutes?????? Schubert was innocent of the charge of carrying without a permit because he had one and presented it to the officer.
However, he was found guilty in 10 minutes and lost the right of SD because it was a sensible option. !?

No, the officer was wrong to illegally confiscate Mr. Schubert's weapon.

It's just sad the court found otherwise.

And if he had carried the weapon concealed, he would not have had any issue. And the courts ( plural, more than one court and the police department) disagree with you. Mass. is not a state that embraces open carry.

On the other side of the story if the officer let him keep the gun and he was in fact carrying it illegally, and used it to kill someone, there would be enormous outcry of why didn't officer do something. Damned if you do, damned if you don't.
 
I agree with this

And if he had carried the weapon concealed, he would not have had any issue.
Click to expand...

For lack of a buttoned jacket Mr. Schubert lost his weapon. ... temporarily ....in a high crime area..... near the courthouse steps... left to fend as best he could for his own safety by an officer of the law. I guess this is a lesson for us all in regards to concealed carry. MAKE SURE it is concealed!

I wonder what the penalty in Mass. is for someone that has a concealed carry permit if they inadvertantly expose the weapon?
 
I have to say again that on face value I must disagree with the handling, and susquent rulings. Something about this post has been nagging me. I now remember an incident when I was on patrol... Very similar... but different.

I was on routine patrol, and noticed a lone car parked in an out of place location. It was a couple making out. The car had Georgia Plates on it.( we were in the Bronx NY) I as usual asked for the drivers licence, registration, and proof of insurance. I also asked if the driver, or passenger had any drugs, weapons, or anything else they shouldnt have. The driver stated that he had a gun. Then directed me to a small auto in the glove compartment. My partner and I removed the gun and the driver, and proceded to place him under arrest. He further stated that he had a carry permit from Georgia. With that he pulled out a piece paper torn from a llegal pad with his name and "OK to carry a gun" signed Sherrif XXXXXXX. We had a good laugh over that. Until we sent a message to that sherrif Dept and recieved a telex confirming the validity of the permit. The driver was let go, and we held his handgun until he left the state. Go figure...


I have to add that this was way back when we did police work... not law enforecement. We were allowed to use common sense.


Glenn Dee.
 
The lawyer escaped prosecution for exposed carry, so that would apparently give the police officer justifcation for the harrassment.

It's just like in football when there's 2 flags thrown but the penalties off-set.
 
Funny Glenn, because I am from the Bronx, and my Dad was a on the NYPD for 31 years and retired as a SGT. NYC never recognized out of state permits and to the best of my knowledge they still don't. Not even NYS permits are valid in NYC, only those issued by NYC.

I used to work in NY, many years ago.

Been at the cop game a long time now, in two states. Didn't say that I would have handled it this way, just that the courts upheld the actions of the officer.
 
And if he couldn't determine that his driver's license was facially valid would he have impounded his car? If he had no receipt for his pants would the officer have driven off with those, as well
Click to expand...

Yes we can impound cars of people without DLs.

How did the LEO determine the subject was in possession of a weapon?

In Schubert's version of the facts,
Schubert stayed in front of the cruiser for several minutes, then
moved to ask Stern if he could stand in the shade because it was a
hot day.2 Stern denied the request. Shortly thereafter Stern
escorted Schubert into the back of the
Click to expand...

The asking to stand in the shade would be a "tell" for me. You don't get to change the circumstances of my investigation. If I am ok in the climate then you should be also. Are you asking to move for a tactical reason or just to be a PITA eitherway I am predisposed to deny your request.

Like I said before concealed means concealed
 
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Did I read somewhere here that the attorney was a "prominent defense attorney"? Maybe the cop had a grudge against this lawyer- it's not uncommon for cops to have issues with those who defend criminals and sometimes get them off. So maybe it's not about gun rights as much as it's about successful criminal defenders. Or maybe not.
 
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