Civil rights violation for Terry stop thrown out

The 1st circuit court of appeals on December 23rd, 2009 dismissed a civil rights violation claim under 42 USC 1983 in GREG SCHUBERT v. CITY OF SPRINGFIELD AND SPRINGFIELD POLICE OFFICER J.B. STERN Docket # No. 09-1370. The court in granting summary judgment to the City and Police Officer stated “Schubert is a prominent criminal defense attorney who has worked in Springfield, Massachusetts for approximately thirty years. On July 21, 2006, Officer Stern, observed Schubert walking towards the courthouse with a visible firearm on his person. He subsequently exited his cruiser and proceeded to stop Schubert, remove his firearm and asked for license to carry which was produced. Stern then patted Schubert down and placed him into the rear of the police car where he read him his Miranda rights.
Stern attempted 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. The entire stop took about ten minutes.
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.
On March 8, 2007, Schubert filed an eleven-count complaint in the U.S. District Court for the District of Massachusetts against Stern and the City of Springfield. Schubert asserted federal civil rights claims pursuant to 42 U.S.C. § 1983 under the Fourth and Fourteenth Amendments, accompanied by state civil rights and tort claims. Stern moved for summary judgment, and after a motion hearing, the district court granted Stern’s motion as to all claims against him. The court sua sponte dismissed with prejudice the federal claims against the City of Springfield and dismissed the state claims against the City without prejudice. This appeal followed.
Schubert primarily contends that Stern lacked reasonable suspicion to stop him and that the scope of the stop was not reasonably related to the officer’s original purpose. In determining whether a Terry stop is justified, our inquiry involves two steps, first, “whether the officer’s action was justified at its inception,” and second, “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20.
1. The Initial Stop
Schubert argues that Stern was unjustified in stopping him initially because Stern did not have an articulable suspicion, based on the totality of the circumstances, to detain Schubert. We disagree. Stern had an articulable, objective basis for his reasonable suspicion that Schubert may have been engaged in criminal activity: the officer observed Schubert walking toward the Springfield courthouse carrying a gun. This simple, undisputed fact provided a sufficient basis for Stern’s concern that Schubert may have been about to commit a serious criminal act, or, at the very least, was openly carrying a firearm without a license to do so. Schubert maintains that his suit jacket was meant to conceal the weapon and that Stern was unable to produce any of the passers-by that he claimed had alerted him to the existence of Schubert’s gun. The fact remains, however, that the officer saw a man carrying a gun in a high-crime area, walking toward an important public building.
In addition, Stern noted that in his experience, most people who carry firearms in Springfield are not licensed to do so.
2. The Scope of the Search
Schubert also contends that the manner and length of the stop exceeded the circumstances which justified the stop in the first place. Schubert reasons that once he produced his license to carry, the officer should have released him and ended the encounter. Schubert also takes issue with the manner in which Stern suddenly emerged from the police cruiser with his weapon drawn. Further, Schubert questions Stern’s subsequent five-minute detention of Schubert in the rear of the cruiser, during which time he partially Mirandized Schubert and mentioned the possibility of charging him with a crime. Finally, Schubert argues that Stern unreasonably confiscated his weapon, requiring Schubert to retrieve it from the police department.
However, as the district court correctly concluded, once Stern had reasonable suspicion justifying a stop, he was permitted to take actions to ensure his own safety. See Schubert v. City of Springfield, 602 F.Supp.2d 254, 257 (D. Mass. 2009). The officer took several reasonable steps given that Schubert was an unknown armed man walking in that particular location: he emerged quickly from his vehicle, drew his gun, executed a pat-frisk, requested identification and a gun license, attempted to confirm the validity of the licenses, and escorted Schubert into the cruiser after Schubert moved from the position in which the officer had instructed him to remain. All these actions were related in scope to the circumstances that justified the initial stop, namely, Schubert’s open possession of a weapon in front of a courthouse. Stern’s concern for his own safety and for the safety of others was the context for this stop. It is “clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” Stanley, 915 F.2d at 57 (quoting Terry, 392 U.S. at 24).
Further, we do not agree with Schubert’s contention that the gun license was valid on its face and therefore the several minute delay during which Stern attempted to confirm the validity of the license was unreasonable. Just as an officer is justified in attempting to confirm the validity of a driver’s license, such a routine check is also valid and prudent regarding a gun license. 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. 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.
We thus conclude that the district court correctly held that Stern acted within the permissible scope of his initial Terry stop of Schubert. Therefore, having already determined that the initial stop complied with Terry, we affirm the district court’s grant of summary judgment on Schubert’s Fourth Amendment claim.
Commentary,
This case also goes on at length regarding the alleged violations of Schuberts 2nd amendment right to bear arms which is not relevant for the point I wanted to illustrate regarding the Terry stop validity. If anyone would like to read about those allegations the link above is a direct cite to the case.
Attorney Ronald. A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to RSellon@PoliceLegalPromotions.com
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