Then what’s the point in having a gun permit?

On July 21st, 2006, attorney Greg Schubert was walking on a sidewalk in the City of Springfield, Massachusetts, when officer J.B. Stern jumped from his police car with drawn gun pointed at Schubert’s face. Schubert was lawfully carrying a pistol under his suit jacket (and wearing a suit and carrying a briefcase) and the officer saw the pistol. Although Schubert produced his concealed weapon permit, the officer detained Schubert anyway – making him stand in the road in front of the police car and then placing him in the backseat of the police car – while the officer tried to verify that Schubert’s permit was valid. Ultimately the officer released Schubert but kept his pistol and his permit.
Schubert brought a 1983 action against the city and the officer for violation of his Fourth and Fourteenth Amendment rights (for detaining him unlawfully). The Massachusetts District Court granted summary judgment to the City and the officer (held that as a matter of law Schubert could not sue over what happened to him), and on December 23rd the First Circuit upheld the District Court’s grant of summary judgment.
The First Circuit held that, as a matter of law, it is acceptable for an officer to point a gun at an attorney’s face for carrying a concealed weapon, to detain him after he showed his identification and concealed carry permit to the officer, and to take the attorney’s gun and permit.
Balko had a link to a critical article at the Examiner, and I was fairly incensed until I read the entire opinion. My final response is rather watered down after finding that the lawyer sued based on his detention but never pleaded a violation of his Second Amendment right to bear arms.
A 1983 claim must plead a violation of a constitutional right – in this case the lawyer pled a violation of his Fourth Amendment right to be free from unreasonable detention but did not mention the violation of his Second Amendment right to bear arms. I still disagree with the Court – once the lawyer showed the officer his permit that should have been it. The detention past that point was unlawful and the failure to return the pistol and license was theft.
Pointing a gun at the lawyer’s face was extreme under the circumstances, but as the Court says the officer has a right to take measures to protect himself and the officer is in the best position to decide what is necessary. It makes the cop an asshole in this case, but I don’t see where it is actionable, at least up to the point where the officer realized that Schubert had a permit.
Given the Court’s language and the tone of the opinion, I think if Schubert had pled a violation of the Second Amendment the Court still would have granted summary judgment, but Schubert would have had a stronger position and better chance at taking the appeal further.
The general rule in 1983 actions, or any lawsuit against the government, is that the government wins. If the court can find any reason to shut down the lawsuit it will (imagine that – the government ruling in favor of the government). Although the First Circuit used the failure to plead the Second Amendment as an excuse to dodge the issues in the case, the opinion is a lesson on pleading police abuse cases – most 1983 actions are based on one of the first ten amendments (the Bill of Rights), and it will most likely be 1,2,4,5,6, or 8. Before filing your complaint, it is easy enough to count them on your fingers and make sure you did not miss something. If there is a gun involved in your case, there is a clue.

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