Advisory letter re: "Simkin v. Commonwealth" & "Commonwealth v. Couture"

[Jason Flare]

This thread was from 2008, before Couture was out (I think).

Rob Boudrie mentions Comm vs. Couture in that 2008 thread.

When I worked as a PO, those that were polite to me got the same treatment back to them. Those that got arrogant got a dose of the same. Guess who has more power to make your life pleasant or miserable "on the ground"?

Bingo. Thus the propensity for the serfs to resist the shackles of the masters.

 

[Darksideblues42]

In light of these cases, if a town has addendum to the LTC packet that the applicant is required to sign and states

"Q. Does a LTC issued for "All Lawful Purposes" allow a licensee to do anything he wants with a firearm as long as he does not violate the law?

A. NO! All licensees are expected to behave not only lawfully, but also responsibly. This means that the firearm must be used and carried not only lawfully, but also in a safe and appropriate manner. The Licensee should not display or allow his firearm to be displayed inappropriately in a public place so as to frighten or alarm those present. Such as incident is likely to to result in the police being dispatched to a call for a "Man With A Gun", and will require police intervention to determine if the firearm is being possessed or carried in a lawful manner. The licensee must understand that the commission of ANY inappropriate, unsafe, threatening of unlawful act while carrying a firearm may result in the immediate revocation of the license.

should these cases impact the above statement? Does the PD need a letter sent breaking out the changes for them? Or is this a case of small fish in the bigger picture, don't worry about it until it becomes an issue?

 

[terraformer]

I've got a sick snowblower carb to deal with, so I'm not going to look it up, but IIRC you MUST possess your LTC anytime you have possession of firearms/ammo/etc. Possession without it (left it at home) I BELIEVE is indeed actionable (illegal) but I'll let someone else find the cite.

Ummm... No. Not "actionable", nothing to cite. 269 § 10 requires "in effect a license". This requires that the §122 exemptions be exhausted (driving through, etc) and that there be an ACTIVE license "in effect". There is nothing stating you can be prosecuted for not having it on you like the hunter regs seem to allow (though that's a stamp, so there is a greater justification for such an approach). Now, is the lack of one PC? It would be today for sure, but it shouldn't be because the system is query able and the state made a big deal in federal court in 2006-2008; on how the plastic copy is not enough.

That said, carry it with you and don't be the test case.

 

[Quiet]

the system is query able and the state made a big deal in federal court in 2006-2008; on how the plastic copy is not enough.

May I ask what was that about?

 

[terraformer]

May I ask what was that about?

Schubert v. City of Springfield, 589 F.3d 496, 499 (1st Cir. Mass. 2009)
https://casetext.com/case/schubert-v-city-of-springfield-2

 

[Quiet]

Schubert v. City of Springfield, 589 F.3d 496, 499 (1st Cir. Mass. 2009)
https://casetext.com/case/schubert-v-city-of-springfield-2

Thank you.

As I suspected, the courts will rule (have ruled) that merely showing the license wouldn't be sufficient, even though there's no language to that effect for LTC while there is specific language for driver's licenses.

That aside, apparently walking down the street in a suit with a briefcase near a courthouse while armed is a suspicious activity in Springfield, and police lying on the report about people reporting a man with a gun is immaterial too.

So does the later Couture supersede this opinion?

 

[Jason Flare]

Thank you.

As I suspected, the courts will rule (have ruled) that merely showing the license wouldn't be sufficient, even though there's no language to that effect for LTC while there is specific language for driver's licenses.

That aside, apparently walking down the street in a suit with a briefcase near a courthouse while armed is a suspicious activity in Springfield, and police lying on the report about people reporting a man with a gun is immaterial too.

So does the later Couture supersede this opinion?

IANAL but it looks to me if Schubert had brought up Heller, and his individual right to keep and bear arms, the judges may have ruled as they did with Couture, that having a gun is not enough to assume a crime is being committed.

 

[Coyote33]

Rob Boudrie mentions Comm vs. Couture in that 2008 thread.

Bingo. Thus the propensity for the serfs to resist the shackles of the masters.

I wonder if the case was open at that time, but now has been decided.

In light of these cases, if a town has addendum to the LTC packet that the applicant is required to sign and states

should these cases impact the above statement? Does the PD need a letter sent breaking out the changes for them? Or is this a case of small fish in the bigger picture, don't worry about it until it becomes an issue?

Schubert v. City of Springfield, 589 F.3d 496, 499 (1st Cir. Mass. 2009)
https://casetext.com/case/schubert-v-city-of-springfield-2

IANAL but it looks to me if Schubert had brought up Heller, and his individual right to keep and bear arms, the judges may have ruled as they did with Couture, that having a gun is not enough to assume a crime is being committed.

The plot thickens. As does the letter/packet to inform the PD's. ;-)

 

[Coyote33]

So, are you suggesting GOAL and Comm2A lobby EOPS to do this? Maybe work with Polito on this?

Polito is doing a tour of the state, trying to see what she can do to help municipalities.

Polito touts Framingham's progress, pledges state's support

 

[Palladin]

Polito is doing a tour of the state, trying to see what she can do to help municipalities.

Enable Javascript to View Premium Content on metrowestdailynews.com

check your link

 

[ma-hole]

CJISweb shows the info instantly. Many, but not all, PDs have it installed in the MDTs at this point in time.

We do not have MDT's so we get our CJIS information from dispatch. The younger kids (keep in mind, Military LE, so you're talking 19-20yo kids) get chubbies when someones readback comes with "RO has LTC". I get the point of our dispatcher letting us know, you always want the most information you can get, but these sheltered kids look at an LTC-holder like some type of dangerous person or a criminal. I, for one, take that information and relax a little bit. Not many cops get shot on the side of the road by someone with a valid LTC and registered guns. It's the guy without one and a stolen gun. But I digress...

 

[Len-2A Training]

We do not have MDT's so we get our CJIS information from dispatch. The younger kids (keep in mind, Military LE, so you're talking 19-20yo kids) get chubbies when someones readback comes with "RO has LTC". I get the point of our dispatcher letting us know, you always want the most information you can get, but these sheltered kids look at an LTC-holder like some type of dangerous person or a criminal. I, for one, take that information and relax a little bit. Not many cops get shot on the side of the road by someone with a valid LTC and registered guns. It's the guy without one and a stolen gun. But I digress...

Welcome and agree, every officer should approach any unknown situation being very aware that it could pose a danger.

For our readers who skim-read :

"RO has LTC" means "Registered Owner has LTC" not that they have a 209A and LTC!

Sadly it is those "sheltered kids" that pose a potentially fatal risk to us in a MV stop as they over-react.

 

[71montess]

Schubert v. City of Springfield, 589 F.3d 496, 499 (1st Cir. Mass. 2009)
https://casetext.com/case/schubert-v-city-of-springfield-2

Amazing how a supposed educated person (Judge) could rule having a lawful piece of hard wear is a possible crime in the making ! They all need to be sent to re-education camps. Not one but two friggin Judges !

 

[MachineHead]

"Schubert contends that his clothing, his age, and the fact that he was carrying a briefcase are factors that should undercut the reasonableness of Stern's suspicion. We are not persuaded."

If this isn't a prelude of the bullshit that follows, I don't know what is.

With that in mind, I'm glad Schubert didn't raise a specific or direct complaint of his 2A rights. This court would've introduced some crap that could end up becoming case law.

 

[AHM]

If an officer has PC to believe you are carrying, he can seize your firearm until you present a valid LTC, once the LTC is presented, the firearm is supposed to be given right back. ...

It's worse than that - an officer can demand exhibition of an LTC from anyone off their property (or on their property during execution of a search warrant). The demand doesn't require PC, and doesn't require suspicion that they're carrying.

You are correct in regards to presenting your LTC on demand, but I dont know of a scenario where tbe LEO just out of the blue demands an LTC. Usually this scenario is preceded by some story where someone saw a guy carrying a gun etc.

I'm sure that's true in reality, but perhaps most LEOs don't know the full scope of their power (or just aren't trying to be annoying).

I have been stopped in my car and had cops ask me if there was anything they needed 'to know about' in the car. This has happened when I was legally carrying. My answer has always been 'no.'

Props for distinguishing the officer's "need to know" from their "want to know".

... a policeman asks to see your LTC.

Isn't the proper response, "What crime do you suspect me of?" Since, carrying a firearm isn't in and of itself a crime worthy of a search?

The Massprudent response is to show the cop your frigging LTC.

Otherwise he has the right to disarm you and make you redeem your stuff from the police station.

And if word of this stupid game gets back to your licensing authority,
it might be deemed evidence that you are unsuitable,
and your license gets permanently revoked.

I can believe that somewhere floating out in space there is one weird circumstance where exhibiting the LTC gets you jacked up, while letting the cop take your guns and then retrieving them the next morning allows you to skate on some charge. But I find it hard to believe that laymen could memorize such an edge condition when it's so hard for people to integrate existing statutes and case law.

2) What if you don't have it?

From what I have read they can only demand you produce your LTC if they believe a crime has been committed and simply carrying a gun is not a crime, (or enough of a crime!)

If you read the statute you won't find the bolded predicate.

Hypothetical: You produce your license and then do not allow the officer to possess it to check if for validity, or you produce your license, hand it over and said "See Ya!" as you aren't being detained.

Either satisfactorily "exhibit" the license to the cop,
or the cop can take your guns back to the station.

Your choice.

Schubert v. City of Springfield, 589 F.3d 496, 499 (1st Cir. Mass. 2009)
Schubert v. City of Springfield, 589 F.3d 496 | Casetext

Schubert screwed up by (apparently) not citing Alvarado, where Mass. stipulates that a mere report of gun possession does not constitute reasonable suspicion of a crime.

Springfield could have argued that gun possession by someone making a beeline for a courthouse constitutes reasonable suspicion. But Schubert didn't make them jump through that hoop.

 

[Coyote33]

...
response is to show the cop your frigging LTC.

Otherwise he has the right to disarm you and make you redeem your stuff from the police station.

And if word of this stupid game gets back to your licensing authority,
it might be deemed evidence that you are unsuitable,
and your license gets permanently revoked.
...

What is this conjecture based upon? Is there an overwhelming preponderance of this happening, or is it just Internet lore?

 

[terraformer]

Schubert screwed up by (apparently) not citing Alvarado, where Mass. stipulates that a mere report of gun possession does not constitute reasonable suspicion of a crime.

I don't know if he did or he didn't. But it's irrelevant so CA1 could ignore it. He was in federal court. He was asking a federal court to determine the scope of federal S&S rules. Alvarado is a state case based on the state's constitution.

In this Commonwealth, under art. 14, the legality of the stop, that is, the existence of reasonable suspicion, is not determined by the imprecise Federal totality of the circumstances standard but rather by application of the principles stated in determining the existence of probable cause in Commonwealth v. Upton, 394 Mass. 363 , 373-375 (1985) (reliability of informant and basis of his or her knowledge). Commonwealth v. Lyons, supra. "Because the standard is reasonable suspicion rather than probable cause, a less rigorous showing in each of these areas is permissible." Id. at 19. See Commonwealth v. Willis, 415 Mass. 814 , 819 (1993). We decide this case under art. 14.

 

[soam]

And if word of this stupid game gets back to your licensing authority,
it might be deemed evidence that you are unsuitable,
and your license gets permanently revoked.

As of the the new law that was passed in 2014: "A determination of unsuitability shall be based on: (i) reliable and credible information that the applicant or licensee has exhibited or engaged in behavior that suggests that, if issued a license, the applicant or licensee may create a risk to public safety; or (ii) existing factors that suggest that, if issued a license, the applicant or licensee may create a risk to public safety."

This was finally backed up in court by the Middlesex Count Superior Court in Ahmadov v Town of Wakefield PD

So, unless the PD can justify why being a dink creates a risk to public safety, his license wouldn't be permanently revoked.

 

[Coyote33]

"S&S rules"?

 

[soam]

"S&S rules"?

"Search and Seizure rules", I believe.

 

[AHM]

Schubert screwed up by (apparently) not citing Alvarado, where Mass. stipulates that a mere report of gun possession does not constitute reasonable suspicion of a crime.

I don't know if he did or he didn't. But it's irrelevant so CA1 could ignore it. He was in federal court. He was asking a federal court to determine the scope of federal S&S rules. Alvarado is a state case based on the state's constitution.

Thanks much. Here's what I was thinking:

Schubert asked the federal court for relief from the cop violating his 4th Amendment civil rights via performing a Terry stop without reasonable suspicion. Massachusetts case law holds in Alvarado itself (and elsewhere) that mere presence of a gun never constitute reasonable suspicion. (Unless the Commonwealth tried to defend itself from the civil suit by piling on other facts), then the circumstances surrounding the stop didn't constitute reasonable suspicion, and the Terry stop was invalid.

Given:

1. Terry v. Ohio requires RS for an investigative stop.
2. Comm. v. Alvarado states mere allegation of a gun can never constitute RS of unlicensed carry.

Conclude:

• Mere observation of Schubert carrying a gun couldn't constitute RS to Terry-stop him.
• Terry-stopping Schubert solely on that basis would be a civil rights violation.

Here's the crux of the lossage in the decision for Schubert v. Springfield:

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. ...

If that's what Schubert argued,
Schubert screwed up.

Schubert shouldn't have argued that Stern (the cop)
"lacked an articulable suspicion,
based on the totality of the circumstances".

Schubert should have argued that Stern lacked RS,
because what Stern had was by definition not RS (via Mass. case law).


If case law defines that a certain fact pattern
can never constitute an element of an infraction,
isn't it improper to apply the case law to a new case
by applying the precedent's analysis to the new case?

Shouldn't the court just apply the precedent itself?

For example, if a defendant claims that police
beat a confession out of him in the interrogation room
without ever informing him of his right to an attorney,
a court convinced of that allegation
wouldn't apply all of the analysis that SCOTUS applied in Miranda, right?
Won't they just toss out the confession as fruit of the poison tree?

But maybe that's not how any of this works.

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.

See the flights of fancy that the Federal court took because Schubert made too weak an argument?


Bonus: look at this balderdash in Alvarado itself:

Under the rule for which the Commonwealth contends, and which the Appeals Court opinion adopted, a police officer who receives reliable information that a person is carrying a concealed weapon is warranted, without more, in having reasonable suspicion that the person has been, is, or will be engaged in criminal activity and thus is warranted in making an investigatory stop. Carrying a weapon concealed in a towel, a bag, or a knapsack, for example, however, is not a crime in this State. The suspected crime in such circumstances can only be the carrying of an unlicensed weapon, because carrying a concealed weapon is not, standing alone, an indication that criminal conduct has occurred or is contemplated.

Some courts have been willing to accept the view that the number of handguns in society greatly exceeds the number of licensed handguns and, therefore, "the odds are" (the reasonable suspicion is) that a person carrying a weapon is committing a crime. See United States v. Bold, 19 F.3d 99, 104 (2d Cir. 1994) ("the statistical likelihood that the gun was illegal," along with other circumstances, supports reasonable suspicion). ...​

(Emphasis mine).

This is worse than the distinction in ham radio between a "station license" and an "operator license".

Has someone got a picture of one of these fabled "Massachusetts weapon licenses"?

Maybe a sexy shot where the license is in the foreground,
and the weapon is propped up by a spent shotgun shell angled into the trigger guard.

 

[Coyote33]

Does anything change here now, after Bruen?

 

[Coyote33]

As of the the new law that was passed in 2014: "A determination of unsuitability shall be based on: (i) reliable and credible information that the applicant or licensee has exhibited or engaged in behavior that suggests that, if issued a license, the applicant or licensee may create a risk to public safety; or (ii) existing factors that suggest that, if issued a license, the applicant or licensee may create a risk to public safety."

This was finally backed up in court by the Middlesex Count Superior Court in Ahmadov v Town of Wakefield PD

So, unless the PD can justify why being a dink creates a risk to public safety, his license wouldn't be permanently revoked.

Does anything change here now, after Bruen?

What was the final outcome of these Simkin and Couture cases?