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:
- Terry v. Ohio requires RS for an investigative stop.
- 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.