Court upholds police pointing gun at lawful carrier

[Will Brink]

Can you read his FIRST response to you? Hint: It's # 55:

Still have a vague feeling the scenario was not really addressed but: no concealment laws and brandishing appears well defined. In theory then, my specific scenario should result in, at worst, being asked to leave the malls private property after it's established it's a legal CCW.

 

[Rob Boudrie]

No, that's why I'm asking. Can you answer the other parts of my scenario/question?

I'll try:

1. Exposing the gun is NOT a crime in MA.

2. As mentioned on numerous threads, the issuing authority can revoke the LTC if the holder is "unsuitable", so letting your concealed carry gun get exposed is bad juju. The Dedham incident is an extreme example. What happens depends on how much of a pain the officer who responds to the call wants to inflict, and the view of the issuing authority on the matter.

3. If the gun is exposed in such a manner as to create a direct or implied threat, assault charges can be brought. For example, if you are in an argument an pull your coat back to display the gun it could be seen as an assault placing the other party in reasonable fear.

4. Some states (for example, CA) have statutes that specifically address "brandishing". MA does not.

5. Commonwealth v. Coutoure held that seeing a report of someone with a gun was not an indication of a crime, but has not, in practice, altered the police practice of asking for a LTC when someone is seen with a gun. A subtle nuance is the police officer needs to say something like "Please show me your LTC" rather than "Do you have an LTC", as the later is asking a accusatory question without benefit of Miranda.

In theory then, my specific scenario should result in, at worst, being asked to leave the malls private property after it's established it's a legal CCW.

legally, yes ... unless the totality of the situation is such that the issuing authority deems you unsuitable to be so licensed.

 

[Will Brink]

I'll try:

1. Exposing the gun is NOT a crime in MA.

2. As mentioned on numerous threads, the issuing authority can revoke the LTC if the holder is "unsuitable", so letting your concealed carry gun get exposed is bad juju. The Dedham incident is an extreme example. What happens depends on how much of a pain the officer who responds to the call wants to inflict, and the view of the issuing authority on the matter.

3. If the gun is exposed in such a manner as to create a direct or implied threat, assault charges can be brought. For example, if you are in an argument an pull your coat back to display the gun it could be seen as an assault placing the other party in reasonable fear.

4. Some states (for example, CA) have statutes that specifically address "brandishing". MA does not.

5. Commonwealth v. Coutoure held that seeing a report of someone with a gun was not an indication of a crime, but has not, in practice, altered the police practice of asking for a LTC when someone is seen with a gun. A subtle nuance is the police officer needs to say something like "Please show me your LTC" rather than "Do you have an LTC", as the later is asking a accusatory question without benefit of Miranda.


legally, yes ... unless the totality of the situation is such that the issuing authority deems you unsuitable to be so licensed.

That answers the question as best as an answer can be had, thanx.

 

[mikem317]

This is particularly disturbing. If the officer felt that he had sufficient right to retain the weapon (thinking that it might be an illegally-carried weapon and that Schubert was carrying illegally, thereby committing a crime) then why did he not arrest Schubert?

Absent any indication that this was the case, it sounds more like intimidation than anything else.

And in addition to wanton civil-rights abuses and intimidation, the officer stole the citizen's property (firearm).

Welcome to the police state.

 

[DickWanner]

...However, the LEO was perfectly within the law to approach someone who appears to have been doing what amounts to the worlds worst job of concealment. In MA, does that then come under some brandishing law?

Personally, knowing only what I know from the post, after establishing the person was a legal CCW holder, a short discussion on doing a better job in the future of concealment (I'm still trying to get my mind around how someone could do such a poor job of concealment it could be "glimpsed" through the windshield of the cruiser...) and send the person on there way.

As case law shows us, merely having a gun is not reasonable suspicion enough to assume a crime is being committed.

To add also, like it or not, it's also a personal interaction between two people. Ergo, much of what the LEO does depends to a great extent on what the person does.

Now, if the LEO recognized this person as someone he didn't like (as some have indicated) and decided to simply hassle the person, LEO is in the wrong and was being a tool and abusing his powers.

However, let's turn it around (God forbid we give the LEO a benefit of the doubt in any citizen/LEO interactions on NES...) that LEO sees VERY poorly concealed gun, makes contact, and the person starts ranting and raving about how he's a powerful lawyer, "knows people in this" town, and the usual "I pay your salary" types comments vs simply responding civilly to the LEO. You make the day hard for the LEO, he will in turn make your day hard also.

I know, a very unpopular, and rarely admitted to, reality of human to human interactions.

I DO NOT know which of these scenarios played out, but I can imagine either, or some combo of both.

Even if the lawyer was being a tool (and that's not an absurd accusation either), the officer still unlawfully confiscated (STOLE) the man's property through an abuse of his powers as LE.

 

[Scrivener]

And in addition to wanton civil-rights abuses and intimidation, the officer stole the citizen's property (firearm).

Hence the apparent claim for conversion referred to in the court's decision.

 

[Half Cocked]

Commonwealth v. Coutoure held that seeing a report of someone with a gun was not an indication of a crime, but has not, in practice, altered the police practice of asking for a LTC when someone is seen with a gun.

What is being missed in this discussion when comparing this incident with Couture is that in this case it was established that the area was one of "High Crime" which is an exception to Couture.

An important distinction.

 

[JonJ]

So a lawyer hires a lawyer to sue someone partially on the basis of the Second Amendment but the 2nd A is never mentioned until oral arguments?
Pfft.

 

[Will Brink]

I'll try:

5. Commonwealth v. Coutoure held that seeing a report of someone with a gun was not an indication of a crime, but has not, in practice, altered the police practice of asking for a LTC when someone is seen with a gun. A subtle nuance is the police officer needs to say something like "Please show me your LTC" rather than "Do you have an LTC", as the later is asking a accusatory question without benefit of Miranda.

.

Well hmmm. The above seems to put the LEO in a very awkward position. If you see a man with a gun tucked into his belt, or show up for a "man with a gun" call because someone saw the gun and called police, what are you supposed to do, NOT ask? What would the correct action be that makes the CCW holder happy here? Ignore it?

On a personal level, if for some reason an LEO happened to spot my CCW, and asked with civility if I had a CCW for it, I would not take offense or feel some abuse of power was taking place. However, on seeing the CCW, I would expect a friendly "thank you for showing me, have a nice day" type response and nothing more. Anything beyond that, and I am going to consider myself being hassled.

How do we address the needs to the citizens rights and the LEOs need to do their job here?

 

[Will Brink]

Even if the lawyer was being a tool (and that's not an absurd accusation either), the officer still unlawfully confiscated (STOLE) the man's property through an abuse of his powers as LE.

Agree with you, but lets not pretend human beings being what they are, being a complete tool tends to get a less favorable response then not, when dealing with other human beings, LEO or otherwise.

Yes, we want LEO to be above that, and most of the time they are, but personally, it's also not hard for me to understand that treating others as you want to be treated in any interaction often leads to the most favorable outcome for you.

 

[terraformer]

Hence the apparent claim for conversion referred to in the court's decision.

Was the firearm not returned ever?

 

[THUNDERCHIEF]

A friend had just sent me a link to this story and I was just gonna post it here if it wasn't already......its a frik'n outrage!

/John

 

[steveyc272]

Was the firearm not returned ever?

It was returned. From the district court decision:

Defendant deposited the firearm and ammunition with the appropriate officer of the Springfield police; though it was not actually retrieved until a week later, the firearm was available to be reclaimed later that day.

 

[RichM]

The officer was still employed as of July, 2007...

Springfield police officer J.B. Stern, who was an Army military policeman in Iraq from April 2003 to June 2004 and is now in the Navy Reserve and expects to be back in the Middle East in the fall, was among those who spoke during the Springfield celebration.

"People say, 'You poor man. Haven't you done enough?' Let me tell you, I have not," Stern, 42, said in a short address he wrote.

"Don't pity me for going again, when here I feel sorry that some of you can't come along too. When I look at that flag, that beautiful American flag, I know I've helped pay to keep it flying," Stern also wrote. "And by far, I am not alone in that endeavor."

... and he's a Soldier! ... AND a Sailor!


And he was at Camp Perry...

August '08 "The First Shot"

Navy reservist, Master at Arms First Class JB Stern, 44, of Agawam, Massachusetts and member of the Navy Marksmanship Team, brought his son Jake, 13, to the SAFS for the second time.

“I’d like it to become a family tradition,” the Navy vet said. “This is an important time for us.”

MA1 Stern, now a police officer, recently returned from a deployment in Kuwait and took the opportunity to bond with Jake and Jake’s friend, John Kroetz, 13.

 

[GSG]

Utter drivel. Read c. 140, s. 131.

Hint: Try the section addressing an LTC/B.

Fair enough, you got me there. However, I'm referring to the case at hand, where the man stopped was carrying with a Class A, which doesn't differentiate between open carry and concealed carry.

By failing to provide a system whereby an LTC can be verified as quickly as a DL, the government manufactures cause for detention and seizure of legally carried firearms?

+1

I had thought any accidental display could potentially be under the brandishing laws. So say I bend over to tie my shoe at the mall. Someone sees the barrel poke out from under shirt, and calls the police. Police show up, I show them CCW. Now what? Is there a clear response the LEO has at that point that leaves the person with the CCW happy and the LEO satisfied you are not a threat? Is it SOP for them to do X or is that the gray area?

As other have said, there's no law against "brandishing" in Mass., and keep in mind, every officer will treat the situation differently, and even if a department has SOP's, there's no guarantee that the cop on scene will remember or care about them. Check out this thread for some interesting stories, including the one I'm quoting below, where someone drew down on a dog in front of a cop, and the cop never even checked their LTC.

During my good ‘ol motorcycle days, I came upon a road construction area in Lowell. The traffic was backed up a bit and I was behind about six cars stopped by a Lowell Cop on traffic detail. While I was stopped, a dog came out of nowhere (must have been bothered by the noise) and firmly bit down on my leg. I drew my S&W Model 39 (I miss that gun) and pointed it at the angry mutt’s head while shutting off the bike’s engine. The dog stopped biting, loostened his grip, lost interested and then scampered away. I re-holstered the gun while noticing the cop walking my way. Not knowing what to expect, I kept the engine off with my hands on the handlebars. When he got to me he said “I would have popped that f*****n dog”, and asked if I was okay. That was it. No LTC questions, who I was…. nothing.

Discussions of other accidental revelations, such as the infamous Dedham incident and the more recent Fall River incident can be found on this forum.

Hold on, what Fall River incident? I think I missed that, do you know the link?

3. If the gun is exposed in such a manner as to create a direct or implied threat, assault charges can be brought. For example, if you are in an argument an pull your coat back to display the gun it could be seen as an assault placing the other party in reasonable fear.

Someone I know lifted his shirt to display his lawfully carried gun in Mass. in self defense, and was charged with assault with a dangerous weapon, and had his LTC revoked. The judge accepted his self defense claim (it was very valid), and he got his LTC back too, but it was quite the hassle.

As case law shows us, merely having a gun is not reasonable suspicion enough to assume a crime is being committed.

Not always true in Mass. The courts have found that true with a pistol (outside of a high crime area, as already discussed), but that is not true in the case of a sawed off shotgun.

Commonwealth v. Manuel Alvarado:

Police officers had a constitutionally sufficient basis, that is, reasonable suspicion, to stop a motor vehicle, to order the four occupants out and to frisk them for weapons, and then to examine the vehicle's interior for a specific type of weapon, where the police had information from a disinterested citizen, who identified himself and relayed his personal observations, that the front seat passenger in the vehicle had an apparent sawed-off shotgun in his possession, and given that likely possession of a sawed-off shotgun, by itself, discloses an imminent threat to public safety.

Well hmmm. The above seems to put the LEO in a very awkward position. If you see a man with a gun tucked into his belt, or show up for a "man with a gun" call because someone saw the gun and called police, what are you supposed to do, NOT ask? What would the correct action be that makes the CCW holder happy here? Ignore it?

Keep in mind that most of what we're talking about here with case law puts little restriction on what a police officer can actually do; what the courts are doing is determining what is legally correct in criminal procedure WRT crimes. Basically, the only way that you're going to really be affected by the standards set in cases like Commonwealth v. Couture or Commonwealth v. Seay in Mass. is if it comes up in court proceedings.

While I don't think the majority of street cops are malicious in dealing with LTC holders, most that I've met in Mass. know very little about case law like the ones that I mentioned above; they're simply trying to do their job, and if you're a decent person they'll be decent with you.

Your mileage may vary though.

 

[Scrivener]

Fair enough, you got me there. However, I'm referring to the case at hand, where the man stopped was carrying with a Class A, which doesn't differentiate between open carry and concealed carry.

It most certainly does if your LTC is restricted.

Hold on, what Fall River incident? I think I missed that, do you know the link?

Do you know there's a SEARCH function?

Not always true in Mass. The courts have found that true with a pistol (outside of a high crime area, as already discussed), but that is not true in the case of a sawed off shotgun.

Probably because possession of a sawed-off shotgun is itself a crime in Massachusetts.

 

[Will Brink]

Keep in mind that most of what we're talking about here with case law puts little restriction on what a police officer can actually do;

That's what I was trying to slowly but surly drive someone to admit to. The given situation will dictate the actual response, which will depend on both actual legal issues (and hoping said LEO even knows them...) and human issues, ergo, non LEO/LEO interactions.

what the courts are doing is determining what is legally correct in criminal procedure WRT crimes. Basically, the only way that you're going to really be affected by the standards set in cases like Commonwealth v. Couture or Commonwealth v. Seay in Mass. is if it comes up in court proceedings.

I will read those, thanx.

While I don't think the majority of street cops are malicious in dealing with LTC holders, most that I've met in Mass. know very little about case law like the ones that I mentioned above; they're simply trying to do their job, and if you're a decent person they'll be decent with you.

Your mileage may vary though.

Agreed. I know many an LEO in the region, and to a man (sorry, don't know any female LEOs...) they are very pro 2A and pro CCW. However, (and this is strictly my opinion...) if they happen to catch a "glimpse" of a gun on a person through the windshield of their cruiser, I have no doubt they would, in all probability, make contact with that person. I don't see them ignoring it, but again, that depends on the town, the SOP of the dept, the person themselves (anyone here who wanna pretend a well dressed man in a biz suit is equally likely to be approached to a guy with jail tats, dirty jeans, and T shirt that reads "authority sucks" is welcome to that fantasy...) and the LEO.

As I said, On a personal level, if for some reason an LEO happened to spot my CCW, and asked with civility if I had a CCW for it, I would not take offense or feel some abuse of power was taking place. However, on seeing the CCW, I would expect a friendly "thank you for showing me, have a nice day" type response and nothing more. Anything beyond that, and I am going to consider myself being hassled.

They do have a job to do, and I understand it and respect it.

 

[GSG]

thanx.

No problem.

It most certainly does if your LTC is restricted.

I have only ever heard of two people whose LTC specifically mentioned the word "concealed," and that was the users Jellyfish and Jim here on this forum.

Do you know there's a SEARCH function?

Relax, I didn't ask "Is it legal to carry an unregistered gun in Mass.?", I asked for clarification on a vague reference that you made.

If you're going to get pissy about people asking you questions, do us all a favor and don't come to a discussion forum unless you plan to discuss things.

Probably because possession of a sawed-off shotgun is itself a crime in Massachusetts.

Yes, you're right on that in a literal sense, it's illegal to posess a "sawed off" shotgun in Massachusetts, which MGL 140-121 identifies as

any weapon made from a shotgun, whether by alteration, modification or otherwise, if such weapon as modified has one or more barrels less than 18 inches in length or as modified has an overall length of less than 26 inches.

But, it is legal to posess a "short barreled shotgun," which was originally manufactured with a barrel less than 18 inches.

However, in the case that I linked to before, the courts made some interesting statements regarding the legality of sawed off shotguns in Massachusetts, indicating that it's legal, but that it's so unlikely for cops to run across one that's legal that a reliable report is PC to stop.

Commonwealth v. Manuel Alvarado:

A sawed-off shotgun is an extremely lethal weapon which poses "an ominous threat in and [of] itself." United States v. McKinney, 477 F.2d 1184, 1186 (D.C. Cir. 1973). The weapon has virtually no legitimate use outside, perhaps, of uses by law enforcement and military personnel. "Sawed-off shotguns cannot be used against game or wild animals and their only known uses are to frighten or kill human beings." United States v. Reed, 935 F.2d 641, 643 (4th Cir. 1991). See Brook v. State, 448 N.E.2d 1249, 1251 (Ind. Ct. App. 1983) ("The overall rationale for the legislative ban of sawed-off shotguns centers on their concealability and therefore likely use for criminal purposes rather than for sport or hunting"). While a sawed-off shotgun can be lawfully registered in Massachusetts, "its lawful possession is, in ordinary experience, rare indeed," United States v. Truitt, 521 F.2d 1174, 1177 (6th Cir. 1975), and "possession of [a sawed-off shotgun] is a serious crime...." Porter v. United States, 335 F.2d 602, 607 (9th Cir. 1964), cert. denied, 379 U.S. 983 (1965). It is not surprising then to find that numerous courts have concluded that a reliable report about a sawed-off shotgun, by itself, provides either probable cause for the police to conclude that the shotgun may be unlawfully possessed, see United States v. Naugle, 997 F.2d 819, 823 (10th Cir.), cert. denied, 510 U.S. 997 (1993); United States v. Decoteau, 932 F.2d 1205, 1207 (7th Cir. 1991); United States v. Melvin, 596 F.2d 492, 500 (1st Cir.), cert. denied, 444 U.S. 837 (1979); United States v. Bills, 555 F.2d 1250, 1251 (5th Cir. 1977); United States v. Truitt, supra; United States v. Canestri, 518 F.2d 269, 274-275 (2d Cir. 1975); United States v. McKinney, supra; United States v. Story, 463 F.2d 326, 328 (8th Cir.), cert. denied, 409 U.S. 988 (1972), or reasonable suspicion of illegality and danger justifying an immediate inquiry by the police. See Porter v. United States, supra; State v. Bolden, 380 So. 2d 40, 42 (La. 1980).

Looks like even the courts don't understand Mass. gun laws...surprise surprise.

 

[Coyote33]

A sawed-off shotgun is an extremely lethal weapon which poses "an ominous threat in and [of] itself." United States v. McKinney, 477 F.2d 1184, 1186 (D.C. Cir. 1973). The weapon has virtually no legitimate use outside, perhaps, of uses by law enforcement and military personnel. "Sawed-off shotguns cannot be used against game or wild animals and their only known uses are to frighten or kill human beings." United States v. Reed, 935 F.2d 641, 643 (4th Cir. 1991). See Brook v. State, 448 N.E.2d 1249, 1251 (Ind. Ct. App. 1983) ("The overall rationale for the legislative ban of sawed-off shotguns centers on their concealability and therefore likely use for criminal purposes rather than for sport or hunting"). While a sawed-off shotgun can be lawfully registered in Massachusetts, "its lawful possession is, in ordinary experience, rare indeed," United States v. Truitt, 521 F.2d 1174, 1177 (6th Cir. 1975), and "possession of [a sawed-off shotgun] is a serious crime...."

Geez, this would sure help a lot in the thread about using a rifle or shotgun in your home, but the shotgun pattern is too tight and the barrel is too long. So, who gets to determine this "legitimate use" for us, anyhow?

 

[GSG]

Geez, this would sure help a lot in the thread about using a rifle or shotgun in your home, but the shotgun pattern is too tight and the barrel is too long. So, who gets to determine this "legitimate use" for us, anyhow?

People who have government paid bodyguards who are subject to no gun laws whatsoever, sadly.

 

[terraformer]

Geez, this would sure help a lot in the thread about using a rifle or shotgun in your home, but the shotgun pattern is too tight and the barrel is too long. So, who gets to determine this "legitimate use" for us, anyhow?

It's all a throw back to the atrocity that is Miller.

 

[Scrivener]

I have only ever heard of two people whose LTC specifically mentioned the word "concealed," and that was the users Jellyfish and Jim here on this forum.

The word "concealed" is not required. "Target & Hunting" will generally be understood as preventing concealed carry because the term is used for that purpose. "Sport" and "Employment Only" are also used to preclude general concealed carry.

Given the numerous discussions of restrictions on this forum, you should know that.

If you're going to get pissy about people asking you questions, do us all a favor and don't come to a discussion forum unless you plan to discuss things.

If you're going to come into a discussion, know the subject and don't clutter up threads with pointless repetition.

Looks like even the courts don't understand Mass. gun laws...surprise surprise.

I hope that isn't a blinding revelation for you.