Welcome to the new "right" to bear arms...

[RadiomanATL]

Thread alternately titled: "Retarded cops and judges".


Court upholds police pointing gun at lawful carrier

A United States Circuit Court of Appeals last week upheld the constitutionality of pointing a gun at any citizen daring to carry, lawfully, a concealed weapon in public.

The First Circuit Court of Appeals is the Court just below the United States Supreme Court in the New England states. The case stems from a lawyer who sued a police officer after he was detained for lawfully carrying a concealed weapon while in possession of a license to carry concealed. According to the case opinion, the lawyer, Greg Schubert, had a pistol concealed under his suit coat, and Mr. Schubert was walking in what the court described as a "high crime area." At some point a police officer, J.B. Stern, who lived up to his last name, caught a glimpse of the attorney's pistol, and he leapt out of his patrol car "in a dynamic and explosive manner" with his gun drawn, pointing it at the attorney's face.

Officer Stern "executed a pat-frisk," and Mr. Schubert produced his license to carry a concealed weapon. He was disarmed and ordered to stand in front of the patrol car in the hot sun. At some point, the officer locked him in the back seat of the police car and delivered a lecture. Officer Stern "partially Mirandized Schubert, mentioned the possibility of a criminal charge, and told Schubert that he (Stern) was the only person allowed to carry a weapon on his beat."

For most people, this would be enough to conclude that they were being harassed for the exercise of a constitutional right, but the officer went further, seizing the attorney's pistol and leaving with it. Officer Stern reasoned that because he could not confirm the "facially valid" license to carry, he would not permit the attorney to carry. Officer Stern drove away with the license and the firearm, leaving the attorney unarmed, dressed in a suit, and alone in what the officer himself argued was a high crime area.

The attorney sued in federal court, but the District Court threw out his suit, ruling that Officer Stern's behavior is the proper way to treat people who lawfully carry concealed pistols. Mr. Schubert appealed, and the First Circuit upheld the District Court's ruling. The court held that the stop was lawful and that Officer Stern "was permitted to take actions to ensure his own safety."

The court further held that the officer was entitled to confirm the validity of a "facially valid" license to carry a concealed weapon. The problem for Officer Stern was that there is no way to do so in Massachusetts, where this incident occurred. As a result, the court held that Officer Stern "sensibly opted to terminate the stop and release Schubert, but retain the weapon."

 

[Contumacious]

For most people, this would be enough to conclude that they were being harassed for the exercise of a constitutional right,

Yes, indeed he was being harassed for exercising his Constitutional right to bear arms and to protect his life. The Northeastern states are hostile to that right, and they will find any pretext to harass the individual.

But the 1st COA stated in its opinion:

Second Amendment Claim

[42] Schubert also argues that the officer's stop violated Schubert's Second Amendment right to bear arms. He cites to the Supreme Court's recent decision in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), to support his assertion that because the right to bear arms is a "fundamental individual right," Officer Stern had "absolutely no reason to interfere with the lawful exercise of this right."

[43] Schubert did not assert a violation of his Second Amendment right in his original complaint. Nor did he file an amended complaint to alert the court and the other parties to such a claim. He also did not raise the claim in his written opposition to summary judgment. The issue was first raised by Schubert at oral argument on the motion for summary judgment. Having reviewed the transcript, we conclude that his counsel's references to a Second Amendment issue were extremely brief and were unsupported by citations to specific case law. In addition, counsel did not frame his comments on the issue as providing an additional, specific ground for liability against Stern and the City.

[44] We thus conclude that Schubert failed properly to raise a Second Amendment claim in the court below, and we therefore decline to entertain his appellate argument on this issue. See, e.g., In re Ruah, 119 F.3d 46, 51 (1st Cir. 1997); McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991) ("Overburdened trial judges cannot be expected to be mind readers. If claims are merely insinuated rather than actually articulated in the trial court, we will ordinarily refuse to deem them preserved for appellate review."). Our conclusion is not altered by the fact that the district court chose briefly to address Schubert's assertions regarding the Second Amendment in a short footnote to its summary judgment memorandum.

Schubert v. City of Springfield, No. 09-1370 (1st Cir. 12/23/2009)

So , if you file a complaint , make sure that all elements are included or the issue is considered waives, especially by a Judiciary which is hostile to the right.

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