Guns

Fourth Amendment Forbids Handcuffing Driver Just Because He Has Gun + Gun Permit

"Any contrary holding 'would eviscerate Fourth Amendment protections for lawfully armed individuals' by presuming a license expressly permitting possession of a firearm was invalid."

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From Friday's decision in Soukaneh v. Andrzejewski, written by Judge Janet Bond Arterton (D. Conn.):

At approximately 8:34 pm on November 12, 2018, Plaintiff was operating a Kia Sorento LX in the vicinity of Hillside Avenue and Pine Street in Waterbury, Connecticut. Plaintiff had stopped his vehicle with the engine running in an attempt to unfreeze his iPhone GPS, which was located in a holder mounted to the dashboard. The dark and high-crime area where Plaintiff stopped his vehicle was well-known for prostitution, drug transactions, and other criminal activity.

As Plaintiff was attempting to fix his phone, Defendant approached his vehicle, knocked on the driver's side window, and requested Plaintiff's license. Plaintiff handed Defendant his license and gun permit, which he removed from the back of his sun visor. At the time Plaintiff handed over his license and gun permit, he told Defendant that he was in possession of a pistol, which was located in the driver's side compartment door. Defendant handcuffed and searched Plaintiff, and Defendant forcibly moved Plaintiff to the back of his police car. While Plaintiff was inside the police car in handcuffs, Defendant ran a check through the Northwest Communication Center to determine whether the pistol permit was valid.

The court held that the initial detention for questioning about why the car was stopped there was constitutional:

Defendant's basis for stopping Plaintiff's vehicle was that the car was stopped at night in the roadway with the engine running in an area known for drugs and prostitution. In Connecticut, a parked car may "not obstruct or impede the normal and reasonable movement of traffic." Thus, Defendant observed Plaintiff committing a traffic offense, giving him reasonable suspicion to stop Plaintiff, check his driver's license, and require him to step out of the car.

But the court held that the handcuffing and detention violated the Fourth Amendment, assuming the facts were as the plaintiff alleged:

Defendant conceded at oral argument that his conduct following the initial stop and check of Plaintiff's driver's license exceeded the bounds of a Terry stop, but that the conduct was still justified because he had probable cause to believe Plaintiff was possessing a firearm without a permit as he had not yet been able to verify the validity of the permit….

The question thus becomes whether Plaintiff's disclosure that he had a pistol in the car coupled with presentation of a facially valid, but not yet verified, permit can "arguably" constitute probable cause to believe that he was unlawfully possessing a weapon in his vehicle. An assessment of arguable probable cause requires consideration of the statute Defendant believed Plaintiff might be violating.

Connecticut General Statutes § 29-38(a) makes the absence of a permit while possessing a firearm inside a vehicle an element of the offense, meaning that there needed to have been some evidence indicating the probability that Plaintiff was not licensed to possess a firearm in order to suspect that he had committed the crime of unlawful possession of a firearm in a vehicle. But at no time did Defendant have any reasonable suspicion or actual knowledge of Plaintiff's possession of the firearm without simultaneously knowing that Plaintiff demonstrated that he had an apparently valid firearm permit.

Indeed, it is undisputed that Plaintiff told Defendant that he had a pistol in the driver's side door compartment at the time he handed his driver's license and pistol permit to Defendant. And in his deposition, Plaintiff stated that when he handed his license and permit to Defendant, he said, "That's my license and including [sic] my pistol permit, I have a pistol on me." In the absence of any articulable reason for Defendant to believe the permit was counterfeit or otherwise invalid, there is no indication that Plaintiff was even arguably unlawfully possessing a firearm.

In light of the uncontested fact that Plaintiff presented his pistol permit to Defendant before or at the time he disclosed that he was in possession of a pistol and the absence of any other indicia that Plaintiff was otherwise violating the statute, no reasonable officer could believe probable cause was present. Any contrary holding "would eviscerate Fourth Amendment protections for lawfully armed individuals" by presuming a license expressly permitting possession of a firearm was invalid. To accept Defendant's reasoning would permit police officers to detain any driver because he or she may have a counterfeit or otherwise invalid driver's license which has been rejected by the Supreme Court.

Because, on the record read in the light most favorable to the non-moving party, no reasonable police officer could have believed he or she had probable cause to arrest Plaintiff, the Court denies summary judgment on the lawfulness of the de facto arrest ….

The court also held that the law was clear enough that the police officer didn't have qualified immunity from the claim. And it likewise held as to the follow-up search of the car:

"[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden … if the police officer possesses a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officers in believing that the suspect is dangerous and that the suspect may gain immediate control of weapons." …

On this record, no reasonable officer could conclude that Plaintiff posed a meaningful threat of being "armed and dangerous" simply because he disclosed that he had a pistol and a license to possess it. Any contrary holding would make it practically impossible for the lawful owner of a firearm to maintain a Fourth Amendment right to privacy in his or her automobile.

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  1. Good. A judge grasps that armed is not equivalent to dangerous.

    1. It depends on what you mean. A man is supposed to be (and should be presumed) dangerous. An armed man more so.

      The question is not is he dangerous, but is he an imminent threat?

      We allow too much bad action by authorities based on ‘dangerousness.’ Wee need to scale it back to threatening, and being dangerous can not be SUFFICIENT to presume threatening.

      1. A man is supposed to be (and should be presumed) dangerous. An armed man more so.

        1. And women too, amirite?
        2. What sort of… um, atypical definition of “dangerous” were you holding in the back of your head as you wrote this?

        1. 1. Absolutely.
          2. Dunno. But the original comment was armed was not dangerous. I disagree. But ability to create danger is not the same as threatening or hostile behavior, which I likely inelegantly expressed.

          1. But the original comment was armed was not dangerous.

            So you’re saying that since some driving behavior is dangerous, that a car driver, being in control of two tons in motion, is patently a dangerous person?

            I don’t think that’s a pursuit of successful communication.

            Dangerous behavior, past or present, is what yields a dangerous person, whether in control of a car or in control of a gun.

            1. Does “dangerous” mean “able to cause harm”, or does it mean “likely to cause harm”? I wrote that independently, but I find that Merriam-Webster uses almost exactly the same words: “able or likely to inflict injury or harm”.

              A person operating a car is certainly *able* to cause harm, but is normally presumed not to be *likely* to cause harm.

          2. But ability to create danger is not the same as threatening or hostile behavior

            That’s why I asked, as it felt like you were equating “dangerous” with “ability to create danger.” Very little in life is not “dangerous” under that calculus.

            I think you and OP are ultimately getting to the same place: OP by acknowledging that an armed person is not inherently “dangerous” and thus being armed should not be sufficient to restrain someone, and you by saying an armed person is inherently “dangerous” but that being “dangerous” on its own should not be sufficient to restrain someone. OP’s approach seems to me to be based on the more conventional understanding of the term.

            1. Dictionaries generally define dangerous as “able or likely” to cause harm, etc. Given that ambiguity in the word itself, I’m not sure you can presume your assumption about its meaning in context, as “likely not just able”, to reflect universal understanding.

              In other words, Kiristian H has a point, especially if that word was written into law without express narrowing of its dictionary meaning.

              1. Given that ambiguity in the word itself, I’m not sure you can presume your assumption about its meaning in context, as “likely not just able”, to reflect universal understanding.

                IMO that’s a manufactured ambiguity and not conventional usage at all — otherwise most things in this world would be considered dangerous in the “able” sense. I prefer to believe the panic mongers haven’t made quite that much progress over the past year and a half.

                1. In an era of ridiculous lawsuits, I’m not so sure the ambiguity isn’t there. That is, able to cause harm tends to be turned into dangerous as people explain, eg, that no one warned them that filling their trunk with plastic bags full of gasoline was dangerous so it’s someone else’s fault their car caught fire.

                  I see both arguments. But I think now is a time when we need to be ferocious in insisting that things shouldn’t be outlawed just because they’re dangerous. It’s a setup for arguing about what’s dangerous instead of whether the government really should protect us from every conceivable risk.

      2. Women are far more dangerous….

      3. “A man is supposed to be (and should be presumed) dangerous”
        How about a woman?
        Everyone has known for many years that the female of the species is more dangerous than the male

      4. I think Tolkien covered the meaning of “dangerous” quite well ——

        “‘Dangerous!’ cried Gandalf. ‘And so am I, very dangerous: more dangerous than anything you will ever meet, unless you are brought alive before the seat of the Dark Lord. And Aragorn is dangerous, and Legolas is dangerous. You are beset with dangers, Gimli son of Glóin; for you are dangerous yourself, in your own fashion. Certainly the forest of Fangorn is perilous — not least to those that are too ready with their axes; and Fangorn himself, he is perilous too; yet he is wise and kindly nonetheless.”
        ― J.R.R. Tolkien, The Lord of the Rings

    2. This is one of those cases of a word sometimes being used so vaguely without regard for context that it is rendered essentially meaningless. Virtually any sort of matter may be employed to cause some sort of harm, making everyone/everything “dangerous” according to the most literal reading of the definition cited. In this particular context it should be clear to most English speakers that dwshelf was using the word to mean “more likely than average to cause harm”, or something functionally equivalent, rather than simply “capable of causing harm”, which is meaningless in this context.

  2. So did the cop have to personally write a check to the driver?

    Absent *that*, all of this is moot — and as I understand Massachusetts law (which may be different) if the officer *knowingly* violated the driver’s rights, there is no indemnification.

    1. Do you mean a butt cheek or face cheek?

      1. So did the cop have to personally write a check to the driver?

      2. Who among us hasn’t seen butt cheeks when there were none?

      3. Sometimes I wish Reason had either “edit” or “delete” options for comments.

        Not in this case, of course, but for when I make similar mistakes. 😉

      4. A pound of flesh would violate the 8th Amendment, at least as I understand it….

        It would, however, get the attention of police officers…

    2. Since the plaintiff hasn’t won the case yet, no—no one has given him a check.

      1. Wake me up if he ever gets one….

  3. Black PA mother with PA conceal carry permit is imprisoned in NJ during a traffic stop not related to guns.

    Under the Full Faith and Credit Clause, NJ has recognize a PA marriage license. How can the dumbass Supreme Court hold, NJ does not have to recognize its conceal carry permit? How? Because the SC Justices are all dumbasses.

    1. Oh, the moronity!

      1. Of prosecuting a woman for taking a wrong turn? Certainly true. Fortunately Christie pardoned her.

        1. I think PA should arrest all NJ politicians and their armed security if they enter PA. All NJ police should be arrested as well. Throw them in prison and make them await trial there. Make them read the Full Faith and Credit Clause in their cells. Then part of sentencing should be to write an essay on why the rule of law is so important, and why it should be followed.

          https://www.pennlive.com/nation-world/2017/12/pa_woman_pushes_for_change_to.html

          1. She went to prison for 48 days. NJ has a nightmare legal system. Dealing with Tony Soprano would be easier, since he would be 10 times more honest and reliable than the NJ courts.

          2. Aren’t states required to grant carry rights to cops from other states under some Federal law?

    2. Under the Full Faith and Credit Clause, NJ has recognize a PA marriage license.

      No, it doesn’t.

      <Call> Next.</call>

      1. Are you claiming that NJ doesn’t recognize marriage licenses from other states? Do you have a citation?

        1. Wow, what a maroon. No, I am not claiming that NJ doesn’t recognize marriage licenses from other states. That was not Behar’s claim. Whether it chooses to recognize them or not is irrelevant to the topic. Behar claims that it has to recognize them, and therefore reasons that in the same way it must also recognize gun licenses. That just isn’t true.

  4. Do not volunteer information to the police. They are the agents of the prosecutor. Their job is to make money off hapless, law abiding, middle class people with nitpicking gotchas.

    1. Some states have duty to inform and you have to tell a cop immediately if you are legally carrying a firearm,

      The same rule does not apply to those illegally carrying a firearm

      1. Thank goodness, not here in MT. The cops know that most pickups contain a truck gun. BFD. If they ask, you tell them. But if it were like this case they likely wouldn’t ask.

        1. My guess is that it *is* a big deal if it is loaded.

          It is in Maine, and when I was younger I asked an old-timer about that — seems that back in the 1930s the state had a *lot* of problems with accidental discharges which — remembering what the roads were like back then — isn’t surprising. A lot of shotgun-installed sunroofs and such….

          Gun in the truck is no big deal — LOADED gun in the truck absolutely is. Besides, it’s what they can actually bust poachers for because there is no law against driving around in the moonlight with your girlfriend and looking at the deer licking the salt off the road….

            1. isn’t the bank-lobby restriction a Federal law?

              1. No. Bank lobbies are fine in Ohio unless specifically posted.

          1. As I said. Not in MT. Ditto for many other states. If you need the gun, you often don’t have time to load it. Moreover, typical stress reactions often makes loading a gun hard. That is because blood is pulled from extremities (and esp fingers and toes) into your core. So, you are faced with inserting a magazine into a mag well and racking the slide, or worse, trying to insert bullets into the cylinders in a revolver with your now bloodless fingers. You might as well throw the gun at your attacker.

            So no, most people don’t carry their firearms in their vehicles (or on their persons) unloaded, if the law doesn’t require it. The police know this – they carry their handguns loaded in their vehicles or on their persons too.

      2. CT doesn’t have this requirement. Some people foolishly think they’re being helpful by volunteering the information, though.

        1. Yeah idk. Clearly these asshat cops were looking for a buzz. They were going to toss the vehicle no matter what. If he hadn’t volunteered the gun, they would have found it and not asked about the permit until weeks later.

      3. Recently saw a article about a woman arrested in her own home for not telling officers she was armed, after she called them to arrest an unwanted visitor, that had an outstanding warrant:

        “A Warren woman who called the police to remove a man from her home was cited for failing to tell officers she had a gun in her purse.

        Police say they seized the conceal carry permit and handgun from Ashley Heiskell after she had called officers to remove a man who was at her Commerce Street townhouse early Tuesday.

        Officers arrested the man after confirming Heiskell’s claim that he is wanted on a warrant out of Cuyahoga County.”

        I don’t think it will fly though, I doubt there is a duty to inform officers you are armed in your own home. She needs a permit to carry a concealed weapon outside the home, at least that’s the current law, so I suppose they can attach conditions to the permit. But they can’t attach conditions to being armed in your own home, that only apply to CCW holders. At least that is my take.

      4. This is true. At least I can conform it is true for Florida and California.

    2. As Kevin said, holders are either required or encouraged to disclose this to officers when pulled over. The reason is that communication should prevent a misunderstanding or surprise. It also should take away the officer’s fear that the armed person is hiding the weapon with the intent of using it on the officer.

      Unfortunately, Philando Castille could not be reached for comment.

      1. In TX there is a statutory requirement to present one’s LTC to an officer when pulled over for a traffic stop, but the legislature eliminated the penalty for not doing so several years ago, making it an unenforceable requirement. It will be even more meaningless when constitutional carry goes into effect next month.

        I have still opted to produce my LTC (which I will continue top renew even after CC goes into effect, as it covers me when traveling to/through reciprocal states) on the couple of occasions on which I was pulled over for the very reason you suggest. One less surprise for the stopping officer generally benefits us both.

        1. Ditto here in MT. Renewed my CCL last month even though you no longer need a CCL to carry concealed within city limits in MT. We are 20 miles from ID, and wit reciprocity, I can carry concealed there, as well as in about half the states. The other thing is that background checks for firearm purchases are automatic, with a valid MT CCL. That means that you can buy a gun, and walk out wit it, instead of having to come back a couple days later to pick it up.

          1. The other thing is that background checks for firearm purchases are automatic, with a valid MT CCL

            Also the case in TX.

  5. My Police officer, that’s your mulligan. One more and your privilege of being a police officer is revoked, nationwide. And his training officer.

  6. Only by stupid cop logic would voluntarily presenting a permit and telling them about a firearm would be probable cause that they don’t have a permit.

  7. Apparently, the move to base the continued detention on probable cause of unlicensed possession was a concession by deft at arguments — I query that. You’re right at the beginning of a stop in a dark area, you discover that the driver has a gun, I think this goes to exigency, and pushing the boundaries of Terry rather than de facto arrest on probable cause of the firearms violation, even without suggesting the officer’s actual subjective belief in the latter. Make the disputed events on the removal from the car a genuine issue for the finder of fact. That might put the abstract Terry/SITA questions into sharper focus.

    Mr. D.

  8. The real question: why are these police officers still on the force. Officers like this make the whole system look bad.

  9. Fun fact. In my California Open Carry lawsuit, Charles Nichols v. Gavin Newsom, et al., the State of California argued that police do not need either reasonable suspicion or probable cause to make an arrest of someone who asserts his Fourth Amendment right by refusing to consent to the search and seizure of his person and property (firearm) pursuant to California Penal Code section 25850(b).

    Presiding Judge Berzon reminded the state’s attorney that probable cause is required, even in an automobile where the Fourth Amendment protection is at its lowest.

    The published, and therefore binding opinion in US v. Vongxay held that we must refuse to consent for the Fourth Amendment to apply.

    California law, at a minimum, penalizes what the 9th circuit has held what we must do in order to be protected by the Fourth Amendment.

    Refusal to consent may also be a crime in and of itself. In the district court, we assumed that it was but a 9th circuit judge in US v. Nora asked whether or not the subsection was a crime or merely a statute authorizing the search and seizure. That question was left open in US v. Nora. It is one of the issues to be decided by my three-judge panel.

  10. If I stopped a car and when I came up to it the driver says “Officer, I have a gun right here in the driver’s door”, I would react pretty quickly. Wouldn’t you?

    1. No. That’s silly. If the driver is going to tell you, before he is asked, that e has a firearm, then the odds of him missing it are very idly lower than those of the cop using his. Statistically, licensed concealed carriers of firearms are far less okey to misuse their guns than are cops.

    2. Not if “react” means “search and handcuff an armed man.” If I thought he was going to kill me I’d take a different tact entirely and if I didn’t I wouldn’t worry about it.

    3. No. The guy who hands you his permit and informs you about his pistol probably isn’t the guy you have to worry about. The guy you have to worry about just pulls the pistol out and shoots you without the courtesy of informing you.

  11. I recall a case from the First Circuit where it was held legal to detain a man for walking armed near the Springfield courthouse until police could confirm the validity of his license.

    1. Judges doubtless hold their own lives dearer than the Constitution.

  12. Waterbury is as dismissive of the 1st and 4th Amendments as it is the 2nd. IIRC, both Waterbury and Danbury are facing a ton of lawsuits where they have infringed people’s rights to film in public, and where they have required IDs to enter a public building etc…

    Some of the cops are on video grousing about how 20 years ago they would have killed the guy filming and more recently than that they would have tuned him up. It looks like some of these Connecticut towns also have a good ol’ boy system set up where the city attorney, cops and judge all play their parts to deny people their rights. I think Long Island Auditor was the one who had all of the videos on Youtube if anyone is interested in going down the rabbit hole.

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