The Volokh Conspiracy
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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."
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.
