Civil Rights Equals Detainment?! So Says the Federal Court

Civil Rights Equals Detainment?! So Says the Federal Court

If the gun laws here in Massachusetts are not confusing enough, just try and follow the court rulings. Most recently a case has come out of a local federal court that has gun owners confused and angry.

This most recent case is Schubert v. City of Springfield (United States District Court Civil No. 07-30033). In this case Mr. Schubert was crossing a street during mid-day and was held at gun point by a police officer. The officer had claimed that he had seen a handgun under Mr. Schubert’s jacket. In legal terms the officer claimed to be conducting what is called a Terry Stop.

A "Terry Stop" is a stop of a person by law enforcement officers based upon "reasonable suspicion" that a person may have been engaged in criminal activity, whereas an arrest requires "probable cause" that a suspect committed a criminal offense. The name comes from the standards established in a case, Terry v. Ohio, 392 U.S. 1, 6 (1968).

During the stop, the officer detained Mr. Schubert for around ten minutes while he supposedly tried to verify the License to Carry (LTC). According to court records, the officer was not able to validate the LTC and as a result released Mr. Schubert but confiscated the LTC and the firearm. Both items were recovered at the police station later on. As a result of the incident, Mr. Schubert filed a civil rights case in federal court. The particular filings did not include any Second Amendment claims.

On March 4, 2009 Judge Michael A. Ponsor heard a motion to dismiss from the city. Judge Ponsor was born in Chicago and appointed to his position on the federal court by President Bill Clinton. That same day, the Judge gave an oral ruling followed by one in writing. The Judge stated in his ruling the following:
“I find on the undisputed facts of this case that the police officer had the right under the Terry decision to stop and make inquiry of the plaintiff once he recognized that he was walking in public and carrying a firearm…”
“…I believe the police officer is not violating the Constitution by confronting the individual, disarming the individual, and requiring the individual to produce identification and a license.”
“I don’t believe that the police officer crossed the constitutional line by drawing his firearm to protect himself and even pointing it at the plaintiff…”

“I find that the police officer once he was given the license was not required to accept it on its face…”
The events that led up to this case and the subsequent ruling are disturbing at best. According to this ruling, any lawful citizen who chooses to exercise their civil rights in public is now subject to detainment and search. This ruling exemplifies the socially immature attitude towards firearms here in Massachusetts. Of course one has to wonder how this type of ruling would go in an open carry state.

The ruling itself is very disturbing alone, but we can certainly get some insight as to how that ruling came about by looking at some statements made by the Judge. GOAL acquired a transcript from the motion to dismiss on March 4, 2009. The following are some statements made by Judge

Ponsor during that hearing. The statements obviously demonstrate a complete prejudice towards firearm ownership.

Judge Michael A. Ponsor
“I guess my question is what is a middle aged guy with a suit carrying a briefcase doing packing a handgun and walking around downtown Springfield? Is this becoming Dodge City here where everybody’s going to be carrying firearms?”

“Every time anybody’s at a chicken place and somebody pulls out a handgun we’ll have bullets flying in 16 different directions and its mutual destruction and we’re really two seconds away from gun firing breaking out. I’m really, really, really bothered by that.”

“I’m really appalled to hear that that many people are carrying guns.”

“You have the right to do a lot of things. It doesn’t mean you have the right to be free from an inquiry about what you’re doing.”

“I find on the undisputed facts of this case that the police officer had the right under the Terry decision to stop and make inquiry of the plaintiff once he recognized that he was walking in public and carrying a firearm that was visible to him from where he was seated in his squad car.”

With this new disturbing federal court decision, we must now ask the question as to how it affects prior state court rulings or rather how the federal decision should have been affected by them.

It is common knowledge that the Massachusetts Supreme Judicial Court stripped Commonwealth citizens of their Second Amendment civil rights in the infamous 1976 case Commonwealth V. Davis (369 Mass. 886).

“The Second Amendment to the Constitution of the United States declares: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."  This was adopted to quiet the fears of those who thought that the Congressional powers under article 1, section 8, clauses 15 and 16, with regard to the State militias might have the effect of enervating or destroying those forces.  The amendment is to be read as an assurance that the national government shall not so reduce the militias… So the amendment is irrelevant to the present case. The chances appear remote that this amendment will ultimately be read to control the States, for unlike some other provisions of the bill of rights, this is not directed to guaranteeing the rights of individuals, but rather, as we have said, to assuring some freedom of State forces from national interference.”

This horrendous decision was based on anti-civil rights cases like United States v. Cruickshank, 92 U.S. 542, 553, 23 L.Ed. 588 (1875). The same case the Massachusetts Attorney General used recently to back her possession against the Second Amendment. This Supreme Court of the

United States (SCOTUS) Case not only ruled against the Second Amendment, but also the First.

“The first amendment to the Constitution prohibits Congress from abridging 'the right of the people to assemble and to petition the government for a redress of grievances.' This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone.”

“The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States.”

The Davis decision was then backed up by Chief of Police of Shelburne v. Moyer, 16 Mass. App. Ct. at 547 (1983) and Ruggiero v. Police Commissioner of Boston, 18 Mass.App. 256, 464 N.E.2d 104 (Mass.App. 1984). These two decisions basically echoed the courts’ anti-civil rights stance and the authority of local authorities to deny or restrict rights. The Moyer decision also seemed to create a complete role reversal between citizens and their government.

“The burden is upon the applicant to produce substantial evidence that he is a proper person to hold a license to carry a firearm.”
Even with all of these absurd rulings and statements by the court concern our civil rights in earlier years there has certainly been some sound state court rulings that should have had some leverage on the Schubert decision.

Commonwealth vs. Samuel H. Nowells 390 Mass. 621 September 12, 1983 - December 20, 1983
“The ownership or possession of a handgun (or a rifle) is not a crime and standing alone creates no probable cause.”

Commonwealth vs. Marcos A. Rojas. 403 Mass. 483 October 5, 1988 - December 8, 1988
 “We note that possession of a handgun is not per se illegal.”

Commonwealth vs. Paul R. Couture. 407 Mass. 178 December 6, 1989 - April 9, 1990
“The mere possession of a handgun was not sufficient to give rise to a reasonable suspicion that the defendant was illegally carrying that gun, and the stop was therefore improper under Fourth Amendment principles.”
“The police in this case had no reason to believe, before conducting the search of the vehicle, that the defendant had no license to carry a firearm. A police officer's knowledge that an individual is carrying a handgun, in and of itself, does not furnish probable cause to believe that the individual is illegally carrying that gun.”
In the Couture case, a clerk at a convenience store in Lowell telephoned the local police and informed them that a man inside the store had a small handgun protruding from his right rear pocket. The clerk said that the man entered a gray pickup truck with a New Hampshire registration number. The clerk reported the registration number to the police. The man was then pulled over and arrested by police for illegal possession after a search of his vehicle. The evidence was eventually thrown out since no criminal activity was known to have taken place prior to the stop.

An interesting to connection to the Couture case is the Assistant District Attorney that lost this case, former State Senator Cheryl Jacques. Senator Jacques was the architect of the disastrous Gun Control Act of 1998. In 2008 she was appointed by Governor Deval Patrick to be a Judge at the Department of Industrial Accidents.
Most recently a case regarding possession came before the Massachusetts Supreme Judicial Court in Commonwealth vs. Thomas YOUNG & another. SJC-10147 January 5, 2009. - May 4, 2009.

“While we are cognizant that unlicensed possessors of firearms may use firearms unlawfully, unlicensed possession of a firearm itself is a regulatory crime. It is passive and victimless.

Case after case in Massachusetts the courts have maintained that mere possession of a firearm is not enough evidence to justify suspicion, search or detainment. The problem here is that the case was filed as a civil rights case in federal court and unfortunately some federal courts are still stuck in Civil War Era civil rights denial.

One interesting statement that appeared in the Schubert ruling was a footnote #2 on page three: “Second, Plaintiff’s right is secured, not restricted, by the state licensing statute, Mass. Gen. 140, § 131.” This is a very peculiar statement since the licensing system in Massachusetts is based on Commonwealth v. Davis that told us we citizens of Massachusetts have no such rights. A law student could probably do a whole thesis on that one.

So now that your eyes are glazed over you are probably asking the question, where does this leave us as lawful gun owners? The answer is, good question.

From all of the case research and history here, it all boils down to this. We have a federal court system that sort of recognizes our civil rights as gun owners but does not feel it is a problem if we are detained and questioned for simply exercising our rights. On the other hand we have a state court system in Massachusetts that does not recognize our civil right to keep and bear arms, but has strongly ruled that we should not be detained or questioned for mere possession of a firearm.

In the months and years to come I am certain there will be more cases heard on the national level to follow the famous Heller decision. Certainly the McDonald v. city of Chicago to be heard this spring by SCOTUS should provide us with more insight as to how we are going to be treated by our collective governments. For now, I am afraid, the lawful gun owners of Massachusetts are still yet seeking answers to the answers we have been given to the questions we shouldn’t have had to ask.


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  • 4/2/2010 10:02 AM Phil McMorrow wrote:
    What kind of law school did the imbecile Judge Posner attend? The Judge should lean to rule on the facts and evidence, and leave his editorial opinon out. His opinion disgraces the integrity of the court as it demonstrates His Honor's incompetence.
    Reply to this
    1. 1/31/2011 5:00 AM Erik wrote:
      Phil, Posner is from Chicago, and was a Clinton appointee. That right there should tell you all you need to know. First, he's from a city that had a ban on handguns. Second, he was appointed by former President Clinton. That means, he's a liberal, and as such, doesn't care about the Rule of Law, facts, evidence, or even common sense.

      Now, if I were crossing the street, and a cop saw my handgun under my coat, I would expect to be stopped and questioned. However, the cop drawing his gun on the guy? Call it what you want, but that is excessive force. There was no justifiable, clear threat to validate that officer's actions.
      Reply to this
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