Filed: Dec. 23, 2009
Latest Update: Feb. 22, 2020
Summary: CITY OF SPRINGFIELD AND, SPRINGFIELD POLICE OFFICER J.B.claims against Officer Stern's employer, the City of Springfield.1, He also brought various state civil rights claims and state, law tort claims against the defendants.grant of summary judgment on Schubert's Fourth Amendment claim.
United States Court of Appeals
For the First Circuit
No. 09-1370
GREG SCHUBERT,
Plaintiff, Appellant,
v.
CITY OF SPRINGFIELD AND
SPRINGFIELD POLICE OFFICER J.B. STERN,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Stahl, Circuit Judges.
Alan Jay Black for appellant.
Kevin B. Coyle for appellee Stern.
Edward M. Pikula, City Solicitor, with whom John T. Liebel,
Chief of Litigation, was on brief for appellee City of Springfield.
December 23, 2009
STAHL, Circuit Judge. Plaintiff-Appellant Greg Schubert
brought a civil rights claim pursuant to 42 U.S.C. § 1983 against
the City of Springfield and police officer J.B. Stern.1 Schubert
alleged that his Fourth and Fourteenth Amendment rights were
violated when Officer Stern stopped him in front of the Springfield
courthouse to investigate Schubert's possession of a handgun. The
district court granted summary judgment in favor of the officer as
to all claims against him and dismissed sua sponte Schubert's
claims against Officer Stern's employer, the City of Springfield.
Having carefully reviewed the facts of the case and the applicable
case law, we affirm the district court's decision in full.
I. Background
A. Relevant Facts
Because we are reviewing a summary judgment order granted
in favor of the defendants, we evaluate the record "in the light
most favorable to, and drawing all reasonable inferences in favor
of, the nonmoving party," in this case Schubert. Feliciano de la
Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st
Cir. 2000). We thus relate the facts with this standard in mind.
Schubert is a prominent criminal defense attorney who has
worked in Springfield, Massachusetts for approximately thirty
years. On July 21, 2006, Officer Stern, seated in his patrol car
1
He also brought various state civil rights claims and state
law tort claims against the defendants.
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near the Springfield courthouse, observed Schubert walking toward
the courthouse. The location is considered a high-crime area.
Schubert was dressed in a suit with an unbuttoned jacket and was
carrying a briefcase. Stern noted that Schubert was also carrying
a handgun in a holster. Despite the very hot weather that day,
Schubert was wearing his suit jacket, apparently in order to
conceal the handgun; however, he had the jacket unbuttoned, which
allowed the officer to see the weapon. According to Stern, several
passers-by also noticed Schubert's gun and alerted the officer to
the firearm by waving and pointing. However, a subsequent
investigation of the incident by the police department produced no
witnesses or other proof of Stern's allegation regarding the
passers-by.
On Schubert's account of the events, once Stern noticed
Schubert's partially concealed weapon, the officer leaped from his
cruiser in a "dynamic and explosive" manner, with his gun un-
holstered. Stern then pointed his weapon at Schubert's face. The
officer ordered Schubert to stop and put his hands in the air.
Schubert complied. When asked if he had a weapon, Schubert
responded that he did and that he had a license to carry. While
still pointing his gun at Schubert, Stern reached inside Schubert's
jacket and removed the weapon from its holster. Stern then walked
backward toward his cruiser, set his gun down, and removed the clip
and chambered round from Schubert's gun. Schubert replied in the
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negative when Stern asked if he was carrying any other weapons.
Stern then frisked Schubert and asked him for his license to carry.
Schubert produced his "Class A" gun license, which also indicated
that Schubert was an attorney. He also handed over his driver's
license.
Stern ordered Schubert to stay where he was, in the
street in front of the police cruiser, and Stern took the gun,
ammunition and licenses and got into his cruiser. The officer
verified Schubert's driver's license and attempted to verify the
validity of his gun license. In Schubert's version of the facts,
Schubert stayed in front of the cruiser for several minutes, then
moved to ask Stern if he could stand in the shade because it was a
hot day.2 Stern denied the request. Shortly thereafter Stern
escorted Schubert into the back of the cruiser. Inside the
vehicle, Stern partially Mirandized Schubert, see Miranda v.
Arizona, 384 U.S. 436, 478-79 (1966), 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.
Stern continued to attempt to verify the validity of
Schubert's weapons license, but because Massachusetts lacked a
centralized database containing such information, the officer soon
2
Stern alleges that Schubert moved repeatedly and a later
police department investigation uncovered one witness who
corroborated that account. However, given the summary judgment
standard we do not consider this version of the facts.
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realized that the inquiry could take a significant amount of time.
Thus, about five minutes after moving Schubert into the cruiser,
Stern told Schubert that he was free to go, but that Schubert would
have to retrieve his gun and gun license from the Springfield
police department. The entire stop took about ten minutes.
On July 26, 2006, Schubert filed a citizen's complaint
against Stern for his conduct on July 21. As a result of the
report, the Springfield Police Commissioner recommended that Stern
be retrained on Massachusetts firearms law but found no specific
wrongdoing on Officer Stern's part and did not recommend
disciplinary action.
B. Proceedings Below
On March 8, 2007, Schubert filed an eleven-count
complaint in the U.S. District Court for the District of
Massachusetts against Stern and the City of Springfield. Schubert
asserted federal civil rights claims pursuant to 42 U.S.C. § 1983
under the Fourth and Fourteenth Amendments, accompanied by state
civil rights and tort claims. Stern moved for summary judgment,
and after a motion hearing, the district court granted Stern's
motion as to all claims against him. The court sua sponte
dismissed with prejudice the federal claims against the City of
Springfield and dismissed the state claims against the City without
prejudice. This appeal followed.
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II. Discussion
A. Standard of Review
We review the district court's grant of summary judgment
de novo. We evaluate the record in the light most favorable to the
non-moving party, drawing all reasonable inferences in favor of
Schubert. See Feliciano de la Cruz, 218 F.3d at 5. We will uphold
a district court order granting summary judgment "if the pleadings,
the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(c)(2).
B. Fourth Amendment Claim
Schubert primarily contends that Stern lacked reasonable
suspicion to stop him and that the scope of the stop was not
reasonably related to the officer's original purpose. Schubert
also argues that there are unresolved material facts that preclude
summary judgment, that the district court failed to view the
evidence in the light most favorable to Schubert, and that the
opinion below was "unsupported by any evidence other than [the
court's] philosophical views" about gun control.
The Fourth Amendment protects against unreasonable
searches and seizures. See U.S. Const. Amend. IV. When police
conduct rises to the level of an arrest it is a seizure that
requires probable cause under the Warrant Clause of the Fourth
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Amendment. See Terry v. Ohio, 392 U.S. 1, 20 (1968). There are,
however, certain encounters between police and private citizens,
called Terry stops, that fall short of the intrusiveness of a full
arrest. These encounters require "necessarily swift action
predicated upon the on-the-spot observations of the officer on the
beat."
Id. When conducting a Terry stop, a police officer may
briefly detain an individual for questioning if the officer has
"reasonable suspicion supported by articulable facts that criminal
activity 'may be afoot.'" United States v. Sokolow,
490 U.S. 1, 7
(1989) (quoting
Terry, 392 U.S. at 30); see also United States v.
Wright,
582 F.3d 199, 205 (1st Cir. 2009).
In determining whether a Terry stop is justified, our
inquiry involves two steps, first, "whether the officer's action
was justified at its inception," and second, "whether it was
reasonably related in scope to the circumstances which justified
the interference in the first place." Terry, 392 U.S. at 20. The
initial stop requires reasonable suspicion, which must be rooted in
"a particularized and objective basis" for suspecting illegal
conduct on the part of the person stopped.
Wright, 582 F.3d at 205
(quoting Ornelas v. United States,
517 U.S. 690, 696 (1996)). The
particularity requirement is satisfied by a finding "grounded in
specific and articulable facts." United States v. Espinoza,
490
F.3d 41, 47 (1st Cir. 2007) (quoting United States v. Hensley,
469
U.S. 221, 229 (1985)). The objective component requires courts to
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"focus not on what the officer himself believed but, rather, on
what a reasonable officer in his position would have thought." Id.
1. The Initial Stop
Schubert argues that Stern was unjustified in stopping
him initially because Stern did not have an articulable suspicion,
based on the totality of the circumstances, to detain Schubert. We
disagree. Stern had an articulable, objective basis for his
reasonable suspicion that Schubert may have been engaged in
criminal activity: the officer observed Schubert walking toward the
Springfield courthouse carrying a gun. This simple, undisputed
fact provided a sufficient basis for Stern's concern that Schubert
may have been about to commit a serious criminal act, or, at the
very least, was openly carrying a firearm without a license to do
so. Schubert maintains that his suit jacket was meant to conceal
the weapon and that Stern was unable to produce any of the passers-
by that he claimed had alerted him to the existence of Schubert's
gun. The fact remains, however, that the officer saw a man
carrying a gun in a high-crime area, walking toward an important
public building.3
Schubert contends that his clothing, his age, and the
fact that he was carrying a briefcase are factors that should
undercut the reasonableness of Stern's suspicion. We are not
3
In addition, Stern noted that in his experience, most people
who carry firearms in Springfield are not licensed to do so.
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persuaded. A Terry stop is intended for just such a situation,
where the officer has a reasonable concern about potential criminal
activity based on his "on-the-spot observations," and where
immediate action is required to ensure that any criminal activity
is stopped or prevented. Terry, 392 U.S. at 20. We need not
outline in detail the obvious and potentially horrific events that
could have transpired had an officer noted a man walking toward the
courthouse with a gun and chosen not to intervene. In addition,
"[u]nder Terry, the test is whether the circumstances give rise to
a reasonable suspicion of criminal activity, not whether the
defendant's actions are subject to no reasonable innocent
explanation." United States v. Stanley,
915 F.2d 54, 57 (1st Cir.
1990). It is clear in this case that, in hindsight, Schubert in
fact posed no threat to public safety. However, on these facts,
Officer Stern certainly had reasonable suspicion to stop the
unknown armed man in order to ascertain his identity, his authority
to possess the gun, and his intentions.
Schubert also contends that there are material facts in
dispute which should bar resolution of this case at the summary
judgment stage. He points to the following: (1) Stern claimed that
the gun was tucked into Schubert's pants or held in a pants holster
while Schubert asserts that the gun was in fact holstered on his
hip; and (2) Stern claimed that passers-by noticed Schubert's gun,
while Schubert asserts that the gun was not "visible to the average
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person walking toward or past the Plaintiff on the street."
However, these are not material factual differences that would sway
the outcome of the litigation. The precise location of the gun is
inconsequential; what matters is that Stern observed the weapon on
Schubert's person. Further, whether or not passers-by saw the gun
is immaterial to the question of whether an objective officer who
observed Schubert walking in such a manner would possess reasonable
suspicion of criminal activity.4
Finally, we briefly note that Schubert's contention that
the district court's opinion was "unsupported by any evidence other
than [the court's] philosophical views" about gun control is far
off base. The opinion below rested on sound, undisputed facts
regarding an officer's observation of an armed man approaching a
courthouse. The appellant makes no colorable showing that the
lower court's conclusion was based on something other than the
facts.
4
In addition, Schubert's reliance upon Flowers v. Fiore, 359
F.3d 24 (1st Cir. 2004), is misplaced. In Flowers, this court
upheld the Terry stop of a motorist who fit the description of a
possible armed suspect.
Id. at 34 (stressing substantial and
serious nature of government interest in stopping potential armed
attack). Here, unlike in Flowers, a police officer stopped a man
that he definitively knew was armed and approaching a courthouse in
a high-crime area. The officer's ground for suspicion in this case
was greater than that in Flowers as the officer here could confirm
with his own eyes that Schubert indeed possessed a weapon.
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We thus conclude that the district court had ample reason
to conclude that Officer Stern's investigatory stop was justified
at its inception.
2. The Scope of the Search
Schubert also contends that the manner and length of the
stop exceeded the circumstances which justified the stop in the
first place. Schubert reasons that once he produced his license to
carry, the officer should have released him and ended the
encounter. Schubert also takes issue with the manner in which
Stern suddenly emerged from the police cruiser with his weapon
drawn. Further, Schubert questions Stern's subsequent five-minute
detention of Schubert in the rear of the cruiser, during which time
he partially Mirandized Schubert and mentioned the possibility of
charging him with a crime. Finally, Schubert argues that Stern
unreasonably confiscated his weapon, requiring Schubert to retrieve
it from the police department.
However, as the district court correctly concluded, once
Stern had reasonable suspicion justifying a stop, he was permitted
to take actions to ensure his own safety. See Schubert v. City of
Springfield, 602 F. Supp. 2d 254, 257 (D. Mass. 2009). The officer
took several reasonable steps given that Schubert was an unknown
armed man walking in that particular location: he emerged quickly
from his vehicle, drew his gun, executed a pat-frisk, requested
identification and a gun license, attempted to confirm the validity
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of the licenses, and escorted Schubert into the cruiser after
Schubert moved from the position in which the officer had
instructed him to remain. All these actions were related in scope
to the circumstances that justified the initial stop, namely,
Schubert's open possession of a weapon in front of a courthouse.
Stern's concern for his own safety and for the safety of others was
the context for this stop. It is "clearly unreasonable to deny the
officer the power to take necessary measures to determine whether
the person is in fact carrying a weapon and to neutralize the
threat of physical harm." Stanley, 915 F.2d at 57 (quoting
Terry,
392 U.S. at 24).5
Further, we do not agree with Schubert's contention that
the gun license was valid on its face and therefore the several
minute delay during which Stern attempted to confirm the validity
5
Schubert cites Nelson v. City of Cambridge, 101 F. Supp. 2d 44,
47-48 (D. Mass. 2000), in support of his claim that the means
exceeded the scope of the stop. The case is inapposite. In
Nelson, the district court denied summary judgment and held that a
reasonable jury could find that the means used to accomplish a stop
were excessive where officers stopped a suspect at gunpoint,
frisked him, and then continued to restrain him for an additional
fifteen to thirty minutes after ascertaining that he was not armed,
did not match a robbery suspect's height or age, was identified by
another person as being rightfully in the location, and had
provided a plausible explanation for his meandering down the
street.
Id. at 47. Schubert argues that Stern was not
investigating a crime like the one in Nelson. We agree, though not
to the benefit of Schubert's position. Here, the officer
ascertained visually that Schubert possessed a gun in a high-crime
area near a courthouse. This scenario is distinct from Nelson,
where the suspect was held for a significant length of time after
it was determined that he was not armed or involved in the
suspected crime.
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of the license was unreasonable. Just as an officer is justified
in attempting to confirm the validity of a driver's license, such
a routine check is also valid and prudent regarding a gun license.
As it happens, Massachusetts did not have a simple way for police
officers to conduct such a check, so Stern's effort to do so took
several minutes. But the entire stop took only ten minutes and
when Stern realized that he would not be able to confirm the gun
license within a reasonable time, he sensibly opted to terminate
the stop and release Schubert, but retain the weapon.
We thus conclude that the district court correctly held
that Stern acted within the permissible scope of his initial Terry
stop of Schubert. Therefore, having already determined that the
initial stop complied with Terry, we affirm the district court's
grant of summary judgment on Schubert's Fourth Amendment claim.
C. Second Amendment Claim
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."
Schubert did not assert a violation of his Second
Amendment right in his original complaint. Nor did he file an
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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.
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.
4. Other Claims
Because we affirm the district court's grant of summary
judgment as to the federal claims against Stern, we also affirm the
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lower court's sua sponte dismissal with prejudice of Schubert's
federal claims against the City. As plaintiff concedes, those
claims depend on a finding of liability on the part of Officer
Stern. See Jarret v. Town of Yarmouth, 331 F.3d 140, 151 (1st Cir.
2003) (citing City of Los Angeles v. Heller,
475 U.S. 796, 799
(1986)). In addition, we affirm the district court's grant of
summary judgment in favor of Stern as to all other claims against
him, and the court's sua sponte dismissal, without prejudice, of
the remaining state law claims against the City, for the reasons
given by the district court.6
III. Conclusion
For the foregoing reasons, we affirm the district court's
grant of summary judgment in favor of Stern, the dismissal with
prejudice of the federal claims against the City of Springfield,
and the dismissal without prejudice of the remaining state law
claims against the City.
6
Schubert only raises the issue of whether his detention
amounted to a de facto arrest during his discussion of the state
tort law claims of false arrest and false imprisonment. Because we
affirm the dismissal of those claims for the reasons outlined by
the district court, we do not reach the de facto arrest issue.
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