B.L.U.F. Weird 2A case analysis. The Plaintiff(good guy?) charges that the cops removed him from his car, detained him, did a warrantless search of his vehicle, stole some cash. The Defendant(the state) claims that the presence of a legally carried firearm was justification for the search. Currently in the Second Circuit Court of Appeals waiting judgement.
History
Around 2043 on 2018-11-12 Basel Soukaneh was pulled over to the side of the road with the motor running. He was looking up a GPS location of a property he was considering buying.
He was in a bad part of town where bad things happen so when Officer Andrzejewski noticed the car pulled over to the side with the engine running he performed a “traffic stop”.
When he started his investigation Mr. Soukaneh announced that he had a permit to carry and that he did have a firearm with him in the car. At this point Officer Andrzejewski removed Mr Soukaneh from the car, put him on the ground, handcuffed him and then locked him in the back of his squad car.
Officer Andrzejewski then proceeded to search the car, including the trunk of the car. At the end of the search he wrote a traffic citation for “parking in a driveway” and released Mr. Soukaneh.
The Arguments
Like normal, the defendant in the case tries to get all or part of the case dismissed and then for those parts that are not dismissed to have the judge grant a “Summary Judgement”.
In civil cases, either party can make a pre-trial motion for summary judgement. Summary judgment is a judgment entered by a court for one party and against another party without a full trial.
Summary Judgement – Cornell Law School In this case the defendant is the one asking for a summary judgement.
The state states that the plaintiff was in a notably high-crime area
Motion for Summary Judgement sitting inside his car, in the dark of night, on the side of the road with the engine running and lights on.
Id. When the officer approached he observed movement of the [plaintiff]
Id. The officer requested the driver’s license and the plaintiff handed over his drivers license and gun permit and informed the officer that he was in possession of a pistol.
Id..
I got pulled over for not having current registration on the car. After some interaction he asked for my DL. At that point I informed the officer that my wallet was xxxx, and that my pistol was near it. He replied “No problem.” I got my wallet out, handed him my DL. 5 minutes later I was on my way with no issues.
The state then argues that the cop was justified in his actions because the initial interaction was justified and that once there was a gun involved everything else was justified.
The state claims that the search of the vehicle trunk was acceptable because the officer believed that the plaintiff was dangerous and could magically gain control of a weapon from the trunk of the car while sitting in the driver’s seat. Not sure if that sounds as ridiculous to you as it does to me. The cop was worried that the guy with a legal carry permit with a firearm next to him was dangerous because he could have magiced a weapon from the trunk.
The state continues that the officer had probable cause to search the trunk because the plaintiff had an unverified permit to carry and had informed the cop that he had a firearm in the passenger compartment of the car.
And like all good tyrants of the cop persuasion he claims Qualified Immunity.
The plaintiff argues that his civil rights were violated under color of law including being detained and having his vehicle searched without a warrant.
Qualified Immunity
Specifically, qualified immunity protects a government official from lawsuits alleging that the official violated a plaintiff’s rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right. When determining whether a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights. Courts conducting this analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court considers the case.
— Qualified Immunity
The important part for us to understand is that an officer lose qualified immunity only when the officer violated a “clearly established” statutory or constitutional right.
Id. In practice this means that the person accusing the official must prove that there is some other case law that specifically matches this case. If there is no such case law then this case will fail and there will be no established case law.
It is a Catch 22. It is so rare for an officer to lose qualified immunity that almost every time it happens it makes the news.
In addition, qualified immunity is used in the same way that anti-SLAPP or PLCAA cases. The idea being that before the trial costs “real” money the court will dismiss the charges. SLAPP suits are suits brought in order discourage a course of action for which the person filing the suit has no real expectation of winning, they just want to bleed the defendant of funds via lawfare.
District Court Opinion
The court says that the plaintiff stopped in the roadway. That was enough for the traffic stop. Without paying for more documents it isn’t clear if the plaintiff pulled off to the side of the road and the cop and court considered that part of the roadway or if the car was just stopped in the travel lane.
It could easily be that the plaintiff was doing the right thing. He pulled off to the side of the road to work his phone rather than driving distracted.
— Order granting in part and denying in part Motion for Summary Judgement
This is part of that “cultural difference” that we have across the nation. In CT this cop felt that a citizen having a firearm was probable cause for violating multiple civil rights. The presumption being that guns are bad and only bad people have guns. This is as compared to places where gun ownership is normalized. I wouldn’t dream of attempting to walk into a cop shop in infringing states while carrying. In my state it is not worthy of comment.
— Id. at P.8
Here the judge makes it clear, unless there is some reason for the cop to reasonably suspect that the permit was counterfeit or invalid there was no probable cause present. Because of this the cop lost qualified immunity on the de facto arrest.
With the lost of qualified immunity and the court finding that there was no probable cause, the search then became unlawful.
The cop was arguing that they could search the trunk for “protective” purposes. Michigan v. Long clearly articulates that a protective search of an automobile based on reasonable suspicion is permissible only as to “the passenger compartment of an automobile, limited to those areas in which weapons may be placed or hidden,…
Id. at P.13 This makes the search of the trunk unlawful as well.
In conclusion District Judge Janet Bond Arterton says that the initial stop and contact was lawful and everything after that was not. This is an order on the “summary motion” and not on the merits of the case. So a first step.
The Judge then ordered the parties to settlement. The defendant then appealed to the Second Circuit Court. The appeal was done in August of 2021. I don’t have a record of when the Second Circuit granted the appeal but a schedule was set on 2022-07-26 and Oral Arguments were heard on 2022-10-28. AFTER the Bruen opinion.
Conclusion
This case showed up on my radar because two of the three judges that heard the case are on the panel which will be hearing oral arguments tomorrow, 2023-03-20, on a number of 2A cases. I wanted to hear what sort of attitude they had to the this 2A case.
All of the questions asked were reasonable. Unfortunately for us there was nothing directly in the case from a 2A point of view. Instead it is about the officer trying to get their qualified immunity back. The state says that the mere presence of a firearm, legal or not, is justification for a full vehicle search.
There is no law requiring a person carrying a firearm with a permit to inform an officer of such. There certainly isn’t a law requiring you to inform the officer you are illegally carrying a firearm.
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There is a law requiring you to provide your permit when asked, regardless of reason.
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This now creates a possible catch 22 that if you must provide a permit when asked, and it is a concealed carry permit, and that can certainly be construed as reasonable evidence the person is csrrying a firearm, then it now opens you up to being search for protective purposes.
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Ie if this is upheld, you following the law and carrying on a permit and providing it when asked is now reasonable suspicion a gun is present so such a detainment and search can be made like the officer did….
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Wow. Total erosion of rights for simply following the law.
Duty to inform varies by state. One of the little gotchas of our current situation re reciprocity.
Yup, that on is one me. Everything I said is under the caveat of “in CT” which I missed somehow.
Exercise of a right should never be a justification for presuming guilt. (Exceptions for things like someone using their 1A right to declare they have a couple kilos of coke and a dead hooker in the trunk.)
Way back in the long long ago, I lived in a mid Atlantic state, just south of the DC area. I pursued a CCW, but never went through the entire process to obtain it. Was moving out too soon afterward.
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Still, during the training, we were told that our CCW was linked to DMV records. So, if I was the registered owner of a car, the cops would be able to tell I had a CCW simply by running the plates.
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The question was raised. If the police knew I had a CCW based on the plates, does that give them permission to search the car, or search me, in order to ensure the traffic stop was conducted safely? And, the answer was an resounding yes. Because it ensured safety for the cop during the traffic stop.
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Never really thought about it, but if they found evidence of some other crime, I guess I could get dinged for it. Thankfully, I am now in a much more reasonable state.
My rule of traveling- DO NOT STOP in Massachusetts, Connecticut or NY for any reason. I also avoid nj totally…
That ruling by the state is concerning for all involved
I must have said it wrong. The officer exceeded his “officer safety” and limits of Terry Stop. The district court stripped him of his qualified immunity. He is now before the second circuit waiting for their opinion to see if he gets back his qualified immunity.
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What is the ruling by the state that is concerning?