Schubert v. City of Springfield

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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