A recent First Circuit decision, Schubert v. City of
Springfield,1 provides a review of civil liability
analysis under 42 U.S.C. § 1983 applicable to a "stop and frisk"
situation under the Fourth Amendment and signals fertile ground for
discussion of potential civil rights cases which may allege Second
Amendment violations that municipalities may face in the
After a review of the factual and legal analysis of the
Schubert opinion affirming summary judgment for the
defendants, this article discusses the potential for future Second
Amendment claims and potential standards for Section 1983 liability
in light of the recent Supreme Court case District of Columbia
v. Heller2 and the pending Supreme Court decision
on McDonald v. City of Chicago,3 argued March
2, 2010. In McDonald, a city ordinance gun ban is at
issue. The question presented in McDonald is whether the
Second Amendment right to keep and bear arms is incorporated as
against the states by the Fourteenth Amendment's privileges or
immunities or due process clauses.
I. Factual background
The factual background of the Schubert case is that a
Springfield police officer observed an individual (later identified
as attorney Greg Schubert), walking toward the courthouse, dressed
in a suit and carrying a briefcase. The officer observed Schubert
was carrying a handgun under his unbuttoned suit jacket.
The officer ordered Schubert to stay in the street in front of
the police cruiser, and the officer took the gun, ammunition and
licenses 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, Schubert stayed in front of the cruiser for
several minutes, and then moved to ask the officer if he could
stand in the shade because it was a hot day. The officer denied the
request, escorting Schubert into the back of the cruiser where
Schubert was partially Mirandized and the possibility of a criminal
charge was mentioned.
Because Massachusetts lacks a centralized database, the officer
soon realized that the inquiry into the license could take a
significant amount of time. Thus, about five minutes after moving
Schubert into the cruiser, the officer told Schubert he was free to
go, but Schubert would have to retrieve his gun and gun license
from the Springfield Police Department. The entire stop took about
II. Legal claims
Schubert's complaint in the U.S. District Court against the
officer and city asserted civil rights claims pursuant to 42 U.S.C.
§ 1983 under the Fourth and Fourteenth Amendments, accompanied by
state civil rights and tort claims. The district court granted
summary judgment as to all claims against the defendants and
dismissed the state claims.4
A. Fourth Amendment claim
The Fourth Amendment protects against unreasonable searches and
seizures.5 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 Amendment.6 However,
Terry stops fall short of the intrusiveness of a full
arrest. Such encounters require "necessarily swift action
predicated upon the on-the-spot observations of the officer on the
beat …."7 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 ….'"8
1. The initial stop
In determining whether a Terry stop is justified, the
inquiry involves two steps: "whether the officer's action was
justified at its inception" and "whether it was reasonably related
in scope to the circumstances which justified the interference in
the first place."9 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.10 The particularity requirement is satisfied by
a finding "grounded in specific and articulable
facts."11 The objective component requires courts to
"focus not on what the officer himself believed, but rather, on
what a reasonable officer in his position would have
Schubert argued the officer was unjustified in stopping him
because the officer did not have an articulable suspicion, based on
the totality of the circumstances. The First Circuit disagreed,
stating the officer had an articulable, objective basis for his
reasonable suspicion that Schubert may have been engaged in
[T]he officer observed Schubert walking toward the
Springfield courthouse carrying a gun. This simple, undisputed fact
provided a sufficient basis for [the officer'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.13
The fact that the officer saw a man carrying a gun in a
high-crime area, walking toward an important public building, was
sufficient to justify the initial stop.
Schubert contended that his clothing, age and fact that he was
carrying a briefcase were factors that should undercut the
reasonableness of the officer's suspicion, but the court was not
persuaded. The court said: "[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."14
The court referred generally to 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
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."16 While "clear in this
case that, in hindsight, Schubert in fact posed no threat to public
safety," the officer 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."17
2. The scope of the search
Schubert also contended the manner and length of the stop
exceeded circumstances which justified the stop in the first place.
Schubert claimed that once he produced his license to carry, the
officer should have released him. Schubert also challenged the
manner in which the officer suddenly emerged from the police
cruiser with his weapon drawn and the subsequent five-minute
detention of Schubert in the rear of the cruiser and "unreasonably"
confiscated his weapon.
However, the court said, once the officer "had reasonable
suspicion justifying a stop, he was permitted to take actions to
ensure his own safety" and concluded the officer took "reasonable
steps" related in scope to the circumstances that justified the
initial stop. The court quoted Terry: "[i]t would appear
to be 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
B. Second Amendment claim
Schubert also argued that the officer's stop violated the Second
Amendment right to bear arms, citing to the Supreme Court's recent
decision in Heller, because the right to bear arms is a
"fundamental individual right." However, because a Second Amendment
claim was not sufficiently raised in the court below, the court
declined to entertain appellate argument on this issue even though
the issue was briefly addressed in a short footnote to the District
Court summary judgment decision.19
III. Potential future of Second Amendment
While the Second Amendment claim was unsuccessful in the
Schubert case, if (or when) a case is properly before the
court, how would District of Columbia v. Heller apply? It
is an open issue as to whether the ruling in District of
Columbia v. Heller and the Second Amendment, generally, is
applicable to the states through the Fourteenth Amendment. This
issue is pending before the U.S. Supreme Court in McDonald v.
City of Chicago.20
In National Rifle Ass'n of America v. City of Chicago,
the Seventh Circuit held that, because the Supreme Court has not
ruled in Heller as to the applicability of the Second
Amendment to the states, it must follow binding precedent and rule
that said amendment was not applicable to the
states.21 The Seventh Circuit criticized the Ninth
Circuit ruling in Nordyke v. King22 that the
Second Amendment, as a fundamental right, should be applied to the
states. The Seventh Circuit opinion concluded that, even if the
Second Amendment was construed as a fundamental right, there were
still more important values at stake: "Federalism is an older and
more deeply rooted tradition than is a right to carry any
particular kind of weapon. How arguments of this kind will affect
proposals to 'incorporate' the second amendment are for the
Justices rather than a court of appeals."23
Whether or not the Second Amendment was meant to be applied to
the states, there is no indication that the Court's ruling in
Heller was meant to abrogate Terry. Nor is there
any evidence that the Court's ruling in that case should affect the
"reasonable suspicion" analysis by an officer conducting a
Also, the McDonald case will answer the question as to
whether the fundamental rights under the Second Amendment apply
only within the home. In the Heller opinion, Justice
Scalia referred to "the right of law-abiding, responsible citizens
to use arms in defense of hearth and home."24
Heller noted that the "prohibition extends … to the home,
where the need for defense of self, family, and property is most
acute."25 For the Supreme Court, this meant that, no
matter the intensity of constitutional scrutiny, the district's law
could not survive.26
This view was affirmed by the Court of Appeals for the Ninth
Circuit's ruling in Nordyke v. King.27
Recognizing the Second Amendment as fundamental and applying it to
the states, Nordyke holds that the right protected in
Heller was the right to armed self-defense in the
home. The Ninth Circuit, in Nordyke, continued:
Heller tells us that the Second Amendment's guarantee
revolves around armed self-defense. If laws make such self-defense
impossible in the most crucial place - the home - by rendering
firearms useless, then they violate the Constitution. But the
Ordinance before us is not of that ilk. It does not directly impede
the efficacy of self-defense or limit self-defense in the home.
Rather, it regulates gun possession in public places that are
As such, while light will be shed on whether local ordinances
aimed at gun control issues are valid, many other issues will
remain unanswered other than the constitutionality of ordinances.
For example, the court in Nordyke upheld a law banning
possession of firearms on county property. In the Schubert
case, the City of Springfield had not sought to enforce any such
far reaching ordinance - or any ordinance at all. Rather, the city
police officer only sought to effectuate a Terry stop.
Additionally, even if the right did extend beyond the home,
Scalia notes that it is not unlimited in scope.29 "Like
most rights, the right secured by the Second Amendment is not
unlimited. From Blackstone through the 19th-century cases,
commentators and courts routinely explained that the right was not
a right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose."30 For example, the
Court continues, "the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens for lawful
purposes, such as short-barreled shotguns. That accords with the
historical understanding of the scope of the right."31
Rather, the decision in Heller found that, under the Second
Amendment, an "absolute prohibition of handguns held and used for
self-defense in the home" was beyond the limits of
constitutionality. It is a vast leap from the law at issue in
Heller to the Terry stop effectuated in this
While the Second Amendment may not affect a Terry stop,
how will it affect the denial of a gun license or other situations
where the rights of a gun owner are at issue? Much will depend on
what standard is adopted as applicable to a Second Amendment
violation. While a "strict scrutiny" standard may be urged by
plaintiffs, defendants may advocate for a standard where the Second
Amendment is not violated unless the acts of the officer are
deliberately indifferent or reckless to the civil rights of a
municipality's inhabitants, or are "shocking to the
In his dissent in District of Columbia v. Heller,
Justice Breyer recommends a balancing standard to weigh
governmental interest with the burden on right protected:
I shall ask how the statute seeks to further the
governmental interests that it serves, how the statute burdens the
interests that the Second Amendment seeks to protect, and whether
there are practical less burdensome ways of furthering those
interests. The ultimate question is whether the statute imposes
burdens that, when viewed in light of the statute's legitimate
objectives, are disproportionate.32
Under such an analysis, municipalities would have a strong
interest in enforcing laws and protecting citizens from illegal
guns on the streets. In Schubert, the officer was fully
within his rights under Terry to make a threshold inquiry.
If a court uses a balancing test, the weight of the government
interest far outweighs any intrusion of the Terry stop.
"Any right to bear arms Plaintiff may have had does not signify
that police are without power to stop and inquire, in these
circumstances, or must do so only at peril of being sued for a
civil rights violation."33 It is hard to imagine that
the "right to bear arms" for protection of persons in the home will
provide a person who is stopped under Terry greater rights
than provided by the Fourth Amendment, or somehow "balance" Fourth
Amendment versus Second Amendment rights.
In Heller, Scalia dismisses the balancing test
suggested by Breyer, but does not appear to suggest a standard of
culpability in its place.34 He does, however, mention
the historical standards of constitutional analysis: strict
scrutiny, intermediate scrutiny and rational
A rational basis analysis presumes validity so long as there is
a legitimate government purpose.36 This analysis, like a
balancing test, would take into account the legitimate government
interest of conducting Terry stops as validating validate
this stop under the Second Amendment.
Under an intermediate scrutiny test, if a regulation involves
important governmental interests that are furthered by
substantially related means, the governmental intrusion is
valid.37 In the Shubert case, and under any
Terry stop, again the need to prevent illegal and unlawful
gun possession and use is furthered by the officer's use of the
Terry stop as defined and approved by the Supreme
The standard for municipal liability under section 1983 was set
forth in City of Canton v. Harris38 as
"recklessness" or deliberate indifference. Where evaluating a
pretrial detainee claim under section 1983, courts have sometimes
applied a substantive due process standard of whether the conduct
is "shocking to the conscious."39 In Graham v.
Connor,40 the Supreme Court decided that the
standard governing a free citizen's claim of excessive force in the
course of making an arrest, investigatory stop, or other "seizure"
is properly analyzed under the Fourth Amendment's "objective
reasonableness" standard, rather than under a substantive due
process standard. The Shubert case is probably the first
of many cases to give municipalities a chance to test whether any
of these standards should be applied under the Second
1. 589 F.3d 496 (1st Cir. 2009).
2. 128 S.Ct. 2783 (2008).
3. McDonald v. City of Chicago, No. 08-1521
4. Schubert v. City of Springfield, 602 F.
Supp. 2d 254 (D. Mass. 2009).
5. See U.S. Const. amend. IV.
6. See Terry v. Ohio, 392 U.S. 1, 20
8. 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).
9. Terry, 392 U.S. at 20.
10. Wright, 582 F.3d at 205 (quoting
Ornelas v. United States, 517 U.S. 690, 696 (1996)).
11. United States v. Espinoza, 490 F.3d 41, 47
(1st Cir. 2007) (quoting United States v. Hensley, 469 U.S. 221,
229 (1985) (internal quotation marks omitted)).
13. Schubert v. City of Springfield, 589 F.3d
496, 501 (1st Cir. 2009).
14. Terry, 392 U.S. at 20.
15. Schubert, 589 F.3d at 502.
16. United States v. Stanley, 915 F.2d 54, 57
(1st Cir. 1990).
17. Schubert, 589 F.3d at 502.
18. Stanley, 915 F.2d at 57 (quoting
Terry, 392 U.S. at 24).
19. Schubert v. City of Springfield, 602 F.
Supp. 2d 254, 257 n.2 (D. Mass. 2009).
20. McDonald v. City of Chicago, No. 08-1521
(S.Ct. 2010) (argued Mar. 2, 2010).
21. 567 F.3d 856, 857 (7th Cir. 2009).
22. 563 F.3d 439 (9th Cir. 2009).
23. National Rifle Ass'n, 567 F.3d at
24. District of Columbia v. Heller, 128 S.Ct.
2783, 2821 (2008).
25. Id. at 2817.
26. Id. at 2821-22.
27. 563 F.3d 439 (9th Cir. 2009).
28. Id. at 458.
29. Heller, 128 S.Ct. at 2816-17.
30. Id. at 2816.
31. Id. at 2815-16.
32. Id. at 2854.
33. Schubert v. City of Springfield, 602 F.
Supp. 2d 254, 257 (D. Mass. 2009).
34. District of Columbia v. Heller, 128 S.Ct.
36. See e.g., United States v.
Carolene Prod. Co., 304 U.S. 144 (1938).
37. See e.g., Craig v. Boren, 429 U.S. 190
38. 489 U.S. 378 (1989).
39. See Johnson v. Glick, 481 F.2d
1028, 1032-33 (2d Cir.), cert. denied, 414 U.S. 1033 (1973)
discussing Rochin v. California, 342 U.S. 165 (1952)(conviction
reversed based on evidence obtained by pumping the defendant's
40. 490 U.S. 386 (1989) (diabetic sought
recovery for injuries when force used during an investigatory
Edward M. Pikula serves as city
solicitor in Springfield, where he was chief of litigation from
2001 to 2005 and assistant city solicitor from 1983 to 2000. Pikula
has litigated in all state and federal trial and appellate courts,
including the U.S. Supreme Court.