Section 1983, a Terry "stop and frisk" and the Second Amendment

Issue Vol. 12 No. 2 January 2010 By Edward M. Pikula

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 future.

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 10 minutes.

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 thought."12

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 criminal activity:

[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 intervene."15

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 harm."18

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 claims

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 Terry stop.

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 County property.28

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 case.

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 conscience."

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 basis.35

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 Court.

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 Amendment.


1.    589 F.3d 496 (1st Cir. 2009).

2.    128 S.Ct. 2783 (2008).

3.    McDonald v. City of Chicago, No. 08-1521 (S.Ct. 2010).

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 (1968).

7.    Id.

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)).

12.    Id.

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 860.

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. at 2821.

35.    Id.

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 (1976).

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 stomach).

40.    490 U.S. 386 (1989) (diabetic sought recovery for injuries when force used during an investigatory stop).

The Author

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.