Short Take: Cop Can’t Cuff Licensed Gun Guy

One of the most problematic aspects of being a lawful gun possessor has been the risk from cops. They care more about the First Rule of Policing than your right to possess a gun (or any other right, for that matter), and the fact that you have a facially valid permit isn’t necessarily sufficient to assuage their concerns, as Basel Soukaneh found out the hard way.

In 2018, Basel M. Soukaneh stopped his car to check his phone in a questionable area of Waterbury, Connecticut. When he was approached by a police officer, he presented his driver’s license and pistol permit, notifying the cop that he had a gun in the car.

The officer then frisked and cuffed Soukaneh and put him in the back of his patrol car while he searched the entire car. A flash drive and $320 in cash were confiscated. Soukaneh sued Officer David Andrzejewski for violating his Fourth Amendment rights.

In the District of Connecticut, Judge Janet Bond Arterton held that the initial stop was lawful under Whren, a dubious ruling in itself, but denied summary judgment based on qualified immunity for the subsequent seizure after Soukaneh handed over his license and gun permit, informing the officer that he had a pistol.

Defendant conceded at oral argument that his conduct following the initial stop and check of Plaintiff’s driver’s license exceeded the bounds of a Terry stop, but that the conduct was still justified because he had probable cause to believe Plaintiff was possessing a firearm without a permit as he had not yet been able to verify the validity of the permit.

The argument wasn’t that Soukaneh did anything wrong, anything to justify either the rough handling by the cop or being cuffed and forced into the back of the squad car, but that the officer had yet to “verify” that the otherwise facially valid permit was valid. As Judge Arterton noted, the only putative basis for probable cause would be that he was in violation of state law prohibiting the unlicensed possession of a weapon, not because he didn’t have and turn over his permit, but because the cop didn’t know to his satisfaction that the permit was legit.

In the absence of any articulable reason for Defendant to believe the permit was counterfeit or otherwise invalid, there is no indication that Plaintiff was even arguably unlawfully  possessing a firearm.

In light of the uncontested fact that Plaintiff presented his pistol permit to Defendant before or at the time he disclosed that he was in possession of a pistol and the absence of any other indicia that Plaintiff was otherwise violating the statute, no reasonable officer could believe probable cause was present. Any contrary holding “would eviscerate Fourth Amendment protections for lawfully armed individuals” by presuming a license expressly permitting possession of a firearm was invalid….To accept Defendant’s reasoning would permit police officers to detain any driver because he or she may have a counterfeit or otherwise invalid driver’s license which has been rejected by the Supreme Court.

In the absence of probable cause to believe that the gun permit is invalid, the presumption is that  it isn’t, just as a driver’s license, and it cannot give rise to probable cause. More importantly, this ruling rejects qualified immunity, holding that this is a clearly established right to not be arrested, not to mention man-handled, for presenting a facially valid gun permit.

Because, on the record read in the light most favorable to the non-moving party, no
reasonable police officer could have believed he or she had probable cause to arrest Plaintiff,
the Court denies summary judgment on the lawfulness of the de facto arrest and declines to
immunize the officer on this record.

Whether this will alter police conduct that would have them take any perceived risk to their personal safety despite the person doing everything right is another matter. Better to lose a § 1983 suit than get killed in the street, particularly since losing means essentially nothing to the officer.

But at least the outcome suggests that when a cop feels unreasonably threatened and acts upon it to seize and, perhaps, rough up the “perp” whose offense is the lawful exercise of a constitutional right, there may at least be compensation at the end of the road for the harm and indignity suffered.

15 thoughts on “Short Take: Cop Can’t Cuff Licensed Gun Guy

  1. MIKE GUENTHER

    Not that it should matter, but I guess it depends on what area of the country you’re in, vis a vis CWP’s and interaction with police. The way the conversation should have happened;

    Cop…Good day.

    Citizen…Good day officer, I have a CWP and I’m carrying.

    Cop…Thank you for letting me know. May I see it and your license and registration please. Let me check these out. I’ll be right back. Just keep both hands on the steering wheel where I can see them please.

    Citizen…Yes Sir. Thank you.

    Interlude while cop checks computer and writes ticket for minor infraction, or not.

    Cop…Hands citizen back his licenses and registration, and ticket if warranted. ” Have a nice day and be safe out there.”

    Citizen…Thank you sir, you as well.

    Personally, I believe that going through the rigors of training for the CWP and obtaining the permit, it should be honored just like a driver’s license, valid in all 50 states. But that’s just my opinion.

    1. B. McLeod

      Yeah. The rigors of training in a lot of jurisdictions is no training and no range test. Here in the flats, we’ll permit a blind person. Also, a lot of jurisdictions have comity policies and recognize other jurisdictions’ permits. As a result, a concealed carry permittee may or may not actually have any training in safe use of their weapon.

      1. tk

        As far as I am aware, every state that requires a permit to carry a concealed weapon requires some sort of training, even if it’s very minimal (and it’s very minimal here in Florida). There are states that do not require a permit to carry, and all bets are off there.

        But you’re missing the point. As long as the gun stays in the holster, it’s not a threat to the cop, or anyone else for that matter. Simply by taking the gun out of the holster, you increase the risk of a negligent discharge by an order of magnitude.

        And part of the problem here is that police departments are notorious for lax standards for training, which is one reason why many cops believe that any gun is a threat to them.

        BTW: I’ve trained folks who were legally blind, paraplegics, and amputees to shoot. Most disabilities can be overcome.

        1. Kurt

          As they say online – it’s complicated.

          From personal experience:

          WA State CC permit: Background check, no training required

          MT: No permit required for concealed carry, except in certain government buildings, permit for which requires (a very small amount of) training and successful application to a County Sheriff (I haven’t done one yet).

          From teh interwebs: Many other States have Constitutional Carry, which means that both open and concealed carry require no permit.

          Also from teh interwebz: States differ WRT to whether or not when stopped by Officer Friendly one must announce when carrying.

          It would be better if there were a really good nation-wide standard, agreed upon by the States – because of course between Article 1 and the Second, there doesn’t seem to be a theoretical leg for the Feds to stand on – just lots of bad law.

          So, yes, what’s an innocent citizen to do? I dunno, but the cops always seem to have the upper hand, and you’d better hope you meet a nice one.

          Kurt

      2. Scott Spencer

        Yeah my PA permit was like that. All I had to do was go to the Sheriff and swear I am not a felon…and pay $20.

        None of my interactions with the police while I have been carrying or at least had a permit were anything other than professional. But, I am also a middle aged white male who generally follows the speed limit and most of the time stops at stop signs.

        I do think that minority permit holders probably have a harder time of it. It’s not right, but it is most likely the reality. Honestly, I am quite angry that the gun ownership crowd did not come out in more support of Philando Castile. If it had happened to a white dude shit would hit the fan.

        To try and get sort of back to the topic, I am glad this ruling happened. Even small steps in getting the first rule of policing tossed is a good thing.

  2. Howl

    It seems that most if not all cops want those who are legally permitted to carry a gun to tell them that they are armed. Yet, if it is simply a traffic stop or a “what you doing here?” type of situation, why complicate matters by bringing it up? Is it better to not volunteer that information unless ordered to get out of the car? To me, don’t tell unless asked seems to be the best course. Give me my ticket and I’ll be on my way. I don’t want to wind up in a situation like what happened to Mr. Soukaneh, or worse, like Philandro Castille.

    1. Bob S

      Unfortunately it’s not really a judgement call. In a lot of permitted carry states informing an officer who stops you is part of the law, and failing to do so escalates shit significantly.

      1. Howl

        There are 11 states where you are legally required to tell an officer that you are armed when stopped. All except two of the rest only require you to tell them if they ask.

  3. Mike V.

    I’ve stopped dozens of people here in Tennessee who are armed. When they tell me they have a gun with them, I say “It’s the South, OF COURSE you are armed.”

    I’m puzzled why the officer seized the thumb drive and cash. That couldn’t have been legal.

  4. Brady Curry

    According to the teachings of Second Amendment legend Massad Ayoob, Mr. Soukaneh did the correct thing by presenting the officer his drivers license and weapons permit simultaneously. Yes, some jurisdictions do not require notification of a weapons permit, but Mr. Ayoob says this is the least stressful way of informing the officer that you have a legal weapon on your body or in your vehicle. It is also better than letting the officer find out for himself during some valid/invalid search.

    One does not verbally tell the officer “I have a gun” as it may lead to one’s getting shot.

  5. KP

    How did he know it was a cop? Was there a bullet-proof ID somewhere or was there a chance it was an actor on a TV show or someone weird?

    He could say “Hang on, I’m not getting out until I phone City Hall and check your credentials..”

    1. L Phillips

      Assuming the above narrative to be correct and inclusive the cop, in my somewhat educated opinion, was either a dick or an idiot or both. That said, Soukaneh did exactly the right thing. – hand over both cards, give verbal notice of the existence of a weapon, follow instructions, sit in the back of the cruiser and silently review the attorneys he knows deciding which one to call when this is all over.

      Being a smart ass, especially in the manner you propose, will significantly lengthen the time before that call can be made.

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