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.