This is a soundly written decission and I expect it to be sustained on appeal.
Try reading the decission, not just the article.
Here is part you may find interesting:
Because a Georgia firearms license is an affirmative defense to the crime of boarding with a concealed weapon and the crime of carrying a concealed weapon, it does not matter if there was no reason to suspect that Raissi did not have a Georgia firearms license. After Raissi concealed his handgun and started walking toward the
MARTA station, he had committed all of the acts required for the crime of boarding with a concealed weapon and the crime of carrying a concealed weapon. Officer Nicholas saw this happen. The officers were not then required “to explore and eliminate every theoretically plausible claim of innocence,” including affirmative defenses, before making an investigative stop of Raissi. Ricciuti v. New York City
Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997); see also Jocks v. Tavernier, 316 F.3d128, 135 (2d. Cir. 2003) (“[J]ust as probable cause may exist although a suspect is in fact innocent, probable cause may exist where the police do not know of the existence
or validity of an exculpatory defense.”); Humphrey v. Staszak, 148 F.3d 719, 724 (7th Cir. 1998) (“[E]ntrapment is an affirmative defense . . . [and] is not part of our Fourth Amendment probable cause-to-arrest analysis.”); State v. Fry, 142 Wash. App. 456,
460 (2008) (“Medical authorization for marijuana use is an affirmative defense . . . [and] [a]ffirmative defenses are evaluated at trial, not by law enforcement at earlier stages of the proceedings.”).
In other jurisdictions that treat a firearms license as an affirmative defense, courts have held that it does not matter if there was no reason to suspect that a person did not have a firearms license. In State v. Timberlake, 744 N.W.2d 390 (Minn.2008), police officers stopped the defendant’s car based solely on a 911 call from an
identified private citizen. The caller said that he had just seen “a black male and black female . . . leaving a gas station in a white Pontiac Grand Prix,” and that, before they left the gas station, he had seen the black male with a gun. Id. at 392. The officers’ stop and subsequent search revealed evidence that was the basis of the defendant’s conviction for felon in possession of a firearm. On appeal, the defendant did not dispute the reliability of the 911 call, but said that, “because it is legal in Minnesota for a private citizen to carry a permitted gun in public, police may not conduct aninvestigat[ive] stop without additional evidence that the possession itself is illegal.”
Id. at 394. The Minnesota Supreme Court sustained the conviction and held that “consistent with our determination . . . that lack of a permit [is] not an element of the offense, the police in this case did not need to know whether [the defendant] had a permit in order to have a reasonable suspicion that [the defendant] was engaged in
criminal activity.” Id. at 395. “[T]he officers had a reasonable basis to suspect that [the defendant] was engaged in criminal activity, even without knowing whether he had a permit, based on the caller’s report that he saw [the defendant] with a gun in the vehicle.” Id
Also, in United States v. Cooper, 293 Fed. Appx. 117 (3d Cir. 2008), police officers stopped the defendant’s car based solely on information from another police officer who, while patrolling an area of Philadelphia, “observed [the defendant] lift his shirt, displaying a silver handgun . . . then [return] to his car and [drive] away.”
Id. at 118. The officers’ stop and subsequent search revealed evidence that was the basis of the defendant’s conviction for various drug possession and firearm crimes.
On appeal, the defendant said that, “ecause a firearm may be lawfully possessed under some circumstances, . . . the facts here – [the officer’s] mere viewing of [the defendant] in possession of a weapon on a public street in Philadelphia – did not create reasonable suspicion.” Id. The Third Circuit sustained the conviction and held that, because “licensure is an affirmative defense to a statutory violation for possession of a firearm,” “an officer’s observance of an individual’s possession of a firearm in a public place in Philadelphia is sufficient to create reasonable suspicion to detain that individual for further investigation.” Id. at 119-20; see United States v.
Bond, 173 Fed. Appx. 144, 146 (3d Cir. 2006); United States v. Collins, Nos. 05-1810, 01-CR-00780, 2007 WL 4463594, at *4 (E.D. Pa. Dec. 19, 2007).
None of the cases cited by the Plaintiffs were from jurisdictions that treat a firearms license as an affirmative defense. See United States v. Ubiles, 224 F.3d 213, 214 (3d Cir. 2000); St. John v. McColley, No. 08-994, 2009 WL 2949302, at *4 (D.N.M. Sept. 08, 2009). Ubiles is a case from the Virgin Islands and, under Virgin
Islands law, the absence of a firearm license is an element of the crime ofunauthorized possession of a firearm. 14 V.I.C. § 2253(a); Gov’t of the V.I. v. Isaac, 45 V.I. 334, 342 (V.I. Terr. Ct. 2004). St. John is a case from New Mexico and, under New Mexico law, it is not a crime to carry a firearm without a license so long as the
firearm is carried openly, which the plaintiff in St. John did. N.M. Stat. Ann. § 30-7-2; St. John, 2009 WL 2949302, at *4 (“[M]erely ‘showing a gun’ . . . is not illegal in the State of New Mexico.”). These cases are, therefore, distinguishable. See Collins, 2007 WL 4463594, at *4 (“Ubiles is distinguishable [because] the gun laws in the Virgin Islands are different from the gun laws in ennsylvania.”).
Once they decided to conduct an investigative stop of Raissi, Officers Nicholas and Milton were required to conduct the stop in a reasonable manner. The Plaintiffs say that the stop was unreasonable because the officers did not have any reason to seize Raissi’s handgun, ask for Raissi’s social security number, or take Raissi to a private hallway before returning his handgun. But each of the Plaintiffs’ objections
to the nature of the stop involves second-guessing of the officers’ actions. The officers were entitled to take Raissi’s handgun because they knew Raissi had concealed it on his person and would have easy access to it while they questioned him.
See Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977) (“The bulge in the jacket permitted the officer to conclude that [the defendant] was armed and thus posed a serious and present danger to the safety of the officer. In these circumstances, anyman of ‘reasonable caution’ would likely have conducted the ‘pat-down.’”). The
officers were entitled to ask Raissi for his social security number because a background check would help the officers determine whether Raissi had any outstanding warrants or prior felonies that would disqualify him from legally carrying a firearm. See Illinois v. Wardlaw, 528 U.S. 119, 126 (2000); United States v.
Hutchinson, 408 F.3d 796, 800-02 (D.C. Cir. 2005).
And the officers were entitled to take Raissi to a private hallway before returning his handgun because it was safer for Raissi to re-holster his handgun out of public view. (Nicholas Dep. at 23); cf.Mimms, 434 U.S. at 112 (a police officer may, for safety reasons, order a driver out of the car during a lawful stop).
Because Officers Nicholas and Milton were entitled to conduct an investigative stop of Raissi, and because the stop itself was reasonable, the Defendants did not violate Raissi’s Fourth Amendment rights. This resolves the Plaintiffs’ claims for
compensatory damages.
It does not necessarily resolve the Plaintiffs’ claims for declaratory and injunctive relief, which address what MARTA officers may do in the future. It does not resolve these claims because there is evidence that MARTA hasa policy of stopping anyone seen carrying a firearm, even if that person is carrying the firearm openly. (Dorsey Second Aff. ¶ 9); (Nicholas Dep. at 29-31).
When a person is carrying a firearm openly, reasonable suspicion of unlawful activity must obviously involve some unlawful act other than the crime of boarding with a concealed weapon or the crime of carrying a concealed weapon. There is also evidence that some
members of GeorgiaCarry.Org want to use the MARTA system while carrying firearms and that interest does not appear limited to carrying a concealed firearm. (Stone Decl. ¶¶ 4-6.)
Therefore, even after concluding that the Defendants did not violate Raissi’s Fourth Amendment rights, the Plaintiffs still have standing to seek a declaration that MARTA’s firearms policy as applied to any person openly carryinga firearm is unconstitutional and an injunction prohibiting enforcement of such policy. See 31 Foster Children v. Bush, 329 F.3d 1255, 1265 (11th Cir. 2003).