No Qualified Immunity for Officer in Arrest of Licensed Gun Carrier

A three-judge panel in the Court of Appeals for the Second Circuit has delivered a critical decision affirming Fourth Amendment protections and the right to keep and bear arms.

On November 12, 2018, Basel Soukaneh’s life was significantly disrupted. Soukaneh was looking for a house he was considering purchasing, but the GPS on his phone, held in a holder on the dash of his car, had frozen. He was unfamiliar with the area. Soukaneh pulled over to correct the problem, left the engine running, and had the interior lights on.  A Waterbury police officer quickly knocked on his window and demanded to see his driver’s license. Soukaneh handed him the license and his legal concealed carry permit, then told the officer where his firearm was located in the vehicle.

The officer, Nicholas Andrzejewski, grabbed Soukaneh, dragged him from the car, and violently handcuffed him, causing significant pain. Andrzejewski then stuffed Soukaneh in the back of his police car and searched Soukaneh’s car, including the trunk. Several other officers came to the scene. One of them put Soukaneh in an upright, seated position instead of where Andrzejewski had stuffed him, with his head near the floor. After another half hour, he was released. It is not clear if he was charged with a traffic violation.

Soukaneh sued Officer Andrzejewski for deprivation of rights under the color of law.  Andrzejewski claimed he had qualified immunity because of the presence of a firearm and firearm permit that he legally possessed. The District Court denied qualified immunity to permit the lawsuit to move forward.

Andrzejewski appealed the case to the Court of Appeals for the Second Circuit. The three-judge panel affirmed the District court’s decision. At this point, the case has precedential value (should be used as a precedent in the Second Circuit) because it has been ruled on by the Court of Appeals for the Second Circuit, not only a District Court.

A significant body of law is developing, stating that the mere presence of a firearm is not probable cause to abandon Fourth Amendment protections.

In 2000, the Supreme Court ruled an anonymous tip about the carry of a firearm was not sufficient probable cause to search a person for weapons. A Pennsylvania case in 2014, the Supreme Court of Pennsylvania found that the mere carry of a concealed firearm, briefly seen, was not valid grounds for a detention and search. In the Court of Appeals for the Eight Circuit in 2016, the court found the open carry of a firearm was not enough to create a reasonable suspicion of a crime. In a Florida case in 2020, the Court of Appeals for the First District of Florida found the mere sight of a pistol was not sufficient probable cause for a detention and search.

The Soukaneh lawsuit against Officer Andrzejewski is a significant development. There will probably be discovery. During discovery, such things as timelines, body camera footage, radio traffic, and dispatcher-to-officer conversations may become known. It seems likely Officer Andrzejewski may be significantly, personally, penalized. Because the court has ruled the officer does not have qualified immunity, he may not be supported by the police department. When officers do not have qualified immunity, they have incentives to behave differently.

The Court of Appeals for the Second Circuit has not been know to be friendly to the Second Amendment.  The Second Circuit includes New York, Connecticut, and Vermont. Vermont has always had constitutional carry, and it does not require a permit to carry.

The three judges on the panel were Judge Gerard E. Lynch, appointed by President Obama; Judge Eunice C. Lee, appointed by President Obama; and Judge Beth Robinson, appointed by President Biden. The case squelches the idea there is a “gun” exception to the Fourth Amendment.

Officer Andrzejewski could request an en banc rehearing before the entire Second Circuit. It seems unlikely he would get a more favorable ruling than the three-judge panel’s unanimous decision, but it might buy him a little time.

The last possibility is to appeal to the Supreme Court. An appeal to the Supreme Court could delay the case, which might benefit Officer Andrzejewski. At this point, the case is nearly six years from the event. A sympathetic jury might award large damages.

It is more likely the case will be settled before a jury trial. The court ruled the officer acted outside the law. This might nullify an insurance claim or remove department or union support for legal fees.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.