# This is absolutely disgusting



## KenpoTex (Jan 2, 2010)

> A United States Circuit Court of Appeals last week upheld the constitutionality of pointing a gun at any citizen daring to carry, lawfully, a concealed weapon in public.
> 
> ...At some point, the officer locked him in the back seat of the police car and delivered a lecture.  Officer Stern "partially Mirandized Schubert, mentioned the possibility of a criminal charge, and told Schubert that he (Stern) was the _*only*_ person allowed to carry a weapon on his beat."
> For most people, this would be enough to conclude that they were being harassed for the exercise of a constitutional right, but the officer went further, seizing the attorney's pistol and leaving with it.  Officer Stern reasoned that because he could not confirm the "facially valid" license to carry, he would not permit the attorney to carry. Officer Stern drove away with the license and the firearm, leaving the attorney unarmed, dressed in a suit, and alone in what the officer himself argued was a high crime area.


http://www.examiner.com/x-5619-Atla...pholds-police-pointing-gun-at-lawful-carriers


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## Bob Hubbard (Jan 2, 2010)

There's no way to verify that a permit is valid?


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## jks9199 (Jan 2, 2010)

I know that the files here in VA are incompletely linked to DMV files.  If the name run isn't an exact match for the name as it is in the CCW files, you don't get a hit.  So if Oliver L. North has his CCW under Oliver Laurence North even though his driver's license only has the L. -- unless you query the CCW files under the full name, it won't come back.  And it won't come back automatically from the DMV query...


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## Bob Hubbard (Jan 2, 2010)

So, even with a permit, you can be threatened and robbed by a cop, all because they can't check the validity of the permit? That's screwed up.  Time to drop the permit requirement then.  That, or give the cops the means to validate legit CCL's.


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## Andy Moynihan (Jan 2, 2010)

Never mind. Comment deleted because no good can come of expressing just exactly how I feel about that excuse for a court and that apology for an officer. Even for Massachusettstan this is a new low.


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## Bob Hubbard (Jan 2, 2010)

Case needs to goto the USSC who will probably refuse to hear it.   

On one hand I can agree with the cop. He saw a gun in a bad neighborhood and responded. I'm sure he felt he was doing right.   On the other hand, the guy had a legit CCL and was legally carrying.


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## KenpoTex (Jan 2, 2010)

Bob Hubbard said:


> Case needs to goto the USSC who will probably refuse to hear it.
> 
> On one hand I can agree with the cop. He saw a gun in a bad neighborhood and responded. I'm sure he felt he was doing right. On the other hand, the guy had a legit CCL and was legally carrying.


 
but from the comment the cop was reported to have made:


> Officer Stern ...told Schubert that he (Stern) was the _*only*_ person allowed to carry a weapon on his beat."


it seems that he obviously has some sort of issue with the idea of a citizen carrying a weapon even if it is legal.

While I know there are plenty of good ones, unfortunately there are too many cops who hold this opinion.  I remember a discussion on a police forum once (may have been policeone.com?) that was about CCW.  The amount of "civilians have no business carrying a gun" crap in the thread made me absolutely livid.  Cops like this have forgotten why their job exists.


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## K831 (Jan 3, 2010)

That is so bothersome. 

Not just because of the officers handling of the situation, but because it's even an issue... _technically _its _legal _to carry without a special, additional permit, not to mention an inherent right.


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## sgtmac_46 (Jan 3, 2010)

Bob Hubbard said:


> There's no way to verify that a permit is valid?



Does that mean I can pull a car over, decide that their state issued driver's license doesn't suit me, and impound their car?


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## sgtmac_46 (Jan 3, 2010)

KenpoTex said:


> but from the comment the cop was reported to have made:
> 
> it seems that he obviously has some sort of issue with the idea of a citizen carrying a weapon even if it is legal.
> 
> While I know there are plenty of good ones, unfortunately there are too many cops who hold this opinion.  I remember a discussion on a police forum once (may have been policeone.com?) that was about CCW.  The amount of "civilians have no business carrying a gun" crap in the thread made me absolutely livid.  Cops like this have forgotten why their job exists.



I've got no use for those kind of cops either.  The reality is that those are the kind of cops who consider wearing a badge giving them a whole host of special entitlements that 'normal folks' don't and shouldn't have.

Those of us who became police officers to enforce the law AND uphold the Constitution know differently.


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## seasoned (Jan 3, 2010)

> At some point a police officer, J.B. Stern, who lived up to his last name, *caught a glimpse of the attorney's pistol*, and he leapt out of his patrol car "in a dynamic and explosive manner" with his gun drawn, pointing it at the attorney's face.


I understand that it was hot that day, but with his jacket open, and his weapon obviously visible, could this be part of the problem. Concealed is concealed, visible is inviting trouble. I am by no means making excuses for the officers actions after the fact, or any rulings made in court. It is a know fact that a large number of illegal guns on the street were once legal guns improperly handled by there legal owners. Just a thought.


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## sgtmac_46 (Jan 3, 2010)

seasoned said:


> I understand that it was hot that day, but with his jacket open, and his weapon obviously visible, could this be part of the problem. Concealed is concealed, visible is inviting trouble. I am by no means making excuses for the officers actions after the fact, or any rulings made in court. It is a know fact that a large number of illegal guns on the street were once legal guns improperly handled by there legal owners. Just a thought.



That may be the case, but it's really tantamount to impounding a car you found unlocked under the notion that if it wasn't for careless car owners, there wouldn't be any thievery.........probable cause needs to exist of a crime before one is arrested or has their property seized.


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## Archangel M (Jan 3, 2010)

The only way I can confirm a CCW is by calling the pistol permit bureau. Tough to do after business hours, on weekends, holidays etc. Of course here, the permit holder has to have a...well...permit on him. Which this guy apparently did too. If someone doesn't have the card I am taking the weapon till he produces it. I don't know what the local law in this story is, but if the guy had his card on him and there was nothing else "going on" he walks away with his gun. If I thought it was worth a call the bureau to report my contact with him and possibly have his CCW revoked, I would do that later.

The officers attitude about the whole thing however is a separate issue from the legality/illegality of what he did.


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## Archangel M (Jan 3, 2010)

It's my opinion that the title of the story is sort of stupid and intended to generate controversy (imagine that). Of course an officer can point his weapon at someone he perceives as a threat. It's not like I know he's a CCW on sight. If the time, place and circumstance is such that I feel "something is up" and I see a gun on a guy I am "pointing my gun" at him till I figure out what is going on.

The taking of the weapon as some sort of "punishment" after seeing that the carrier is permitted should have been the focus of this case.


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## Guardian (Jan 3, 2010)

Ok, this is Massy we are talking about here.

Other then that, this gentleman did not do a very good job of Concealment did he.  The object of concealment is to conceal.  Now, not knowing all the specific details and not knowing all that was going on, but obviously understanding busy days and people walking about, for this LEO to spot this guys concealed weapon, it had to be pretty obvious, thus my remark, he failed to conceal properly.

Now, from what I understand, he did get his weapon back later.  Even though I can see that it probably should not have been taken if he had a permit on him since most crooks won't be carrying a permit, but that's the LEOs call at that time.

The only problem I have here is the Statement made  by the LEO of he will be the only one to carry on his beat or whatever remark he made to that effect.

His statement reminds me of one of those folks who would turn against his fellow American Citizens in like Red Dawn with that Mayor who turned against his city folks and helped the invaders,  you know the little slimy cowardly wussies.


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## jks9199 (Jan 3, 2010)

First -- I don't have a problem with the cop investigating when he saw someone carrying a gun.  Nor do I have a problem with him doing the *initial *investigation at gunpoint.  Until the cop knows what's going on with that gun, he needs to maintain the upper hand.

That said -- some of his actions beyond that point are less than ideal.  I'll take the article at its word that there's no way to verify the CCW.  Given that, the officer should be familiar with what the CCW permit looks like.  If the card was valid on its face, and he's confirmed that the card belongs to the guy in question, and made sure that guy with the gun isn't a convicted felon or other prohibited person, and running a wanted check -- he probably should have been done.  Instead, he seized the property.  The article is scant on why or what happened then... but the lawyer was released.  

I don't like the attitude, either.  And it's the cop's job to know what's legal and what's not -- without making up crazy laws on his own.

Several years ago, I stopped a car for speeding.  Driver tells me that he's got a gun in the car, and that he's got a CCW permit.  But... he left his wallet at his buddy's house.   I did take custody of the gun, while running his information.  (This is when I discovered that if you don't query EXACTLY what's in the file, the CCW system in VA doesn't confirm the permit.)  I let him call his buddy to bring his wallet, while I maintained custody of the gun.  Eventually, the buddy arrived, I confirmed the information, and returned his property to him.  I didn't pull him out of the car at gunpoint because of the way he advised me, and because he was completely compliant.

I think the officer's* actions* are justifiable, if not ideal, here.  And I think they do fall under the scope of his official duties, and he should have immunity.  But I think he also needs some discipline/retraining based on his attitude, taking the article as accurate.  And that Massachusetts needs to come up with some method for verifying the permit other than a phone call to the permit office!  (What if I had to verify it from Virginia?)

We've run into a similar issue with groups like OpenCarry here in Virginia.  They stage events where they go into a restaurant or mall or some other public area, openly carrying various guns.  Their (unstated) goal is to provoke enough of a reaction that the cops are called, and then they hope that the cops will do something stupid.  And it works more often than it should, because the truth is that there are a lot of cops who don't bother to know some of the laws properly, and who have an attitude of "nobody should have guns but us."  In Virginia, openly carrying a gun is generally legal.  You'll probably attract some police attention, and if I'm the cop, I'm going to make sure that you aren't wanted, and that you don't fall into a prohibited category... but you aren't breaking the law.  (I could stretch for disorderly if I really, really had to -- but it'd be stretching things, and probably require more conduct than simply carrying the gun.  And, in some cases, you'd be trespassing...)


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## Archangel M (Jan 3, 2010)

jks9199 said:


> They stage events where they go into a restaurant or mall or some other public area, openly carrying various guns.  Their (unstated) goal is to provoke enough of a reaction that the cops are called, and then they hope that the cops will do something stupid.



I hate that type of ****.


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## Skpotamus (Jan 3, 2010)

jks9199 said:


> First -- I don't have a problem with the cop investigating when he saw someone carrying a gun.  Nor do I have a problem with him doing the *initial *investigation at gunpoint.  Until the cop knows what's going on with that gun, he needs to maintain the upper hand.
> 
> That said -- some of his actions beyond that point are less than ideal.  I'll take the article at its word that there's no way to verify the CCW.  Given that, the officer should be familiar with what the CCW permit looks like.  If the card was valid on its face, and he's confirmed that the card belongs to the guy in question, and made sure that guy with the gun isn't a convicted felon or other prohibited person, and running a wanted check -- he probably should have been done.  Instead, he seized the property.  The article is scant on why or what happened then... but the lawyer was released.
> 
> ...



I have to disagree with his actions being justifiable after identity was confirmed.  The attorney had a valid ID and carry license.  No crime was committed.  The officer obviously has a problem with people other than LEO's carrying, so he took the guys firearm with no justifiable reason other than to hassle the owner.  If he were concerned that the guy had a fake license to carry, shouldn't he have taken him to the police station for verification?  I mean, he took the gun saying he wasn't convinced the guy was legally allowed to carry it.  Him not trying to arrest the lawyer  makes me think that he KNEW the guy was carrying legally and was simply harassing him and that if he arrested him he'd probably get into trouble.  

Now, before when he saw the gun and reacted, I don't really have a problem with that, he had no idea what the guy was doing with a gun (I'm wondering, Georgia heat, jacket, attorney, was he in a business suit?).  After it was established that he had a permit, no warrants for his arrest outstanding (I'm going to assume that his data was run), then there was no reason to steal his firearm.  

What if this Barney Fife sees a person with insulin needles, a medical alert bracelet and insulin?  Say he decides that the guy isn't really a diabetic based on the same thing he decided to take the guys gun (NOTHING), and takes his needles from him so he can't shoot up and leaves the guy alone in a bad neighborhood, would that be ok?  What if the attorney had been attacked after he was visibly disarmed by the police officer?  The officer created a situation that could have been life threatening based on his own prejudices.  He should be fired.


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## Archangel M (Jan 3, 2010)

Fired over this single incident?

No.

Some sort of departmental discipline? Maybe. 

The "creating a life threatening situation" by disarming the man is a large stretch. I disagree with what he did, don't misunderstand me, but I don't think the "the cop was responsible for my getting robbed/attacked" is going to fly.

And the "jerk-off" thing is a bit much IMO.


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## Skpotamus (Jan 3, 2010)

Archangel M said:


> Fired over this single incident?
> 
> No.
> 
> ...



So you are ok with a police officer making up laws in order to harass someone?  He clearly knew he had no leg to stand on legally, so he made up some BS about having to verify the license when the state laws say that having the card is verification (looked up the laws for Mass).  This behavior is the exact opposite of what police officers are supposed to be.  The officer behaved unprofessionally, he let his personal prejudices influence his job.  He did get departmental discipline (having to retake firearms laws classes).  

Oddly enough, I think that if he had actually detained the attorney he'd have been in the right, IF he was actually concerned about the license being fake (he basically said he thought the guy was committing a felony and let him go?)  

The attorney in question was a criminal defense attorney practicing for over 30 years in that state, I wonder if that influenced the officer in any way? 

BTW, looking up the laws for mass, I can't find anything saying that he has to carry concealed, in fact, it apparently is legal for someone to open carry with the license the attorney had, so the officer was way out of line in his actions from the start.  

I edited the comment before you posted so as to not offend anyone, but it is appropriate, the term in common usage meaning someone who is clueless/an idiot.


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## Archangel M (Jan 3, 2010)

He didn't "make up a law".

He never charged anybody with a violation of any "law", made up or otherwise.

He confiscated the weapon..didn't "steal it"..the guy will get it back. The officer may have gone against dept. policy, may have opened himself/his dept. up to a civil suit.

Was the cop right here? Don't know the state/local law to answer that. I also haven't heard the officer articulate why he believed the permit to be invalid. On the face of the story I would say no. 

Still. If this is the first and only problem with this cop this event is far from a firing event IMO.


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## jks9199 (Jan 3, 2010)

Archangel M said:


> He didn't "make up a law".
> 
> He never charged anybody with a violation of any "law", made up or otherwise.
> 
> ...


I agree; retraining, and notes in the file are plenty of discipline unless there's a pattern here.

We don't have the officer's side; might it matter if the license had a name that was close -- but not identical to the lawyer's name on his other ID?  Many years ago, a friend of mine was accused of lying when he told a cop his SSN -- because the driver's license (at the time, VA O/L numbers were your SSN) was different.  DMV had actually screwed up. (They screwed up mine, too... I just didn't find out in a traffic stop.  Both cases were the result of a clerk misreading the writing on the application.)  But I really think this was more like what's happened several times that I know of when OpenCarry showed up somewhere; cops found themselves in a situation, didn't know exactly what was up, and took an action.  Too often, it's been a dumb move.  

I liken taking the gun and card in this case to confiscating something while you sort out its ownership.

Again, I think that if everything appeared right on its face, and record checks were clear -- the gun should IDEALLY have been returned and the lawyer sent on his way.  I don't automatically see some agenda or evil conspiracy from the cop; I see a dumb move.  Retraining is the best fix, unless it's an ongoing problem.


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## Bob Hubbard (Jan 3, 2010)

Regardless of what's what, it looks like 2 different courts told the lawyer to get stuffed.  That's the part I find worrisome here.


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## jks9199 (Jan 3, 2010)

Bob Hubbard said:


> Regardless of what's what, it looks like 2 different courts told the lawyer to get stuffed.  That's the part I find worrisome here.


Not necessarily.  The courts had the advantage of having all the information -- not only part of it, presented by a source with a definite bias against the outcome.  It's very possible that there was evidence presented that would radically change your opinion.

I described one incident above, where I encountered someone carrying concealed who inadvertently didn't have their permit on them.  Let me describe it a little differently:
A police officer stopped a car in a speed trap.  When the driver told the officer that the driver was a CCW holder, the officer immediately disarmed him, and detained him at the scene, taking custody of the CCW holder's lawfully carried gun.  Additional cops showed up... and after about 15 or 20 minutes, the CCW holder was released when the officer was finally satisfied with the holder's permit.​All I've done is slant the wording a bit, and omit the detail that he didn't have his permit on him.


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## Bob Hubbard (Jan 3, 2010)

True. At any event, the courts had access to much more information than we have here at the moment.


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## jks9199 (Jan 4, 2010)

Here is the actual ruling.  The statement of facts is rather different than the brief summary implies.  Officer Stern observed Schubert carrying a firearm (and may have been alerted by witnesses/complainants not identified for trial).  Schubert says that Stern leapt from his car, pointing his gun at Schubert's face, commanding him to stop.  Stern eventually removed the gun from Schubert's holster, and unloaded it, as well as obtaining Schubert's gun license and driver's license.  Stern then attempted to verify the license in his cruiser, but this became a lengthy process because there was no centralized computer system for the gun license.  During the process, Schubert was in front of the cruiser.  He complained of the heat, and at some point after that, Stern had him sit in the back of the cruiser, "partially Mirandized" him (I don't get this; what is a "partial" advisement?  Especially for a criminal defense attorney?), mentions possible criminal charges and makes a statement about being the only person allowed to carry a gun on that beat.  After several more minutes, with no rapid response on the license forthcoming, Stern released Schubert while keeping the gun & license, telling him that he could pick up the gun and license at the police station later.  Schubert later filed a complaint, and as a result of that investigation, it was recommended that Stern receive refresher training on Massachusetts gun laws, though it also found that he committed no specific wrongdoing and recommended no discipline.  Schubert later brought a federal civil rights case.  The lower court dismissed the case with prejudice in summary judgement.

The appellate court found that Stern's actions were in keeping with the Fourth Amendment and that he had reasonable suspicion to justify a _Terry_ stop, since he observed a man carrying a (mostly) concealed gun in a high crime area and moving towards an important public building.  The manner of the stop was reasonable in light of the circumstances,  and the period and manner of detention was in keeping with either dispelling or confirming the suspicions:
Just as an officer is justified
in attempting to confirm the validity of a driver's license, such
a routine check is also valid and prudent regarding a gun license.
As it happens, Massachusetts did not have a simple way for police
officers to conduct such a check, so Stern's effort to do so took
several minutes. But the entire stop took only ten minutes and
when Stern realized that he would not be able to confirm the gun
license within a reasonable time, he sensibly opted to terminate
the stop and release Schubert, but retain the weapon.​It seems pretty clear that Stern had no intention that the gun and license be permanently confiscated, unless he had no right to them, and was in fact, trying to shorten Schubert's detention.  (I kind of suspect that Schubert probably made some sort of comment about needing to get to court, or to meet a client, etc.)  The ruling notes that the entire stop lasted about 10 minutes.  

I think, after reviewing the whole ruling, the situation quite a bit less drastic than the article paints in the original post, no?


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## KenpoTex (Jan 4, 2010)

So what happened to "innocent until proven guilty?"  He had no way to verify that the permit was valid, however if it was facially valid (not expired, names/info correct, etc.) there was also no reason to assume that it wasn't.  Yet he took the gun anyway.  
Let's say the computers suddenly go down (or the radios, or whatever) and/or for whatever reason the officer can't run my driver's license at a traffic stop.  Does that mean he can keep my license and order me to lock the car and walk away since he can't determine _without a doubt_ that that I'm authorized to operate a motor-vehicle on the road?


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## Archangel M (Jan 4, 2010)

While I agree with the sentiment entirely. It's not a matter of "innocent till proven guilty" as there were no criminal charges filed. This is an "administrative" issue... could possibly be a 4th Amend issue depending on how the gun was found/taken in the first place...but the weapon was confiscated pending an investigation, no charge was filed.

Like I said though, unless there was "more" to this than what I have read, I agree with you. Where I work if I make contact with a CCW and the guy has a valid permit on his person I don't typically even "run" it. I'll just check the guy for warrants and/or orders of protection and cut him loose. I'm wondering what the unstated details of this contact were though? What details were not allowed  or asked in testimony? I'm thinking there was more to this than a simple contact with a CCW holder.


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## Archangel M (Jan 4, 2010)

When the courthouse is in a "high crime area" though..your town has problems.

PS-I just read the ruling in its entirety. While I may disagree with the officers confiscation of the weapon+permit (depending), I think the court ruling was correct. I don't think there was a 4th or 14th amendment violation. Which was the plaintiff's case.


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## Skpotamus (Jan 4, 2010)

If anyone else were to take a firearm from a person, it's called theft.  If a police officer does it while ignoring the laws of his state, it's called "confiscating"?  He had no legal justification to do so after identity had been established and no crimes were being committed.  He had a license that legally allowed him to carry a firearm, the officer violated his rights by taking his firearm from him, and at gunpoint no less.  

The fact is that the officer chose to confiscate a firearm from a person that was proven to be licensed to carry it because of his own prejudices about private gun ownership. If the officer really thought that the license was fake, invalid whatever, then why didn't he detain the individual in question until it could be determined whether or not the man was committing a felony?  The answer is that the officer knew he was legally carrying and wanted to harass him because of his own personal views that DO NOT coincide with the laws of his state.  

I find it sad that people are so used to being screwed over by police and government that they feel police officers abusing their power and ignoring the laws of their state is ok.


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## Archangel M (Jan 4, 2010)

To prove "theft" you have to show an intent to permanently deprive someone of their property for the takers personal gain.

"Theft" is the generic term for all crimes in which a person intentionally/fraudulently takes personal property of another without permission or consent *and with the intent to convert it to the taker's use* (including potential sale). A police officer isn't "taking property for his own use" when it's confiscated. It goes into the PD's. property department.

From my academy notes:

_The actus reus__ of theft is usually defined as an unauthorised taking, keeping or using of another's property *which must be accompanied by a mens rea of dishonesty and/or the intent to permanently deprive the owner or the person with rightful possession of that property or its use*._ 


...so no it wouldn't be the same as theft.


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## KenpoTex (Jan 4, 2010)

Archangel M said:


> While I agree with the sentiment entirely. It's not a matter of "innocent till proven guilty" as there were no criminal charges filed. This is an "administrative" issue... could possibly be a 4th Amend issue depending on how the gun was found/taken in the first place...but the weapon was confiscated pending an investigation, no charge was filed.



But what was there to investigate if the permit was facially valid?  The way I look at it, we can call it whatever we want: temporary confiscation, administrative issue, whatever...the gun was seized.  In my mind, absent criminal charges or probable cause to believe that a crime had been/was being committed, it was a bad seizure.



Archangel M said:


> Like I said though, unless there was "more" to this than what I have read, I agree with you. ... I'm wondering what the unstated details of this contact were though? What details were not allowed  or asked in testimony? *I'm thinking there was more to this than a simple contact with a CCW holder*.



If in fact the officer did make the statement attributed to him in the article I posted ("no one carries a gun on my beat except me"), I believe you have your answer...another cop with a god-complex who has a problem with armed citizens.


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## Skpotamus (Jan 4, 2010)

Archangel M said:


> To prove "theft" you have to show an intent to permanently deprive someone of their property for the takers personal gain.
> 
> "Theft" is the generic term for all crimes in which a person intentionally/fraudulently takes personal property of another without permission or consent *and with the intent to convert it to the taker's use* (including potential sale). A police officer isn't "taking property for his own use" when it's confiscated. It goes into the PD's. property department.
> 
> ...




In my state: *IC 35-43-4-2*
* Theft; receiving stolen property
*  Sec. 2. (a) A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft, a Class D felony. 

So whether the person is taking it for their own use, giving it away or throwing it away doesn't matter.  They're depriving the lawful owner of their property which is theft.



Maybe Mass is different, but the LEO's who work around the courthouses in IN know most of the attorneys here on sight, especially the ones who have served for years, this attorney had 30+ years as a criminal defense attorney.  It's entirely possible there was some animosity from the officer for the attorney's profession.


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## Archangel M (Jan 4, 2010)

KenpoTex said:


> If in fact the officer did make the statement attributed to him in the article I posted ("no one carries a gun on my beat except me"), I believe you have your answer...another cop with a god-complex who has a problem with armed citizens.



Possibly.

The fact of the matter in this case though is that the officer WAS within the scope of the law and doing his job by investigating a man with a gun making to enter a court building (are lawyers allowed to carry in court there?) 

What is at issue here is what he did AFTER he found out the guy was a CCW holder. 

The CCW holder is trying to say that the officer had no reason to stop or detain him for the investigation IN THE FIRST PLACE. In which I and the court think he was wrong. I am tending to agree with him on the confiscation being out of line however..at least from what I have read to date. 

He would have been better off trying to figure out what sort of civil suit he could wrangle up IMO.


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## Archangel M (Jan 4, 2010)

Skpotamus said:


> In my state: *IC 35-43-4-2*
> * Theft; receiving stolen property
> *  Sec. 2. (a) A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft, a Class D felony.
> 
> So whether the person is taking it for their own use, giving it away or throwing it away doesn't matter.  They're depriving the lawful owner of their property which is theft.




Sec. 2. (a) A person who knowingly or intentionally exerts unauthorized control over property of another person, *with intent to deprive the other person of any part of its value or use, commits theft*, a Class D felony.

Deprivation in legal terms implies a lengthy or permanent "keeping" or conversion to personal use. It does not include confiscation by police. Ask a lawyer if you don't believe me. Almost ALL states require a mens rea or "guilty mind" to substantiate the charge.



> mens rea is usually one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, _actus non facit reum nisi mens sit rea_, which means "the act does not make a person guilty unless the mind be also guilty". Thus, in jurisdictions with due process, there must be an _actus reus_ accompanied by some level of _mens rea_ to constitute the crime with which the defendant is charged


...so again, no. It's not "theft" by legal definition. Unless there was some evidence that this officer was intentionally doing this to "screw" with the attorney. Which still probably wouldnt reach the definition of "theft" but would be some form of "official misconduct".


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## Skpotamus (Jan 4, 2010)

Archangel M said:


> Sec. 2. (a) A person who knowingly or intentionally exerts unauthorized control over property of another person, *with intent to deprive the other person of any part of its value or use, commits theft*, a Class D felony.
> 
> Deprivation in legal terms implies a lengthy or permanent "keeping" or conversion to personal use. It does not include confiscation by police. As a lawyer if you don't believe me.



Actually, I have asked before, both LEO's and a lawyer about it.  You are wrong.  At least, in the state of Indiana.  Depriving the lawful owner of their property counts as theft, whether the person stealing it keeps it, sells it, destroys it or whatever.  See the kids shoplifting from the mall who toss the stuff they steal once they are outside.  It's still theft in this state even though they toss the stuff.


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## Archangel M (Jan 4, 2010)

Same here man, but a kid ditching his stolen CD had the INTENT TO STEAL. You just are not grasping what mens rea means. Ask an attorney outright if this cop "stole" the gun. Go ahead. You are falling victim to the classic blunder of thinking you know what "deprives" means in a legal statute because you can read English. In legal writings EVERYTHING has a specific legal definition. If you cant find the definition for "deprives" in your states penal law it is probably spelled out in case law or they refer to common law.

An officer DOES have the authority to confiscate property when he is authorized. If he was wrong in his belief that he had the authority to confiscate it he is not guilty of theft. You would have to charge every rookie cop with theft in that case.



> whether the person stealing it keeps it, sells it, destroys it or whatever


 Yup. When "whatever" means an INTENT (mens rea) to "keep it, sell it, destroy it"...NOT when it means "return to the owner after verification". 

If there was an intent to "screw" this attorney by using legal authority it was a form of "official misconduct" or your states version of the same.

It isnt theft.


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## KenpoTex (Jan 4, 2010)

Archangel M said:


> Possibly.
> 
> The fact of the matter in this case though is that the officer WAS within the scope of the law and doing his job by investigating a man with a gun making to enter a court building (are lawyers allowed to carry in court there?)
> 
> ...



At no point have I argued that the cop was out of line because he made contact with the guy or attempted to run his info.  Right or wrong, when the cops get a "man with a gun" call or see someone with a weapon, questions are going to be asked.  If you don't want problems, keep your damn gun *concealed* (one of the reasons I think open carry is dumb).
Now, whether inadvertently exposing your weapon (wind blows the coat open, "printing," etc.), absent any other suspicious behavior, is justification for a "Terry stop" is the subject for another thread...
As to whether he was actually planning to enter the courthouse, whether lawyers are allowed to carry in the courthouse, etc.  That is not something we actually know.

So no, the stop isn't what put the burr under my saddle.

What I have been taking issue with was the, IMO, totally unreasonable seizure of the man's weapon.  Based on the information available, there was no articulable evidence to suggest that the guy was committing a crime.


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## lklawson (Jan 4, 2010)

jks9199 said:


> We've run into a similar issue with groups like OpenCarry here in Virginia.  They stage events where they go into a restaurant or mall or some other public area, openly carrying various guns.  Their (unstated) goal is to provoke enough of a reaction that the cops are called, and then they hope that the cops will do something stupid.  And it works more often than it should, because the truth is that there are a lot of cops who don't bother to know some of the laws properly, and who have an attitude of "nobody should have guns but us."  In Virginia, openly carrying a gun is generally legal.  You'll probably attract some police attention, and if I'm the cop, I'm going to make sure that you aren't wanted, and that you don't fall into a prohibited category... but you aren't breaking the law.  (I could stretch for disorderly if I really, really had to -- but it'd be stretching things, and probably require more conduct than simply carrying the gun.  And, in some cases, you'd be trespassing...)


In Ohio, for a long time, the *ONLY *legal method of carrying was Open Carry.  Open Carry folks did it as a way of being legally armed and as a way of pushing for CCP reform (which eventually was enacted).  Even though Open Carry is legal here in Ohio, multiple people were arrested for it on various "disturbing the peace/inciting a panic" type charges.

It is my experience that, here in Ohio anyway, if a cop wants you arrested, you're gonna get arrested.  You may get released later without being charged, charges "dropped," or some other form of remedy.  But you're still arrested and have to go through that hassle.  Remember the Circuit City incident?

It's just one more reason on my list to always be polite and compliant with police.

Peace favor your sword,
Kirk


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## lklawson (Jan 4, 2010)

Archangel M said:


> To prove "theft" you have to show an intent to permanently deprive someone of their property for the takers personal gain.
> 
> "Theft" is the generic term for all crimes in which a person intentionally/fraudulently takes personal property of another without permission or consent *and with the intent to convert it to the taker's use* (including potential sale). A police officer isn't "taking property for his own use" when it's confiscated. It goes into the PD's. property department.
> 
> ...


So if my next-door neighbor breaks into my outdoor shed and takes my lawnmower, telling some witnesses walking down the sidewalk, "I'll return it later," that's not "theft"????

Nah.  Not buying that.  What it boils down to is there are special rules for cops because they're acting as agents of the (local) government.  And, yes, governments *CAN *take your stuff and it's not "legally" theft.  Try not paying your taxes while claiming that *you *never agreed to give them your money and see how well that works.

That's just the way it is.  There's no other way around it.  If you're gonna have actual uniformed, paid LEOs then they *MUST *have a special rule set for just them in order for them to operate.

Peace favor your sword,
Kirk


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## lklawson (Jan 4, 2010)

Archangel M said:


> An officer DOES have the authority to confiscate property when he is authorized. If he was wrong in his belief that he had the authority to confiscate it he is not guilty of theft. You would have to charge every rookie cop with theft in that case.


Yes.  Like I said, there *REALLY ARE* different rules for cops.

If a civilian acted in exactly the same way, stuck a gun in the man's face, took his gun and permit, then delivered them to the police, that civilian would be arrested and charged with several different charges, theft among them I'd bet.

The difference is that cops are acting as agents of the government.  They have special authorities *NOT* allowed to average civilians.  Different "rules."  This is the reason why most of us civvies insist that government agents, everyone from elected politicians down to clerks, be held to a "higher standard."  Because the additional power their positions as agents for government lends itself to easy abuse.

Recognition of this "higher standard" and potentials for abuse is why every LEO agency in the U.S. has mountains of internal Codes of Conduct, review processes, continuing training, internal investigations processes, etc.  It doesn't always work, but at least it recognizes and attempts to address the issue.

Peace favor your sword,
Kirk


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## jks9199 (Jan 4, 2010)

Archangel M said:


> To prove "theft" you have to show an intent to permanently deprive someone of their property for the takers personal gain.
> 
> "Theft" is the generic term for all crimes in which a person intentionally/fraudulently takes personal property of another without permission or consent *and with the intent to convert it to the taker's use* (including potential sale). A police officer isn't "taking property for his own use" when it's confiscated. It goes into the PD's. property department.
> 
> ...


Exactly.  Given the facts as stated in the opinion, it's pretty clear that Officer Stern had no intent to permanently deprive Schubert of the gun or license.  (Side note: Licenses tend to remain the property of the issuing authority, if you read all the fine print.)  This is more like if an officer were to hold onto luggage or other items while either obtaining a search warrant or waiting for a dog sniff.  Note that two courts AND an internal investigation have found that Stern was not commit significant wrong, though the internal investigation did suggest he receive refresher training.


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## jks9199 (Jan 4, 2010)

Skpotamus said:


> Actually, I have asked before, both LEO's and a lawyer about it.  You are wrong.  At least, in the state of Indiana.  Depriving the lawful owner of their property counts as theft, whether the person stealing it keeps it, sells it, destroys it or whatever.  See the kids shoplifting from the mall who toss the stuff they steal once they are outside.  It's still theft in this state even though they toss the stuff.


Theft is generally the taking and carrying away of the property of another with the *intent to permantently deprive* the person of the use or benefit of the item.  (The lack of that intent is why there are different statutes for joyriding.)  Police seizure of an item is not the same as theft, and is not the equivalent to theft.  To permanently seize the items in question requires due process; seizure laws are complicated enough that I know some jurisdictions who devote an attorney in the prosecutor's office and one or more officers/detectives to the process.  Again, in this case, the gun and license were temporarily held with the specific intent to return them to Schubert once the license was verified; Stern told him to reclaim them at the station.  It's much more like a teacher taking something from a student, and giving back at the end of the day than theft.  Even offenses like receiving stolen property generally require that it be shown that a reasonable person would have been likely to know or suspect that the item was likely stolen; evidence to show this can be found in the price, known conduct of the person giving/selling the item, condition of the item, and so on.


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## Archangel M (Jan 4, 2010)

lklawson said:


> So if my next-door neighbor breaks into my outdoor shed and takes my lawnmower, telling some witnesses walking down the sidewalk, "I'll return it later," that's not "theft"????




Apples and Oranges.

Your neighbor isn't taking your mower as part of his or her job. Your neighbor is doing it with you being unaware and did it by "breaking into" your property. Your neighbor isn't taking the mower as part of his/her job and is taking it for his/her private use. And there remains some questions with your little scenario. Do you let your neighbor borrow your mower regularly and does he/she regularly return it? What was your neighbors "mens rea" when he took it? A burglar telling a lie when seen stealing is a poor analogy in this case. A cop securing property as part of his job is not stealing even if he was wrong in his belief that he had the right to confiscate it because he is not doing so with the INTENT to "steal".

This is really a simple concept. 

"Buy" it or not it's still not the legal equivalent of theft.


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## Archangel M (Jan 4, 2010)

KenpoTex said:


> Now, whether inadvertently exposing your weapon (wind blows the coat open, "printing," etc.), absent any other suspicious behavior, is justification for a "Terry stop" is the subject for another thread...



I think it fits this thread perfectly.

Seeing a gun is seeing a gun. Legally it's no different in justifying a terry stop as long as the officer can articulate why he is doing it. "Suspicious behavior" is only one aspect of Terry. Location, time, other information such as briefing intelligence describing a person of interest who may be similar to you etc. 

How that stop is conducted (as in talking to the person vs. pointing a gun in his face) is a point of discussion.


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## Bob Hubbard (Jan 4, 2010)

Cop sees gun in high crime area, reacts to deal with perceived threat in a defensive manner.  Ok so far.
Cop safely disarms suspect. Ok
Suspect supplies what he claims is a CCP.  ok so far.

Cop is unable to validate CCP. *This is an issue.* #1

Cop confiscates firearm and CCP. Considering he could not validate the CCP, this seems a reasonable action given the area and local laws.

Cop then makes telling statement that seems to indicate cop will make his own rules irregardless of law. *This is an issue.* #2

Suspect is left unarmed in dangerous area. *This is an issue.* #3

 IF a real problem existed, suspect along with weapon and permit should have been brought in for further investigation.

Suspect is not charged, property is returned. Ok.  However, it should not have gotten to this stage, IMO. See Issue #1.


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## Archangel M (Jan 4, 2010)

That's fairly accurate Bob. 

The court decision about this was based on the 4th and 14th Amendments which the guy said the cop violated. Which the court disagreed with. This was either an issue of an untrained...or simply mistaken (people make mistakes) cop or a cop abusing his legal authority; which would be a case of official misconduct if that could be proven.


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## Archangel M (Jan 4, 2010)

An interesting point on the federal case. Read the final ruling:



> For the foregoing reasons, we affirm the district court's grant of summary judgment in favor of Stern, the dismissal with prejudice of the federal claims against the City of Springfield, and the dismissal without prejudice of the remaining state law claims against the City.



For those who don't know, the federal case was "dismissed with prejudice" which means the plaintiff CAN'T bring another charge on the same case (to the Fed's). The dismissal on the State and City claims were "dismissed without prejudice" which means that he CAN attempt another charge against them. 

In laymans terms the Fed Judges are saying "your case isn't a matter of Constitutional Law...BUT you may have a case against the State/City if you want to try again."

Not quite 100% accurate (im no attorney) but that's the nuts and bolts.


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## Bob Hubbard (Jan 4, 2010)

Sounds about right from my read and experiences.


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## Deaf Smith (Jan 4, 2010)

Here in Texas the law says if the CHL holder exposes their gun they can have the CHL license suspended. And I have no doubt if the cops see the gun they will stop you and check you out.

Happly here it's not hard for them to check is as DPS database is online and any LEO can request to see if the CHL permit is valid.

BUT, while traveling to other states, the cops may have a hard time and there is the chance of a fake ID (as they do drivers licenses.)

So the upshot is, KEEP YOUR GUN CONCEALED FROM VIEW.

I've packed for well over 15 years now and never been spotted (well I hope was never spotted) by anyone. 

Deaf


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## Archangel M (Jan 4, 2010)

The "juice" in this story is really about what the cop SAID rather than anything he DID in my opinion.


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## Jenny_in_Chico (Jan 4, 2010)

Bob Hubbard said:


> Cop sees gun in high crime area, reacts to deal with perceived threat in a defensive manner. Ok so far.
> Cop safely disarms suspect. Ok
> Suspect supplies what he claims is a CCP. ok so far.
> 
> ...


 
With respect to issue #3...there was another thread on MT discussing the primary role of the police...I'm sorry but I don't have a link. But it was clarified in that thread that the police have no responsibility to protect any individual citizen. Their job is to detain lawbreakers and preserve the peace.


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## Carol (Jan 4, 2010)

Bob Hubbard said:


> Cop sees gun in high crime area, reacts to deal with perceived threat in a defensive manner.  Ok so far.
> Cop safely disarms suspect. Ok
> Suspect supplies what he claims is a CCP.  ok so far.
> 
> Cop is unable to validate CCP. *This is an issue.* #1



Actually Bob, I don't think it is an issue, at least in this particular case. 

Logic says "If A then B" is true, then "If !B then !A" is also true.  (This is the contrapositive form).

If (A) you legally carry (in public) in Mass. then (B) it must be concealed.

If your firearm is (!B) not concealed then the carry is (!A) not legal.

Whether the police officer could verify the validity of the license is irrelevant.  If the police officer could see the gun, then the carry was not legal.   



> Cop then makes telling statement that seems to indicate cop will make his own rules irregardless of law. *This is an issue.* #2


I will agree I don't think the police officer handled this in the best way.   But I do not think that what he said was totally out of bounds with what is legal in Mass, and how the law has been enforced in the past.



> Suspect is left unarmed in dangerous area. *This is an issue.* #3


Not an issue in terms of how the law has been enforced in the past.  If someone that has a legal permit gets caught carrying in an illegal fashion, they generally lose that permit.  Which means, they lose their right to own a gun in Massachusetts, period.  See the 1998 matter of Joseph Landers of Dedham, MA who lost his license/right because a gust of wind blew his jacket open enough for an officer to see his firearm.

I don't like the gun laws in Massachusetts.

However, the solution to the punitive gun laws in Mass. needs to come from Beacon Hill, and not from accidentally breaking the law and blaming the cops that patrol high-crime towns.


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## Andy Moynihan (Jan 4, 2010)

Carol said:


> Actually Bob, I don't think it is an issue, at least in this particular case.
> 
> Logic says "If A then B" is true, then "If !B then !A" is also true. (This is the contrapositive form).
> 
> ...


 
Lesson learned: when carrying from the belt, either Weigh your jacket/coat pockets down, or use a closed-front concealing garment( buttoned down shirt, untucked T shirt one size large over a tucked tank top so as to keep a shirt between you and the gun for comfort, etc).


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## Tames D (Jan 4, 2010)

Carol said:


> If your firearm is (!B) not concealed then the carry is (!A) not legal.


 
Not trying to be a smartass here, BUT, if you needed your firearm in a self defense situation, _by the letter of the law_, you can't draw it, someone might see it... Some laws are just strange.


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## Carol (Jan 4, 2010)

Tames D said:


> Not trying to be a smartass here, BUT, if you needed your firearm in a self defense situation, _by the letter of the law_, you can't draw it, someone might see it... Some laws are just strange.



Actually no...drawing is not the same as carrying.  That is one of the distinctions between brandishing a firearm and not carrying concealed. 

Unless a person is carrying in a place where firearms are prohibited by law (courthouses, etc) carrying improperly usually  results in the loss of the license/right in Mass, but doesn't result in criminal charges.

Brandishing is usually a felony in Mass.

Big difference


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## Andy Moynihan (Jan 4, 2010)

Skpotamus said:


> If anyone else were to take a firearm from a person, it's called theft. If a police officer does it while ignoring the laws of his state, it's called "confiscating"? He had no legal justification to do so after identity had been established and no crimes were being committed. He had a license that legally allowed him to carry a firearm, the officer violated his rights by taking his firearm from him, and at gunpoint no less.
> 
> The fact is that the officer chose to confiscate a firearm from a person that was proven to be licensed to carry it because of his own prejudices about private gun ownership. If the officer really thought that the license was fake, invalid whatever, then why didn't he detain the individual in question until it could be determined whether or not the man was committing a felony? The answer is that the officer knew he was legally carrying and wanted to harass him because of his own personal views that DO NOT coincide with the laws of his state.
> 
> I find it sad that people are so used to being screwed over by police and government that they feel police officers abusing their power and ignoring the laws of their state is ok.


 

Let me put this into perspective for you here:

In my own fair, wonderful, corruption free home state just within the last 13 year period alone:

1n 1997, the town of Spencer, MA, following a vote by the town selectmen amidst so many narcotics and civil-rights violations charges against its officers, finally ended up firing the* whole department* and turning over operational control and daily peacekeeping activities to the State Police until new officers could be hired.

in 1998, a Peabody police sergeant was convicted on 2 counts of witness tampering.In 2008, a Peabody Lieutenant was convicted of gaining unauthorized access to a computer system(A matter having to do with police exam applicants). That same year, a patrolman from the same department was on trial for beating his elderly mother into the hospital.

In the early 2000's The Beverly police chief stepped down following an incident during which he allegedly tried to strangle one of his patrolmen.

These towns are all within a half hour's drive for me.

In 2008-9, My very own town's department was exposed as having falsified EMT training documents going back several years. The poor guy who exposed them, they made life hell for that poor kid, kicked him off the force and suspended his LTC so now he can't even go into private security and has had to move several states away just to have a normal life again. The chief resigned in disgrace, at least a few officers and a sergeant left behind him and a new chief was hired who was a former Connecticut State trooper.

A new MA police chief has been hired from outside MA.

That has **NEVER** happened within my memory.

With that said:

The individual rank and file officers I have ever had dealings with have never been anything but courteous and professional to me, and this is probably helped by the fact I always give them the attitude I would like to be addressed with in turn.

But in all brutal honesty, MA cannot be held up as any sort of "median average" if you want to talk about police corruption, as sad as it is to say


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## Deaf Smith (Jan 4, 2010)

Tames D said:


> Not trying to be a smartass here, BUT, if you needed your firearm in a self defense situation, _by the letter of the law_, you can't draw it, someone might see it... Some laws are just strange.


 
Tames,

Yes you can draw it very quickly. And I mean VERY quickly.

Several methods to do this:

1) if it's a IWB appendix holster, use your off hand to grab the t-shirt upwards as your strong hand grabs the gun and draws. If you don't have two hands, just use the strong hand to raise the shirt and draw.

2) if behind the hip IWB and just a t-shirt, use the strong hand to raise the shirt above the gun, then use the elbow to keep the shirt there while the strong hand draws. It's quite quick when practiced.

3) If using a behind the hip IWB and a coat. have the strong hand go to the chest and wipe downwards and toward the gun. It will move the coat out of the way as your strong hand goes to the gun and draws.

And there are other ways!

Deaf


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## Andy Moynihan (Jan 4, 2010)

Deaf Smith said:


> Tames,
> 
> Yes you can draw it very quickly. And I mean VERY quickly.
> 
> ...


 
And that's not even counting front pocket or especially coat pocket carry with the right gun (there's no faster "draw" than letting go an entire cylinder from inside your coat pocket even if they close to bad breath distance)


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## Carol (Jan 4, 2010)

Andy Moynihan said:


> But in all brutal honesty, MA cannot be held up as any sort of "median average" if you want to talk about police corruption, as sad as it is to say



But I don't think police corruption is so much the point as it is the way due process works in MA.  

In many states, if one's license to carry is revoked, that has no bearing on one's right to own a firearm to keep at one's home.

In MA, if one's license to carry is revoked, or even temporarily suspended, one does not have the legal right to own that firearm any longer.


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## Tames D (Jan 4, 2010)

Deaf Smith said:


> Tames,
> 
> Yes you can draw it very quickly. And I mean VERY quickly.
> 
> ...


 
Sorry Deaf. I'm very well aware of all this. That wasn't the point of my post.


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## Andy Moynihan (Jan 4, 2010)

Carol said:


> But I don't think police corruption is so much the point as it is the way due process works in MA.
> 
> In many states, if one's license to carry is revoked, that has no bearing on one's right to own a firearm to keep at one's home.
> 
> In MA, if one's license to carry is revoked, or even temporarily suspended, one does not have the legal right to own that firearm any longer.


 

That is also very true, guess the point I was making wasn't quite the one this thread is addressing. Sorry for the drift.


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## Andy Moynihan (Jan 4, 2010)

Tames D said:


> Sorry Deaf. I'm very well aware of all this. That wasn't the point of my post.


 
Sorry for the drift Tames. Deaf and I sometimes get caught up in our willingness to teach and sometimes don't catch stuff right away


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## jks9199 (Jan 4, 2010)

Bob Hubbard said:


> Cop sees gun in high crime area, reacts to deal with perceived threat in a defensive manner.  Ok so far.
> Cop safely disarms suspect. Ok
> Suspect supplies what he claims is a CCP.  ok so far.
> 
> ...


I disagree with your issue number three, Bob.  Schubert was not left any worse off than anyone didn't have a CCW, and wasn't breaking the law.  Take a guy driving in the middle of nowhere here in VA on a suspended license, DUI related, and I impound his car.  Yeah, he's still in the middle of nowhere, but it ain't my job to find him a ride out, either.


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## Deaf Smith (Jan 4, 2010)

Tames D said:


> Sorry Deaf. I'm very well aware of all this. That wasn't the point of my post.


 
Well Tames in Texas the law also leaves an out if you display your weapon while defending your life. It's in PC42.01 (Disorderly Conduct.)

Deaf


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## Skpotamus (Jan 5, 2010)

When I looked up Mass. carry laws, nowhere in them did it say the firearm had to be concealed.  Everyone is assuming that the attorney messed up by having his gun in the open (he did as the cop went nuts over it), but from what I can find, it's not illegal to carry openly in that state with the  license type that attorney had.  

So it sounds like the officer overreacted since nothing the attorney was doing was against the law at any time.  

http://opencarry.org/ma.html
http://www.nraila.org/statelawpdfs/MASL.pdf


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## 5-0 Kenpo (Jan 5, 2010)

jks9199 said:


> I disagree with your issue number three, Bob. Schubert was not left any worse off than anyone didn't have a CCW, and wasn't breaking the law. Take a guy driving in the middle of nowhere here in VA on a suspended license, DUI related, and I impound his car. Yeah, he's still in the middle of nowhere, but it ain't my job to find him a ride out, either.


 
I'd be careful with this one.  If he gets hurt, you are the one that placed him in that situation by taking his car, even if it is based on his actions of driving while suspended.  You could be held civilly liable for it.


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## Archangel M (Jan 5, 2010)

5-0 Kenpo said:


> I'd be careful with this one. If he gets hurt, you are the one that placed him in that situation by taking his car, even if it is based on his actions of driving while suspended. You could be held civilly liable for it.


 
Depends on where you take it. If the guy is sober, its not -20 deg outside and it's not on the interstate he can drive off in his size 10's IMO. The sidewalk or the shoulder is no more dangerous to him than everybody else walking/jogging on it.

If he's "juiced" it's a whole other ball game. My dept. got sued big time over an incident 20+ yrs ago under those circumstances. Wasn't driving of course otherwise he'd have been arrested.


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## Andy Moynihan (Jan 5, 2010)

Skpotamus said:


> When I looked up Mass. carry laws, nowhere in them did it say the firearm had to be concealed. Everyone is assuming that the attorney messed up by having his gun in the open (he did as the cop went nuts over it), but from what I can find, it's not illegal to carry openly in that state with the license type that attorney had.
> 
> So it sounds like the officer overreacted since nothing the attorney was doing was against the law at any time.
> 
> ...


 
http://web.mac.com/dariusarbabi/Massgunlaw.com/Hot_topics_and_FAQs.html



> *Is it legal, or a good idea for someone with a Class A LTC to openly carry a firearm in Massachusetts?*
> 
> No, it is probably not a good practice, even if it is arguably legal.  While there no statute or case law directly on point, it is a good idea to view your Class A LTC as a license only for concealed carry of a firearm.


 
It's not strictly on-the-books illegal, but the common accepted practice is you do not do it and can expect no mercy if you do. It's pretty much an automatic brandishing charge, maybe even an automatic assault with a deadly, depending. That's the way it's been since before I was even born. It sucks, but it is what it is until it either gets changed or until I manage to leave this state. *shrug*


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## Cryozombie (Jan 5, 2010)

Andy Moynihan said:


> http://web.mac.com/dariusarbabi/Massgunlaw.com/Hot_topics_and_FAQs.html
> It's not strictly on-the-books illegal, but the common accepted practice is you do not do it and can expect no mercy if you do. It's pretty much an automatic brandishing charge, maybe even an automatic assault with a deadly, depending. That's the way it's been since before I was even born. It sucks, but it is what it is until it either gets changed or until I manage to leave this state. *shrug*



If the law doesn't specifically state it has to be concealed I don't see how this works.  It is, IMHO, stupid to open carry, unless that is your only option, ALA Wisconson, but like most laws, if it isn't written into the law, it's not Illegal, so I can't see how the Republik of Mass gets awat with that.  

To me, doing so would be like saying you are required to have a drivers license to operate a motor vehicle, but arresting everyone in a red car, because they don't feel the license should cover that.


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## lklawson (Jan 5, 2010)

Archangel M said:


> Apples and Oranges.
> 
> Your neighbor isn't taking your mower as part of his or her job.


Exactly.

Like I said.  Different rules for "public servants."

Peace favor your sword,
Kirk


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## jks9199 (Jan 5, 2010)

Archangel M said:


> Depends on where you take it. If the guy is sober, its not -20 deg outside and it's not on the interstate he can drive off in his size 10's IMO. The sidewalk or the shoulder is no more dangerous to him than everybody else walking/jogging on it.
> 
> If he's "juiced" it's a whole other ball game. My dept. got sued big time over an incident 20+ yrs ago under those circumstances. Wasn't driving of course otherwise he'd have been arrested.


Hey guys, I was making a comparison, not trying to derail the discussion.  

Of course you can't leave the guy in a situation that creates a danger, whether he's drunk, or the weather is nuts to be out, or in a situation that's going to break the law.  Even then, you aren't going to drive him home; you might call him a cab or arrest him for public intoxication.


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## lklawson (Jan 5, 2010)

Skpotamus said:


> When I looked up Mass. carry laws, nowhere in them did it say the firearm had to be concealed.  Everyone is assuming that the attorney messed up by having his gun in the open (he did as the cop went nuts over it), but from what I can find, it's not illegal to carry openly in that state with the  license type that attorney had.
> 
> So it sounds like the officer overreacted since nothing the attorney was doing was against the law at any time.
> 
> ...


You can get arrested for Open Carry.  Disturbing the Peace, Inciting a Panic, whatever.

Face it.  If a cop wants you arrested,  you WILL. BE. ARRESTED.

It's a good thing that most do not abuse this sort of authority.

Peace favor your sword,
Kirk


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## Carol (Jan 5, 2010)

Skpotamus said:


> When I looked up Mass. carry laws, nowhere in them did it say the firearm had to be concealed.



Actually I think you are right.  There is no law stating that the firearm must be concealed.  Therefore, one may not be charged with a crime for carrying openly.  The Joseph Landers matter that I mentioned in 1998 didn't leave Mr. Landers with an arrest or any criminal procedings to address.  

But his choice of carry did leave him without a license to carry anymore.

So, very true.  It entirely possible to carry openly and not face criminal charges for doing so.   Its also entirely possible to lose one's entire right by doing so.  A Mass. LTC is a bloody PITA to get just to have a firearm at home, to get one with the endorsement for concealed carry is even harder.   I suspect the folks that go through all the trouble to get one do so with the intention of wanting to keep their licenses/rights for a very long time.


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## Skpotamus (Jan 5, 2010)

Andy Moynihan said:


> http://web.mac.com/dariusarbabi/Massgunlaw.com/Hot_topics_and_FAQs.html
> 
> 
> 
> It's not strictly on-the-books illegal, but the common accepted practice is you do not do it and can expect no mercy if you do. It's pretty much an automatic brandishing charge, maybe even an automatic assault with a deadly, depending. That's the way it's been since before I was even born. It sucks, but it is what it is until it either gets changed or until I manage to leave this state. *shrug*



We have a term in my state for "not strictly by the books illegal"... it's called..... LEGAL!  What that Q&A basically said is that police don't have the legal justification to arrest someone for open carry, but will do so on some trumped up BS charge.  Police enforcing laws that don't exist is the exact opposite of what they were created to do.  Betraying the very essence of law enforcement should be grounds for being fired IMHO.  Especially when the officers KNOW they are not enforcing the law.  

We had the same issue in my home state for a while. We had an entire town declare that open carry was illegal and would arrest anyone for open carrying.  Ended up going to the state supreme court where the city was told they were violating state law, and to remove that law from their books or lose all state funding.  Later they tried the whole "public disturbance" BS to do it, went back to court and still lost (probably because indiana doesn't have a public disturbance law).  

Now, regarding law enforcement powers, different states may be different.  But in IN, a LEO has to follow all the laws of his state, as well as pretty strict guidelines for anything she/he does.  They have exemptions written into state laws about carry for instance, as well as breaking speed limits and traffic laws in the case of an emergency only.  I showed the district courts ruling to three of my students last night, one was a lawyer, two were LEO's (one for 20+ years, the other for just over 12).  All three said that if it had happened in IN, the officer would probably have been fired, if not brought up on charges.  This was from reading the district court's ruling, not the more inflammatory article.  So I think we're just looking at this from the blinders our own state justice systems puts on us.  

Also, side note:  Theft in IN is exactly what I said it was.  Intent to convert property to your own use has NOTHING to do with whether it's theft or not.  Depriving the lawful owner of their property or it's value (via destruction, loss, etc) counts as theft.  So 


Now, I personally think open carry is just plain silly, and won't do it at all except for one town I have to go to every now and then that REQUIRES open carry (ordinance passed before the state exemption laws took effect).  It sounds like Mass LE is playing fast and loose with people's rights.  Arresting people on some other charge for enjoying legal behavior?  Denying a person a firearms carry license because of them following the law?  Sounds incredibly UN-american to me.


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## Carol (Jan 5, 2010)

The Comm. of Mass?   Un-American?  Say it ain't so... :lol:

Personally, I think the vast majority of LEOs in Mass. are very strong supporters of 2A rights.  The change in Mass is not going to come from LE, or from painting the cops as the bad guys, they are some of the strongest allies we have.  They have the to jump through the same hoops that the rest of us do.  Unlike many of us, their ability to support their family depends on their LTC.

The change must come from Beacon Hill, and from the city and town halls.  That will take a change in the mindset of the citizenry in Mass. in order for that to happen.


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## Andy Moynihan (Jan 5, 2010)

Carol said:


> The Comm. of Mass? Un-American? Say it ain't so... :lol:
> 
> Personally, I think the vast majority of LEOs in Mass. are very strong supporters of 2A rights. The change in Mass is not going to come from LE, or from painting the cops as the bad guys, they are some of the strongest allies we have. They have the to jump through the same hoops that the rest of us do. Unlike many of us, their ability to support their family depends on their LTC.
> 
> The change must come from Beacon Hill, and from the city and town halls. That will take a change in the mindset of the citizenry in Mass. in order for that to happen.


 
Carol said it better than I could.


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## Andy Moynihan (Jan 5, 2010)

Skpotamus said:


> We have a term in my state for "not strictly by the books illegal"... it's called..... LEGAL! What that Q&A basically said is that police don't have the legal justification to arrest someone for open carry, but will do so on some trumped up BS charge. Police enforcing laws that don't exist is the exact opposite of what they were created to do. Betraying the very essence of law enforcement should be grounds for being fired IMHO. Especially when the officers KNOW they are not enforcing the law.
> 
> We had the same issue in my home state for a while. We had an entire town declare that open carry was illegal and would arrest anyone for open carrying. Ended up going to the state supreme court where the city was told they were violating state law, and to remove that law from their books or lose all state funding. Later they tried the whole "public disturbance" BS to do it, went back to court and still lost (probably because indiana doesn't have a public disturbance law).
> 
> ...


 

Whatdid you, think I was kidding when I typed my location descriptor?


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## Archangel M (Jan 5, 2010)

Nope not theft. You just WANT it to be.


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## Archangel M (Jan 5, 2010)

....you do get a receipt when someone "steals" your property. And you don't get legal process for it either. Spin it as you like but an officer confiscating property as part of his job will not meet any states definition of theft.


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## Bob Hubbard (Jan 5, 2010)

Theft - To take without permission.  N.Webster.

The issue there is, government redefines things in their favor.


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## Archangel M (Jan 5, 2010)

Webster doesn't equate to legal statute Bob. A crime has to show "mens rea" or a "guilty mind" involved in the taking. Rarely is larceny defined as a "strict liability" crime...as in I haven't seen it yet.


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## Bob Hubbard (Jan 5, 2010)

I stick with English dictionaries. Legal ones aren't English. Government changes meanings to justify their actions. Legal definition doesn't equal the common one.


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## Archangel M (Jan 5, 2010)

If you live under a set of laws its best that you understand them. Thinking that a websters understanding is sufficient could land you in trouble. Being that this is a martial arts/self-defense forum I would say such understanding is manditory. 

Heres a nice explination of INTENT in regards to criminal liability.

http://en.wikibooks.org/wiki/US_Criminal_Law


PS-"Common Law" as deep and ancient roots. This stuff is not something new that the gvt has "cooked up". It's a vital component to defending yourself against a case bought against you BY the gvt.


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## Jenny_in_Chico (Jan 5, 2010)

Bob, I think Archangel has out-argued you. Better throw in the towel now and live to argue another day.


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## Bob Hubbard (Jan 6, 2010)

Jenny,
    I had a long reply written, but tossed all but this part as I don't want to argue today.  

Legal language has checks, justifications, and complexity to it. That's why the highest document in the nation is a mere 20 pages, yet it takes 50 just to outline who can get a tattoo.


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## Jenny_in_Chico (Jan 6, 2010)

Bob Hubbard said:


> Jenny,
> I had a long reply written, but tossed all but this part as I don't want to argue today.


 
Is that because you got my pic in the mail?


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## Bob Hubbard (Jan 6, 2010)

Haven't been to the post office yet this week dear.


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## Archangel M (Jan 6, 2010)

Don't confuse legislative "law" (i.e. bill writing) with penal law and criminal procedure law either. Criminal Law was as "complex" back in the founding fathers day as it is now. Governmental "law"...as in thousand page health care bills are a separate matter that doesn't really apply here.

Legal definitions of what consitutes theft, burglary, rape, etc. (and "self defense") are very specific and have remained pretty much unchanged for YEARS. They have roots in "common law" and that reaches WAY back in the human formation of "law".


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## Jenny_in_Chico (Jan 6, 2010)

Archangel M said:


> Don't confuse legislative "law" (i.e. bill writing) with penal law and criminal procedure law either. Criminal Law was as "complex" back in the founding fathers day as it is now. Governmental "law"...as in thousand page health care bills are a separate matter that doesn't really apply here.
> 
> Legal definitions of what consitutes theft, burglary, rape, etc. (and "self defense") are very specific and have remained pretty much unchanged for YEARS and has roots in common law that reach WAY back in the human formation of "law".


 
That's kicking a man when he's down, Michael.


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## Gaius Julius Caesar (Jan 7, 2010)

jks9199 said:


> First -- I don't have a problem with the cop investigating when he saw someone carrying a gun. Nor do I have a problem with him doing the *initial *investigation at gunpoint. Until the cop knows what's going on with that gun, he needs to maintain the upper hand.
> 
> That said -- some of his actions beyond that point are less than ideal. I'll take the article at its word that there's no way to verify the CCW. Given that, the officer should be familiar with what the CCW permit looks like. If the card was valid on its face, and he's confirmed that the card belongs to the guy in question, and made sure that guy with the gun isn't a convicted felon or other prohibited person, and running a wanted check -- he probably should have been done. Instead, he seized the property. The article is scant on why or what happened then... but the lawyer was released.
> 
> ...


 
 Are you refering to those Manassas City Cops who got real aggressive with a few of those legal gun owners and then were overheard on their radios calling them all kind of insulting names and saying they wished one of them would have treid something so the cops could shot them?

 The reason these groups do this is because there is so many in Va. L.E. that do not know the laws pertaining to firearms and damn well should in the great FREE Commonwealth of Virginia.

 Maybe it's time you guys were made to attend a dedicated coarse on gun laws and the citizens right to carry and defend themselves?

 ( I know You know the laws, I am meaning Va. LE in general.)

 I bet you would rather sit through that than another cultural sensativity class?


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## Carol (Jan 7, 2010)

Gaius Julius Caesar said:


> Are you refering to those Manassas City Cops who got real aggressive with a few of those legal gun owners and then were overheard on their radios calling them all kind of insulting names and saying they wished one of them would have treid something so the cops could shot them?



Cop humor can be rather dark, when they're talking amongst themselves.  Just sayin'.


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## jks9199 (Jan 7, 2010)

Gaius Julius Caesar said:


> Are you refering to those Manassas City Cops who got real aggressive with a few of those legal gun owners and then were overheard on their radios calling them all kind of insulting names and saying they wished one of them would have treid something so the cops could shot them?
> 
> The reason these groups do this is because there is so many in Va. L.E. that do not know the laws pertaining to firearms and damn well should in the great FREE Commonwealth of Virginia.
> 
> ...


The Manassas City incident was only one of several -- and they still go on.  The responding officers in Manassas screwed up in more ways than one.

But the reality is that no cop really knows all the laws; we learn the ones we use and deal with regularly, and look up the others as we need to.  The regional response to OpenCarry and the screw up in Manassas was reminders being sent out by most agencies about what is legal.

It also doesn't help that quite a few of the Virginia weapons laws have some really screwy wording; see, for example, 18.2-287.4, titled "Carrying loaded firearms in public prohibited; penalty."  The catch is that it only prohibits carrying CERTAIN loaded firearms, basically high capacity ones in particular areas.


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## Gaius Julius Caesar (Jan 8, 2010)

jks9199 said:


> The Manassas City incident was only one of several -- and they still go on. The responding officers in Manassas screwed up in more ways than one.
> 
> But the reality is that no cop really knows all the laws; we learn the ones we use and deal with regularly, and look up the others as we need to. The regional response to OpenCarry and the screw up in Manassas was reminders being sent out by most agencies about what is legal.
> 
> It also doesn't help that quite a few of the Virginia weapons laws have some really screwy wording; see, for example, 18.2-287.4, titled "Carrying loaded firearms in public prohibited; penalty." The catch is that it only prohibits carrying CERTAIN loaded firearms, basically high capacity ones in particular areas.


 
 Well back in the younger days, my little haedbanger buddies would talk the Anarchy BS and talk about how " We will fight the Cops Man." I always said " Your an idiot, soon after any Anarchy a new order allways comes along and the first order is to establish law enforcement, you need them unless you want to battle everyone you meet. You want to change the World? First thing you do is kill all the Lawyers. =)

(These guys were to dumb to know about Henry the 8th)

 Good luck, stay safe JKS.


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