This is absolutely disgusting

[Archangel M]

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.

 

[jks9199]

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.

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.

 

[Bob Hubbard]

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.

 

[jks9199]

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.

 

[Bob Hubbard]

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

 

[jks9199]

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?

 

[KenpoTex]

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?

 

[Archangel M]

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.

 

[Archangel M]

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.

 

[Skpotamus]

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.

 

[Archangel M]

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.

 

[KenpoTex]

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.

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.

 

[Skpotamus]

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.

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.

 

[Archangel M]

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.

 

[Archangel M]

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".

 

[Skpotamus]

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.

 

[Archangel M]

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.

 

[KenpoTex]

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.

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.

 

[lklawson]

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

 

[lklawson]

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.

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