This is absolutely disgusting

[lklawson]

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

 

[jks9199]

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.

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.

 

[jks9199]

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.

 

[Archangel M]

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.

 

[Archangel M]

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.

 

[Bob Hubbard]

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.

 

[Archangel M]

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.

 

[Archangel M]

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.

 

[Bob Hubbard]

Sounds about right from my read and experiences.

 

[Deaf Smith]

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

 

[Archangel M]

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

 

[Jenny_in_Chico]

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.

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.

 

[Carol]

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.

 

[Andy Moynihan]

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.

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.

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.

.

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).

 

[Tames D]

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.

 

[Carol]

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

 

[Andy Moynihan]

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

 

[Deaf Smith]

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

 

[Andy Moynihan]

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

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)

 

[Carol]

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.