If no criminal charges were filed under what circumstances were the rifle(s) seized? There must be something else involved here.

I am not aware of any seizures or prosecutions in NY under the provisions of the AW ban.  

The law, which went into effect in Nov 2000 just mirrors the fed law. A preban/postban AR15 that is legal under federal law is legal in NY unless restricted by local law (NYC, etc.). There are no restrictions on the transfer or possession of SAW's or magazines in NY unless restricted by local law.

yankytrash,

I have no intention of flaming you.
If fact, I appreciate the real world story.

A couple of questions for Steve or shaggy.



How can LE just skip court?  And why no charges?

The prescription drug analogy is interesting, however I find it has the same flaw
that machine gun comparisons have.  That is, you can not purchase prescription
drugs or machine guns legally without some sort of searchable paper trail.  The
prescription drugs are prescribed buy a doctor and filled buy and approved outlet.
Machines are registered and tax stamps issued.  Theses exceptions are clearly and
unambiguously defined and accepted plus traceable.

However that is not the case with semi-auto assault weapons.  Any qualified
buyer legally purchase a preban semi-AW without any such traceable measures.

An ATF trace would not show the firearms configuration, only it’s date of
manufacture and dates it exchanged hands through an FFL.

As a side note, the lack of federal support on this is interesting.



RK

If it conflicts with an essential element, doesn’t it conflict with the prosecutions
burden to prove beyond a reasonable doubt that essential element?

RK

RK,

Evidence, or contraband, can be seized and held without charges being filed.  I lost count of the swtichblade and springblade knives and a handgun or two that I seized as contraband without charging those who possessed them.  In every case I gave the owner the option of having the weapon confiscated and destroyed as contraband with no charges, or being arrested and charged for the violation.  Nobody took the arrest and charge option.

Also charges don't have to be filed immediately.

So, would a person who buys a "preban" Olympic Arms lower who was given a notorized letter from the seller from the original owner, or owner as of the ban date would be ok if a court case would arise?

[:\]

Dave_G: Switchblade and springblade knives are illegal in NY.  Handguns require a NYS pistol permit to possess. A SAW in NY is not illegal nor does it require a permit to possess.

As I stated before "There must be something else involved here."

rkbar15,

What I was trying to say was that evidence or contraband can be seized, held and disposed of without any charges being filed.  The knives and guns were just examples of that practice.  

As for no charges being filed immediately, technically you can wait to file just about any criminal charge.  If I recall correctly, in California, an officer has 6 months to file an infraction, a year for a misdemeanor and 2 to 3 years for most felonies and no time limit to file murder charges.

Mac,

More than likely, yes, the BATF would accept a letter from the person who owned of the weapon on 9/13/94.

All you people who say that the government has no burden need to take some law classes. As 2 seperate lawyers, whose law classes I took stated, "The Prosecution must prove beyond a reasonable doubt that the person has commited a crime." This includes any exemptions or as Liberals call them "loopholes." This is different from laws that say "It is an affirmative defense...", such as the right to carry a weapon w/o a lisence if you fear an imminent attack.  In such a case you have to show your defense. Remember these are Pre-94 Lowers. The date is reasonable doubt in and of itself. The BATF would have to find and question, then put on the stand every last person who ever owned, borrowed, or handled the gun in order to prove that it was never assembled prior to 1994. Now, if you buy a lower from an FFL who purchased it in 1994 and never used it, and told you that. Then, proving it would be easy. All FFLs keep a log book, the _DLE & FBI keep NICS records. Tracing a gun from FFL to FFL even VIA a Person isn't hard. FFL A sells an AR-15 to Person A in 1993 and Person A sells it to FFL B in 1998, who sells it to Person B in 1998, who adds a collapsing stock. Now, proving who owned it along the way is easy. The ATF must question FFL A and Person A. It is unlikely a large FFL would remember rather a specific gun was a SAW in 1993 or earlier since it wouldn't have really been that imporatant. Now, person A who owned it would have to remember rather or not anytime it was a SAW. Getting the buyer to show it was not assembled by him is easy. But, getting the FFLs to remember would be a hard trick. Especially a decade later. Also, if anybody who owned it before 1994 is not alive, incapacitated, or otherwise unable to testify or remember then they cannot prove it wasn't assembled. Let's say it was made in 1992. 3 People owned it before 1994. Can they all remember rather it had a flash supressor, threaded barrel, etc. A friend of mine owned a SAW before he sold it in 1993. Now, even he can't remember exactly what banned features it had. That is because prior to 1994, whether or not a gun had

A) Threded Barrel
B) Flash Supressor
C) Collapsing or Folding Stock
D) Protruding Pistol Grip
E) Bayonet Lug

or not is hard to know. While he may remember rather or not it had a Collapsing stock, which would exhonnarte you if it did. It is unlikely he'll remember the other features. In fact many gun owners can't even tell whether or not a gun has a Bayonet Lug or not. An even larger number can't tell the difference between a Flash Supressor and Muzzle Brake. Was that device on the Barrel a Flash Supressor or Muzzle Brake. If they (The Prosecution) cannot prove it wasn't a flash supressor, then your free to go.

cc,

No one is disputing the government's burden.



Not quite.

Very rarely and only when such "exemption" is made part of the essential elements to the crime does the prosecution have the burden to prove that negative.  That is not the case here.  See above.

There really is no such thing as an "affirmative defense" in criminal law.  That is a term used in civil cases.  I think you are trying to say that certain defenses are born by the defense- I think.  Actually, most, if not all, of them are- the exemption in this case is an example.  Again, see above.  If Congress had drafted the prohibiting clause to include ". . . and such possession occured after enactment of this statute", then there would be a complelling argument that such language is part of the essential elements of the crime.

Defenses are either recongnized or not.  They are unstated and codified, common law and statutory.  However, they are all, for the most part, tools used by defendant and not made part of the government's burden.

An "affirmative defense" is a defense that must be plead within a certain time before trial in civil cases.  That's not the case in a criminal trial, you have no obligation to give the government notice of your defense except in rare cases such as 'alibi' and 'insanity pleas'.  Professors in universities love to use such misnomers as the majority of them have no clue about the actual practice of criminal litigation.  An assumption I confidently make about your 2 "lawyers" who were evidently teaching on an undergrad level and not in a law school where there credibility, regarding litigation practice, would only have been slightly enhanced (but still lacking).

Example of a defense in most states to robbery:

"Claim of right" is an equitable defense to robbery.  Basically, when someone has a [i]bona fide[/i] good faith belief that money he/she takes, by force, from another is money that belongs to him/her, that is a defense that negates the criminal intent component of the crime- even if the belief is MISTAKEN.  I've used it in several robbery cases over the years (successfully and unsuccessfully).  Anyway, the defense is born by the defendant and he proffers it in his case in cheif.  You can, and I have, however, make it part of your motion to strike the prosecutions evidence by drawing the facts that are the bases for the defense out of the government's witnesses and then argue it as a matter of law (even if unsuccessful, gives the trier a taste of where you are going).  

This defense, like most, is NOT part of the government's burden and they still must prove a violation of the law as stated- if an exemption or common law defense exists, it's up to the defendant to show it.

There are lots of other examples of codified exemptions or defenses in the two states I practice and in the federal code.  If you want me to direct you to them, drop me an email.

Dave_G: Agreed. AFAIK all states have a statute of limitations.  

That's why I asked, "If no criminal charges were filed under what circumstances were the rifle(s) seized? There MUST be something else involved here."

rkbar15,

You are beginning to sound like R_K...No you do sound like R_K.  Are you R_K?

On the off chance that you aren't R_K by another name, try to understand this:

The weapon was seized as evidence in an on-going investigation that was to include, among other things, a BATF trace of the weapon, and/or to await the production of evidence of pre-ban status by the owner.  No charges need be filed until it has been confirmed that a crime has actually been committed.  This is standard procedure in a criminal investigation to prevent destruction of the contraband.  It would be really dumb for the cops to have found the AW and left it in the possession of the owner until the BATF trace came back if it did so with an indication that the AW was not a legal pre-ban.

They did the guy a favor by not arresting him, requiring him to post bail, retain an attorney and surrender all of the rest of his firearms pending an outcome of the case.  

DaveG: LOL. Maybe YOU ARE RK. Maybe YOU ARE Yankytrash. Maybe YOU ARE the Easter Bunny. Maybe I AM the Easter Bunny. Who cares?

I think you're really confused. All I wanted to know since I reside in NY was WTF the PC circumstances were and DETAILS of the ongoing investigation that led to the seizure of the rifle(s). I still haven't heard what the SPECIFICS of that were.

I am quite familiar with the CPL concerning a criminal investigation and seizure of property in NY. Just for the record you can't just seize personal property on the whim that it MAY be illegal to possess EXCEPT on the CONSENT of the subject, which is frequently the way it's done in NY.

I'm neither R_K nor am I the Easter Bunny.  Under federal law, a weapon configured as a semiautomatic assault weapon is illegal to possess.  The exception to this law is that if the weapon was a legally possessed assault weapon at the time of the enactment of the section.  If NY law is the same, then, absent proof of the exception, the weapon is illegal and subject to seizure on discovery.  Consent of the owner is not required to seize evidence or contraband discovered as the result of any otherwise lawful search and contraband may be confiscated and disposed of even if the search is unlawful.  You just can't charge them for possessing it.  

When I saw where this whole thread was going with RK, I decided to stay out, but for the sake of Rkbar15's question, I'm jumping back in.

Yankytrash had a [i]very[/i] unique situation.  I talked to him by phone at length about it, and he posted some of the details here a few months ago.  I'm not going to recite the details of his situation - its up to him to repost it if he so desires - but suffice it to say charges would have been filed but for the fact that the defendant was unavailable.  

Dave_G: Thanks for the definition of a SAW. I think I know what a SAW is.

As to the lesson on search and seizure and tainted evidence as it applies in the courtroom LE usually attempts to collect evidence in a lawful manner and in compliance with the search and seizure law so it is NOT tainted and IS admissible at trial in order to convict the defendant. The best way to do that is with a warrant or upon the consent of the subject.

Shaggy: Thanks for the post. I found the following in the archives. As I suspected there is much more then the simple issue at hand.

There was no illegal search and seizure of anything with regards to this situation. No charges were filed because the subject was uh F***ING DEAD! Thanks again.


[url]http://www.ar15.com/forums/topic.html?id=26900&page=2[/url]

yankytrash
Member

US
33 Posts
Posted - 06/11/2001 :  20:07:54      



--------------------------------------------------------------------------------
I am in this 'proving innocense of a preban' situation. I have posted this story many times on many boards, but I think it's important that I post it here too. It relates directly.

This may take two posts to complete, but I'll try to keep it short and to the point.

My stepfather died alone of natural causes in his house in NY earlier this year. A friend discovered his body and called 911. The dumba** never bothered to look around the house to hide any questionable items. Paramedics and the sheriffs responded. Lying next to the couch where he died was a loaded illegal greasegun. Upon further investigation, the sheriffs found an AR15 SP1, Valmet M78 semi, and a few other guns not worth mentioning - the others were obviously legal. Along with these goodies were found two other goodies - a bag of weed on the entertainment center and a garbage bag full of weed in the den. Luckily, you can't arrest a dead man.

The guns were confiscated as 'illegal assault weapons'. The sheriffs do not know the law of preban versus not preban. Also, because of their distrust with assault rifles, they want to see receipts or records for the two assault rifles and the 35 or so high capacity magazines.

In these words, I was told by the sheriff, "If you find a receipt for the AR and 2 mags, you get the AR and two mags. If you don't find receipts for the other 15 AR mags, you won't get the other 15 mags."

You are right. There is no law about keeping receipts by private owners. But the sheriff wants them for liabilty reasons, just to be sure.

At this point, I have now proven to the police that they are, indeed, legal prebans. They still have the guns and want to see receipts.

This has been going on for 6 months now. I will be filing for federal civil rights violations and arbitration under article 78 of NY law if the guns and mags are not returned by July 1st.

I read a post about a guy that spent $10000 to get back $5000? Well, that's going to be me soon. These bastards will not get over on me. I will drag them through the dirt until their fingernails bleed as they grasp for solid ground.

Keep receipts, don't keep receipts, whatever. This situation has taught me a lesson. Although I will keep my receipts, they will try, legally or not, to take my guns.

It will always be "us" and "them", legal or not. Hide'm.

rkbar 15,

Sounds like a stressful situation.  Also sounds like local LE is making sh*t up as they go.  The executor/executrix of the estate should file a civil action for recovery of the seized items.  In Virginia it would be an action in 'replevin'.  Never filed one in a fact pattern like this.  We have in other situations where seizure takes place (drug case) but the case is not acted upon and the items sit in limbo.  Federal court is probably the best place for relief in your case.  

If you need a referral please email me (and I will give you my office number) and we will look for a competent attorney in your area who can help you out.

Good luck and please keep me posted.

Steve

Oh, now I remember, the gentleman who has passed away.
I must have dismissed it because of the death and illegal items present.

Actually I am Dave_G, I like to argue so much I argue with myself.
BAHAHAHAHA!



Shaggy, Jump on in, I’ll promise to play nice.


Steve, I still have my questions if you’re willing to teach/answer.  


If it conflicts with an essential element, doesn’t it conflict with the prosecutions
burden to prove beyond a reasonable doubt that essential element?

RK

Steve - I think you may have misunderstood Rkbar15's post.  He copied YankeyTrash's post from a few months ago.  YankeyTrash went back to the sheriff, stated his case, and got all but one of the guns back. The only one he didn't get was the unregistered greasegun.

rkbar15,

Huh?  I wasn't defining a semiautomatic assault weapon.  You need to read the whole post.  Also, your comprehension of search and seizure requirements is a bit lacking.

Uh, Steve are you a lawyer ? You sure talk like you are. I said I took a few law classes. They were introductory classes and it wasn't a law school. I was assuming that the debators were simply interpreting the law without any background. By the way a number of states have "affirmative defenses" in their concealed carry laws. They say "it is an affirmative defense that the accused was in imminent fear of attack." In such a case, yes the defense has to show that the defendant was actually in fear. What it comes down to is how the jury views it. A jury is more likely to be hung or find not guilty if the gun isn't proven to be post-ban. That is why nobody has been charged under this law except as an add-on. If the defendant states it is pre-ban and therefore legal, and the prosecution cannot disprove it, the jury at very least would probably be hung, resulting in a mistrial and eventual dismissal of the case. It is alot easier to get a conviction on a case where the defendant has commited other crimes, or where the lower is post-ban.

Yes.  I'm licensed in Hawaii and Virginia and have an active federal criminal practice in the 4th Circuit and am admitted in the U.S. Supreme Court.



You assumed wrong.  Not a flame, it's just that this has been a long standing topic both here and in GD.



I don't get what your saying . . . "affirmative defense" in their laws- are you saying that there is authority in some jurisdictions that allow conceal/carry where someone thinks they might be attacked with equal force (called vigilantism in most jurisdictions and NOT a recognized defense- BTW, that's different from the traditional self defense where you are actually confronted with deadly force and meet it with equal force- no need to conceal/carry in that case).  I really doubt that, but will give you the benifit of the doubt.  In the meantime, shoot me some authority (cites) and I'll take a look.  

At any rate, the term "affirmative defense" is NOT related to the way you are presenting it in your statement, by definition.  Black's defines it in the traditional "civil" context and states that such a defense must be raised in the defendant's "answer".  "Answers" are not applicable in criminal cases (see the 5th Amendment to the U.S. Const.).  Again, recognized defenses are utilized by criminal defendants in their case in cheif and they are not required to raise them prior to trial (except for insanity and alibi).



Wow!  That's stated with some apparent weighty authority.  Don't be so sure of anything when it comes to a jury.  One thing I learned a long time ago (practicing 11 years now) is that you never, NEVER, assume what a jury is going to do in a criminal case.  They are more fickle than women.

Oops.

Steve: Thanks for the offer of help.  If I ever need it I'll take you up on it. If you're ever in NY let me know and the beer's on me.

RK:  As you are aware I'm the real RK. You can be the Tooth Fairy if you want to.

Dave_G: I'm not a law professor, this isn't law school and I wasn't giving a lecture on the intricacies and technicalities of the illegal search and seizure laws in the U.S. As a practical matter a LEO is on safest ground if he obtains evidence while executing a search warrant for specific items listed in the warrant or upon the lawful consent of the subject.

In the case of Yankytrash obviously you aren't going to get consent from a dead person nor do you need it to seize the contraband.  

In any case now that the facts and circumstances have been clarified the incident has no bearing or application in general to the issue of SAW’s in NYS.

I hang out in the legal forum to keep abreast of RKBA and other firearms related legal issues. If a post has some reference to NY I am particularly interested in the facts and circumstances associated with the issue.  

Interesting.  How did you go about getting that trace started?  Did you contact a lawyer who subpeoned that from the ATF?

rkbar15,

Then, if I’m the Tooth Fairy, you must be the Easter bunny.


Steve,

If it conflicts with the essential element, doesn’t it conflict with the prosecutions
burden to prove beyond a reasonable doubt the essential element?

RK

Cool, I'll buy.[size=1]*[/size=1]


[size=1]*"Buy" shall be construed to be limited to the first purchase of alcholic beverage, also referred to a "round", and shall not include mixed drinks, shots or shooters.  Any and all purchases thereafter shall be born by the party most intoxicated and/or smaller in stature, whichever applies.[/size=1]

RK:

I'm confused, now I don't know who I am.

Actually with two rug rats I've been the Easter Bunny, Tooth Fairy and Santa Claus at one time or another.

It was only an allegation the time my old GF made me dress up as a cheerleader. It was never established as fact in a court of law. Actually the evidence was tainted and the case was dismissed with prejudice.[:D]

Steve: LOL.  Aren't you supposed to be working on some poor slobs RKBA appeal instead of playing on the net all day?  

Ahhh, the beauty of afternoon appointments- I can squeeze in some ar15.com surfing inbetween clients.  Also, I have access to ar15.com at the courthouse since our law library is connected to the net and it's free!  Love the looks I get from my fellow bottom-dwellers when they see the AR icon on my screen [:D]

More then likely you're still billing the poor slob while you're playing on AR15.com.  

BTW is it true that lawyers are never eaten by sharks in shipwrecks and medical researchers are now using lawyers instead of rats in their experiments?[:D]

"I refuse to respond to that assertion on the grounds that it may incriminate me . . ."  JUST JOKING- my timesheets are extremely accurate- big no-no.  Almost as bad as not returning phone calls (number 1 bar complaint year after year in VA).




Right.  Re the sharks:  It's called professional couresy.  Re the rats: It's called lab ethics.

Nah. There are two reasons the researchers are using lawyers instead of rats.

1.  There are just some things rats won't do.

2.  The researchers don't get attached to the lawyers![:D]

Don’t want to talk with me, don’t know?

Rk

Well Hey There RK!

Still at it I see. I haven't been around the board in some time, but in a way it's comforting to see how some things never change.

I gotta admire your persistance, I'll grant you that. I still don't agree with you though, so don't think I'm getting soft!

Cheers.....[beer]

rkbar15:  LOL!

RK,

DAMN!  Are we going steady yet are what?  

When I say "conflicts", I mean "negates", as in knocks it down.  Think of it like any other defense, your attacking one or more essential elements that has been proffered by the prosecutor.  Like in my robbery example.  There, the "claim of right" argument, if bought by the trier, negates the essential element of intent, to-wit: ". . . and intending to deprive that person of his/her property permanently"- i.e., the criminal intent component of the crime (yes, that is an essential element).  Why?  Because the defendant has a good faith honest belief that the property in question is his and therefore does not intend to take [i]someone else's[/i] property.

Can I go hang with my fiance' now?

PS:  I'm not including in my definition above the legal defenses of "excuse" and "justification";  they are different animals altogether.  Insanity is a defense of legal "exuse" and, for example, tieing your boat up to someone's dock during a hurricane without permission is a defense of "justification" to the crime of trespass.  Comes from the old English progeny of "lesser of two evils" line of cases.  Of which, my favorites were the old "lifeboat" cases where sailors lost at sea would draw straws to see who was dinner so the rest would live.  Always ended up that the skinny cabin boy drew the short straw- guess it was just coincidence.  Ha!

Ok Steve, you can have the rest of the night off.

But I’m still studying this matter, I’ll be back so don’t get to comfortable.

Your fiancé? My condolences, er congratulations. [;)]


miamiAR,

Hey man, long time no see.
Yeah, still kicking my favorite dead horse.

Actually it has been a while since we beat this subject around.

RK

The prosecutor must convince the judge or jury hearing the case that the defendant is guilty "beyond a reasonable doubt" in order to obtain a conviction.

In non-criminal cases, such as an accident or breach of contract, a plaintiff has to prove his/her case only by a preponderance of the evidence. This is a much lower standard then what is required in a criminal case.

I’ll give you an even shorter version:
Yes, that’s more or less what they are saying.


RK

So Steve,

Does the semi-aw ban only have the one essential element?

Are they any other examples (besides firearms) where this sort of situation
happens?  That is, an exemption written into the law that conflicts with the
essential element(s) of the crime.

Do you think your explanation is the only possible way to interpret the law?
Lets just say I’m asking you to play the board from the other side, if you will.

RK

Please, God, let this thread die! [;)]

Yes.

No, but it's the only correct one, IMO.

Not again.

May be, but this thread was a carnival freak show and that's what I meant by "not again".  

Relax, I was just trying to be fecitious.

Pre-Ban doesn't make any difference in the mandatory sentence enhancements. The simple question is "was it a Semi-Automatic Assault Weapon as defined in 921(a)(30)." The mandatory sentence laws have no exception for pre-bans.

Now, as for the other issue of possession. The prosecution must first prove the rifle was a Semi-Automatic Assault Weapon as defined in 921(a)(30). Then, they must show it was possessed by the defendant or the defendant had control of the weapon. And, assuming you could apply Staples to the case, the prosecution must also prove you were aware of all the features of the rifle (Attachment was a FH, There were threads underneath, etc...).

Then, once the prosecution proves these facts the defense can raise the argument that it was excepted as a Pre-Ban. If the defense doesn't raise the argument, it'll never be heard. Only once they raise the argument and show some kind of proof will the prosecution have to prove it was in fact a post-ban. It is my belief (but, as Maddi-Griffin proved you cant always count on juries of "peers") that the defense must first show the weapon was made prior to 9/14/1994. Then, it is up to the prosecution to offer an argument that the rifle did not come in 921(a)(30) configuration or that for some other reason it is not grandfathered. If they can show it was delivered in Post-Ban configuration, then the defense must show some evidence that the alterations probably occured pre-9/14/1994. This would most likely involve persons who saw the weapon testifying to its configuration at various points.

But, surely the ATF will research the weapon's history. You have a right to this evidence. If it was legally configured this will be what will most likely exhonerate you and if you are guilty it'll put you away.

What do you mean "no longer made?"

More than a few are still made, they're just marked "FOR GOVT/LEO USE ONLY."

But the marking requirement didn't go into effect until a year after the ban.  Ergo, there are some in existence that do not have those markings, and yours could be one.

Not so open and shut now, is it?