Getting a LAWFUL gun back from police in MASS?

[theQman23]

Hey fellow gun owners. I participated in a thread about travelling through Mass under the general discussions section of this forum. You can find my post on it by searching on my name, Quentin Mise .

Ok, this thread here is to ask the question, now that I am not convicted of any crimes while lawfully transporting my handgun through Massachusetts, what are the appropriate steps to getting my gun back?

During pre-trial my counsel asked the judge point blank about my getting my gun back. He answered, "I'm not getting in the middle of that. That issue is between you and the state police."

I couldn't understand that answer, for the life of me, I thought the judges ruled on these matters, and my gun belonged to me, and the police are holding it, and I was NOT found guilty, so what was the holdup with getting the gun back?

Ok, MAss is famous for never returning the guns back to the citizens after the trials are over. I have been laughed at by three people so far for even asking if I can have my gun back. Well now my tone has changed to, "I expect an answer and clear instruction on how I go about getting my gun back, since I am not Guilty of a crime, and since it's my property." Funny how that changes the tone of the conversation. Anyway, I have been told twice now to contact Sturbridge state police evidence officer Mogan on Monday morning about the issue, and to follow her instruction.

My concerns are based on three issues:

First, only seven miles away in a town called Holland, police chief Gleason was in big trouble for selling guns that allegedly did not belong to him. The link to that article is here:
http://www.01521.com/

Secondly, I have been told that the police will give the gun back when they want to, that they will return it after my CWOF charge drops, (two charges were flat out dropped to do eroneous charging, but one is pending six months of good behavior) and I have also been told that since I am not guilty now I am entitle to the return of my property, NOW. The police and court employees OBVIOUSLY don't have a plan in place to return a lawful gun back to its lawful owner after a trial or arraignment is decided. This is UNACCEPTABLE TO ME as a citizen.

Thirdly, the arresting officer, officer Simpkins of the State Police barracks in Sturbridge, was overheard, BY ME, in the other room of the barracks discussing the high desireability of the firearm as a "backup or off duty weapon" because it was a subcompact Glock 27 model. He further stated that he could get that weapon wholesale and for less than I paid for it, (he asked me what it cost me, and I disclosed the price I paid during the wrongful arrest that took place,) and it became clear to me that he would like to either "obtain" the firearm, or purchase it through the police system, from someone who is like Mr. Gleason, who is selling guns that don't belong to him.

If I have to drive back to Mass to get it back and they won't ship it, then fine, I"ll drive up again, but then how do I keep them from arresting me again for not having their concealed carry card. I was protected last time because I was on interstate travel, (see my other thread) but in this case of going to Mass to re-acquire my gun, my business is in MAss, not NH, therefore no federal protection exists and they can hand me my gun back, watch me drive out of the parking lot, and pop me again, and based on their behavior so far, I don't put it past them to do that very same thing again. Remember from my other post, I asked for a receipt when they confiscated my LAWFULLY OWNDED HANDGUN, and they refused to write me one and threatened me to leave the station when I aksed a second time.

If I don't have my gun back in very short order, and/or if they sell it to someone else, what type of suit am I eligible to file against them?

Sincerely,
-Quentin Mise
Romans 10:13
For Whosoever calls upon the name of the Lord, shall be saved.

 

[armoredman]

File with FBI/ATFE, theft of a firearm in interstate travel? I am not a lawyer, nor do I play one on TV - get with the NRA legal team for this one.

 

[franconialocal]

Well, your story is very dynamic and "personal" to you....so the advice you get may be all over the boards, but if my 2 cents is worth anything.......

In NH, after say a domestic dispute where one party has to relinquish any weapons/firearms if deemed so by the Judge signing the emergency protective orders, the only way you can get them back is by petitioning the court of appearance (AFTER you've settled all your legal mess) for return. It usually means going in months or years later and having a hearing in front of a judge to get them back. EVERY STATE WILL BE DIFFERENT so check with your local court, PD, etc. or TALK TO AN ATTY. for help.

I'm not an expert on all your problems with transport issues, state-to-state,
etc. so I'm not even going to touch it....

Hope this helps!

 

[spyder1911]

I am not a lawyer but I would suggest talking to a real lawyer that has passed the bar exam in MASS about this case. Sounds like you may have a case for getting your gun back but you need a lawyer that know what they are doing.


And also I would get this thread locked and deleted. Taking legal advice and commenting on a open/possible case online (theft of your gun) are NOT a good idea.

 

[General Geoff]

Call the FBI, report that your firearm has been stolen (which it has been) by a corrupt police department, and they refuse to return it to you.

If we have to live with the feds, we might as well use 'em for something good.

 

[theQman23]

All very good advise, thank you. Especially about locking or deleting this thread. Even though I am only quoting what the officer actually said himself, and drawing conclusions about illegal police activity seven miles away, I should probably let that mess square itself away without commenting on it. For all I know officer Simpkins never met Mr. Gleason, and/or has no knowledge of his selling guns that don't belong to him. I am however going to investigate what happens to MY GUN.
To anyone offended, I apologize. I do intend however to call officer Mogan on Monday, see what her instruction is, and more importantly than what the instruction is, can I get it in writing, then let the process proceed legally. If I can't get either an expediant return of my property, or at least a written, legal description of what needs to and/or will happen, then I will file suit with an attorney and let the chips fall.

Thank you all for your input.

-Quentin Mise
Romans 10:13

 

[mgkdrgn]

Unless the State Police decide to co-operate, getting your gun back will likely cost far more than simply replacing it. There is also no guarantee as to what condition it will be in if you do get it back.

Does that bite? Yes it does. Welcome to reality.

 

[Kindrox]

I would be going ape**** on them. While I have not researched the issue, and probably would before doing the following, this is what I would try:

1. Report the as stolen, as it is at this point.
2. File a lawsuit to wrap up the whole package. Federal filing fees are around $300 plus about $50 to serve it. Learning how to defend your rights in court? Priceless.

 

[30mag]

Take it to the SCOTUS.
"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction."

Please?

 

[deadin]

Qman,
Sounds to me that you are in kind of a twilight zone as far as the law goes.
Neither guilty nor not guilty. I had to look up what a Mass. CWOF was. Sounds a little more serious than you indicated. Especially the bit about staying on your record.

Massachusetts CWOF - Continuance Without a Finding

What is a CWOF in a Criminal Proceeding?

Under Massachusetts Criminal Laws, agreeing to a Continuance without a Finding is not the same as pleading guilty. Technically, it is an admission that "there are sufficient facts to find you guilty" of the charges. Pleading to a CWOF will happen at a pre-trial conference as part of a plea agreement, if your attorney can get the prosecutor to agree.

A continuance without a finding is also sometimes called a continuation without a finding, or a CWOF (pronounced "quaff"). It is similar to a nolo contendere, or no contest plea in other states. A continuance plea may be available to you in Massachusetts Criminal Courts if you are facing misdemeanor charges for drug or marijuana possession charges, assault, 1st offense OUI charges, many driving charges such as operating on a suspended license or without a license or insurance, reckless driving / operating to endanger, and other misdemeanor first offense MA criminal charges.
Why Agree to a CWOF?

If your case is continued without a finding, it can help you in cases where a finding of guilty would cause you problems in your career or educational opportunities. Some job applications ask you if you've ever been found guilty of a crime, and you can honestly answer "no". A guilty plea vs. a cwof may make a difference for certain law enforcement careers, security clearances, the right to own certain firearms, eligibility for certain scholarships or financial aid, or many other reasons.

A CWOF will not make any difference vs. a guilty plea if you are found guilty of the same offense in the future. It will stay on your record, and will absolutely be used against you in the future if you are charged with a second offense.

I might be tempted to keep a low profile until the 6 months are up before I started making a stink. Of course, as said by others, you can get a lawyer and end up paying him a couple of thou to recover a $500 gun. (Maybe)

I know, I know, it's the principle of the whole thing.

 

[Old Fuff]

There is an old saying among lawyers: "It isn't what you know, but what you can prove that matters."

You can call this Officer Mogan, but I suggest that you have the attorney that represented you in the subject case to do the calling. When your lawyer is on the other end of the line a lot of BS stops quickly.

You should remember that all of this occured in a state where in cases involving guns are concerned the authorities think they are above the law - and for all practical purposes they are.

Reporting the gun as stolen to the FBI, ATF&E, etc will get you nowhere. If they know that a police department has the gun they will do absolutely nothing.

You can discuss taking legal action to recover your property, but considering where the suit would be held I think it's a lost cause - and bringing an action would cost far, far more then replacing the pistol with a new one.

This is a sad affair, and I feel for you. Do speak with your attorney and see what he says.

 

[danbrew]

here's what I think I would do...

• forget about getting the gun back - as others have said, it will cost far more to legally get the gun back than it is worth
• i would report the gun stolen in your local jurisdiction and say nothing about the cops having seized it

perhaps at some point in the future the gun serial number will be run and it will come up with your stolen gun flag. at best you'll get the gun back. perhaps it will have been stolen from policy custody (hmmm... i wonder?) and you could stand a real chance of getting it back. you'd have to figure out what you'd say about how/when it was stolen, and - maybe - how you "got it back" from the cops in Mass. at worst, one of the men in blue will have to explain what he's doing with a stolen gun to somebody later on down the road. karma is a bitch.

that's what I'd do - you gotta make the call on what you'll do. i'd be pissed, but like somebody else pointed out, you didn't have the gun in a case and lucked out with how the whole issue was resolved. this should be a lesson to all of us to KNOW the gun laws of the areas in which we'll visit/transit. your issue is a perfect example of how luck can run out when you need it most. also, as a postscript, never agree to a search. had you said to the officer "nope, i've got no guns in the car" and not consented to the search, none of this would have happened.

 

[Prince Yamato]

If I have to drive back to Mass to get it back and they won't ship it, then fine, I"ll drive up again, but then how do I keep them from arresting me again for not having their concealed carry card. I was protected last time because I was on interstate travel, (see my other thread) but in this case of going to Mass to re-acquire my gun, my business is in MAss, not NH, therefore no federal protection exists and they can hand me my gun back, watch me drive out of the parking lot, and pop me again, and based on their behavior so far, I don't put it past them to do that very same thing again. Remember from my other post, I asked for a receipt when they confiscated my LAWFULLY OWNDED HANDGUN, and they refused to write me one and threatened me to leave the station when I aksed a second time.

That would be entrapment on their part. They can't force you to commit a crime.

Call the BATF. Say that your weapon is being illegally held by the police department and you have cause to believe that someone is going to sell it illegally. Cite the evidence that you heard. Give names.

 

[ConstitutionCowboy]

I recommend you do some research on Massachusetts law. Look for anything that directs law enforcement or more likely the Attorney General to return such property. It may not exist. I wouldn't put it past the legislature up there(my home state, by the way) to completely ignore such matters. They'll pass law to confiscate, try, and punish and "forget" to add in returning confiscated property.

Woody

 

[jjohnson]

How About the AUSA?

Just for what it's worth, I was a material witness some years ago in some long operations run by the FBI, and found that the 3 Assistant US Attorneys I worked with (New York, Texas, California) were outstanding people - with a keen interest in real justice. None of these folks would countenance any shenanigans from anyone in Law Enforcement. Would it be worth a letter to the AUSA responsible for that area? Just a thought.

 

[rscalzo]

purchase it through the police system, from someone who is like Mr. Gleason, who is selling guns that don't belong to him.

Are you the only one that hasn't heard of the Glock LE Purchase program?

You are making accusations, many that seem to be without any evidence. By your own admission, your case is not closed. While it might be in six months at this point is it still a pending case.

 

[Jim K]

Rscalzo is right. You say one charge is pending good behavior. That sounds like what MD calls probation before judgment, which means that that charge has NOT been resolved, since there has been no judgment and thus no resolution. You have not been acquitted or the charge dropped, it is pending.

I assume you have a MA attorney (if you don't and defended yourself, you are, well, lucky but not smart). Turn the thing over to him and let him fight the battle. Also he should make sure that if the last charge is dismissed, there is no record of conviction that could prevent your buying guns in the future.

Jim

 

[akodo]

http://cyb3rcrim3.blogspot.com/2009/06/ghosts-contraband-and-seeking-return-of.html

that blog has some info, see if you can find some leads there

I followed some of his links to his own posts and got to here

http://cyb3rcrim3.blogspot.com/2007/07/how-long-can-government-keep-seized.html

and here

http://cyb3rcrim3.blogspot.com/2006/11/seeking-return-of-seized-computers.html

Let’s start with a few basic principles. First, I’m going to assume we’re dealing only with evidence (property, tangible or intangible) that was lawfully seized in the execution of a search warrant. I’m also going to assume, as I explain below, that the evidence seized was used against you in a criminal proceeding; that is, I’m assuming you were charged with a crime and that your seized property was used against you at your trial on those charges. Evidence can also be lawfully seized if the owner consents to the seizure, but since the person who gives consent can withdraw it at essentially any time. I’m not sure consent seizures are at issue here.

The other basic principle is the default procedure the law establishes for getting back property that has been lawfully seized with a search warrant. I’m sure we’re all familiar with the process of moving to suppress evidence; that tends to be the scenario in most reported cases, because the stakes are a lot higher if and when you’re charged with a crime and they want to use your property against you. Here, the person filing the motion is not seeking the return of the seized property (though that could follow if the motion to suppress is granted); they’re trying to block its being used against them in a criminal case.

We’re not concerned with motions to suppress here; our concern is with whether the government can keep the evidence (property) they seized from you and then used against you. (I suppose we’re also concerned with the situation in which they use a search warrant to seize your property, charge you with crimes as to which that property constitutes evidence, and then you somehow get the charges dismissed, which ends the case.)


As I explained in an earlier post (“Seeking the return of seized computers”), the way you go about trying to get your seized property back if (i) you have not and clearly are not going to be charged with a crime or (ii) you have been charged with a crime, the evidence was used at trial, and you’ve been convicted, acquitted or got the charges dismissed somehow. The point is that we’re concerned only with (ii) because in (i) the government has absolutely no justification for hanging on to your property.

Basically, as I explained in that earlier post, you file what in the federal system is called a “Rule 41(g) motion,” because you file the motion under Rule 41(g) of the Federal Rules of Criminal Procedure. Rule 41(g) says that a “person aggrieved . . . by the deprivation of property [seized by the government] may move for the property’s return.” If the court grants the motion, it returns the property; if it does not grant the motion, you don’t get your property back.
Nothing in the law is simple, but basically the rule is that a court should not grant a Rule 41(g)-style motion for the return of seized property as long as there is a criminal case “pending” against the owner, a case with regard to which the property is relevant as evidence. “Pending” seems to be construed broadly.


-end of cut and paste

anyways, I think if you go in and demand why they are holding your property and cite Rule 41g especially with a bunch of laws printed out, you should be able to get it back pronto.

If not, you probably have to have a lawyer fill out the real 41g

 

[30mag]

I think that if he is not found guilty (not to be confused with "found not guilty"), then the case would be done with.
I don't think 'pending six months of good behavior' is a sentence, considering he wasn't doing anything illegal in the first place.

This being said, it sounds as if the case has NOT been closed.

 

[gripper]

Contact goal.org,ask to speak to someone. hey are in Northboro Ma;IIRC .

 

[theQman23]

Thanks so much everyone for being so helpful. After reading all of the replies I am getting the feeling that because there is a six month waiting period for the charge of "not having a Mass FID card" while being in Mass, (even though their own laws have an exemption against that for out of state sport shooters.......) technically the whole shebang isn't truly over until I do the six months of good behavior. So if they want to hold it for six months there isn't much I can do about that I don't imagine. I just want the state police to put that in writing, so six months from now I don't run into "new problems or delays". I also don't want those officers getting their hands on my gun before that time, and then when the six months is up, OOPS< Sorry Mr. Mise, your gun is gone...........

I am not anti law enforcement at all. In fact, my employees and I are very, very pro-cop. My father in law is US Capital police, we have counties on both side of the family, and my employees have law enforcement close to them as well. I actually go target shooting with police officers, myself. And believe it or not, it is the officers in my own family, who are even more upset about this arrest and confiscation than I would have thought. They aren't mad because they are related to me, they are mad because they support lawful and responsible gun ownership, but as has been proved in Mass many times, if you aren't already a criminal as a gun owner in MAss, don't worry, the MAss police will make you one............

I mean for Lord's sake, there is an excemption clear as day for interstate transport if you're going sport shooting, but they flat out STILL took my gun and arrested me, and now won't give my gun back. If they are getting a bad reputation up there for insane aggression against non-violent citizens, well....... so be it. Their actions are just of the negativity they are receiving.

Thanks so much for all of the support, and information.

Good Luck, I'll let you all know tomorrow what Officer Mogan says.

-Quentin Mise
Romans 10:13

 

[bigalexe]

The mafia stole your gun. They just happen to be a mafia backed by FBI/ATF, the Feds, and the US Military. There are a few options i see here:

1.) Lawyer up, spend the money, fight the Bureaucracy and one day after hundreds or thousands of dollars you may get your gun back in whole or in pieces provided it hasn't been "Lost" from the evidence room.

2.) Accept the fact that you aren't going to get it back, replace it. Probably the cheapest option.

3.) Armor up, gear up and go rambo to take what is rightfully yours. This option may lead to a legitimate arrest though and isn't recommended.

Moral: Sometimes the law isn't on the side of truth, its on the side of the guy who managed to obtain a blue uniform and car with fancy lights. Its not fair or right but it is.

 

[30mag]

Moral: Sometimes the law isn't on the side of truth, its on the side of the guy who managed to obtain a blue uniform and car with fancy lights. Its not fair or right but it is.

I absolutely agree.
Legality and Justice are two very, very different things.


Take it to the press?

 

[danbrew]

You probably actually cannot replace the gun at this time.

I don't recall the exact verbiage, but one of the questions on the 4473 is are you under indictment or information in any court for a felony, or any other crime, for which the judge could imprison you for more than one year?

You're under indictment until the issue is resolved. Is the possible penalty more than one year in jail?

Honest? Sounds like your lawyer hasn't done a great job of helping you understand the implications of CWOF. Also, the fact that you are not at all anti-law enforcement hasn't much helped you in this situation. You were willing to believe that these LE folks were like the LE friends/family that you know. I'd wager to say that any of your family members in LE would tell you never to agree to a search, although they may be silent on the issue now that what's done is done. I'm not at all anti-LE, btw, and and was a cop for a few years before choosing another path - but the one thing I learned very early is that people put themselves in jail 99% of the time.

I do hope this works out for you, although I'd count on the gun being gone. I'd still report it stolen if for no other reason than to kick the cop who eventually steals it in the balls.

 

[Bookworm]

First, you need to chill out big time, QMan. One gun isn't the end of the world, and it can be replaced.

Secondly, I don't know if you have a court-appointed lawyer or your own hire. Hopefully court-appointed.

Part of their job is to advise you on recovering your property that had been confiscated during your arrest. Call your lawyer and get their legal opinion on the subject. Have them do the work, and follow up with their department or their bar association or whatever with a complaint if they will not.

Someone already stated you could file a motion with the judge where your cases were heard. You will send the prosecution a copy, and they will get to respond. The judge will rule. You will have paperwork trail there, so the gun cannot disappear. I'm betting you don't get it back until the 6 months are up - they're not going to give a gun to someone who has a gun related crime pending in their court system.

MOST IMPORTANTLY - (you actually "sounded" upset with your post) be calm and reasonable at all times.

Good Luck, and stay out of trouble.