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Thread: Man charged with violating new state gun law

  1. #1
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    Man charged with violating new state gun law

    Don't you just love the slanting of a "news" story? The police arrest an 18 year old man for shooting a stolen handgun in a housing project (no mention of his target, if he had one), and the headline only mentions his arrest for having an unregistered magazine! IANAL but as I understand it, since it was illegal for him to have the magazine he can't be convicted of failing to register it (5th amendment self incrimination?) because of a prior court case (they can charge you with anything!).

    http://www.newbritainherald.com/arti...e211067251.txt

    Edit: Just noticed this statement near the end of the article from Lawlor:

    "But Lawlor did note that a man who caused a locked down at the University of New Haven last month had a Bushmaster “assault-style” weapon in his car that had been purchased in August and was charged under the ban."

    Had not heard anything about that particular charge. I assume this was Dong.
    Last edited by Skinnedknuckles; 01-04-2014 at 11:38 AM.

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    Happy there were no injuries...but I do not see how the new law would have prevented the shooting.

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    Don't care ... not guilty is my verdict ...

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    charges under the new law?

    Skinned knuckles,

    I was thinking the same things when I read the article. With the exception of the magazine capacity issue, everything that young man did was already illegal prior to the new law. As to the magazine, if I recall isn't the first offense an infraction, with subsequent offenses falling into felony status?

    Okay, I re-read your post. Looks like you covered that. Still, I see it all getting tossed in a plea bargain deal.
    Last edited by LQM; 01-05-2014 at 12:42 AM. Reason: duh moment.
    “The Constitution shall never be construed... to prevent the people of the United States who are peaceable citizens from keeping their own arms.” —Samuel Adams

    "Here sir, the people govern." -- Alexander Hamilton (speech in the New York ratifying convention, 17 June 1788) Reference: The Debates of the Several State..., Elliot, vol. 2 (348)

    "I would rather be exposed to the inconveniencies attending too much liberty than to those attending too small a degree of it." -- Thomas Jefferson

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    Quote Originally Posted by Skinnedknuckles View Post
    Don't you just love the slanting of a "news" story? The police arrest an 18 year old man for shooting a stolen handgun in a housing project (no mention of his target, if he had one), and the headline only mentions his arrest for having an unregistered magazine! IANAL but as I understand it, since it was illegal for him to have the magazine he can't be convicted of failing to register it (5th amendment self incrimination?) because of a prior court case (they can charge you with anything!).

    http://www.newbritainherald.com/arti...e211067251.txt

    Edit: Just noticed this statement near the end of the article from Lawlor:

    "But Lawlor did note that a man who caused a locked down at the University of New Haven last month had a Bushmaster “assault-style” weapon in his car that had been purchased in August and was charged under the ban."

    Had not heard anything about that particular charge. I assume this was Dong.
    Our DESPP had some legislators and other gov't officials up at the shooting range to teach them what guns do what ... they had them sign waivers (in case of injury--boilerplate stuff I imagine) ~ I FOIAed those waivers ~ they refused to provide them to me although they are public records and available under our FOIA Act....pending appeal now. Maybe idiot Lawlor was one -- I did a FOIA with Lawlor before regarding one goofy statement he made -- he refused.

    Looks like my FOIA requests have pissed certain people off ....

    The OP is correct however; since it was a stolen gun, the guy can not be required to register it or its mag.
    Last edited by davidmcbeth; 01-05-2014 at 01:36 AM.

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    Quote Originally Posted by davidmcbeth View Post
    Our DESPP had some legislators and other gov't officials up at the shooting range to teach them what guns do what ... they had them sign waivers (in case of injury--boilerplate stuff I imagine) ~ I FOIAed those waivers ~ they refused to provide them to me although they are public records and available under our FOIA Act....pending appeal now. Maybe idiot Lawlor was one -- I did a FOIA with Lawlor before regarding one goofy statement he made -- he refused.

    Looks like my FOIA requests have pissed certain people off ....

    The OP is correct however; since it was a stolen gun, the guy can not be required to register it or its mag.
    OP is nowhere near correct.

    The 5th is not a shelter for wrongdoers...the requirement to declare the LCM is there and it was violated or the law was violated by the transfer of the LCM after the effective date of the new law. He can't plead the 5th and nullify a statutory requirement simply because he failed to comply with the law...he'll just be found guilty for failing to comply. There is no requirement to register handguns in CT (i.e. new residents don't have to register when they move here) although State/Fed laws cover the transfer of handguns. There was no lawful transfer, so those laws are violated by the theft and therefore he may be punished.

    Statute required LCM declaration prior to Jan 1 and prohibits transfer/sale/etc. of LCMs after the effective date back in April 2013. This is the problem with the statute...there is NO WAY TO TELL IF A GIVEN MAGAZINE HAS BEEN DECLARED because LCMs don't have serial numbers. All they can check is to see whether this guy's name is on a 788C magazine declaration for that LCM make/caliber/capacity...and with tens of thousands of 788Cs waiting to be looked at, there's no way to tell if it is declared or not...in fact...there's no way to tell if ANY LCM is declared or not. It's only possible to tell whether a PERSON has declared an LCM make/caliber/capacity.

    The statute purports to create a registry of LCMs...but it's really just a registry of PEOPLE WITH LCMs. In theory, people can transfer LCMs among themselves as long as they have declared the same LCM make/caliber/capacity to DESPP and the state would have no way of proving that the LCM in question is not the one on a given person's declaration. They also couldn't prove that a transfer took place. If an LCM wore out and needed replacement, there's no way to tell whether a declarant illegally obtained an identical LCM since they're all the same (no serial numbers). The statute was written for political purposes, not public safety purposes. It does nothing except increase criminal liability after the fact. These statutes are about increasing the number of felons in order to stamp out ownership...a backdoor way around the 2A.

    Keep this in mind if you're ever stopped for OC. Police will now seek to determine whether the magazine you are carrying has been declared and whether it is in fact an LCM. They'll also want to know whether you're over the max number of rounds. These obviously require that they consult with the DESPP database AND search you in order to compare. It is up to you as to whether you wish to waive your 4A rights on this. There has to be probable cause in order to search you, however, RAS allows them to disarm you "for officer safety" and we know the judges in this state consider an armed citizen to be RAS that crime is afoot...so expect to have your weapon examined for compliance...again, another end-run around the Constitution. You're better off doing the old "am i free to go?" routine and terminating the encounter ASAP...in other words...make it into a detention requiring PC BEFORE anything else happens regarding your weapon. Until US v. Black becomes the standard for OC, expect to have things go poorly.
    Last edited by CT Barfly; 01-05-2014 at 10:02 AM.

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    Quote Originally Posted by CT Barfly View Post
    OP is nowhere near correct.

    The 5th is not a shelter for wrongdoers...the requirement to declare the LCM is there and it was violated or the law was violated by the transfer of the LCM after the effective date of the new law. He can't plead the 5th and nullify a statutory requirement simply because he failed to comply with the law...he'll just be found guilty for failing to comply. There is no requirement to register handguns in CT (i.e. new residents don't have to register when they move here) although State/Fed laws cover the transfer of handguns. There was no lawful transfer, so those laws are violated by the theft and therefore he may be punished.
    Barfly, as I said IANAL. The case I was referring to was Haynes (http://en.wikipedia.org/wiki/Haynes_v._United_States). Maybe it doesn't apply?

    "The National Firearms Act of 1934 required the registration of certain types of firearms. Miles Edward Haynes was a convicted felon who was charged with failing to register a firearm under the Act. Haynes argued that, because he was a convicted felon and thus prohibited from owning a firearm, requiring him to register was essentially requiring him to make an open admission to the government that he was in violation of the law, which was thus a violation of his right not to incriminate himself.

    In a 7-1 decision, the Court ruled in 1968 in favor of Haynes. Earl Warren dissented in a one sentence opinion and Thurgood Marshall did not participate in the ruling."

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    Quote Originally Posted by Skinnedknuckles View Post
    Barfly, as I said IANAL. The case I was referring to was Haynes (http://en.wikipedia.org/wiki/Haynes_v._United_States). Maybe it doesn't apply?

    "The National Firearms Act of 1934 required the registration of certain types of firearms. Miles Edward Haynes was a convicted felon who was charged with failing to register a firearm under the Act. Haynes argued that, because he was a convicted felon and thus prohibited from owning a firearm, requiring him to register was essentially requiring him to make an open admission to the government that he was in violation of the law, which was thus a violation of his right not to incriminate himself.

    In a 7-1 decision, the Court ruled in 1968 in favor of Haynes. Earl Warren dissented in a one sentence opinion and Thurgood Marshall did not participate in the ruling."
    This has come up from time to time...I haven't looked at the statute in a while but generally these statutes leave unlawful possessors out in the cold when it comes to registration requirements. I actually think they did this in CT by requiring only those "in lawful possession" to declare but we'd have to go back and read the prefatory language. I am fairly certain that the law is directed at lawful possessors.

    EDIT: Sure enough! (2) "Lawfully possesses", with respect to a large capacity magazine, means that a person has (A) actual and lawful possession of the large capacity magazine, or (B) constructive possession of the large capacity magazine pursuant to a lawful purchase of a firearm that contains a large capacity magazine that was transacted prior to the effective date of this section, regardless of whether the firearm was delivered to the purchaser prior to the effective date of this section; and

    Novel argument to make in the kid's defense..."the gun was stolen, and therefore I cannot be subject to the registration law/penalty." In effect, by making an admission that the gun was stolen, he will reduce his criminal liability by one charge...but he can't be liable for both. Lawful possessors get screwed, criminals get off scot free (on the new law).

    IANYL.

    I'd have to read the whole situation, statute and caselaw before coming to a conclusion on this one. I am curious to see how Haynes has been applied in recent times.
    Last edited by CT Barfly; 01-05-2014 at 12:10 PM.

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    OR, that they charge him with having a LCM, and that he did not register it, is indicative that he lawfully possessed the gun & mag but did not register....and the penalty imposed is a $75 ticket.

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    Rather than invalidate the laws, they simply wrote them so that an individual is dammned if they do, damned if they don't.

    Frankly, the universe of people who could take advantage of the Haynes exception is limited to lawbreakers of one form or another. I'm not sure I'd want to be one of them just to skirt the registration/declaration issue.

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    Quote Originally Posted by CT Barfly View Post
    OP is nowhere near correct.

    The 5th is not a shelter for wrongdoers...

    .
    Actually, I think that it is .... why do you think it is not? People can "take the 5th" anytime where its appropriate. Indeed, if you are innocent of any wrongdoing , the 5th does not apply in many cases.

    When on the stand, say "I take the 5th" and see how that goes
    Last edited by davidmcbeth; 01-05-2014 at 03:16 PM.

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    Quote Originally Posted by CT Barfly View Post
    Rather than invalidate the laws, they simply wrote them so that an individual is dammned if they do, damned if they don't.

    Frankly, the universe of people who could take advantage of the Haynes exception is limited to lawbreakers of one form or another. I'm not sure I'd want to be one of them just to skirt the registration/declaration issue.
    I think you are right - they can get him for possession of an unregistered (or stolen) magazine even if they can't get him for not registering the magazine

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    Quote Originally Posted by davidmcbeth View Post
    Actually, I think that it is .... why do you think it is not? People can "take the 5th" anytime where its appropriate. Indeed, if you are innocent of any wrongdoing , the 5th does not apply in many cases.

    When on the stand, say "I take the 5th" and see how that goes
    I think he's right, too, so long as Haynes is good law. But, this is such a limited exception because you'd already have to be in violation of the law BEFORE it became effective. It is counter-intuitive but it's there. I still haven't seen how it gets applied in modern times so I have to reserve judgment.

    The point I would make is that if you are a lawful possessor, like all of us in here (I hope), you cannot take the Haynes exception to avoid criminal liability for failing to register/declare...otherwise the 5th would operate as a shelter from the statute. When it is discovered that you were in lawful possession (and covered by the law) and that you failed to register, you cannot say "the moment I ran afoul of the law I was not subject to it because of the 5th." The offense took place at the deadline and while you may not be compelled to register anymore, the law doesn't care...you may certainly be charged/found guilty of the offense.
    Last edited by CT Barfly; 01-06-2014 at 08:13 AM.

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