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Attorney sues Portsmouth police over gun license denial! We need to follow this case

Rob Boudrie said:
Incorrect. MA does not require two party consent, but prohibits surreptitious recording. A curious twist is that a recording of someone saying "please turn that recorder off, I do not consent to recording" could be used as the basis of a defense to wiretapping charges even if the recorder was not turned off.
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Please cite the case.
 
I know someone mentioned this before, but if you call the police department, they notify you the call is being recorded, are you then permitted to record the conversation because both parties are aware of it?

Additionally, if that call is being recorded and you are transferred to another person in the police department, does the knowledge that the call is being recorded on their end remain known? (is the call still be recorded after it's transferred out?)

Hopefully, it's just the DA looking to hang him on something and is grasping at straws and the wiretapping goes no where.
 
noxin said:
I know someone mentioned this before, but if you call the police department, they notify you the call is being recorded, are you then permitted to record the conversation because both parties are aware of it?

Additionally, if that call is being recorded and you are transferred to another person in the police department, does the knowledge that the call is being recorded on their end remain known? (is the call still be recorded after it's transferred out?)

Hopefully, it's just the DA looking to hang him on something and is grasping at straws and the wiretapping goes no where.
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Sounds like he needs a good lawyer. [thinking]
 
I know it would probably end in "Tampering with evidence", but I'd nuke that tablet from orbit just to ruin their day.
 
If it's an ipad, he can nuke it from orbit. Apple has an "app" called "Find my iPhone" that allows to remotely erase some/all (?) data. Now, I've never used that part of the service so I can't say if it erases all data or if it's retrievable.
 
thehoyt said:
If it's an ipad, he can nuke it from orbit. Apple has an "app" called "Find my iPhone" that allows to remotely erase some/all (?) data. Now, I've never used that part of the service so I can't say if it erases all data or if it's retrievable.
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Since he knows the authorities are looking to extract evidence to use against him, doing so would risk an obstruction of justice charge.
 
thehoyt said:
If it's an ipad, he can nuke it from orbit. Apple has an "app" called "Find my iPhone" that allows to remotely erase some/all (?) data. Now, I've never used that part of the service so I can't say if it erases all data or if it's retrievable.
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pretty much any device can if it connects to an exchange server, both android and ios have it built in to their mail clients.

but if it has a password, its encrypted anyway.
 
wouldn't the recordings be excluded from evidence and the original case proceed and then the state can go after him for wiretapping?
 
Cero said:
wouldn't the recordings be excluded from evidence and the original case proceed and then the state can go after him for wiretapping?
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theoretically, the existence of ill-obtained evidence should make no difference in the licensure case, except that it's inadmissible.

BUT, do you really think that's how this will play out?
 
No, what they'll do is put the license issue on hold, try him on the wiretapping, if convicted, he becomes a PP, and the license case goes away because hes no longer valid.
 
Unless I'm reading it wrong, since he was a party to the recorded conversation, it is a misdemeanor not a felony.

CHAPTER 570-A
WIRETAPPING AND EAVESDROPPING



I. "Telecommunication'' means the transfer of any form of information in whole or in part through the facilities of a communications common carrier. "Telecommunication'' does not include any communication made through a tone-only paging system or from a tracking device. II. "Oral communication'' means any verbal communication uttered by a person who has a reasonable expectation that the communication is not subject to interception, under circumstances justifying such expectation.
III. "Intercept'' means the aural or other acquisition of, or the recording of, the contents of any telecommunication or oral communication through the use of any electronic, mechanical, or other device.
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I-a. A person is guilty of a misdemeanor if, except as otherwise specifically provided in this chapter or without consent of all parties to the communication, the person knowingly intercepts a telecommunication or oral communication when the person is a party to the communication or with the prior consent of one of the parties to the communication, but without the approval required by RSA 570-A:2, II(d).
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I think this deserves more attention so I will post it again:

"Roughly an hour into the hearing, Pratt pulled out his tablet and revealed that he was in possession of a recording of the phone conversation between himself and Schwartz."

And of course the link from whence it came:

http://www.seacoastonline.com/articles/20131115-NEWS-311150394

Please spend a moment or two looking at the complete Failure-at-Law while your there. Priceless. I'd bet that phot was taken post IPad...

Lets assume this has been reported at least somewhat accurately. Nobody can argue about the detail in the article. It's pretty clear. So unless it is grossly inaccurate reporting none of that should change the following facts:

The form was filled out completely yet because references do not reply this PD denied the permit due to it being "incomplete".

The permit is a 14 day must issue and the burden of proof has historically been on them.

And this is important to note:

"He said the process involves not only a review of the application, but also an analysis of the applicant's encounters with local police, a criminal history background check, and a review of references listed on the applicant's forms."

So of all the methods used to determine suitability it would seem that the "references" section is held in very high regard to deny a permit because it did not bear fruit. Even though it is widely reported that many applicant references never get called or bother calling back. Yet no other denials because of this have been reported?

So yeah it was going to be a pretty slam dunk case. Of course not in MA but highly likely in NH. Sorry but that's just how it is.

Now it's just a train wreck.
 
Hiltonizer said:
If you think WMUR is slanted you haven't watched Boston media much. They actually aren't too bad on TV... the website is joke though, but comments are usually gold.
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What passes for media in Mass is not media let alone news......its propaganda
 
No, that would have to be two years or more since it's a state conviction, but in NH that shouldn't exceed 1 yr anyhow, no? I forgot how NH defines general misd.
 
terraformer said:
No, that would have to be two years or more since it's a state conviction, but in NH that shouldn't exceed 1 yr anyhow, no? I forgot how NH defines general misd.
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I looked into it once, it all depends on the class of misdemeanor. Class A is over one year IIRC. This law doesn't specify the class of misdemeanor.

My memory is a bit foggy on this. Probably because I didn't fully understand how they worded it at the time I read it.
 
From ATF: http://www.atf.gov/firearms/how-to/identify-prohibited-persons.html:


Identify Prohibited Persons


The Gun Control Act (GCA) makes it unlawful for certain categories of persons to ship, transport, receive, or possess firearms. 18 USC 922(g). Transfers of firearms to any such prohibited persons are also unlawful. 18 USC 922(d).


These categories include any person:


Under indictment or information in any court for a crime punishable by imprisonment for a term exceeding one year;
convicted of a crime punishable by imprisonment for a term exceeding one year;
who is a fugitive from justice;
who is an unlawful user of or addicted to any controlled substance;
who has been adjudicated as a mental defective or has been committed to any mental institution;
who is an illegal alien;
who has been discharged from the military under dishonorable conditions;
who has renounced his or her United States citizenship;
who is subject to a court order restraining the person from harassing, stalking, or threatening an intimate partner or child of the intimate partner; or
who has been convicted of a misdemeanor crime of domestic violence (enacted by the Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208, effective September 30, 1996). 18 USC 922(g) and (n)
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From http://www.courts.state.nh.us/district/criminal/index.htm


MISDEMEANOR - a misdemeanor is a crime and a person who is convicted of a misdemeanor may be sentenced to jail depending upon the class of misdemeanor charged.


CLASS A - a person who is charged with a class A misdemeanor may be sentenced to jail upon conviction. In addition, a fine and probation may be imposed. For this reason, a person who is charged with a class A misdemeanor is entitled to apply for a court appointed lawyer.


CLASS B - a person who is charged with a class B misdemeanor may not be sentenced to jail upon conviction, although a fine and probation may be imposed. For this reason, a person who is charged with a class B misdemeanor may not apply for a court appointed lawyer.
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From http://www.swnhlaw.com/areas-of-practice/criminal-defense/felonies-and-misdemeanors


Violations - Punishable by fines, and, in some cases, a loss of license. A violation is a non-criminal offense.
Class B Misdemeanors - Maximum fine: $1200. No jail. Possible loss of license, depending on the charge.
Class A Misdemeanors - Maximum fine: $2000. Up to 1 year in county jail. Probation for as long as 2 years. Possible loss of license in excess of 1 year, depending on the charge.
Class B felonies - Punishable by up to 3½ to 7 years in state prison. Up to 5 years of probation. Maximum fine non-drug cases: $4000.
Class A felonies - Punishable by up to 7½ to 15 years in state prison. Up to 5 years of probation. Maximum fine in non-drug cases: $4000.
Special Felonies (such as most Sexual Assault offenses, Homicide and related charges) often carry sentences ranging from 10-20 years to life in prison.
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From the relevant NH statute http://www.gencourt.state.nh.us/rsa/html/LVIII/570-A/570-A-2.htm


570-A:2 Interception and Disclosure of Telecommunication or Oral Communications Prohibited. –
I. A person is guilty of a class B felony if, except as otherwise specifically provided in this chapter or without the consent of all parties to the communication, the person:
(a) Wilfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any telecommunication or oral communication;
(b) Wilfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:
(1) Such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in telecommunication, or
(2) Such device transmits communications by radio, or interferes with the transmission of such communication, or
(3) Such use or endeavor to use (A) takes place on premises of any business or other commercial establishment, or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment; or
(c) Wilfully discloses, or endeavors to disclose, to any other person the contents of any telecommunication or oral communication, knowing or having reason to know that the information was obtained through the interception of a telecommunication or oral communication in violation of this paragraph; or
(d) Willfully uses, or endeavors to use, the contents of any telecommunication or oral communication, knowing or having reason to know that the information was obtained through the interception of a telecommunication or oral communication in violation of this paragraph.
I-a. A person is guilty of a misdemeanor if, except as otherwise specifically provided in this chapter or without consent of all parties to the communication, the person knowingly intercepts a telecommunication or oral communication when the person is a party to the communication or with the prior consent of one of the parties to the communication, but without the approval required by RSA 570-A:2, II(d).
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Conclusion: Even if we accept the reported facts as the gospel (ignoring they are very incomplete, possibly misleading, biased, etc.), the guy was a party to the call, so it's a misdemeanor - not clear whether it's a class A or B, but neither will make him a PP since the worse possible jail time is up to 1 year, and the federal regulations require that the punishment be imprisonment for a term exceeding one year.


IANAL, so I do not know what this means to the case we are discussing, but I wanted to provide the analysis and underlying information on whether he could potentially become a PP.
 
terraformer said:
Read title 44 USC 18 ss 921 and you will note that the one year thing is federal crimes only. State crimes can be up to 2 years.
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The federal prohibited person standard for a state offense is "exceeding two years or classified by the state as a felony".
 
Last edited:
terraformer said:
Read title 44 USC 18 ss 921 and you will note that the one year thing is federal crimes only. State crimes can be up to 2 years.
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Rob Boudrie said:
The federal prohibited person standard is "exceeding two years or classified by the state as a felony".
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Man, why does federal law have to be so ****ing convoluted?

Rob and Terraformer are correct.

(20) The term "crime punishable by imprisonment for a term
exceeding one year" does not include -
(A) any Federal or State offenses pertaining to antitrust
violations, unfair trade practices, restraints of trade, or other
similar offenses relating to the regulation of business
practices, or
(B) any State offense classified by the laws of the State as a
misdemeanor and punishable by a term of imprisonment of two years
or less.
Click to expand...


As you can see below the dotted line was going to be my response to you guys on the matter. But hidden in Section 921 is the answer that even the ATF can't figure out and add to their easy to read version. In that version (linked below) the ATF only references section 922. I didn't even see it in section 921 until I read further down through the law.

----------------------------------------------------------------------------------------

Not according to the ATF:

The Gun Control Act (GCA) makes it unlawful for certain categories of persons to ship, transport, receive, or possess firearms. 18 USC 922(g). Transfers of firearms to any such prohibited persons are also unlawful. 18 USC 922(d).

These categories include any person:

Under indictment or information in any court for a crime punishable by imprisonment for a term exceeding one year;
convicted of a crime punishable by imprisonment for a term exceeding one year;
who is a fugitive from justice;
who is an unlawful user of or addicted to any controlled substance;
who has been adjudicated as a mental defective or has been committed to any mental institution;
who is an illegal alien;
who has been discharged from the military under dishonorable conditions;
who has renounced his or her United States citizenship;
who is subject to a court order restraining the person from harassing, stalking, or threatening an intimate partner or child of the intimate partner; or
who has been convicted of a misdemeanor crime of domestic violence (enacted by the Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208, effective September 30, 1996). 18 USC 922(g) and (n).
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http://www.atf.gov/firearms/how-to/identify-prohibited-persons.html

Section 922:

A copy of the sworn statement and a copy of the notification to the
local law enforcement officer, together with evidence of receipt or
rejection of that notification shall be retained by the licensee as
a part of the records required to be kept under section 923(g).
(d) It shall be unlawful for any person to sell or otherwise
dispose of any firearm or ammunition to any person knowing or
having reasonable cause to believe that such person -
(1) is under indictment for, or has been convicted in any court
of, a crime punishable by imprisonment for a term exceeding one
year;
(2) is a fugitive from justice;
(3) is an unlawful user of or addicted to any controlled
substance (as defined in section 102 of the Controlled Substances
Act (21 U.S.C. 802));
(4) has been adjudicated as a mental defective or has been
committed to any mental institution;
(5) who, being an alien -
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been
admitted to the United States under a nonimmigrant visa (as
that term is defined in section 101(a)(26) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(26)));

(6) who (!2) has been discharged from the Armed Forces under
dishonorable conditions;

(7) who, having been a citizen of the United States, has
renounced his citizenship;
(8) is subject to a court order that restrains such person from
harassing, stalking, or threatening an intimate partner of such
person or child of such intimate partner or person, or engaging
in other conduct that would place an intimate partner in
reasonable fear of bodily injury to the partner or child, except
that this paragraph shall only apply to a court order that -
(A) was issued after a hearing of which such person received
actual notice, and at which such person had the opportunity to
participate; and
(B)(i) includes a finding that such person represents a
credible threat to the physical safety of such intimate partner
or child; or
(ii) by its terms explicitly prohibits the use, attempted
use, or threatened use of physical force against such intimate
partner or child that would reasonably be expected to cause
bodily injury; or

(9) has been convicted in any court of a misdemeanor crime of
domestic violence.
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http://codes.lp.findlaw.com/uscode/18/I/44/922

And section 921:

(14) The term "indictment" includes an indictment or information
in any court under which a crime punishable by imprisonment for a
term exceeding one year may be prosecuted.
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http://codes.lp.findlaw.com/uscode/18/I/44/921


I only see reference to greater than one year and I see no reference differentiating between state and federal level crimes. Specifically, the law saws "any court."
 
I only see reference to greater than one year and I see no reference differentiating between state and federal level crimes. Specifically, the law saws "any court."
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Look at the preamble where USC defines felony for the purposes of USC 922(g).

And I forgot to mention the monopoly or restraint of trade exemption.
 
http://www.law.cornell.edu/uscode/text/18/921

(20) The term “crime punishable by imprisonment for a term exceeding one year” does not include—(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or
(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
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I'd say that concludes our legal work for the thread... at least on this question. My thanks (and +1) to terraformer, Rob Boudrie and soloman02 for sharing their knowledge and analysis.
 
This is the one that has always burned my ass...

(20)The term “crime punishable by imprisonment for a term exceeding one year” does not include—(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or
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Get a 1st time DUI (at least in this state), busted for a joint, bounce a check or two... lifetime prohibited person.

Bilk the elderly and unsuspecting out of millions... sure, no problem.
 
LoginName said:
This is the one that has always burned my ass...



Get a 1st time DUI (at least in this state), busted for a joint, bounce a check or two... lifetime prohibited person.

Bilk the elderly and unsuspecting out of millions... sure, no problem.
Click to expand...

You one of the believers in the quaint, obsolete notion of equal protection under the law? Son, some people are more equal than others and deserve special rights and protections if society is to be fair...
 

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