New Boston, NH Police Chief abuses power Update Post #704

[cekim]

Anybody else pick the wrong two words??

yup:
b s
a h
d h

god complex never came up...

 

[Half Cocked]

Once the firearm is transferred into the FFL's bound book, it becomes his property, regardless of any financial arrangement. Note that it is possible for an FFL to receive and hold a person's firearm without entering it into the bound book, such as for repairs, etc, but once it is entered, it's the FFL's property. Period.

I know that is the general thought.....but.... can you provide a cite and /or case law regarding it that states that the entering into the bound book transfers legal ownership opposed to the filing of the 4473.

 

[drgrant]

so, if your gun is in for 3 days for repair, you have to go through NICS to get it back?

No. Repair exemption covers this. Even if your FFL has to send it to some other FFL to have it fixed.

-Mike

 

[drgrant]

I know that is the general thought.....but.... can you provide a cite and /or case law regarding it that states that the entering into the bound book transfers legal ownership opposed to the filing of the 4473.

Filling out a 4473 is crap when it comes to ownership. For example, when one FFL sends a gun to another FFL, no 4473 is ever filled out, yet it is hard to argue against the fact that ownership has effectively changed hands.

The biggest compelling argument made here is that the guns were at the FFL a very long period of time before the RO was ever filed, and the person with the RO had exactly ZERO chance of ever getting the guns back from that FFL, save for a complete elimination of the RO before they were all sold. The point of confiscating those guns at all is rendered moot by that. The bottom line is this Chief confiscated the guns strictly for the sake of being a flaming douchebag.

-Mike

 

[steveyc272]

I agree, it certainly appears that the Chief has issues and acted inappropriately here. However, whether or not he acted legally is really the question now. Another issue is whether or not the County Attorney told him that he had the legal authority to confiscate the firearms.

 

[Scrivener]

Filling out a 4473 is crap when it comes to ownership. For example, when one FFL sends a gun to another FFL, no 4473 is ever filled out, yet it is hard to argue against the fact that ownership has effectively changed hands.

In point of fact, ownership has NOT changed hands. Possession has.

If I leave my car at a shop for repairs, have I given it OWNERSHIP of my car? Hardly.

If that shop sends it somewhere else for further work, such as detailing or a tranny, has ownership changed hands? Again, NO.

Ownership is a function of legal title. Completing a 4473 is a TRANSFER of that legal title, just as an FA-10 is.

 

[terraformer]

In point of fact, ownership has NOT changed hands. Possession has.

If I leave my car at a shop for repairs, have I given it OWNERSHIP of my car? Hardly.

If that shop sends it somewhere else for further work, such as detailing or a tranny, has ownership changed hands? Again, NO.

Ownership is a function of legal title. Completing a 4473 is a TRANSFER of that legal title, just as an FA-10 is.

And (this is directed at everyone) this is the crux of what we STILL DO NOT KNOW. We do not know if the RO in NH prohibits ownership or possession. CA is the only state that prohibits ownership during a RO (ironically making ROs dangerous in the case of scummy extortion cases) as far as I could find out. So either the judge overstepped their bounds or the CLEO overstepped his. I vote the latter as he failed to present the court order when asked. I am betting we find out the order was possession and not ownership and on the off chance ownership was listed, then the judge likely overstepped his bounds as this was not a property case.

 

[MACGYVR]

Here is something I just read:

2. Notice to Victims
PROTOCOL 14-2
Court staff shall advise all victims at the time of filing a petition for a civil protection
order, of their right to request that the court issue an order removing any and all firearms
and ammunition in the control, ownership or possession of the defendant, or any other
person on behalf of the defendant.

PROTOCOL 14-5
Relinquishment, if ordered, shall be to a peace officer. The defendant may be ordered to surrender any and all firearms and ammunition in the defendant's control, ownership or possession. The court may also order any other person holding a firearm or ammunition on behalf of the defendant to relinquish them to any peace officer.

That alone gives the state the right to take the guns from MFL as i read it if in fact ownership is not transferred when a firearm is being sold on consignment.


From the NH state ptotocol document dealing with civil protective orders
http://www.courts.state.nh.us/district/protocols/dv/c14.pdf
Chapter 14, Page 4 of this PDF

 

[MACGYVR]

and a little further down there is this little tidbit

C. STORAGE
Although the statute calls for relinquishment of firearms to a peace officer, a
defendant may make alternative arrangements with a federally licensed firearms dealer for
the storage of firearms, at the defendant's expense ((RSA 173-B:5, X(c)). Any such
alternative arrangements must be approved by the court in advance. The defendant must
relinquish the guns to the appropriate law enforcement agency which will, in turn, transfer
them to the licensed dealer. The defendant is not permitted to transfer the firearms to the
dealer directly. Note that the statute permits alternative arrangements for storage of firearms
and ammunition, but is silent on the issue of alternative storage for other deadly weapons.
PROTOCOL 14-14
Any request for alternative arrangements must be presented to the court in the form
of an oral or written motion. All parties shall be given the opportunity to be heard.
PROTOCOL 14-15
Firearms and ammunition may only be transferred to a federally licensed firearms
dealer. If so approved by the court, the firearms shall be transferred directly from the
appropriate law enforcement agency to the federally licensed firearms dealer ((RSA 173-B:
5, X(c).

So it looks like could have been resolved if the chief simply came to MFL, logged the guns in an evidence book and then logged them as being transferred to the FFL.
That is if the chief had any idea how to do his job.

 

[Shooters-Hooksett]

Possession and ownership.
BATF Stated that: A. Possession- "When they're in my bound book,I'm legally obligated to do a NICS check to return them, or transfer to another dealer"
They also stated: B. "Ownership is determined by the consignment contract between me and the seller either verbal or written"

 

[strangenh]

If I was Jim's atty, I'd have been over and over that consignment agreement a dozen times and through fed law on what bound book entry means under fed law and what if anything it has been held by the courts (Fed, NH) to mean; and I'd have been through the NH and fed courts' application of fed chattel property-affecting law to NH. The property issue is a key item, but I think there's a possible 5th A. due process issue in any event. After this little event, if I was Jim, I'd be having a long risk/benefit discussion with an attorney on the wording of the consignment agreement. Here's a case where the wording of a simple contract could affect the entire case.

Kudos to Jim for standing up for property rights.

Possession and ownership.
BATF Stated that: A. Possession- "When they're in my bound book,I'm legally obligated to do a NICS check to return them, or transfer to another dealer"
They also stated: B. "Ownership is determined by the consignment contract between me and the seller either verbal or written"

This is where I say I like Jim's attorney (and no, I don't know him). The actual content of the order and any warrant are also going to matter a lot. That and the property question are key issues in my opinion (as an entirely NOT-NH-licensed lawyer, so don't use for legal advice or you might hurt yourself!).

 

[MACGYVR]

Possession and ownership.
BATF Stated that: A. Possession- "When they're in my bound book,I'm legally obligated to do a NICS check to return them, or transfer to another dealer"
They also stated: B. "Ownership is determined by the consignment contract between me and the seller either verbal or written"

Then that settles the issue.

 

[TomH]

Here is something I just read:

2. Notice to Victims
PROTOCOL 14-2
Court staff shall advise all victims at the time of filing a petition for a civil protection
order, of their right to request that the court issue an order removing any and all firearms
and ammunition in the control, ownership or possession of the defendant, or any other
person on behalf of the defendant.

This is the first problem. A Constitutional right shouldn't be taken away at the whim of someone filing a restraining order. Everything beyond that is the Chief being on a power trip.

 

[Shooters-Hooksett]

This is where I say I like Jim's attorney (and no, I don't know him). The actual content of the order and any warrant are also going to matter a lot. That and the property question are key issues in my opinion (as an entirely NOT-NH-licensed lawyer, so don't use for legal advice or you might hurt yourself!).

Attorney is sharp - all done!

 

[vellnueve]

I know that is the general thought.....but.... can you provide a cite and /or case law regarding it that states that the entering into the bound book transfers legal ownership opposed to the filing of the 4473.

I would argue since returning the firearm to the original owner would require a 4473, which, as Scrivener so eloquently noted, is a transfer of ownership - that as a result the firearm has indeed changed ownership when the FFL receives it and enters it into his bound book.

 

[namedpipes]

he is / was an NH state police officer in the Concord area. about 4' 10", totally prematurely bald, and he carried one on each hip, and a third gun strapped across his chest. i got "pulled over while carrying" by him once, but that's a story for a different thread.

As long as you were not driving a Ferrari, start a thread on it!

 

[Half Cocked]

I would argue since returning the firearm to the original owner would require a 4473, which, as Scrivener so eloquently noted, is a transfer of ownership - that as a result the firearm has indeed changed ownership when the FFL receives it and enters it into his bound book.

And I would argue that both the entering into the book and the subsequent 4473 are required to transfer ownership. The entering into the book certainly changes the possession but I would question whether it changes ownership. Are you saying that a firearm brought in to a dealer for repair no longer belongs to you?

I will accept this theory (I won't think it is right) if someone can provide me with a cite and/or case law on it.

 

[Scrivener]

Once the gun enters the FFL's bound book, it requires a 4473 to transfer out of that dealer's inventory, even if it is to return the gun to the consignor. That requires a NICS check.

Got an active RO against you? No dealer transfer.

 

[Half Cocked]

Once the gun enters the FFL's bound book, it requires a 4473 to transfer out of that dealer's inventory, even if it is to return the gun to the consignor. That requires a NICS check.

Got an active RO against you? No dealer transfer.

Agreed.... but does the mere entering into a dealer's bound book transfer legal ownership? Is there a cite and/or case law regarding this?

 

[Gonzo]

Agreed.... but does the mere entering into a dealer's bound book transfer legal ownership? Is there a cite and/or case law regarding this?

If he didn't own them, he can't sell them. It's that simple.

 

[TomH]

If he didn't own them, he can't sell them. It's that simple.

That's a great point, it's not like he would have to call the original owner and get them to come sign the consignment transfer. It would be transfered to the new owner from ownership of the dealer.

 

[Shooters-Hooksett]

Update 2/8/10

I just got back from the Goffstown, NH District Court.
Todays hearing was on a "contempt" charge against Michael Murphy brought on by the Midget Chief of New Boston.
The Judge Lawrence dismissed the contempt charge on the firearms issue because the State did not prove it.
Murphy was only spanked for not turning in his "Hunting license" or his "LTC" that was part of the temporary order,and has until 4:00 today to do so.
Gee - How could you hunt,or carry without a gun???
Chief Little Munchkin Krajenka glared at me like I should have been afraid of him,when I smiled,he nearly went nuts.
This man has some serious issues,but I'm glad I'm keeping him up nights to think about them....

Next step is my writ of repleven schd for 3 March

 

[terraformer]

I just got back from the Goffstown, NH District Court.
Todays hearing was on a "contempt" charge against Michael Murphy brought on by the Midget Chief of New Boston.
The Judge Lawrence dismissed the contempt charge on the firearms issue because the State did not prove it.
Murphy was only spanked for not turning in his "Hunting license" or his "LTC" that was part of the temporary order,and has until 4:00 today to do so.
Gee - How could you hunt,or carry without a gun???
Chief Little Munchkin Krajenka glared at me like I should have been afraid of him,when I smiled,he nearly went nuts.
This man has some serious issues,but I'm glad I'm keeping him up nights to think about them....

Next step is my writ of repleven schd for 3 March

Crap, a whole month of "it's his property dammit!" and "no, it's not his property to sell per se, its a consignment and that's not a property transfer" posts to look forward to. The legal system works too slow for me...


J/K Glad to see you are following up. When your attorney finally gets a copy of the court order, mind settling if it was written for property or for possession?

 

[strangenh]

Agreed.... but does the mere entering into a dealer's bound book transfer legal ownership? Is there a cite and/or case law regarding this?

I thought Scriv made it pretty clear that entry into the bound book can *reflect* a change in ownership, but the act of entering it alone is a procedural requirement reflecting a transfer of control, not causing a change of legal ownership. Certainly that remains my understanding of it.

The issues are whether the order did in fact cover those firearms, and also whether the consignment agreement effected a change in ownership (and maybe alternatively of control in such a way that they were beyond the order, assuming the order covered them anyhow). None of us has seen the order/warrant/etc.

 

[one-eyed Jack]

Had MFL paid something for the guns, it would be a different story. My take is that when they are logged into dealer inventory they are dealer property. Jack.

 

[strangenh]

My take is that when they are logged into dealer inventory they are dealer property. Jack.

If you can cite anything indicating that bound book entry effects a change in title, I would be very interested in seeing it.

 

[Joe G]

Interesting find in wikipedia when I looked up replevin:

Replevin actions may also be pursued by true owners of property, e.g., consignors seeking return of consigned property which the party in possession will not relinquish for one reason or another.

IANAL, and I don't know how well written the article is, but it seems to indicate that consigned articles are still considered the property of the original owner. If that's the case, then MFLR's March 3rd hearing might not go well. I am hoping that the whole bound book angle would still work.

 

[goofycj7]

Interesting find in wikipedia when I looked up replevin:

Replevin actions may also be pursued by true owners of property, e.g., consignors seeking return of consigned property which the party in possession will not relinquish for one reason or another.

IANAL, and I don't know how well written the article is, but it seems to indicate that consigned articles are still considered the property of the original owner. If that's the case, then MFLR's March 3rd hearing might not go well. I am hoping that the whole bound book angle would still work.

If a 4473 was filled out as well telling the federalies that the ownership changed to the dealer then that would be enough? I was under the impression that the bound book reflected the 4473 form info and was the dealer's record of these transactions.

 

[Palladin]

Good Job Jim!!


Stay on it!

 

[strangenh]

Interesting find in wikipedia when I looked up replevin:

Replevin actions may also be pursued by true owners of property, e.g., consignors seeking return of consigned property which the party in possession will not relinquish for one reason or another.

IANAL, and I don't know how well written the article is, but it seems to indicate that consigned articles are still considered the property of the original owner. If that's the case, then MFLR's March 3rd hearing might not go well. I am hoping that the whole bound book angle would still work.

Again, that depends on the specific terms of the consignment agreement. The default with nothing said in most states is that the property remains the consignor's; but that can be changed by the contract. Who owns the firearms is only one of the two branches of inquiry I see in this case. Even if they're consigned with MFL but owned by the consignor, that doesn't necessarily mean the order sufficed to take them from MFL. No one here has seen the order, a warrant, etc. And, MFL still had a property interest in the firearms, even if they aren't MFL property.