What to do if a LEO wants to confiscate your legal equipment

[TayNinh_66]

What do you do??

Keep repeating "No hablo ingles"

If some neighbor complains about machine gun fire coming from the woods, a cop will investigate. If he/she has a reasonable suspicion that youre doing something illegal. then he is going to write it up and let the courts decide. Assuming you have proper license and are shooting in a safe area in a safe manner, the only way he can determine if the weapon is illegal is to examine it. "That looks like my old AR-15. May I see it?"

If you give to to him, you just consented to a voluntary search. Better response, "I'm sorry sir, my attorney has advised me to never voluntarily agree to a search or a seizure."

If a cop is investigating a potential crime, and you are the potential suspect, then please remember you have the right to remain silent. politely.

 

[Neuro]

Pretty much this but make sure it is known that the firearms are legal, pre-ban, so they don't get taken in the first place, so you don't have to jump through hoops later. If you're dealing with a cool LEO, then you may just wind up chatting about what he shoots at the range. BUT protect your rights at all times.

i dont carry reciepts for my standard capacity, pre-ban magazines. Other than my word at the time, how can I prevent seizure of my magazine by an LEO in an instance like the OP mentions.

 

[sweetjeep]

Thanks everyone.

I don't have a particular reason to assume that something bad is going to happen. At least in the town I live, I am reasonably well known by LEOs (not negatively well known). It's just a slight paranoia and an attempt to be prepared.

Part of what peaked my curiousity was the whole issue in Colorado. Magpul made an effort to dump mags into the state to ineffectuate the impending ban (maybe it has happened at this point). So now all those people have the same issue.

With a couple mags I am not terribly concerned about getting them back or confiscated. But the guns are a bit different. I DO have several preban ARs and I have spent considerable effort (and money) to get them. I am not worried about them getting taken at my house, but what about if I am "somewhere else". I can get a letter for the Colt, but getting a letter for the Eagle Arms (I think it's an EA) who is out of business, is significantly more complicated.

As to a warrant, no, not worried about that and I understand where that is quite different. I am more concerned if I am in my backyard or out in a local sandpit (which I have permission to be/shoot) or public land (which there is a LOT around me). If an officer (most likely an ELE) takes the time and effort to roll up to the spot, they are likely to be in a less than great mood already, they will be out gunned and therefore likely on edge, I can see where hasty and bad decisions are going to be made.

I am able to handle myself appropriately on a personal level. I am more concerned with the legality of "am I required to hand my stuff over because s/he THINKS it's less than legal"? But as best I can tell the general answer is, of course, - it kinda depends. Personally my thought is still "no, but is it worth getting a gun pointed at you". I was really looking for a vague or less than vague legal(ish) answer or if someone could cite an example.

 

[RoterTeufel]

i dont carry reciepts for my standard capacity, pre-ban magazines. Other than my word at the time, how can I prevent seizure of my magazine by an LEO in an instance like the OP mentions.

I do have receipts for my pre-ban mags. They are in my safe. However, your word & knowledge about how to identify a pre-ban vs. a post-ban mag is invaluable (Glock). Identifying them on an AR...

 

[swatgig]

It is my understanding that when it comes to pre-ban items (be they firearms or large capacity magazines), the burden of proof that said item(s) are pre-ban is on the possessor. While I disagree with this guilty until proven innocent non-sense, it is what it is.

The closest case I could find was in regards to an antique firearm. COMMONWEALTH v. JEFFERSON, 461 Mass. 821 (2012).


In that case, it is up to the defendant to raise the defense of exemption and make some claim that the item in question is exempt. Once that has been done, it is up to the Commonwealth to prove, beyond a reasonable doubt, that the item in question in not exempt.

This argument occurs in court, not with a LEO in your back yard.

Rule 14 (b) (3) of the Massachusetts Rules of Criminal Procedure, as appearing in 442 Mass. 1518 (2004), requires defendants to provide pretrial notice that they intend to rely on a defense of exemption. The defendants here failed to provide clear notice before trial of their defense that, because the firearm was manufactured before 1900, it was exempt from the licensing requirement and may lawfully be carried without a license. Had they done so, the Commonwealth would have had the burden of proving beyond a reasonable doubt that the firearm was not manufactured before 1900 once the defendants met their burden of production through the testimony of their firearm expert that the revolver was manufactured in 1896.

 

[jasons]

I am more concerned with the legality of "am I required to hand my stuff over because s/he THINKS it's less than legal"? But as best I can tell the general answer is, of course, - it kinda depends. Personally my thought is still "no, but is it worth getting a gun pointed at you". I was really looking for a vague or less than vague legal(ish) answer or if someone could cite an example.

Cops can't just roll up and take your shit without probable cause. We still have the 4th amendment. (For the moment anyway.)

Thinking that something ~might possibly~ be post-ban when it's pre-ban is not probable cause.

[sad2]

 

[jhagberg88]

can he enter your property even though its your back yard without a warrant?

 

[jasons]

can he enter your property even though its your back yard without a warrant?

Google "curtilage."

 

[TayNinh_66]

can he enter your property even though its your back yard without a warrant?

Yes. Exigent circumstances. If they believe a person is in immediate danger, or if they think a crime is being committed because they hear shooting, etc.
You can fight it in court if you have enough money.

 

[deezwho]

If they confiscate any firearms related goods Im certain you would have to take them to court to get it back. I doubt the police are just going to hand me back my stuff without a fight... their goal is to disarm us.

 

[Sir_Gawain]

Tell him to go **** himself

 

[Len-2A Training]

If they confiscate any firearms related goods Im certain you would have to take them to court to get it back. I doubt the police are just going to hand me back my stuff without a fight... their goal is to disarm us.

I would agree with this.

I recall reading of cases where guns were confiscated for totally bogus reasons (don't recall if in MA or elsewhere) on MV stops and other such non-violent issues. The person in most cases had to fight (get a lawyer) to get his stuff back.

When faced with an officer who insists on confiscating anything of yours you really can't play "roadside lawyer" and expect that to work . . . you have only two choices . . . acquiesce but state firmly that you don't give permission for confiscation/search, or fight to the death (probably yours)! By acquiescing you get to fight it out in court and perhaps prevail. It's an ugly situation but you can only make it easy on yourself or make it uglier for you.

 

[winter]

+1

Tell him to go **** himself

 

[SteelShooter]

Tel him to get lost and then post about it here, of course you'll need pictures or no one will believe you.

 

[winter]

An AR-15 rail mounted video camera could come in very handy =D

Tel him to get lost and then post about it here, of course you'll need pictures or no on will believe you.

 

[xtry51]

Give them the bullets first.

 

[namedpipes]

SSS

 

[Gator9329]

.

 

[dcmdon]

It would all depend on how the officer approached it.

Police use intimidation and coercion to get people to "voluntarily" do things.

Do you mind if we come inside sir?
Do you mind if we look in your trunk?
Do you mind if we check your serial number?

The proper response to all these quesions is something like "Are you ordering me to let you inside? "

If he says "yes". Then you comply. What are your real choices. other than to say something like "I'm not consenting".

If the answer is no, he probably won't say as such. He'll say something like, "comeon, whats the harm, if you aren't hiding something".

The botom line is to always seek clarity.

For what its worth, I've been shooting pre-ban guns as well as machine guns for years and have had many many encounters with LEOs.
I've never once had one of them even notice that a firearm was not AWB compliant in appearance. (even though it was legally in compliance because it was a pre-ban lower)

If they want to confiscate something ALWAYS ask for a receipt. If they refuse, its something else you can use against them.

And BLUEFIN - the burden of proof is ALWAYS on the prosecution. Thats one of the most basic tenets of our legal system. Its never your job to prove something is legal. Its ALWAYS their job to prove that isn't legal.

 

[Rob Boudrie]

(even though it was legally in compliance because it was a pre-ban lower)

Compliance requires the gun be assembled prior to the ban date, not just be based on a pre-ban lower (though proving assembly date can be tricky for the state).

 

[dcmdon]

Compliance requires the gun be assembled prior to the ban date, not just be based on a pre-ban lower (though proving assembly date can be tricky for the state).

Agreed. But most of us with pre-ban ARs don't have them configured in any way like they came from the factory. My Bushmaster originally had a 20" A2 upper on it. Now its just a lower. I sold the upper and A2 stock years ago.

But even still. (I know you know this Rob, I'm just mentioning it for others)

Just to play devils advocate, its the State's responsibility to prove it was not built into a functional firearm by the ban date. Its not your responsibility to prove it was.

 

[dhawk69]

Agreed. But most of us with pre-ban ARs don't have them configured in any way like they came from the factory. My Bushmaster originally had a 20" A2 upper on it. Now its just a lower. I sold the upper and A2 stock years ago.

But even still. (I know you know this Rob, I'm just mentioning it for others)

Just to play devils advocate, its the State's responsibility to prove it was not built into a functional firearm by the ban date. Its not your responsibility to prove it was.

Not to stir the pot or anything, seriously, but now they can right? In today's day and age of computer forensics and the like, you just dimed yourself out if it came to an investigation. Just a reminder to people that this isn't a private forum. Why invite the trouble if you can avoid it?

 

[deezwho]

Well if it's Bushmaster, they could always subpoena them to get the records of it being pre or post ban.... I guess thats why some people recommend you buy a pre-ban lower made by a defunct company, good luck proving exactly when it was made.

 

[dcmdon]

Not to stir the pot or anything, seriously, but now they can right? In today's day and age of computer forensics and the like, you just dimed yourself out if it came to an investigation. Just a reminder to people that this isn't a private forum. Why invite the trouble if you can avoid it?

I'm not sure how what you wrote is in response to what I wrote.

If a lower was sold at retail in July of 1994, how can someone tell if it was first built into a rifle in August of 94 or December of 94? Or December of 2004 for that matter.

Everything I say on this forum is made on the assumption that it is being read by federal, state, and local law enforcement. I never advocate breaking the law. I do however advocate exercising your rights FULLY within the law.

I don't understand what you mean by "dimmed yourself out of it". Seriously, please explain.

I also don't understand what you are referring to when you mention computer forensics? Are you implying that what I wrote above was somehow incriminating? If you are, you are mistaken. Its perfectly legal for me to remake a preban gun anyway I want, provided it stays within the law regarding bbl length, overall length, and things like that. It was in an AW configuration prior to the ban by virtue of its flash hider, bayonet lug, and threaded bbl.

For a lower that was sold as a receiver and not as a rifle to be legal, it only has to exist as a functional AW for a minute for it to be legal. So again, it would be the state's responsibility to prove beyond a reasonable doubt that way back in 1994 the gun was not or could not have been built into a functional pre-ban style rifle by the ban date.

Unless the receiver was sold at retail as a receiver a day before the ban went into effect, this would be nearly impossible to do.

Again, I'm going to ask the community at large. Do you know of a single instance of someone who owns an otherwise legal pre-ban gun that was prosecuted because he could not prove that it had been built into an AW by the ban date? I'll be waiting.

- - - Updated - - -

Well if it's Bushmaster, they could always subpoena them to get the records of it being pre or post ban.... I guess thats why some people recommend you buy a pre-ban lower made by a defunct company, good luck proving exactly when it was made.

That only tells them how it was sold. If it was sold as a receiver 2 months prior to the ban date, they would still need to prove that it had not been built into an AW by the ban date.

If some kind of ban goes into effect that further restricts the configuration of AR15s, lets call it post post ban or ppban for short. Then I will go to the range with all my new post ban lowers and assemble each into a functional firearm, video tape myself taking a few shots with each, then reinstall the parts into the next lower. I'll then file an FA10 for each. This is not incriminating. Its about working WITHIN how I anticipate any future ban will be interpreted. The above is purely speculative. We don't really know if/how any future restrictions will be written.

Don

 

[dcmdon]

Well if it's Bushmaster, they could always subpoena them to get the records of it being pre or post ban.... I guess thats why some people recommend you buy a pre-ban lower made by a defunct company, good luck proving exactly when it was made.

Buying from a defunct company does not serve any purpose. When an FFL goes out of business the ATF retrieves all their records. This includes 07(manufacturer) FFLs.

The only lowers for which there are not complete records, that I know of, are Olympic Arms. OA had an office fire that destroyed a number of their bound books. One can only interpolate dates between the records they have.

Don

 

[inerlogic]

What if you are legally shooting a pellet gun in your backyard cops show up, no guns are drawn no charges made but the cop wants the pellet gun? Closer to crossbow guys experience.

what would you do if i showed up in your back yard and wanted your pellet gun.....
you'd tell me to go f*** myself....

same advice applies.... if they have a legal reason to take it, they won't ASK....
they only ASK if they have to.....

 

[dhawk69]

I'm not sure how what you wrote is in response to what I wrote.

If a lower was sold at retail in July of 1994, how can someone tell if it was first built into a rifle in August of 94 or December of 94? Or December of 2004 for that matter.

Everything I say on this forum is made on the assumption that it is being read by federal, state, and local law enforcement. I never advocate breaking the law. I do however advocate exercising your rights FULLY within the law.

I don't understand what you mean by "dimmed yourself out of it". Seriously, please explain.

I also don't understand what you are referring to when you mention computer forensics? Are you implying that what I wrote above was somehow incriminating? If you are, you are mistaken. Its perfectly legal for me to remake a preban gun anyway I want, provided it stays within the law regarding bbl length, overall length, and things like that. It was in an AW configuration prior to the ban by virtue of its flash hider, bayonet lug, and threaded bbl.

For a lower that was sold as a receiver and not as a rifle to be legal, it only has to exist as a functional AW for a minute for it to be legal. So again, it would be the state's responsibility to prove beyond a reasonable doubt that way back in 1994 the gun was not or could not have been built into a functional pre-ban style rifle by the ban date.

Unless the receiver was sold at retail as a receiver a day before the ban went into effect, this would be nearly impossible to do.

Again, I'm going to ask the community at large. Do you know of a single instance of someone who owns an otherwise legal pre-ban gun that was prosecuted because he could not prove that it had been built into an AW by the ban date? I'll be waiting.

Don

I was saying it based on what you said quoted below. It looks like you're admitting that your pre-ban is no longer in original pre-ban config which with these screwed up laws would mean you're breaking the law right? I'm not basing anything on actual laws, but on what it looked to me like you were saying. I was saying it looked incriminating, but I could be very wrong. It's just what it looked like to me after reading what you wrote. That's why I'm not an attorney...
"But most of us with pre-ban ARs don't have them configured in any way like they came from the factory. My Bushmaster originally had a 20" A2 upper on it. Now its just a lower. I sold the upper and A2 stock years ago."

 

[Rick Roma]

It would all depend on how the officer approached it.

Police use intimidation and coercion to get people to "voluntarily" do things.

Do you mind if we come inside sir?
Do you mind if we look in your trunk?
Do you mind if we check your serial number?

The proper response to all these quesions is something like "Are you ordering me to let you inside? "

If he says "yes". Then you comply. What are your real choices. other than to say something like "I'm not consenting".

If the answer is no, he probably won't say as such. He'll say something like, "comeon, whats the harm, if you aren't hiding something".

The botom line is to always seek clarity.

For what its worth, I've been shooting pre-ban guns as well as machine guns for years and have had many many encounters with LEOs.
I've never once had one of them even notice that a firearm was not AWB compliant in appearance. (even though it was legally in compliance because it was a pre-ban lower)

If they want to confiscate something ALWAYS ask for a receipt. If they refuse, its something else you can use against them.

And BLUEFIN - the burden of proof is ALWAYS on the prosecution. Thats one of the most basic tenets of our legal system. Its never your job to prove something is legal. Its ALWAYS their job to prove that isn't legal.

Do you mind if we come inside sir?
Do you mind if we look in your trunk?
Do you mind if we check your serial number?

The proper response to all these quesions is something like "Are you ordering me to let you inside? "

I really disagree with that. The proper response IMO is:

Do you mind if we come inside sir?
Do you have a warrant? If not- no, you may not come inside. No matter what they say it's no unless they have a warrant. You don't have to open or even answer the door if they come knocking and you're inside.

Do you mind if we look in your trunk?
Yes, I do. I don't consent to any searches. Am I being detained or am I free to go?

Do you mind if we check your serial number?
Yes, I do. I don't consent to any searches or seizures. Am I being detained or am I free to go?

No matter what they say don't consent. They'll threaten to call in the dogs to sniff, tell you this can go easy or hard, or use any one of many different intimidation tactics but the answer is always the same regardless of what they say.

 

[travis]

While I have never dealt with this under Mass laws I have had a few run in's with LE and my NFA stuff. In the end do not raise you're voice ask for a supervisor and ask them EXACTLY what is illegal and tell them to explain why. Then tell them in my case to call the atf and get there grubby hands off my guns..

 

[dcmdon]

I was saying it based on what you said quoted below. It looks like you're admitting that your pre-ban is no longer in original pre-ban config which with these screwed up laws would mean you're breaking the law right? I'm not basing anything on actual laws, but on what it looked to me like you were saying. I was saying it looked incriminating, but I could be very wrong. It's just what it looked like to me after reading what you wrote. That's why I'm not an attorney...
"But most of us with pre-ban ARs don't have them configured in any way like they came from the factory. My Bushmaster originally had a 20" A2 upper on it. Now its just a lower. I sold the upper and A2 stock years ago."

Wrong.

If the gun was preban, it does not have to be kept in the same configuration it was sold in. You are free to play with your man-Lego set, also known as an AR15.

Who gave you that ridiculous idea?

In the case of pre-bans built on receivers, all that has to have been completed was for it to have been built into an AW config prior to the ban. Again, their responsibility to prove it wasn't. Not your responsibility to prove it was. Once the lower was built as an AW, then it can always be an AW, in any config you choose. . . unless they change the laws again. sigh.

Don