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Old March 28, 2012, 10:37 PM   #1
Al Norris
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Jarvis v. Village Vault: MA Due Process Firearms Forfeiture Violations

The MA group, Comm2A is at it again!

Best to let them describe the suit in their own words.

Quote:
Commonwealth Second Amendment, Inc.

Comm2A Sues over Property Forfeiture


For Immediate Release: 3/28/2012

NATICK, MA – Commonwealth Second Amendment, Inc. (Comm2A) has filed suit in federal court in Massachusetts challenging the state’s misuse of bonded warehouses to force the forfeiture of privately owned firearms in violation of the Fourteenth Amendment’s due process guarantees.

Comm2A’s lawsuit on behalf of Russell Jarvis, James Jarvis and Robert Crampton is supported in part by a grant from the NRA Civil Rights Defense Fund. Plaintiffs are represented by attorneys David Jensen of New York and Patrick M. Groulx of Somerville, Massachusetts. Defendants are Village Vault, Inc. and Mary E. Heffernan, Secretary of the Executive Office of Public Safety and Security. Complaint

Massachusetts law allows police departments to turn confiscated firearms over to unregulated bonded warehouses who then charge the firearm owners onerous and prohibitive fees for the storage and ‘administration’ of those firearms. Bonded warehouses are authorized to sell these firearms once accumulated fees are in arrears for 90 days.

Massachusetts has failed to regulate bonded warehouses allowing them to levy fees that quickly exceed the value of the confiscated property and virtually assure that confiscated property is forfeit to the bonded warehouse. In many cases gun owners are not properly notified that their property has been transferred to a bonded warehouse until fees have accumulated to a point where they exceed the value of the seized property making their recovery economically irrational.

Valuable firearms belonging to each of the individual plaintiffs were involuntarily transferred to the bonded warehouse operated by defendant Village Vault. Those firearms were subsequently sold at auction by the defendant. In no instance did the plaintiffs have any meaningful opportunity to challenge the forfeiture of their property in a court or other neutral venue. None of individual plaintiffs have ever been convicted of or charged with any crime or are otherwise disqualified from possessing firearms under state or federal law.

*****

Commonwealth Second Amendment (Comm2A) (www.comm2a.org) is a Massachusetts based non-profit dedicated to preserving and expanding the rights of gun owners in the northeast. Our activities include educational programs designed to promote a better understanding of Massachusetts and Federal firearms laws and rights as well as legal action programs to defend and protect the civil rights of Massachusetts gun owners.

Copyright © Comm2A.org
Seems straightforward and simple enough, yes? As we've seen, not with firearms.
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Old March 28, 2012, 11:10 PM   #2
vranasaurus
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To me it doesn't matter what the nature of the property is. The government taking , as in making it their own, property without notice strikes me as a blatant violation of the 5th and 14th amendments.

Do they use these warehouses for other types of property? If so don't you think it would be a good idea to have a few plaintiffs who had other sorts of property taken? To me this needs to be about property and not firearms.
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Old March 28, 2012, 11:52 PM   #3
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IS the bonded warehouse authorized to sell a firearm? I am aware there has been some legal discussions about authioning firearms and who can legally conduct the auction and transfer a firearm.

Might be interesting to contact the ATF on this issue.
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Old March 28, 2012, 11:57 PM   #4
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They're certainly raising some dust with Hightower lately.

I'm surprised they don't mention the Takings Clause.
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Old March 29, 2012, 05:26 AM   #5
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Firearms aside, the whole notion that police can steal (take through "forfeiture") the property of suspected drug dealers and dispose of it without any conviction and without any court order has always struck me as unconstitutional. I've never done drugs and I hate drug dealers, but the Constitution is supposed to be the highest law of the land, and I don't see anywhere in the Constitution that allows this practice.
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Old March 29, 2012, 06:52 AM   #6
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Sound amazingly like the state is supporting a criminal enterprise and is a part of it...
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Old March 29, 2012, 07:57 AM   #7
hogdogs
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Makes we wonder how much these "warehouses" must pay the state.gov in the form of "fees" to be "on the list" of "approved" warehouse facilities???

Brent
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Old March 29, 2012, 08:04 AM   #8
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I am not from MA so this is a bit foreign to me but lets see if I have this right.......You get into a DGU, have to shoot someone. Shooting is good but cops take all guns as "evidence"....you have to pay for the guns to be stored? Did I read that right? cause if I did thats pretty crazy even for the North East.
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Old March 29, 2012, 09:15 AM   #9
Fishing_Cabin
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While it may indeed be the case that these fee's are "onerous and prohibitive for the storage and ‘administration’ of those firearms" it is common for the cost of storage to sometimes be charged back to the owner, such as with automobiles when dealing with a crime such as DWI, or death by vehicle. It is generally, at least locally, available to release to the owner, or lein holder, at either the end of the investigation, or the disposition whether release or auction/sale, or in the case of firearms, ordered destroyed, will be decided at the trial by the judge.

With automobiles, and other large items, it is understandable due to the size, and transportation issues, that they can not be handled b the investigating agency without outside help. The fee's and cost are subject to not only contract, but judicial review, as are other items in the contract.

With items the size of a firearm, and whose custody during an investigation must be strictly recorded, and controlled, this is the first I have heard of using an outside source for storage and disposition. I am unsure of the laws in MA in reference to these contracts between a storage facility, and law enforcement, but I am concerned about how the contract lays out not only the fee's, but also the exact way they notify the owner, and how the owner is allowed to have their property returned.
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Old March 29, 2012, 10:53 AM   #10
terraformer
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Thanks folks for the kind words. So you know, I am terraformer on NES, the Operations Director of Comm2A and a Comm2A BOD member.

I am happy to answer your questions.

ch 140 §129D authorizes BWs to sell firearms (within the scope of other statutes covering FFLs) to recoup storage fees greater than 90 days in arrears. The BWs all do it slightly differently, but they all operate as or with FFLs in come capacity or another. There are some with storefronts and others who simply exist to operate as a BW.

in re the Takings Clause -- ch 140 §129D actually creates title to the firearm to the rightful owner so there is no "regulatory taking" (think recent Hackett v. EPA for example of regulatory taking) that occurs. There is a conversion of property to fees which is what our complaint deals with. It's a due process property issue.

Aguila, our plaintiffs weren't even drug dealers... That's the amazing thing, cops can seize firearms simply by revoking people's licenses. See the Hightower case and frankly we have even more "huh?" examples of seizures by people who advocated their town managers were incompetent and should be fired, people who were political rivals of established local politicians, etc. It doesn't take much to seize guns here right now. But the Hightower case and some other cases we have brewing will curtail a lot of those abuses. These cases all fit a broader strategy and if you look closely, you will see how they all relate to each other as each one is filed (and yes, more are coming... )

The guns in the BW are not evidence and in fact we have had people's charges dismissed when evidence ended up in the BW so this is not an issue of evidence storage. It's specifically prohibited by ch 140 §129D.

I want to thank all of you who are supporting our cause here in MA. We can't do it without you. BTW: For those in other parts of the country, I know it sounds cliche but the local and national groups fighting these battles are helping to prevent these laws from showing up on your shores. So at a minimum please consider donating to SAF but also consider donating locally to orgs like ISRA, CGF, Comm2A and others.

I can say for us that we are a labor of love and all of the money we take in goes back out in the form of lawyer's fees sans operating expenses. We have no paid employees and are strictly volunteer. You can learn more at http://www.comm2a.org/
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Old March 29, 2012, 11:24 AM   #11
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For those who are not familiar with the Hightower case reference:

http://www.comm2a.com/discretionary-...tower-v-boston
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Old March 29, 2012, 12:09 PM   #12
Al Norris
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Welcome to TFL, terraformer.

Folks, the complaint is a mere 16 pages (of double spaced type). You really should avail yourselves to read it. The issues are clear and the harm done is not exaggerated in the least.

ETA: The Hightower case is number 36 in the Current 2A Cases thread. We have a discussion thread, here.
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Old March 29, 2012, 02:54 PM   #13
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A bit of an explanation might also help here.

Mass Gen'l Laws allows a police chief to suspend/revoke a firearms license (LTC) for any reason (or no reason) under "suitability" (written right in the law). Upon suspension/revocation one must legally give up everything they own (guns, ammo, mags, reloading components) to the PD and the PD can immediately transfer everything to a "bonded warehouse".

As a number of police officers have confirmed for me, even if multiple people in a residence have permits and each owns various guns, when they come to confiscate one person's permit and guns, they take EVERYTHING. They will NOT entertain showing proof that certain ones belong to residents who still have permits. That is part of what happened in the Jarvis case.

There are absolutely NO regulations on fees, terms & conditions, etc. (other than they have to maintain an FFL) and no legal oversight on the practices of the bonded warehouses. In fact I know of two FFLs who tried to find out "what do I need to do to become a bonded warehouse" and nobody in the state could answer their questions, so they abandoned the idea.

Thus, there are no regulations demanding how soon the owners are notified that a BW has their guns. By the time they get the bill, they usually have incurred fees close to or exceeding the value of their guns. Therefore very few ever claim their guns (assuming they ever get their LTC returned to them, which rarely happens in MA . . . you need a permit in MA to merely possess anything) and almost every time the BW gets to pocket the entire proceeds when selling the guns.

NES = www.northeastshooters.com a regional forum where terraformer and myself hang out.

"Evidence" of a crime is maintained by the PD and does not go to the BW. This case is strictly about non-crime related firearms.

Police towing services, eviction movers, etc. are closely regulated by law and regulation with Ts&Cs, fees, etc. approved by the state. AFAIK, only firearms BWs are totally unregulated. If they wanted to charge $100/week/gun (or even per box of ammo) for the storage charge, they would be well within the law as it currently exists in MA.
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Old March 29, 2012, 03:13 PM   #14
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Terraformer, good explanation. LenS, good background and welcome to TFL.

When obtaining my CT and NH permits, i researched MA laws (have to pass through to get to NH) and was appalled at what i learned. The "may issue" is pretty squarely administered in CT but in MA it really means "Mostly won't issue" and "can take it away whenever the whim strikes us". As you point out, if your permit is revoked, the SS descends on you to confiscate your otherwise legally owned property, and frequently the property of others to boot. I never realized that their seizure meant total dispossession.

And all that from one of the former colonies that started the whole movement toward revolution, independence and liberty.

Compare it to the laws in NH and VT, directly adjacent states, and again the striking contrast is hard to believe.

So what is your action plan to correcting the REAL problem, which is the completely unfair "may issue" laws? Is that one of the issues at stake in Hightower?
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Old March 29, 2012, 03:26 PM   #15
terraformer
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Yes, Hightower deals with the issue of may issue and also the lack of due process on the revocation issue.
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Old March 29, 2012, 05:47 PM   #16
Aguila Blanca
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Dang. Another black eye for the seat of liberty.

I'm not from Massachusetts. A couple of years ago I walked into the shop at my range and nearly broke my face when I took a right turn towards the rest room and slammed into a HUGE gun safe that was on the landing just inside the door. I asked the owner of the range what that was all about, and he said it was the property of someone local to the range who had a restraining order served on him, so he couldn't have guns in the house. Someone -- I don't know if it was the local PD (who train at that range) or the owner of the guns -- arranged to have the whole enchilada stored at the range.

I'm sure he's not "bonded" and I don't think I've ever heard the term used with regard to a storage facility. I don't even know if he charged a fee or just took the guns in as a favor to the PD and/or the gun owner. The safe sat there for about six months, and then one day it was gone.
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Old March 29, 2012, 06:26 PM   #17
RichC
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I am from MA as well, and Terraformer is a friend. He and his Comm2A team have done a HUGE amount of work on behalf of gun owners here.

Daugherty16... MA is may issue, but it really ends up being at the discretion of the chief of police of your home town. The town I live in has a very reasonable COP and licensing policies. When my daughter turned 21 she applied for and received an LTC-A with no restrictions (license to carry class A, the best license offered). Yet a friend who lives in Boston, who at one time taught firearms usage and safety for Brinks and still is an NRA authorized firearms instructor, has a restricted license and cannot carry. Go figure.

The policies vary widely from town to town, but in general the further you live from Boston the more likely you are to get a LTC-A.

Best,

Rich
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Old March 30, 2012, 10:53 AM   #18
Chris D
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thought I'd chime in here as a long time TFL guy and a current NES member (chris_1001 on NES).

This state (MA) is insane.

It's scary how this state has declined as far as freedom and gun ownership goes.
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