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Old April 20, 2012, 05:01 PM   #1
C0untZer0
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WI Carry files Federal action against Milwaukee

From Nik Clark, Chairman/President - Wisconsin Carry, Inc.


Quote:
On January 30th, 2012 a law-abiding Wisconsin concealed carry license holder, Nazir Al-Mujaahid, used his sidearm to shoot a shotgun-wielding armed robber who entered a north-side Aldi's grocery store in Milwaukee and threatened the cashier and customers. As is standard protocol, the armed citizen's holster, gun, and ammunition were taken into evidence by the Milwaukee Police Department.

A few days later the Milwaukee District Attorney's office cleared the armed citizen of any wrong-doing and declared the shooting justified.

Despite being exhonerated by the DA, making repeated attempts to obtain the return of his firearm from Milwaukee Police, and sending a letter to the DA's office requesting assistance in the return of his property, Mr. Al-Mujaahid's gun remains in Police possession.

Wisconsin Carry, Inc. has observed what appears to be a pattern of civil-rights infringing behavior from the Milwaukee Police Department. The Milwaukee Police Department appears to have a practice of concocting baseless reasons to seize any and all guns they come across in the City - even when those guns have never been used in connection with a crime. The Police Department also appears to have a practice of refusing to return firearms or unduly delaying the return of firearms that were seized incident to an arrest despite the fact that no charges were brought or when the gun owner is exonerated by the court system.

WCI believes that these acts by the Milwaukee Police Department represent violations to law-abiding citizens constitutionally guaranteed right to be free from illegal seizures of their private property and their Constitutionally recognized right to keep and bear arms. By seizing Al-Mujaahid's property, refusing to return it to him, and refusing to allow him to file a petition for the return of his property, Nazir has been deprived of his property without due process of law.
http://www.wisconsincarry.org/pdf/Mi..._Complaint.pdf
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Old April 20, 2012, 06:54 PM   #2
Willie Sutton
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Thanks for the information.. (From a Milwaukee resident)

The street cops here are, for the most part, pretty good folks, BTW...


Willie

.
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Old April 20, 2012, 09:31 PM   #3
Al Norris
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Oh Goody! Another civil rights case, showcasing 2A rights being deprived without due process (14A violation)!

All snark aside, this one sounds like a slam dunk, but we all know how slow this is going to be.

In case nobody recognizes the attorney, John Monroe is the attorney most often used by Georgia Carry Inc. He is also the attorney for Gray Peterson, the CO case now before the 10th Circuit and 4 other (listed) cases.

As soon as I locate the Justia entry, I'll RECAP the docket (if not already done) and post it to the 2A Cases thread. Thanks for the heads up, Willie, ur, um, C0untZer0.
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Old April 20, 2012, 10:39 PM   #4
KyJim
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I view this as more of a 4th Amendment issue, unlawful seizure of property (retaining the property). I suppose that if the plaintiffs could show a pattern of such behavior, it might implicate the 2nd Amendment, but that's probably a more difficult case to prove.
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Old April 20, 2012, 11:15 PM   #5
Al Norris
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There was no 4A violation in the seizure at all. The defendants had probable cause to seize the firearm (and accessories), until such a time that the DA decided not to try and prosecute Al-Mujaahid.

Until that moment, the property was evidence of possible wrong doing. After that moment, his property should have been returned.

Apparently, in other cases, all property is returned after disposition, unless it is firearms. That is the claim.
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Old April 21, 2012, 12:00 AM   #6
Fishing_Cabin
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Just curious, but perhaps the firearm is being held for evidence in the event of a future case, either civil or criminal. I know from my experience, that the court, not the PD, is reluctant to release a firearm if there is a chance of any future trial. Any chance the PD here is complying with the courts wishes, but winds out caught in the middle here?
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Old April 21, 2012, 12:52 PM   #7
Gary L. Griffiths
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Quote:
perhaps the firearm is being held for evidence in the event of a future case
That could well be the defense's argument: "Well, gee, we don't know what evil things were done with that evil ol' gun, so we have to hang on to it until we know for sure it isn't evidence. Say, around the middle of the 23rd Century!"

Where's the barf smiley when you really need it?
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Old April 21, 2012, 05:32 PM   #8
KyJim
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Quote:
There was no 4A violation in the seizure at all. The defendants had probable cause to seize the firearm (and accessories), until such a time that the DA decided not to try and prosecute Al-Mujaahid.

Until that moment, the property was evidence of possible wrong doing. After that moment, his property should have been returned.
The "seizure" I referred to is not the original seizure, it's the continued holding of the property which violates the Fourth Amendment.

For example, a police officer pulls over a motorist for speeding. The officer has no reasonable suspicion or probable cause to believe the motorist has drugs but decides to play a hunch. The officer radios for Drug Dog Doug to come and do his thing while the stopping officer verifies insurance, checks for warrants, etc. The motorist has been seized, but it's lawful up until the time all of the queries about warrants, etc. come back empty.

If Doug gets there by then, he can walk around the car and sniff. If he alerts, this may give probable cause to search the car. If the officer continues holding the motorist waiting for Doug beyond the time necessary to conduct the usual checks, the seizure of the motorist becomes unlawful and any "hit" by Doug and resulting search are tossed.

That's essentially what has happened here. The initial seizure may have been lawful but once the reason for the seizure ends, the continued possession of it violates the 4th Amendment prohibition against unreasonable seizures.
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Old April 21, 2012, 09:57 PM   #9
Al Norris
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I misunderstood, Jim. Now I'm on the same page.

I think what the complaint is getting at is that they (the Milwaukee police) rejected the petition for the return of property (Wis.Stats. ยง 968.20). By that rejection (regardless of any cover letter), due process was denied.
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Old April 22, 2012, 01:57 PM   #10
C0untZer0
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BTW KyJim,

It was none other than Illinois State AG Lisa Madigan who argued the drug-sniffing dog thing before SCOTUS.

I think it's a great tool for combating drug traffiking, but there are so few rules around it - it is really wide open for abuse.

Any officer with any dog can theoretically claim that the dog alerted (no standards fo what that means exactly), and then that officer can pull everyone out of the vehicle and go over it with a fine tooth comb.

http://en.wikipedia.org/wiki/Illinois_v._Caballes

Maybe this is another area where case law will be built up that restores more protections for citizens. But unfortunately, it looks like the slippery slope, after winning in Cabelles, police started taking drug sniffing dogs up to people's homes and apartments.

http://articles.latimes.com/2012/jan...sniff-20120107


I'm wishing Wisconsin Carry all the best, it's a well-known fact that in Chicago, and many parts of Illinois, if you use a firearms to defend yourself - even in the clearest justified circumstances and clearly ruled a justifiable homocide, - that gun is gone and you're NEVER EVER getting it back.
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Old April 23, 2012, 01:47 PM   #11
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From an entirely law-geek perspective, I find this complaint interesting, because it does not state precisely which constitutional rights were allegedly violated. In all of the complaints that I run across here (8th Circuit), plaintiff's counsel spells it out: " . . . . Defendants violated the Plaintiff's rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. . . . "

So, Plaintiff claims due process violations. Presumably, he means 14th Amendment Due Process, and not 5th Amendment Due Process, but he doesn't pinpoint it. While I think KyJim has something in this being a 4th Amendment case, as well, I see no reason that the two claims (4th and 14th violations) cannot coexist. As for 2A, that claim seems a little more tangentially related, but if the facts alleged are true, the right attorney might be able to make it stick.
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Old April 23, 2012, 07:46 PM   #12
Al Norris
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Spats, you're correct. I didn't see this at first and just went back to look at the complaint again. It doesn't spell out which amendment is violated.

I would think an amended complaint is in order.
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Old April 25, 2012, 11:21 PM   #13
Al Norris
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Upstream, I listed the wins we've had since the McDonald decision. My intention was to get everyone thinking about the road we are traveling by highlighting where we are now.

It goes to the strategy of being very selective at picking the "low hanging fruit" to achieve specific wins and creating the proper precedent for future battles.

When the Heller decision came down, many of us were jumping with joy. Just as many however, were telling us that this decision was weak and meant nothing.

When the McDonald decision came down, we went through the same things.

We are now at a cusp.

We have a plethora of carry cases, all designed to get recognition of one thing. The Court in deciding Heller, determined that the second amendment was a personal and individual right. It utterly destroyed the "collective right" issue. All 9 Justices agreed on that front. Where the disagreement came, was in just how far that right reached.

The majority reasoned that the very core of the right was the right to keep and bear functional firearms, in case of confrontation, for defense of self, family, others and perhaps most importantly, our home.

That because of the nature of the requested relief, the specific holding was that the government could not ban handguns, in the home. But this does not negate the general holding, as I expressed just above.

The McDonald case was fought over whether or not this was a basic and fundamental right, that applied everywhere in the US. We won that fight, also. The opening words, penned by Justice Alito, should be instructive. "Two years ago, in District of Columbia v. Heller (citation omitted), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense," notice that in this opening statement that "in the home" is absent?

In all the carry cases, the defendants and lower courts have, for the most part, repeated the mantra of the specific holding of Heller all the while ignoring the general holding that preceded the specific finding.

What the carry cases are doing is to get the circuit courts to recognize that public carry, in whatever regulated form the State chooses, is part of the core right of self defense. Barring that recognition, then on to the Supreme Court. This, because that is who these cases are really aimed at. It is why the briefs by the plaintiffs are worded the way they are.

It is only when the right is recognized, can we begin to dismantle the truly onerous permitting systems. That's another fight, on another level.

Another part of this prong of the attack, is the idea that lawful resident aliens, who are citizens of a State, may not be treated differently than other citizens, just because of a lack of US Citizenship. This does not apply to unlawful aliens, nor to temporary alien visa's. This is all in accord with US immigration law and subsequent court cases, which generally grants resident aliens most of the same rights and status as US Citizens.

There are other cases that are chipping away at other facets of self defense and who is entitled to that right.

Bottom line? We didn't lose all of this in one day, and it may take a while to restore it. Have some faith, because as slow as it may seem, we are winning.
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Old April 25, 2012, 11:49 PM   #14
KyJim
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Al --

That is a great summary of how and why we have advanced to where we are now with glimpses of our future road. I want to emphasize a point you made:
Quote:
It goes to the strategy of being very selective at picking the "low hanging fruit" to achieve specific wins and creating the proper precedent for future battles.
I cannot emphasize enough how important it is to bring the right case with the right facts at the right time. I'll give you an example of the wrong case with bad facts.

A few years ago, a public defender challenged a Kentucky state law prohibiting possession of a firearm by a felon on the basis that it violated the state constitution. Posey v. Commonwealth, 185 S.W.3d 170 (Ky. 2006). The majority of the state supreme court used a rational basis test to uphold the law when there were other avenues they could have used. From a RKBA perspective, the case was not properly briefed, IMO (the public defender was trying to advocate for his client and I cannot criticize him for doing so). I felt so disgusted with the opinion that I titled a thread about it: End of Right to Bear Arms in Ky.?.

Wrong case with bad facts. Very few people get worked up about felons not having guns but that case allows the legislature to practically pass any law they want in Kentucky restricting firearms ownership/use.

Given the subsequent opinions in Heller and McDonald, it might be possible to convince the state court to re-evaluate the rational basis test it employed but it has to be the right case with good facts.

Excuse the thread drift.
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