retroactive charges

steelbird · Feb 18, 2015

Here's something that came up in a discussion with a friend - if a legal CCW holder is carrying a gun in a place that is illegal to do so, and then uses the gun in a DGU situation where it is legal to do so later on in the day, can that individual be retroactively charged with carrying that gun on "illegal turf", so to speak, at the earlier, previous time? Neither one of us knew the answer, does anyone here at THR know?

Devonai · Feb 18, 2015

You mean something like, I go to city hall to pay a parking ticket, then get mugged in the parking lot? Where there are tons of cameras and a sign-in sheet that proves I was in there? I don't know. Probably. It depends on the mood of the prosecutor, I suppose.

steelbird · Feb 18, 2015

More along the lines of being on turf where firearms are marked as prohibited ( common amongst NPS sites, for example ), but not screened for. Then, later in the day, maybe even a few minutes after leaving that turf, perhaps in the town nearby, a DGU in a parking lot, a store, etc where CCW is not prohibited. We were wondering if "the powers that be" would assume that the gun was being carried where it wasn't supposed to be, and then press charges.

Devonai · Feb 18, 2015

They can assume all they want, if they can't prove it, assert your 5th Amendment rights and wait for your lawyer.

LemmyCaution · Feb 18, 2015

More along the lines of being on turf where firearms are marked as prohibited ( common amongst NPS sites, for example ), but not screened for. Then, later in the day, maybe even a few minutes after leaving that turf, perhaps in the town nearby, a DGU in a parking lot, a store, etc where CCW is not prohibited. We were wondering if "the powers that be" would assume that the gun was being carried where it wasn't supposed to be, and then press charges.

My guess is going to be that the detectives investigating an incident will not have cause to ask much about where one had been previous to the incident, other than to inquire whether there had been any previous contact with one's antagonist. As such, it's highly unlikely this is going to end up being a problem. And at the point where that conversation is happening, one should have one's counsel present to prevent one from making any incriminating statements that aren't directly relevant to the investigation, right?

But while we're here, can I request that the use of jargon, and specifically obscure TLAs (Three Letter Acronyms) be eschewed, unless such TLAs are defined at least once in the conversation? I mean, not all of us are secret squirrel operators hep to the argot, if you get what I mean.

steelbird · Feb 18, 2015

I kind of thought it wouldn't be an issue - just trying to figure out an answer.
I didn't think that NPS ( National Park Service ), CCW (Concealed Carry Weapon ) or DGU ( Defensive Gun Use ) were all THAT obscure, though - especially on a gun related forum. Never heard of TLA before.....;-)

Sunray · Feb 18, 2015

"...where it is legal to do so later on in the day..." If you're legal, you're legal. Who would know where you were before?
Like LemmyCaution says, the coppers won't know or care about a legal CCW holder's felonious activities(assuming carrying where it's illegal is a felony) earlier in the day. Unless the 'legal CCW holder' was stupid enough to tell 'em.

Frank Ettin · Feb 18, 2015

steelbird said:
...if a legal CCW holder is carrying a gun in a place that is illegal to do so, and then uses the gun in a DGU situation where it is legal to do so later on in the day, can that individual be retroactively charged with carrying that gun on "illegal turf", so to speak, at the earlier, previous time?...

It's not a question of being "retroactively" charged. If you committed a criminal act at any time in the past, and if the prosecutor has evidence to prove that you committed the elements of that crime at least sufficient to satisfy a "probable cause" standard, you may be charged with that crime at any time, at least prior to the running of any applicable statute of limitations. (In some jurisdictions the statute of limitations wouldn't necessarily be a bar to charges being filed, and it would be up to the defendant to plead and prove the running of the statute of limitations as an affirmative defense.)

The issues raised by your hypothetical really are (1) would the prosecutor have sufficient evidence of the prior crime to warrant filing charges; and (2) would the prosecutor even bother. We really don't know the answer to either, but under the right circumstances it's conceivable that the prosecutor would have a basis for a charge.

For example, let's say that you are in a government office were it is illegal to have a gun in a strip mall having a parking lot used by all the businesses in that strip mall. You're in the government office with your concealed gun (a crime by hypothesis). You leave and are attacked in the parking lot (where it is not illegal to have a gun) and you successfully defend yourself. As part of the investigation of the incident, the police review a security camera tape which shows you leaving the government office, walking out into the parking lot and then your being attacked and defending yourself with a gun. That would at least support the interference that you had the gun with you while you were in the government office, and that would be sufficient to charge you with the crime of having a gun in the government office.

Consider the case of Bernie Goetz. He defended himself with a gun on a New York City subway. He was charged and tried for both assault and having an illegal gun. He was acquitted of assault (based on a claim of self defense), but he was convicted and went to jail on the weapons charge.

jimmyraythomason · Feb 18, 2015

I didn't think that NPS ( National Park Service ), CCW (Concealed Carry Weapon ) or DGU ( Defensive Gun Use ) were all THAT obscure, though - especially on a gun related forum. Never heard of TLA before.....;-)

Thanks for posting that steelbird. I had no idea what a DGU was and I've been on this board for 8+ years.

steelbird · Feb 18, 2015

OK, I think I see it now - charges CAN be brought up, depending on the will of the prosecutor, but only with concrete evidence that proves the action of illegal carry. Assumption of illegal carry without admittance of illegal carry by the gun owner is not enough to prosecute, then - or at least it seems that way.....

Frank Ettin · Feb 18, 2015

steelbird said:
...only with concrete evidence that proves the action of illegal carry. Assumption of illegal carry without admittance of illegal carry by the gun owner is not enough to prosecute,...

Well, that's true for any crime. The prosecutor must have sufficient evidence to file charges and then must have sufficient evidence to convict.

But you need to be careful about assuming what might or might not be evidence that could be used to charge you with a crime or convict you of that crime. I offered the example of security camera video. Postings on the Internet or random comments to an acquaintance could be evidence. And often one bit of evidence leads to another, which leads to another, and so on. Most successful criminal prosecutions are not a matter of a single datum. The prosecutor proves his case to the satisfaction of a jury with an aggregate of bits and pieces of evidence.

The point is that you can never be completely sure of being able to "get away with it." Prisons are full of people who thought they'd "get away with it."

steelbird · Feb 18, 2015

That's a very good point, Frank. The tricky part about internet postings though, would be what constitutes something that is genuine, as opposed to what is merely "hearsay", I suppose. But enough bread crumbs could lead to something more.

BTW (!) Considering LemmyCaution's thoughts on acronyms, maybe a sticky about common acronyms regarding firearms and firearm related issues should be posted ( if not up already? )

steelbird · Feb 18, 2015

Oops - just saw that there is one. My bad......

Frank Ettin · Feb 18, 2015

steelbird said:
That's a very good point, Frank. The tricky part about internet postings though, would be what constitutes something that is genuine, as opposed to what is merely "hearsay", I suppose....

First, hearsay is admissible as evidence for many purposes and under many circumstances. There are a great many exceptions to the hearsay rule.

Second, law enforcement and prosecutors know all about social media and have been learning to use it effectively in criminal investigations and prosecutions. See, for example, this article headlined "Bay Area prosecutors increasingly using social media posts in criminal cases" from the 16 August 2013 edition of the Contra Costa Times:

PLEASANTON -- A teenage driver originally accused of vehicular manslaughter now faces a murder charge in the death of a bicyclist, partly because prosecutors say he bragged on Twitter about driving dangerously.

His case is part of a growing trend of social media posts being used as evidence against suspects, authorities said Friday.

....

As suspects feel compelled to post their misdeeds online for audiences to see, investigators have taken advantage, using the online quasi-confessions to bolster their cases, Bay Area prosecutors said.

In San Francisco, a cyclist in March fatally struck a 71-year-old pedestrian in a crosswalk after speeding through three red lights in the Castro District. Chris Bucchere, who eventually pleaded guilty to felony vehicular manslaughter, received a stiffer charge after he posted his explanation of the crash on a cycling group's website....

9mmepiphany · Feb 18, 2015

jimmyraythomason said:
Thanks for posting that steelbird. I had no idea what a DGU was and I've been on this board for 8+ years.

I had no idea either...I kept waiting for him to define it.

I personally try to define them when I first use them in a post...just saves confusion later on

mbogo · Feb 18, 2015

Don't EVER admit to carrying where prohibited by law; that will eliminate the most likely evidence a prosecutor could use against you.

mbogo

WardenWolf · Feb 18, 2015

It depends. In some places, police have a policy (not law, but a policy) of ignoring illegal carry in the event of a "good shoot". I seem to recall Texas is one of those places. If the shooting is justified, they will leave it at that.

Frank Ettin · Feb 18, 2015

WardenWolf said:
It depends. In some places, police have a policy (not law, but a policy) of ignoring illegal carry in the event of a "good shoot". I seem to recall Texas is one of those places. If the shooting is justified, they will leave it at that.

And do you have some documentation to support that contention. In any case, it would not be something for the police to decide. Whether or not to prosecute illegal conduct would be a decision for the prosecutor.

There is such a thing as prosecutorial discretion. A prosecutor can decide whether or not to use the often limited resources of his office to pursue a matter. That sort of decision is generally made on a case-by-case basis, although a particular prosecutor might have some guidelines or set priorities.

But of course since it's, by definition, a matter of discretion, one can't count on it.

HankB · Feb 18, 2015

IANAL, but I have spoken to them, and had them in my (extended) family.

One thing stands out - more than one has told me that if instead of the Miranda warning police were required to slap a piece of duct tape over the suspect's mouth until his attorney arrived, convictions would plummet by well over 50%.

In the absence of some evidence - continuous video, admission of guilt, bragging on Facebook, something tangible - there won't be any successful prosecution for prior illegal concealed carry based on mere assumptions and inferences by the DA or police.

Oh, and Bernie Goetz was mentioned . . . who HASN'T seen the videos of him referring to himself as a "rat" during police interrogation? As it was, IIRC, he was only convicted of illegal gun possession in NYC; one wonders what the outcome would have been had he shut his pie hole from the beginning.

In some places, police have a policy (not law, but a policy) of ignoring illegal carry in the event of a "good shoot".

I've heard of some cases where police ignored illegal concealed carry - no arrest, person sent on their way with their gun, no record of the event - but not after a shooting. I've also heard that in some shootings, the police, well, they don't look very hard for the shooter. But regardless of jurisdiction, it's not something to rely on.

Davek1977 · Feb 19, 2015

Assumption a crime has been committed has never been the standard used to bring charges. Probable cause is standard used. You can't charge someone you simply have a hunch may have committed a crime, and convicting someone based solely on a hunch would be an even more unlikely event. There are rules to both sides of the law....you can't simply charge anyone you want with anything you want based on mere presumption or assumption.

Frank Ettin · Feb 19, 2015

Chasing our tail.

retroactive charges

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