Feds target illegal sales of firearms

[Drizzt]

Feds target illegal sales of firearms

By Mark Harrison
The Times-Journal

Published July 14, 2005

Federal agents are finalizing legal seizure of 119 firearms, taken from a Fyffe home in 2004.

The U.S. Department of Justice has filed a civil action naming the firearms as defendants – part of the legal process required for federal authorities to finalize seizure of the weapons.

The firearms were initially confiscated on Nov. 17, during a raid on the 63 DeKalb Road 327 home of Hixon Padgett.

According to the Justice complaint, the firearms were confiscated because of Padgett’s alleged involvement in the illegal trafficking of firearms at Trade Day in Collinsville and Taco Bet Flea Market in Dutton.

According to the U.S. Attorney General’s Office, there are no criminal charges against Padgett at present, but the Justice is moving forward with the civil seizure.

According to the complaint, special agents with Alabama Tobacco and Firearms began an investigation into allegations of illegal firearms trafficking at the two flea markets in November 2002.

The complaint shows that over the next two years, ATF “received information indicating that unlicensed individuals were selling large amounts of firearms from the trunks of vehicles and at market booths at both locations without any documentation required from the buyers.”

The complaint also shows that on dates in June, July, August, October and November 2004, ATF special agents conducted undercover buys of various weapons from Padgett, either from his vehicle or from one of the flea markets.

“Agents also observed the sale of numerous other weapons by Padgett to other individuals on those same dates. In each transaction, Padgett sold the firearm for cash without registration or other documentation required under federal law,” the complaint reads.

Serigio Gil Perez Jr., of 1570 Roberts Road, Henagar, is also named in the complaint, but records show he – as Padgett – does not face criminal charges at this time.

Authorities would not speculate as to whether or not criminal charges might later be brought.

The civil complaint requests that the defendant firearms be “condemned and forfeited to the U.S. government for disposition according to law.”

http://www.times-journal.com/report.lasso?WCD=4235

So, there are no charges at this time against the individual, but there are charges against the guns? Do they get to testify in their own defense?

 

[Father Knows Best]

The legal term for an action against property is a suit in rem. A legal action against a person is a suit in personam. You most often see admiralty cases proceeding in rem, with captions such as United States v. M/V Slick Willie. In the last few decades, the federal dockets have been full of drug property seizure cases with even more entertaining captions. I once came across a case captioned something like United States v. Sixty-three Thousand Dollars in Small Bills.

They are not criminal actions; they are property forfeitures. According to the story you posted, there are no charges against the individual -- yet. There may not ever be, in which case the worst thing that happens to him is that he lost his guns. He does have the right to appear in the civil case and contest the seizure, but he will probably lose.

 

[dolanp]

“Agents also observed the sale of numerous other weapons by Padgett to other individuals on those same dates. In each transaction, Padgett sold the firearm for cash without registration or other documentation required under federal law,” the complaint reads.

What registration and 'other documentation' under federal law is required to sell your own guns privately in your home state? I am unaware of such requirements.

 

[El Tejon]

Father, in grad school I stumbled across an in rem entitled United States v. Winchester Rifle.

Driz, guns make lousy witnesses. They are just too mechanical.

dolan, probably no 4473 and no bound book being kept--allegedly.

 

[beerslurpy]

This bothers me, much as the War on Drugs confications bother me.

I have to ask the lawyers here. I cannot be deprived of liberty and life without due process and a jury trial, yet the government can take my property without anything more than the physical act of taking them? I thought that "in all civil matters where the amount is greater than 20 dollars" etc etc there shall be a jury trial.

Also, I have to ask why I get due process and the right to a jury trial when a police officer wants to take 150 dollars from me for the alleged crime of speeding, yet if the same police officer accuses my house of dealing drugs, I am entitled to neither jury trial nor the presumption of innocence. I dont see how to differentiate the two.

 

[RealGun]

What registration and 'other documentation' under federal law is required to sell your own guns privately in your home state? I am unaware of such requirements.

The government wants to make sure that crimes are only committed with stolen guns that they can't trace. Then if someone gets assassinated, they can say they did all they could to prevent it. Sarah Brady and Ted Kennedy feel better.

Given enough time, every legal gun owner will be identified, and the confiscation list will be complete. Should they ever use that list, only bad guys will have guns. Problem solved.

 

[beerslurpy]

When the law is perverted so that it carries out the very acts it is meant to punish, it is the law that must be fought in the interests of justice. That includes those who carry it out.

I'm sure the cops on this board dont want to carry out confiscation, but how many would follow orders out of cowardice in the hopes that people wouldnt fight back too badly?

 

[Bartholomew Roberts]

What registration and 'other documentation' under federal law is required to sell your own guns privately in your home state? I am unaware of such requirements.

None is required for private sales from your own collection. However, if you are "engaged in the business of selling firearms" you must have an FFL and follow those requirements.

I would guess that the subject of this news release was found selling firearms at the local market "on dates in June, July, August, October and November 2004", the ATF intends to make the argument that he was "engaged in the business of selling firearms" and plans to prosecute him for not having an FFL or not following the recordkeeping requirements if he does have one.

I have to ask the lawyers here. I cannot be deprived of liberty and life without due process and a jury trial, yet the government can take my property without anything more than the physical act of taking them? I thought that "in all civil matters where the amount is greater than 20 dollars" etc etc there shall be a jury trial.

You mean like the part in the story where it says "The U.S. Department of Justice has filed a civil action naming the firearms as defendants – part of the legal process required for federal authorities to finalize seizure of the weapons."?

 

[Drizzt]

The legal action against the firearms, yes, but shouldn't there be some required legal action against the individual before the State can take action against his property?

 

[beerslurpy]

Yeah, but filing action against the property itself seems to do away with the presumption of innocence, the concept of reasonable doubt and the requirement for a jury trial.

Taking someone's property is a form of punishment. Taking someone's property is something that is expressely forbidden without due process. Any law that changes the definition of due process or does away with its necessity is quite simply a legalized form of taking without due process- stealing by government fiat.

Why am I the only person who sees this? Does everyone have me on ignore, or do you disagree, or you just dont care?

 

[carebear]

So you're saying that he should first be charged and convicted of selling firearms without a license (which I believe is not so much a criminal offense in this case as a possible tax law violation?) and only THEN have his property seized as part of the punishment?

That's crazy talk. :banghead:

 

[WayneConrad]

When the law is perverted so that it carries out the very acts it is meant to punish, it is the law that must be fought in the interests of justice.

Yup. I gotta agree with that.

 

[Azrael256]

Yeah, but filing action against the property itself seems to do away with the presumption of innocence

Heheh, history repeats itself. The concept of condemning property by trial is as old as judicial theivery (that would be around 700 years). Our constitution was supposed to stop this sort of nonsense. So much for that!

 

[ksnecktieman]

beerslurpy? I have been telling everyone I know about the confiscation and siezure laws for years now,,,, I think you are right, most do not care, because they are not drug dealers, or gun nuts,,,,, WHAT is next? Prohibition AGAIN????????

 

[Joey2]

I see this that this guy was excercising his 2d Amendment RIGHTS.

 

[Father Knows Best]

I have to ask the lawyers here. I cannot be deprived of liberty and life without due process and a jury trial, yet the government can take my property without anything more than the physical act of taking them? I thought that "in all civil matters where the amount is greater than 20 dollars" etc etc there shall be a jury trial.

Also, I have to ask why I get due process and the right to a jury trial when a police officer wants to take 150 dollars from me for the alleged crime of speeding, yet if the same police officer accuses my house of dealing drugs, I am entitled to neither jury trial nor the presumption of innocence. I dont see how to differentiate the two.

Relax. No one can deprive you of your property without due process of law. The fact that the suit is in rem doesn't mean that you don't get notice, can't appear, etc. In fact, it's just the opposite. The prosecution is required to identify all people who it believes may have an interest in the property, and notify them of the proceeding. They have the right to appear and be heard, and assert their claims, just as the government asserts its claim. There is a trial, and a right to appeal if you lose.

 

[carebear]

So is the trial to determine if the guns are liable for seizure because they were not transacted properly (no tax stamp by seller)?

So, for example, he just has to demonstrate he had a large personal collection and was just selling them off as quickly as possible at sequential markets.

Still, doesn't that somewhat subvert the idea that his sales should be assumed to be legal and the property thus not liable for seizure until AFTER the sales are determined to be unlawful? It's like seizing large amounts of cash on the presumption that it is crime related and making the owner prove it ISN'T to get it back, rather than having the burden be on the .gov.

That's where my objection comes from, the order of seizure vice the "due process" seems to be backwards.

 

[beerslurpy]

FatherKnowsBest, it would obviously be pretty hard to not notice the government taking my posessions. It is also unlikely I wouldnt fight any such action. Duh.

My objections are:
-I would have to harrangue the government to get my property back, despite my already reduced resources due to the confiscation which has already occurred. They do not have to understake some difficult action to make me forfeit it. The contest starts from that point.
-I would have to prove by a preponderance of the evidence that I should get the property back, as opposed to merely raising resonable doubt that I am guilty of a crime for which the property should be forfeit. This is a much lower standard of evidence for the government. If they can prove there is a 51% chance I am guilty, I dont get my property back. As opposed to a criminal trial where proving my guilty is a lot harder.

You cant accuse me of being crazy because this has been going on for over 20 years now in the War on Drugs. The worst is when the police get the wrong address (which they have done quite a few times) and not only do you have to fight to get your children back from foster care, but you have to (at your own cost!) fight to get back your valuable property. This despite the fact that you are obviously innocent and the police have never pressed charges. They know that apologizing will open them up to lawsuits so they just press on.

Happened to a friend's neighbor in NorCal that got raided for drugs but there werent any drugs. Whooops. Took like 2 years to get everything back. I got the impression this crap happens all the time, an impression that is reinforced by news that my local sheriff's department has confiscates something like 2-3 million dollars of property a year.

 

[denfoote]

It's called steal the guns, disarm the people!!!

 

[RealGun]

WHAT is next? Prohibition AGAIN????????

Use your imagination. What do people want to stop or what do they fear, for good reason or not? What is inconsistent with fundamentalist Christian doctrine? What drives the law in other countries and cultures as well as our own? What are the main reasons people want to control what others do, even privately?

 

[Kharn]

During an in rem trial, does the property in question occupy the defendant's seat? That'd be kinda funny (sad at the same time, but funny none the less) to see a rifle or briefcase full of bills just sitting all by itself while the prosecution yells at it.

Kharn

 

[yucaipa]

Why am I the only person who sees this? Does everyone have me on ignore, or do you disagree, or you just dont care?

I understand and agree,it's the cart before the horse. Criminal court first,civil court second.

Assuming the guy is guilty of "engaging without a license" (with I believe he is) he should get a lawyer and try to make a deal, If he doesn't contest the civil case the Government will not bring criminal charges.

As it stands know the guy may not contest the seizure and 3 months (or 3 years) later could have a federal prosecutor knocking on his door.

He's going to (probably) lose the guns anyway,might as well try to leverage them to get out from under. It would be worth a try.

 

[Father Knows Best]

I don't mean to suggest that civil forfeiture proceeding aren't susceptible to abuse. They certainly are. I was just trying to point out that there is a legal process that has to be followed. The government can't merely take your property.

Civil forfeitures are governed by federal statutes -- specifically, 18 U.S.C. §981 and 21 U.S.C. §881. Basically, the government has to allege that that property itself is in violation of some law. An example would be an NFA item (like a machine gun) that is not registered. The government then goes to court and presents evidence to a judge and asks for a warrant to be issued allowing the government to seize the property. If the judge determines that there is sufficient probably cause to believe that the property is subject to seizure, the warrant is issued. The government then executes the warrant and seizes the property.

At this point, the property is given over to the temporary custody of the court. This is where the proceeding in rem really begins. The government has to file a lawsuit asking the court to find that the property is in violation of the law and therefore may be seized. The court requires that notice be given to all people known to have an interest in it (such as the person who had possession of it at the time of execution of the warrant), and that public notice be given (such as in a newspaper) so any other claimants can come forward. Anyone claiming an interest then has the right to appear and assert his or her claim to the property. As with every other legal proceeding, the burden is on the plaintiff to prove its case by a preponderance of the evidence. Thus, the government bears the burden of proof. The standard is lower than in a criminal trial, but the burden is still there.

This is nothing new. Proceeding in rem are almost as old as the English legal system. They've been used in the U.S. for centuries.

There is definitely cause to be concerned about their abuse, however. In the 80s, they started to be used in the "war on drugs." More recently, they've been used to combat prostitution by seizing the cars used by johns. As a result, various legislators have introduced legislation that would restrict the use of these proceedings and provide greater protections to citizens who have property taken in this way. Of course, the legislators introducing these bills are liberal Democrats, and they are getting nowhere in our Republican-controlled legislature.

 

[beerslurpy]

If youre such a great lawyerly type, why dont you understand the difference between these two things?

1) preponderance of the evidence

2) proof beyond reasonable doubt

One of these is not like the other. This is the fundamental difference between me suing you and the government accusing you of murder. You seem to feel that calling something a "civil trial" makes it okay for the government to punish without meeting the higher requirements of a criminal trial.

Is this because you feel:
-that taking property isnt a form of punishment?
-that people have a right to property only in so far as the government chooses to let them possess it? As long as the government gives warning by passing a law, they may deprive people of whatever they want?
-that the need of the government to "deprive criminals of the rewards of their illegal labor" outweighs "the rights of citizens to be secure in their property and their persons"?

Which one is it?

 

[Father Knows Best]

Wow. Who peed in your Cheerios? Take a deep breath and go reread my post. I understand the difference between the evidentiary standards. Also, note that I said the following:

I don't mean to suggest that civil forfeiture proceeding aren't susceptible to abuse. They certainly are.

What part of that statement don't you understand? I agree that the government can and does abuse the civil forfeiture process. I was merely explaining to you and others how it worked.

Now step off.