Judge clears Illinois officer of gun charge

[Jeff White]

Discussion will be confined to the judges ruling that the law is unconstitutionally vague. The first post saying that he got off because he's a police officer or anything similar and this thread is finished, I'll close it myself.

I have wondered about this particular case. I can't imagine a legitimate dealer selling the M4 carbine in question without the proper paperwork. I have no idea what the ISP policy is on who would be authorized to sign a purchase order or letterhead for something like that, but in many other agencies a chief firearms instructor might be authorized to sign it.

So was the M4 on the NFA registry as belonging to the ISP? I doubt we'll get many details from the press.

Jeff

http://www.stltoday.com/stltoday/ne...D7F0E9521764751F862571DB00183568?OpenDocument

Judge clears Illinois officer of gun charge
By Tim O'Neil
ST. LOUIS POST-DISPATCH
08/30/2006

Charges that an Illinois State Police sergeant illegally possessed a machine gun were dismissed Wednesday by a federal judge, who ruled that the law was "unconstitutionally vague" as applied to him.

In federal court in East St. Louis, U.S. District Judge David R. Herndon dropped the charges against Sgt. James V. Vest of O'Fallon, Ill., who was lead rifle instructor for the department's District 11 in the Metro East area. Herndon's 26-page order says the confusion is over the federal law's exception for police officers, and whether Vest could reasonably be expected to know whether he was breaking the law.

Vest was one of four people, including two other Illinois state troopers, separately accused in January of illegally possessing machine guns. Such fully automatic weapons are banned by federal law except for certain uses, such as by the military and police agencies, or by people with a special license, which the four did not have.

A machine gun fires multiple rounds with one squeeze of the trigger.

How Herndon's ruling would affect the other cases was unclear Wednesday, partly because the charges against them are not identical.

Two other defendants, State Police Special Agent John Yard of Collinsville and Dr. Harold Griffiths of Spaulding, Ill., have similar constitutional claims pending before U.S. District Judge Michael J. Reagan in East St. Louis.

The remaining defendant, Senior Master Trooper Greg Mugge of Jerseyville, pleaded guilty July 25 of possession of an unregistered machine gun. His lawyer, John Delaney Jr., said Wednesday that he was studying the Vest case ruling. "Who knows what will happen?" he said.

Clyde Kuehn, one of Vest's lawyers, said Wednesday "was a very relieving and happy day" for his client. Vest remains on administrative leave.

The four were charged after investigations by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. It was not clear at the outset what triggered the probe. None of the four was accused of using the weapons in any crimes.

U.S. Attorney Randy Massey, whose office brought the charges, declined Wednesday to discuss Herndon's ruling. Massey's office had opposed Vest's motion to dismiss.

"We are evaluating the order and are looking into our options," he said.

The charges carry a maximum prison term of 10 years and a fine of up to $250,000, although federal guidelines call for less when defendants have no criminal records.

Gun used in classes

The case against Vest concerned an M-4 machine gun, essentially a short-barrel form of the standard M-16 military weapon, that he bought in 1998 and used in his state police training classes. The charges allege that he lacked authority from the state to buy or possess the weapon.

Vest argued that he bought and used it under the "law enforcement exception" in the federal law. Some police agencies have machine guns in their arsenals, particularly for their tactical teams.

Herndon noted that the prosecution never claimed that Vest ever used the M-4 for anything but official purposes. The judge said the government argued that a law enforcement agency, not a single police officer, has the authority to permit possession of a machine gun.

But Herndon wrote that the federal law granting that authority was too vague in this instance to support the charges against Vest.

"How would a police officer/lead rifle instructor such as Vest ever know whether his possession of a machine gun or other prohibited weapon was legal, as there is no guidance under the (statute) as to what constitutes proper authority," the judge wrote. "It does not appear that this statute was designed to criminalize police officers even if they may be guilty of mere technical violations."

Given that Vest apparently used it only for law enforcement purposes, Herndon said, charging him "seems to go against the purpose" of the federal law.

A spokesman for the Illinois State Police headquarters in Springfield had no comment on the ruling and said he could not discuss personnel matters regarding Vest.

In February, 10 Metro East police chiefs, two county sheriffs and two state senators publicly urged leniency for the accused officers.

 

[Sindawe]

Have you a link to the ruling Jeff White? Baring that, I'm afraid you're gonna have to close this thread based on your own criteria. As I read it, the dismissal of charges are based solely on the fact that the defendant was a State Police Sergeant who purchased the weapon under the color of authority as a law enforcement officer.

Did Sgt. James V. Vest purchase the weapon via a Purchase Order on Offical Letterhead? If so, in my view the ruling is valid. If not, Sgt. James V. Vest got off because he's a cop and used the weapon for training purposes. In the latter case he was not acting in the offical capacity of an employee of the State of Illinois but on his own volition as a citizen of Illinois.

 

[beerslurpy]

This could be a potentially awesome ruling, especially if it gets appealed higher. The meaning of "authority" is the giant crack in the ATF's interpretation of 922(o). It just needs to be poked and prodded to unleash the water. And yes, it is unconstitutionally vague, a fact the ATF has much abused.

http://www.guncite.com/journals/hardfopa.html

Right now the ATF asserts that "authority" is not another word for "permission." Otherwise, everyone could still make and transfer machine guns on Forms 1 and 4 with the permission of the US govt, as we have been doing since 1934. But there's a problem... SOTs all make and possess large inventories of post 86 machine guns without being a part of the US government. How do they do it? With PERMISSION. And there is the other minor problem of the word "authority" used every else in federal statutes to mean "permission."

Wiser men than myself have argued that 922(o) merely repeals the amnesty provision of the 68 GCA rather than being a ban. Read the link above.

 

[beerslurpy]

And Sindawe is right. If you dont want people to comment on how someone got off of a crime because they were a cop, dont post decisions where the judges rationale is "we can't punish this man because he is a police officer, even though he made a mistake normally punishable by several years in jail." I agree with the result, but wish that it was a leniency granted to more than just LEOs.

That is the system at work here- LE and military can own post 86 machine guns under current ATF rulings, while ordinary civilians may not. Something that most members of this board seem to think is unjust.

 

[Blackfork]

Getting off

Jeff White: If he didn't get off because he was a sworn officer....why did he get off? I'd love to hear your view. The defense's whole argument stands on the fact that he is a police officer.

Maybe someone else will re-open the thread. I'm assuming Jeff White means exactly what he says.

 

[Technosavant]

We'll see if the doctor's case manages to escape with the same ruling. Until then, Jeff, I hate to say it, but it might well be preferable treatment. From the looks of things, it won't bode well for him.

The whole law stinks. Simple possession (no use in any kind of a separate felony) can score a person 10 years in prison? That's more than some violent felons can get.

 

[Kentak]

Jeff

It's impossible to discuss the judge's rationale without considering the LE status of the defendant. That's the whole point. If he had not been LE, it's a totally different case.

K

 

[kbsrn]

What I interesting

is that the BATF investigated the police officers at all. The normal professional courtesy that BATF agents recieve from that department is sure to end. Plus any joint operations between the department and the BATF will also be at an end. I would image that all Federal LEO's will find that state to more difficult.

 

[dfaugh]

It's impossible to discuss the judge's rationale without considering the LE status of the defendant. That's the whole point. If he had not been LE, it's a totally different case.

Well, yeah...but we're still talking about the judges ruling IN THIS SPECIFIC CASE. And, given what facts we know, I think the decision was correct as the law IS vague IN THIS SITUATION.

I could easily see why Vest MIGHT interpret the law, such that it would be legal for him to own the gun. Maybe not a particularly GOOD decision, considering the vageness of the law, but it IS very open to interpretation.

 

[unspellable]

Paper work?

What happened to the paper work here? Is the gun registered to an individual or to the department? What's the department policy on buying personal firearms?

 

[HankB]

I find this to be a very interesting statement on the part of the judge:

"It does not appear that this statute was designed to criminalize police officers even if they may be guilty of mere technical violations."

Countless non-LEOs have had their lives ruined, their businesses closed, on the basis of " . . . mere technical violations."

With so many laws - many contradictory - on the books, it's difficult to live without a "mere technical violation" somewhere along the line. Yet the judge, in his own words, has ruled that this police officer is exempt from the onus of complying with "mere" technicalities . . .

 

[cassandrasdaddy]

could it be

that what we have here is a judge doing the right thing?That as opposed to being upset we should be glad that we have a judge who has some sense?Thw cop is not accused of doing anything wrong with the gun per se and a ruling such as this could help set precedent to lighten up atf.If the cop only used it for training i would hope that no one outside cop haters would want blood.My hope is more common sense in law rather than less.

 

[El Tejon]

Jeff, is the USA going to take this up to the 7th Circuit in Chicago, or are they letting this go?

 

[Soybomb]

I understand your desire to prevent this from turning into LEO bashing but as a few others have said his LEO status is a very relevant part of the topic.

If the cop only used it for training i would hope that no one outside cop haters would want blood.My hope is more common sense in law rather than less.

Actually I would like equal treatment under the law to all people so that there might be incentive to change the laws so they make a bit more sense.

I also have some trouble believing vest also used it only for law enforcement purposes. As I recall there were 4 people arrested and charged and one was not a leo, but a doctor. It sounds like shootin' buddies having a good time to me.

 

[Malum Prohibitum]

"It does not appear that this statute was designed to criminalize police officers even if they may be guilty of mere technical violations."

You have to read the rest of the opinion to put this quote in context:


"Violation of this statute is a mere 'technical' violation. It does not appear that this statute was designed to criminalize police officers even if they may be guilty of mere technical violations. This statute was designed to criminalize non-police officers even if they may be guilty of mere technical violations."

 

[DKSuddeth]

If you feel the need to close this Jeff, do so, but you can't get around the fact that because this guy is a LEO, the courts found a casual way of not applying the law in this particular circumstance. Is that LEO bashing? Hardly, it should be a full fledged judicial branch flogging. The only thing the LEO did was not use appropriate channels to obtain the M4, or purposefully skirted the law himself.

All in All, this is a pretty clear cut case of the courts cutting a break for a LEO, where any average citizen would be sitting in jail for the same actions.

The only possible benefit to this would be an inventive way to use the equal protection offense to make the law 'constitutionally unvague'.

"Violation of this statute is a mere 'technical' violation. It does not appear that this statute was designed to criminalize police officers even if they may be guilty of mere technical violations. This statute was designed to criminalize non-police officers even if they may be guilty of mere technical violations."

do we have a link for the opinion?

 

[Malum Prohibitum]

 

[DKSuddeth]

I guess that is a quote from your opinion?

 

[Malum Prohibitum]

could it be
--------------------------------------------------------------------------
that what we have here is a judge doing the right thing?

Cassandra'sdaddy, No. This is in the Seventh Circuit, and I can assure you that there is plenty of case law on this very statute (18 U.S.C 922) relating to non-LEOs. I wish you were right, but I am afraid that is not the case. If it were you, you would have been slammed.

 

[peyton]

My concern is for the poor dope who pleaded guilty. Does his guilty plea get dismissed.

Peyton

 

[Bubbles]

My concern is for the poor dope who pleaded guilty.

Don't be as his case is substantially different. He bought a semi, converted it himself, and isn't claiming to have a permission slip from his agency authorizing him to own it.

I do have some questions:

Why wasn't Vest's M4 transferred to him on any BATF form (4, 5, 10?)? A legitimate dealer wouldn't have transferred the M4 to him without BATF approving it.

Why couldn't his department find a copy of the letter granting him permission to own it? I would think they'd keep copies of these letters in their records, perhaps in the trooper's personal file.

Personally I think this the ruling stinks. It doesn't say that the law in general is vague and therefore unconstitutional. The judge said "922(o) doesn't apply to cops".

FWIW I think that 922(o) should be thrown out, but that's just me...

Oh, and the opinion is online.

US v Vest, Case 3:06-cr-30011-DRH

 

[Malum Prohibitum]

Bubbles

Thanks for posting the actual case opinion.

It appears my quote is not actually in there.

The first two pages, though, are devoted to answering the question of "Should the law apply to the police?"

The first two pages are devoted to the concept that who has the gun is the important issue.

If a law is good, it should apply to government and citizens equally. If a law is bad, it should apply to nobody.

 

[Bubbles]

Just another point...

That rifle was on a Form 1 when Colt manufactured it. It was on a Form 3 when transferred to Botach Tactical. It should have gone to Vest on a Form 5... but it looks like it didn't.

So, is Botach Tactical in trouble now?

 

[0007]

I believe I read that the officer in question had forged the letterhead paperwork. The short version here is that the ONLY reason he got off was because the judge believes that some animals are more equal then others.

I have no problem with the officer being let off aas long as the next guy coming down the pike with a non-papered Title III weapon gets the same treatment.

 

[beerslurpy]

Botach only does what the ATF tells it. It is the responsibility of the applicant to fill out the proper form without mistakes or deceipt. Intentionally forging dept letterhead goes way beyond an innocent mistake. Pretty sad that we have to make a federal case just because a citizen has a military weapon.