Vermont CONFISCATION without Judicial Oversight, bill H.422

[VTmtn.man]

http://legislature.vermont.gov/assets/Documents/2018/Docs/BILLS/H-0422/H-0422 As Introduced.pdf

Despite your home state, a worthwhile and relevant discussion might be had exploring this confiscation bill in its nuances, how it could be made better or arguments to present to my legislators based on the seeming 4, 5 and 14th amendment violations. Protecting citizens and upholding the constitution at the same time is a tricky issue. How do we encourage our legislators to best guard against the slippery slope of statism --> totalitarianism?

Thoughts, comments or smart remarks?....

local news article from today on H.422
http://www.wcax.com/story/34939676/bill-would-allow-vt-police-to-seize-guns-in-domestic-incidents

 

[Vinnie Boombatz]

It is a slippery slope and the gun hater legislators that come up with these laws know it is. that slippery slope is the sole motivation behind it; safety and saving lives is never the motivation. Call me a cynic.

Every time I hear about a law like this or any gun control type of law I always ask myself what was the impetus for the bill? Where are the numbers that show that there are so many lives being lost in some specific scenario or circumstance that we need a bill like this to stop the hemorrhaging? and invariably there proves to be nary a single let alone series of incidents.

so ask your legislators to give you the statistics showing that there is such a crisis that it warrants the slippery slope. In other words - following the stereotype that legislatures always have in mind when they come up with these bills which is man on woman domestic violence - ask them how many women have been shot to death - soon after or at some point in the future - after police responded to a domestic incident and left knowing there were legally owned firearms in the home (since they ask and also check with records if permits are required for legal firearms). and when they fail to show you evidence of the crisis tell them to scrap the bill.

you know that due to the political meme of the 'woman' victim group/domestic violence crisis epidemic that's going on, with the media constantly harping about it and 'raising awareness' that the definition of domestic violence has been watered down, like the definition of rape/sexual assault, to absolutely comical criteria; and so have no doubt that what that will lead to is a woman calling the police saying that the husband is being abusive (maybe for raising his voice to her) and the police will show up and even if they don't arrest the guy but merely take him away to stay with a friend they will be able to confiscate the weapons - and you know the maddening bureaucratic process and money/legal fees it will take for that guy to get his guns back, IF he ever does - and that's the whole point of such laws.

 

[Spats McGee]

I've seen worse, constitutionally speaking. I'm sure the proponents are pushing it as a "when someone is arrested for pistol-whipping his pregnant wife . . . " That behavior is covered, and I don't see that as problematic. What bothers me is that is requires seizure of a firearm in plain view when someone is cited for domestic violence. So, if Bubba Joe has a shotgun leaning in the corner of the kitchen, and police see it, they're required to seize it for 5 days, even if: (a) there's no indication that Bubba Joe has touched that gun since he moved in with Betty Lou; and (b) Bubba Joe is calm enough that the police feel comfortable enough to cite him, rather than arrest him.

 

[VThillman]

There are constitutional ways to guard what needs to be guarded. The Democratic controlled legislature will pass this bill; our weak-kneed Republican governor may not veto it. I see the real problem with the 5-day seizure to be the propensity for police departments to hang on to seized guns forever.

 

[Spats McGee]

If they do so in violation of the law, there's a remedy for that.

 

[Berger.Fan222]

If they do so in violation of the law, there's a remedy for that.

When the remedy requires spending more for a lawyer and a court case than the seized property is worth, it kinda defeats the purpose.

 

[Spats McGee]

When the remedy requires spending more for a lawyer and a court case than the seized property is worth, it kinda defeats the purpose.

42 USC 1983 may be used to address violations of a person's constitutional or statutory rights. When that happens, 42 USC 1988 is ordinarily used to require a defeated defendant to pay the attorneys' fees of a prevailing plaintiff:

In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C.A. § 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C.A. § 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C.A. § 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity such officer shall not be held liable for any costs, including attorney's fees, unless such action was clearly in excess of such officer's jurisdiction.

42 U.S.C.A. § 1988 (West)

 

[Berger.Fan222]

42 USC 1983 may be used to address violations of a person's constitutional or statutory rights. When that happens, 42 USC 1988 is ordinarily used to require a defeated defendant to pay the attorneys' fees of a prevailing plaintiff:

Did New Orleans pay the legal fees after the Katrina confiscations, or did they just return the guns?

 

[VTmtn.man]

I'm not sure how low the bar actually is for "citations" or "arrests". I believe that there isn't much distinction on the low end of the spectrum meaning you could probably get either with a mere accusation and a grumpy cop. How subjective can either be?

 

[Frank Ettin]

Did New Orleans pay the legal fees after the Katrina confiscations, or did they just return the guns?

The lawsuit apparently was settled, i. e., resolved by agreement of the parties without going to trial. The terms of the settlement, beyond the issuance of a permanent injunction against the New Orleans appear to be confidential. That is common in such things.

The lawsuit was brought by the NRA, with the participation of the Second Amendment Foundation.. Here's what the NRA says:

...Under the terms of the injunction, Mayor Ray Nagin, Police Chief Warren Riley, and any agents or employees of the City of New Orleans must, among other things, cease and desist confiscating lawfully-possessed firearms from all citizens; make an aggressive attempt to return any and all firearms which may have been confiscated during the period August 29 to December 31, 2005; post on the City website the procedure for the return of confiscated firearms; and mail notices to all individuals who are identified on the property tags of firearms in the City's possession which were confiscated during the aftermath of Katrina....

 

[Berger.Fan222]

So, as I expected, y'all can't cite any actual cases where the government has actually paid legal fees of a citizen fighting a lawsuit to get his illegally confiscated gun(s) returned.

 

[MEHavey]

> "As such, with the backing of the National Rifle Association and the California Rifle
> and Pistol Association, he was forced to file a federal lawsuit in May 2014 over what
> he says was the loss of $15,500 worth of firearms. When it was all over, he got the
> money – but not his guns -- the police department had destroyed them.
https://absoluterights.com/gun-grabbing-states-are-trampling-the-second-amendment/

You can bet on it -- every time.

 

[Frank Ettin]

So, as I expected, y'all can't cite any actual cases where the government has actually paid legal fees of a citizen fighting a lawsuit to get his illegally confiscated gun(s) returned.

That's not what you asked. You asked about a specific instance of confiscated guns being recovered in litigation. And it's likely that because the litigation was pursued by the NRA and the SAF, the citizens recovering the guns incurred no legal fees.

As far as other examples of guns being recovered in 42 USC 1983 litigation, I have no idea whether or not there's even been any; and I'm not going to go looking for any.

But certainly a successful plaintiff's attorney fees are recoverable from the defendant in a 42 USC 1983 action. Mrs. Auman got her's in Auman v. Muhlenberg School District (No. 99-CV-5445, Federal District Court for the Eastern District of Pennsylvania).

 

[Spats McGee]

So, as I expected, y'all can't cite any actual cases where the government has actually paid legal fees of a citizen fighting a lawsuit to get his illegally confiscated gun(s) returned.

As Frank noted, that wasn't the question asked. You asked this:

Did New Orleans pay the legal fees after the Katrina confiscations, or did they just return the guns?

I don't know much about Louisiana's FOI law, but there is some chance that agreement is open to the public under it. If you feel like sending an FOI request down to the City of New Orleans, be my guest. That agreement may or may not separate damages from fees.

That said, as to whether the gov't has ever had to pay legal fees of a citizen fighting for illegally seized guns, specifically, I don't know. Guns, however, are still property, and courts across the nation have upheld awards of attorneys' fees in connection with civil rights lawsuits for illegal seizures of property.

"Plaintiff, Richard S. Fluhr, brought this pro se action pursuant to Sections 1983 and 1985 of Title 42, United States Code. Fluhr was an inmate at the Jefferson County Jail when the suit was filed seeking declaratory and injunctive relief, as well as compensatory and punitive damages. The complaint alleged unreasonable searches, seizures and confiscation of personal property; deprivation of access to a law library or other assistance in preparing legal papers; inadequate medical, laundry and recreational facilities; unsanitary and malnutritional food services; and failure to provide other minimal hygienic necessities. Named as defendants were certain Jefferson County government officials and employees of the Metropolitan Correctional Services Department (MCSD) ..... Accordingly, the Court finds that Mr. Clay [counsel for Mr. Fluhr] is entitled to . . . . a total award of $1,292.13." Fluhr v. Roberts, 463 F. Supp. 745 (W.D. Ky. 1979)

". . . .Defendants-appellants-cross-appellees City of Albany, Albany Chief of Police James W. Tuffey, Albany Police Officer Brian Quinn, Albany Police Officer Jeff Roberts, and Albany Police Officer Michael Haggerty appeal from the June 5, 2014 order of the United States District Court for the Northern District of New York (Suddaby, J.) granting in part and denying in part Plaintiffs-appellees-cross-appellants' motion for attorneys' fees and costs pursuant to 42 U.S.C. § 1988. . . . . . . . Defendants concede that at least one of the Plaintiffs succeeded on at least a portion of her claims, with Constance Hines achieving a favorable settlement of her claim regarding the illegal seizure and retention of her vehicle. This *54 is a sufficient basis for prevailing party status. . . . We first reject Defendants' contention that Plaintiffs were not entitled to any fees because any relief received was de minimis. . . ." Hines v. City of Albany, 613 F. App'x 52 (2d Cir. 2015)

". . . . Hence, based on Harvey, Plaintiffs' Section 1983 action asserting claims for illegal search and seizure and malicious prosecution in filing the criminal action was not cognizable until the potential for Epifanio to be convicted of the concurrent criminal charges had been extinguished. It was necessary for Barham to perform legal services to cause the criminal action against Epifanio to be resolved successfully in his favor before Plaintiffs could prevail on their Section 1983 claim. Plaintiffs are therefore entitled to an award of attorney's fees under Section 1988 for Barham's services related to defense of the criminal action, which were essential to advance Plaintiffs civil rights action. . . ." Beltran Rosas v. Cty. of San Bernardino, 260 F. Supp. 2d 990 (C.D. Cal. 2003)

"Defendants-appellants Officers Krzeminski and Lemons (the “Officers”) appeal from a judgment for nominal damages and attorney's fees entered in the United States District Court for the District of Connecticut (Eginton, J.) following a jury trial in a civil rights action predicated on an illegal search and seizure conducted in the home of plaintiffs-appellees. . . . Regarding the Officers' other challenges to the award of attorney's fees, we note that the trial judge's calculation of an award will not be disturbed unless he has abused his discretion. . . . the trial court awarded fees in the amount of $12,833.34. . . . On that basis, we find no abuse of discretion in the computation of the award. . . . ." Ruggiero v. Krzeminski, 928 F.2d 558 (2d Cir. 1991)

"On May 18, 1995, and December 1, 1995, police officers stopped Margaret Ann Myers while she was driving her car. With respect to the May stop, Myers alleged that she was illegally stopped, verbally abused, and that her car was illegally searched. As for the December stop, Myers claimed that she was illegally stopped, her car was illegally searched, and that her drivers license was confiscated and discarded, constituting conversion. . . . .Regardless, it appears clear that the district court did not abuse its discretion in assessing fees against Myers for her claims against the City of West Monroe and Officer Calhoun." Myers v. City of W. Monroe, 211 F.3d 289 (5th Cir. 2000)

 

[VTmtn.man]

House role call vote passed the threshold with 5 votes or so it will go to a 3rd reading. In listening to the legislators in session a consistent theme emerged. If the situation doesn't warrant arresting the individual merely citing them, than how is it constitutional to take their property away without due process? Many legislators thought that the bill should have focused on ways to remove the individual, without due process, not their firearms. It ran the gamut some very objective legislators pointing out the specific language "cited for, arrested for" meaning the presumption of innocence is written out of this bill entirely simply by being cited or arrested; (on suspicion of) should be the language. Other very emotional legislators all but broke down with sob stories from their personal, tangentially unrelated experiences... Thanks for the quality of the discussion, lots of good exposure to your keen minds.... It' will be interesting to see what comes out of the VT house prior to the crossover deadline 3-24.

 

[Spats McGee]

It actually sounds like it was a fairly reasonable debate, at least compared to some that I've heard in my day. Please keep us posted on this. It will almost undoubtedly be challenged at some point.

 

[VT Truth]

H.422 passed the House and is now in the Senate.

The anti-gun candidates pushing this bill were all using Bloomberg's Everytown facts and reports from the Joyce Foundation-funded Violence Policy Center.

Everything they were saying did not exist, is currently LAW, POLICY or PROCEDURE in Vermont.

What they originally wanted was EVERY weapon in the entire house without a warrant.
Law enforcement did NOT want to confiscate everything that could be a weapon.
The Defender General's office didn't want the bill because of constitutionality issues.

The bill was altered SIX times before going to the House floor because they finally got a version that the legal experts thought would be defendable in court!

THAT was the goal of the Committee Chair, get something they could defend in court because most citizens can't afford to sue the state!

Lots of discussion regarding this unconstitutional gun grab on our Facebook page.

All updates on this issue will be posted as they occur...

https://www.facebook.com/groups/144671155692751/