I just got a depressing call from Houlton ME PD Updated 7/20

[DRB]

Since when in the United States is it considered legal procedure for a defendant to carry the burden of proving innocence? Have you somehow managed to miss two hundred plus years of Constitutional law?

I know of several people who have been prosecuted for possesion of stolen property. They bought guns from the thief, they were prosecuted because they should have known they were stolen given the person they bought them from. That was the logic and they were convicted. It is not often it happens but the law simply says it is unlawful to posses stolen property how you going to prove you did not know it was stolen?

THE RCW of WA says this


(1) "Possessing stolen property" means knowingly to receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use of any person other than the true owner or person entitled thereto.

(2) The fact that the person who stole the property has not been convicted, apprehended, or identified is not a defense to a charge of possessing stolen property.

(3) When a person has in his or her possession, or under his or her control, stolen access devices issued in the names of two or more persons, or ten or more stolen merchandise pallets, or ten or more stolen beverage crates, or a combination of ten or more stolen merchandise pallets and beverage crates, as defined under RCW 9A.56.010, he or she is presumed to know that they are stolen.

Note that the person who stole the property need not even be ided and some items in some quattites it is assumed you know they are stolen. So if the cops call and say you have a stolen item and you refuse to surrender it to them by this definsition you are guilty. Bottom line is cooperate with the police and you will probably not be charged. Unless you have stolen access devices or pallets of merchandise. Then you are toast.

 

[Dale53]

I had a friend buy a used hand gun from a legitimate gun dealer, locally. The BATF subsequently contacted my friend with the bad news that the gun was stolen. He cooperated and turned the revolver over to the BATF. The dealer not only made good (refunded his money) but also gave him additional discounts on later purchases.

A good dealer will make good.

Dale53

 

[paplinker]

OK. This is the part that was missing. With this bit of information, the situation makes more sense.

I am not a lawyer and I didn't stay in a Holiday Inn last night. Nor have I ever even been to the State of Maine. However, from what little I remember from business law, I don't think you have any recourse against the dealer.

Unless you can prove the dealer knew the firearm was stolen, the courts will see him as a "victim" just like you. You will have to look to the thief for restitution and chances are he has already spent the money on drugs or alcohol or gambled it away.

I guess it is also possible that when the police finally got to the dealer, he was still holding a number of the firearms in inventory. The police would have confiscated those and he would be out whatever he paid the thief. So maybe he is in bad shape right now.

The only hope you may have is if the original owner (or another family member) may have deep pockets and may want to compensate all the victims so little Johnny the drug addict doesn't have this blemish on his record and besmirch the family name.

the family member thing could work to your advantage like broadside said. a few years back a drug dealer hit my parked truck on the street and was captured. he was not given bail until he paid full restitution for my truck. the lawyer wrote me a check(5500.00) right in the courthouse!! he intended to plead guilty for lesser charges so its worth considering.maybe guy just wants his guns and family back to normal.

 

[CAJUNLAWYER]

I know of several people who have been prosecuted for possesion of stolen property. They bought guns from the thief, they were prosecuted because they should have known they were stolen given the person they bought them from. That was the logic and they were convicted. It is not often it happens but the law simply says it is unlawful to posses stolen property how you going to prove you did not know it was stolen?

THE RCW of WA says this


(1) "Possessing stolen property" means knowingly to receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use of any person other than the true owner or person entitled thereto.

(2) The fact that the person who stole the property has not been convicted, apprehended, or identified is not a defense to a charge of possessing stolen property.

(3) When a person has in his or her possession, or under his or her control, stolen access devices issued in the names of two or more persons, or ten or more stolen merchandise pallets, or ten or more stolen beverage crates, or a combination of ten or more stolen merchandise pallets and beverage crates, as defined under RCW 9A.56.010, he or she is presumed to know that they are stolen.

Note that the person who stole the property need not even be ided and some items in some quattites it is assumed you know they are stolen. So if the cops call and say you have a stolen item and you refuse to surrender it to them by this definsition you are guilty. Bottom line is cooperate with the police and you will probably not be charged. Unless you have stolen access devices or pallets of merchandise. Then you are toast.

Key word is knowingly-state has to prove that.
This is what is known as a permissive presumption. Once this presumption is established by the facts as set out in the statute, the accused may offer an explaination, which if believed will negate the presumption.

Classic case is the hot check presumption that if you have not paid the check within 10 days from getting the demand letter thee is a presumption of intent to defraud. I had a case where the bank wrongly charges some fees causing about 4 of my client's checks to bounce. She was on Social security and cound not make them good as the bank would not reverse the charges. Classic case of negating the presumption of intent to defraud. Put her on the stand, she told the story and showed the bank receipts-NOT GUILTY. Now she still owed the money civilly, but she certainly os no criminal and does not deserve a criminal conviction. Always be careful with the presumptions as they can impermissibly shift the burden to te defendant. There are no irrebuttable presumptions in criminal law.
Before you call me on the DWI laws-read them carefully. It is against the law per se to drive with a BAC of .08 or above regardless if you are impaired or not. It is also against the law to drive while impaired whether ot not you blow over a .08 (ie on drugs).

No easy answers when it comes to law. That's why you pay the lawyer the big bucks to get you through the mess you sometimes find yourself in. The uneducated scream "Legal Techincalities" but the smart people, like those on this forum know better.

LAW ROCKS DUDES AND DUDETTES

 

[jrd1976]

He did say that if he can move some of the stock he has on hand that he will start giving refunds.

I would ask for $1,000 worth of "some of the stock he has on hand" instead of a cash refund, after you run the numbers through the database.

 

[southchatham]

This is very simple. Ask the dealer for a refund. If he does not refund all your money take him to small claims court, you'll win easily if you can prove the police took the gun because it was stolen. It is then up to the dealer to sue the guy who sold it to him if he wants to recover.

 

[mark454]

...Before you call me on the DWI laws-read them carefully. It is against the law per se to drive with a BAC of .08 or above regardless if you are impaired or not. It is also against the law to drive while impaired whether ot not you blow over a .08 (ie on drugs).

No easy answers when it comes to law. That's why you pay the lawyer the big bucks to get you through the mess you sometimes find yourself in. The uneducated scream "Legal Techincalities" but the smart people, like those on this forum know better.

LAW ROCKS DUDES AND DUDETTES

Cajunlawyer,
Not that I want to get off track here or that I am arguing your BAC law, but even if your BAC is over .08, what gives the state the right to put up a road block to check?

Back on topic:
If the dealer doesn't pay in a week or two, I would sue the dealer for the $1000.00 and not wait. 31 other transactions come to court before yours and then he will be broke. I would also think that winning a judgement would put a lien against his property (or the property of his corporation if he was smart enough to incorporate).
Good luck,
Mark

 

[CelticSire]

It is not often it happens but the law simply says it is unlawful to posses stolen property how you going to prove you did not know it was stolen?

No, it doesn't.

THE RCW of WA says this


(1) "Possessing stolen property" means knowingly to receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use of any person other than the true owner or person entitled thereto.

Note the word "knowingly.

(2) The fact that the person who stole the property has not been convicted, apprehended, or identified is not a defense to a charge of possessing stolen property.

Note that the person who stole the property need not even be ided and some items in some quattites it is assumed you know they are stolen.

The identity of the individual who stole the property is not an element of the offense.

So if the cops call and say you have a stolen item and you refuse to surrender it to them by this definsition you are guilty. Bottom line is cooperate with the police and you will probably not be charged. Unless you have stolen access devices or pallets of merchandise. Then you are toast.

No, by this definition you can be charged. Only a court can render you guilty. Your own submission specifically states "knowingly". And in your submitted example, once the police notify you that it is stolen, you now possess said knowledge. As to the presumptions of guilt, those must still be proven in a court of law.

I'd like to see the cases where someone was convicted simply because they "should have known the property was stolen because of who they bought it from." I suspect that there is much more proof than that in the case. I can see that as being one element of proof, e.g. buying from a known fence. However, we still have something in this country called "presumption of innocence" based in the Due Process Clauses of the 5th and 14th Amendments. The only time a defendant has a burden of proof is in the submission of an affirmative defense, and those situations are clearly stated in the applicable law or statute, and that is conspicuously absent in this case.

 

[pace40]

Unless you can prove the dealer knew the firearm was stolen, the courts will see him as a "victim" just like you.

Wow...81 posts for someone to realize that there might just be 3 victims here.

 

[Buford57]

The lawyers in our group (bless 'em) may correct me, but if I were the dealer and had limited resources to make someone whole I would pay the ones who sued me first. I would probably not hire a lawyer to advise me on how to wait out the expiration of any potential judgments or conceal my assets.

My experience with the families of druggie thieves who steal from their family members (and others - such as yourself and the dealer) has been that they will put up their homes as collateral to bond out a punk they know will run, just to keep him out of jail and pay the restitution for the same reason. Maybe this was the last straw and the family is ready to let Junior suffer the just consequences of his actions, but I wouldn't bet the farm on it.

 

[k22fan]

[...] There are no irrebuttable presumptions in criminal law. [...]

Cajun,
You oughta know by now that finding the exception to the rule another member just posted is sporting on this forum. Additionally, I'm curious if your generalization is in federal law and if so, whether it can be over ridden by state law as the Revised Code of Washington (RCW) appears to do by stating possession of a gun that's serial number has been removed is "prima facie evidence that the possessor has changed, altered, removed, or obliterated the [serial number]".

RCW 9.41.140: Alteration of identifying marks

No person may change, alter, remove, or obliterate the name of the maker, model, manufacturer's number, or other mark of identification on any firearm. Possession of any firearm upon which any such mark shall have been changed, altered, removed, or obliterated, shall be prima facie evidence that the possessor has changed, altered, removed, or obliterated the same. This section shall not apply to replacement barrels in old firearms, which barrels are produced by current manufacturers and therefor do not have the markings on the barrels of the original manufacturers who are no longer in business. This section also shall not apply if the changes do not make the firearm illegal for the person to possess under state or federal law.

 

[Sebago Son]

What about the Original Victim?

Here's another aspect to consider....

If the original owner / victim has received cash compensation for the gun's value from his insurance company, yet he receives his gun back from you through the PD, wouldn't it be appropriate for him to compensate you for your loss?

 

[madmikeb]

It's my understanding that if the owner/victims insurance company has paid a claim for the firearm then the property rightfully belongs to the insurance company and it would go to them.Not to the original owner.

Here's another aspect to consider....

If the original owner / victim has received cash compensation for the gun's value from his insurance company, yet he receives his gun back from you through the PD, wouldn't it be appropriate for him to compensate you for your loss?

 

[Sebago Son]

It's my understanding that if the owner/victims insurance company has paid a claim for the firearm then the property rightfully belongs to the insurance company and it would go to them.Not to the original owner.

If that's the case, then perhaps, if no other option presents it's self, you could negotiate to keep this gun for a percentage of their claim paid... you may be out of pocket a few more dollars, but you would then have unquestionable legal title to the gun.

Just a thought....

Drew

 

[k22fan]

Here's another aspect to consider....

If the original owner / victim has received cash compensation for the gun's value from his insurance company, yet he receives his gun back from you through the PD, wouldn't it be appropriate for him to compensate you for your loss?

It doesn't work that way. Upon paying the claim the insurance company becomes the owner of the stolen property. The police will hand the recovered 16-4 over to its original owner's home owner's insurance company. That doesn't help our O.P. at all.

Incidentally, it's common for the police officer who calls the home owner's insurance company to strike a deal to buy the gun for a low price during that call. The insurance company other wise has to send some one out to the P.D. to fetch it, they send another employee off the a store to sell the gun at wholesale.

 

[pharmer]

Looks like the FFL made the biggest mistake of his "career." Paid a couple thousand for the guns (the "collection" or whatever BS given), thinking it would be profits down the road. Found out that if it's "too good to be true", it is. If I was out the price of the 16-4, I'd take any "stock" the FFL has on hand as "settlement." Unfortunately, the upside is very limited in this situation, no matter what the law says. Joe

 

[CelticSire]

Incidentally, it's common for the police officer who calls the home owner's insurance company to strike a deal to buy the gun for a low price during that call.

I don't know how "common" such a practice is where you are, but in Texas the police officer would be subject to criminal prosecution for misusing his official position for personal gain.

 

[xcop]

Dealers buying used guns have to fill out a pawn ticket and copy it to the local pd in every state I am aware of. Thats how detectives catch a lot of crooks when they sell the stuff to the dealer. The dealer should have his copy of the pawn ticket attached to his book listing the transaction. If the dealer has the ticket then he is a victim like you. If he doesnt have the ticket then turn him into to the local pd because he is acting as a fence at that point. This happened to me one time many years ago.

 

[Hondo44]

My CA ffl dealer told me that every gun they purchase has to be quarantined for 30 days while it is checked for being stolen property. However, that is not required for guns sold on consignment or guns transferred face-to-face at the dealer's.

 

[Hondo44]

Sorry to hear this, but ,I've got one worse. My mother-in-law died at home with her Colt Cobra at her side. Detroit PD took the gun. When inquired about obtaining, they said it would be sent to MSP for destruction(ya, sure, DPD was still carrying lots of 38 revolvers,)our lawyer said he could get it back, but his fees would be more than the gun was worth. Some DPD officer is probably carrying this as a BUG. We went to the precinct of jurisdiction, I told them I had a carry permit, the male half laughed at me. The female was much more informative. It was the only thing she left to me.! Piss on the *******s. Wasn't the gun, was the memories. I hope they rot in hell, they don't have ANY right to treat you like ****.

Boy that sucks!!!!! I wonder if the NRA would take that one up and sue the s--- out of them to make an example of robbery by cop!