Man Charged with" receiving a mag with 20 + capacity"...?

[...]

why don't we just take back Maryland and destroy all of these stupid laws for good by making some amendment that says no new gun laws after we get rid of the current ones.

 

[CharlieFoxtrot]

Is that to imply that they believe that the transfer within the state of MD? Or, is it that they are making the rules up as they go once again and interpreting possession as being "receiving"?

My gut feeling after reading the whole statement of probable cause was the Trooper was just looking to throw any charges that he could dream up. No indication he consulted with the State's Attorney before filling out the paperwork or he had any actual evidence that Defendant received the magazine in MD. More of possessing this thing should be illegal so I'll charge him with it!

 

[OCSlacker]

Sounds like another case of a wife wondering out of the kitchen in nag mode.

Yeah I have 20rnd mags, and will admit that Maryland sucks regarding the laws. I bought my black rifle without a mag, it came with a 30 rnd, and I wasn't able to have it, the dealer stripped the mag and sold the parts to a gunsmith.

 

[Norton]

My gut feeling after reading the whole statement of probable cause was the Trooper was just looking to throw any charges that he could dream up. No indication he consulted with the State's Attorney before filling out the paperwork or he had any actual evidence that Defendant received the magazine in MD. More of possessing this thing should be illegal so I'll charge him with it!

Help me out procedurally here, having never been arrested or involved in the courts in any way.....

An officer in the field arrests someone and charges them according to his best understanding of the law, and let's presume in good faith rather than maliciousness. Are these the charges that show up in the charging documents or, at this point, has the DA gone over the charges and decided that this is what they are going to run with?

I'm just trying to figure if these are "raw" charges (ie the officer) or "distilled" charges (having been vetted by the DA).

 

[gamer_jim]

Help me out procedurally here, having never been arrested or involved in the courts in any way.....

An officer in the field arrests someone and charges them according to his best understanding of the law, and let's presume in good faith rather than maliciousness. Are these the charges that show up in the charging documents or, at this point, has the DA gone over the charges and decided that this is what they are going to run with?

I'm just trying to figure if these are "raw" charges (ie the officer) or "distilled" charges (having been vetted by the DA).

And what happens if someone is falsely accused of something? Is there compensation from the State for having been arrested, going to jail and court?

Can you sue the State in civil court for this?

 

[CharlieFoxtrot]

Help me out procedurally here, having never been arrested or involved in the courts in any way.....

An officer in the field arrests someone and charges them according to his best understanding of the law, and let's presume in good faith rather than maliciousness. Are these the charges that show up in the charging documents or, at this point, has the DA gone over the charges and decided that this is what they are going to run with?

I'm just trying to figure if these are "raw" charges (ie the officer) or "distilled" charges (having been vetted by the DA).

These are the "raw" charges. I can tell that these were the charges that were filed directly by the trooper at the time the Defendant was arrested. The State's Attorney's Office won't even get them until after they are filed. Each county is a little different procedurally as to when a prosecutor will get around to reviewing the charges.

 

[Norton]

These are the "raw" charges. I can tell that these were the charges that were filed directly by the trooper at the time the Defendant was arrested. The State's Attorney's Office won't even get them until after they are filed. Each county is a little different procedurally as to when a prosecutor will get around to reviewing the charges.

Thanks. That actually makes me feel a little better, knowing that this is the "raw" or "field" charges and haven't been reviewed by the SA's office yet.

 

[Norton]

Another thing.....does the charging officer have to cite a law/code in the charging documents or is it more of a verbal thing?

In other words, if the LEO, again acting in good faith, believes that red pants are illegal and charges them with that, do they have to cite a provision of code or do they simply write "wearing red pants" into the charging documents?

My point being, I find it hard to believe that every LEO is up to date on every nuance of the law....a perfect example would be the loaded magazine thing.

If the LEO has an understanding, due to his training and experience, that something is illegal do they have to lay their fingers on the actual law and cite it in the charging documents?

 

[one-star]

And what happens if someone is falsely accused of something? Is there compensation from the State for having been arrested, going to jail and court?

Can you sue the State in civil court for this?

Regrettably nothing, unless you can show either gross negligence or malfeasance of office. Basically you'd have to have a case like Cavalo where there is media attention and a clear stupidity before you even have a chance and even then you are likely to lose. LEOs are very good at protecting their own.

Innocent until proven guilty does not mean that you wont go broke, lose your job and generally get the shaft before you can fork over the $$ to a good atty, it just means that there is some hope you won't rot in a box for the rest of your life based on the testimony of a "paid informant" or an ex with a grudge.

 

[novus collectus]

Regrettably nothing, unless you can show either gross negligence or malfeasance of office. Basically you'd have to have a case like Cavalo where there is media attention and a clear stupidity before you even have a chance and even then you are likely to lose. LEOs are very good at protecting their own.

Innocent until proven guilty does not mean that you wont go broke, lose your job and generally get the shaft before you can fork over the $$ to a good atty, it just means that there is some hope you won't rot in a box for the rest of your life based on the testimony of a "paid informant" or an ex with a grudge.

Crispin Sorrell sued Sergeant Michael F. McGuigan of the Charles
County, Maryland, Sheriff’s Department, claiming among other
things that McGuigan was liable under 42 U.S.C. § 1983 for illegally
arresting him for carrying a folding knife with a three-inch blade. In
summary judgment proceedings, the district court concluded that
McGuigan arrested Sorrell without probable cause. The court also
concluded that McGuigan was not entitled to qualified immunity
because it was clearly established at the time of Sorrell’s arrest that
his knife fit within the penknife exception to Maryland’s concealed
weapons law. McGuigan appeals the denial of qualified immunity,
and we affirm....


....McGuigan suggests that a reasonable police officer would not necessarily
know specific Maryland cases on penknives. However, a reasonable
officer is presumed to know clearly established law. See
Harlow, 457 U.S. at 818-19 ("[A] reasonably competent public official
should know the law governing his conduct.").
Qualified immunity protects law enforcement officers from bad
guesses in gray areas. Wilson v. Layne, 141 F.3d 111, 114 (4th Cir.
1998). Because the legality of Sorrell’s penknife was clearly established,
Sergeant McGuigan was not in a gray area. Accordingly, we
affirm the district court’s order denying him qualified immunity.

http://pacer.ca4.uscourts.gov/opinion.pdf/011565.U.pdf

 

[OCSlacker]

I didn't realize there were questions regarding the process. I hope I can fill in the missing info.

1. Get Arrested. Processed and sit in jail. Normally the booking slip that is transported with the suspect has a 'primary' charge on it. That's what they'll be held for in the immediate time.

2. Officer gets pulled off the road to do 'paper'. Basically creates a charging document. This will include a narrative, vital information about the time/suspect/etc. There will also be a charging part. This will include the section and subsection of where to find each charge and the listing of the charge description itself.

3. The charging document is then given to the Sergeant or whoever is the duty officer of the shift to read over and approve.

4. Depending on the charges, the suspect is now fingerprinted, while the paperwork is sent to a court officer (a court commissioner).

5. The commissioners job is to review the charges to see they fit the crime and to review the suspect's past offenses and determine whether they are an escape risk or not. Based on that information the commissioner has the right to release the suspect on their own personal recognizance or via an unsecured bond, or place a secured bond on them (with the allowance of a bail review in front of a judge, normally the same day unless it's the weekend or late night).

6. Commissioner has their meeting with the suspect and explains the maximum penalties for each charge, verifies address, sometimes will set the court date (depending on the charge), and announces what will happen to them regarding bail or no bail.

7. If held on secured bond, then the suspect has to get the money. If they don't in a reasonable time, they are normally transferred to a local jail.


On situations to which more charges might be applied, a waiver of prompt presentation might be used between 1 and 2, and a meeting with the officer will normally happen. The officer will read the suspect their rights, and if cooperative the suspect may answer questions regarding the crime. This can then help determine what charges are to be done.

 

[one-star]

http://pacer.ca4.uscourts.gov/opinion.pdf/011565.U.pdf

Want to bet what the legal bill was on this? Counsel was a senior atty who also taught at PG college, chaired the ABA Privacy Law committee and practiced for 27 years, somebody like that bills out easily at 350/hr....before you get everyone else involved for both a District court and Appellant case.

Clearly also breaking the law didn't do much harm to McGuigan either...he's now a Captain and head of the St. Marys SWAT teams..
http://www.stmarystoday.com/News/CoffeyNamesCommandStaff.html

 

[CharlieFoxtrot]

Another thing.....does the charging officer have to cite a law/code in the charging documents or is it more of a verbal thing?

In other words, if the LEO, again acting in good faith, believes that red pants are illegal and charges them with that, do they have to cite a provision of code or do they simply write "wearing red pants" into the charging documents?

My point being, I find it hard to believe that every LEO is up to date on every nuance of the law....a perfect example would be the loaded magazine thing.

If the LEO has an understanding, due to his training and experience, that something is illegal do they have to lay their fingers on the actual law and cite it in the charging documents?

Yes. The charge itself consists of the actual language alleging an illegal act. e.g. "that x on such and such a date at Carroll County, Maryland did willfully steal the personal property of y having a value of $500 or more." Usually it’s followed by the subsection of the code that is alleged to be violated. The language is actually what is important as there is case law that says the language governs and the citing of the code is not part of the charge and is for informational purposes only. How the wording is generated is really the question. Some counties use a computerized booking systems where the officer states the facts in the statement of probable cause and sometimes lists what charges he think is appropriate at the end but it is actually the District Court Commissioner that picks out the charges after reading the officer’s report. The language in the actual charge is then generated from the Commissioner’s computer system. Carroll County still uses the old multi-part carbon forms and it is the arresting officer that writes in the language of the charge. They can do it totally on their own or they can consult with a "cheat book" that the commissioner usually has.
In this case he’s charged with receiving high capacity magazines, so if they find out later he manufactured them they would have to recharge.

 

[novus collectus]

Want to bet what the legal bill was on this? Counsel was a senior atty who also taught at PG college, chaired the ABA Privacy Law committee and practiced for 27 years, somebody like that bills out easily at 350/hr....before you get everyone else involved for both a District court and Appellant case.

Whoa!!



But the point is that now there is another precedent that the officer can be sued if they screw up a blatantly obvious law. If Sorrel was charged with something else too, then the other charge where there was error might not have been something he could sue for I would gather, but if let's say we are seen with a 30 round mag by an officer and they charge us for it by claiming we "recieved" it, then I can see a lawsuit occuring and maybe a successful one.

Clearly also breaking the law didn't do much harm to McGuigan either...he's now a Captain and head of the St. Marys SWAT teams..
http://www.stmarystoday.com/News/CoffeyNamesCommandStaff.html

Of course, but he was not charged with false arrest, he was sued for it. I guess Sorrel could have done a civil rights violation in fed court too (and possibly got no where with it), but to the best of my knowledge he did not.

 

[Ciderbarrel]

No, it is up to the state to prove that it was purchased within the state or recieved within the state, and that it wasn't recieved in the state or purchased within the state before it was illegal to do so.
The burden of proof is on the state and as I understand it if they arrest people knowing they have no reasonable evidence a crime was committed or repeatedly cannot prove a crime was commited in acquiring possession of the mag, then they will be faced with false arrest lawsuits galore.

Having a receipt would help prevent them from even trying though.

Maybe I've seen too many episodes of Law & Order: CI and SVU (and CSI and NCIS) but couldn't the cops just subpoena his CC records and from any charges at gun shops (local and afar) couldn't they get a copy of the invoices from the dealers (with a court order, if they could get one) and prove it that way.

Of course, if he paid cash in person to a dealer or some other person, it's all moot anyway.

 

[Echo Victor]

So while all this other stuff is pending with this guy, what about all his other guns they took? what happens to those?

 

[novus collectus]

Maybe I've seen too many episodes of Law & Order: CI and SVU (and CSI and NCIS) but couldn't the cops just subpoena his CC records and from any charges at gun shops (local and afar) couldn't they get a copy of the invoices from the dealers (with a court order, if they could get one) and prove it that way.

Of course, if he paid cash in person to a dealer or some other person, it's all moot anyway.

They would need a search warrant for that and for that they need probable cause. Just the presence of hte magazine without any other evidence anything was done illegally would not be probable cause IMO. It would be like finding someone with a Rolex watch and claiming that alone was enough probable cause to get a search warrant of their CC purchases to prove they did not buy it and it might be stolen.

There has to be enough evidence that a crime was possibly committed in order to have probable cause for a warrant. As I understand it (as a layman), just the presence or possession of the magazine which is not listed as a crime in code is not evidence by itself a crime occured. They need something else like let's say it is stil sitting in the box addressed to them with a return label from a parts distributor.

 

[Ciderbarrel]

As I understand it (as a layman), just the presence or possession of the magazine which is not listed as a crime in code is not evidence by itself a crime occured. They need something else like let's say it is stil sitting in the box addressed to them with a return label from a parts distributor.

Ah, ok then. That makes sense. Like others in the thread, I was very confused if possession was a crime.

 

[CharlieFoxtrot]

Holy Necropost Batman! Just wanted to follow up the thread. The prosecutor dropped the magazine charge before the trial admitting it was BS and the person in question was found not guilty today of all other charges.

 

[Boondock Saint]

That's great news!

Who wants to set the over/under on when he'll get his guns back from MSP?