Posted in Rights Watch | 21 Comments

EXCLUSIVE: Why Did Cops Seize Guns From Vet Without Legal Cause?

By David Codrea

“NOW COMES the Plaintiff, Francesca Rice, by and through undersigned counsel…and brings forth this Complaint in Replevin against the Defendants,” a filing in the Lakewood Municipal Court, Cuyahoga County, Ohio, begins.

“Complaint in Replevin”? Essentially a legal demand for return of property.

“Defendants”? Those would be the City of Lakewood, Division of Police, and Timothy J. Makkey, Chief of Police.

What property? What did the Lakewood Police do?

“[T]he Lakewood vet had stockpiled her…condo with a home arsenal including handguns, shotguns, a sniper rifle — plus a Thompson sub-machine gun,” Cleveland Scene Magazine reported. “Her cache somehow caught the attention of Lakewood Police… When they found Rice wasn’t home, they asked an obliging employee of the complex to open up the apartment without her consent. Once inside, they raided the gun rack, making off with 13 firearms worth around $15,000.”

Except that they had no warrant and no probable cause. Everything was lawfully owned. Rice, a disabled military veteran, is not a prohibited person. So she asked them to return her property, by telephone and in writing. The result, per her complaint: “The Defendants…continue to fail and refuse to return said property.”

What’s clear from this is the police had no legal authority to do what they did, and yet continue to hold Rice’s property, which, as stated in the complaint, “has no evidentiary value and bears no relevance to police business.”

The court would appear to agree. The police department and its chief received a notice of proceeding from the Court stating it “issued an order in…favor of the plaintiff…directing that [seized firearms]…be taken from you.”

This was followed with a summons commanding the bailiff to notify the police and the chief that unless they appear “to answer the action…and for wrongfully detaining…property, goods and chattel…the petition…will be taken as true and judgment rendered accordingly.” And the bailiff was “further commanded immediately to seize and take into custody…the said goods and chattels” unless Defendants posted a bond.

So what’s going on? Both the Plaintiff and the Defendants are being tight-lipped, and information outside of the above-cited article and online court documents is scarce. Still, an e-mail list I’m on that includes lawyers and academics resulted in opinions that compelling a property owner to initiate action is unconstitutional and violates due process, and that courts have consistently held that firearms seizures require proper notice and an opportunity for a hearing.

Still, it’s not the first time we’ve explored such outrages—in the December 2008 “Rights Watch” column we discussed a gun owner in New York whose firearms were confiscated even though there were “no criminal charges against him, no convictions, no mental health diagnoses, no adjudication of any kind.” He had committed the sin of trying to communicate with Rep. Carolyn McCarthy on an area of disagreement, and that kind of presumptuousness will simply not be tolerated

Who among us has the resources to fight the government to reclaim what is rightfully ours? And for most of us who can’t afford it, how many would even try?

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  1. “Thirteen weapons – including a machine gun and sniper rifle – were taken when cops suspected Rice’s disability prevented her from owning them under Ohio law. Last week, with no further evidence from the VA that Rice couldn’t handle a gun, the police returned her weapons.”
    I found this information with 30 seconds of effort. The police it seems did have a reason to take the guns. It was later proven to be inaccurate and the guns were returned.
    If the police believe you are unqualified to own a weapon they will seize it. That is their job. Why are you trying to make them look like criminals?

    • If the police believe you are unqualified to own a weapon they will seize it. That is their job.

      Where is the proof that this person is “unqualified”? Just because the police “believe” something does not suspend a persons Constitutional rights. Where was their warrant listing just cause and signed by a judge? Being a disabled vet is not justification for what they did. She should sue everyone involved in this.

      • Are you kidding? Who says it is “their job” to determine whether a person has a right to legally own a handgun or weapon? The US Constitution’s Second Amendment: The Right to Bear Arms, has been upheld many times and more recently by the US Supreme Court. So are you inferring that local police have the right to illegally violate law biding citizens rights, based on their opinions in contradiction to the US Constitution and Supreme Court…. God help us if that is the case.. we are rapidly becoming a police state.

    • Because, ckerst, you Marxist dupe, THEY ARE CRIMINALS. What does it take for a person like you to wake up and smell the coffee? The entry and search:ILLEGAL. The seizure of the lawfully owned guns:ILLEGAL.Keeping said property when they had NO lawful right to do so:ILLEGAL. The cops are criminals, that’s why David showed the post in the first place. I do hope you can understand that committing a CRIME, even under color of authority, is still a CRIME. Suspicion of condition does not warrant the commission of a crime. The lawful process of inquiry, interview, and investigation, are limited by the Fourth Amendment. Ever hear of it? Do they look like criminals now? I pity you.

      • “when cops suspected Rice’s disability prevented her from owning them under Ohio law.”
        A warrant isn’t needed if the police have reason to believe a law has been broken. Ohio law doesn’t allow for someone to own a firearm if the are too disabled to handle it safely. When it was determined that she was not disabled to that point
        the guns were returned. The headline states it was done without legal cause, it was not. If you are suspected of being drunk you may be pulled over and tested, proof isn’t needed before you are pulled over. Learn some law and stop being a bunch of drama queens.

        • I served most of my adult life in the Armed Forces. I now travel around the world promoting education as the key to freedom. Police Officers are hired to uphold the law. They are not hired to take the law into their own hands. When police officers are given free reign to do “whatever they think is best” that is called a police state.

          Police Officers, and all government officials, should be held to much higher standards than the rest of us. The 2nd amendment was given to us to prevent this very issue you are trying to defend. No sir, they do not have the right to enter a home without a warrant and take someone’s property because they “feel” it isn’t safe.

    • Oh my gosh ckerst, don’t you know the difference between being “suspected” of something and ACTUAL EVIDENCE that someone is a prohibited person? Wow. Ckerst, do you work for the Lakewood PD? You sidestepped the illegal entry into the condo. Are you actually defending illegal entry into someone’s home AND defending illegal seizure (i.e. theft) of enough property to make it a felony? Do you know what a warrant is? You make it sound like her guns were promptly returned when they weren’t. The thieves held onto the property for considerable time and forced her to take legal action. You seriously sound like one of the officers who participated in this FELONY GRAND THEFT and felony deprivation of civil rights.

      • You forgot entering a space where someone lives in order to commit a crime (theft of her property). Most jurisdictions call that burglary.

  2. ckerst wrote “If the police believe you are unqualified to own a weapon they will seize it. That is their job. Why are you trying to make them look like criminals?”

    First off the police don’t have a job to determine whether or not someone is qualified to own a firearm. Courts or medical professionals are the only ones who can infringe upon an enumerated Constitutional right.

    Why are the cops criminals in this case? Because “belief” is not the same as “proven beyond a reasonable doubt” or “proven with a preponderance of evidence” or even a failed background check. Belief is NOT due process.

    If a cop steps beyond the realm of their responsibility and commit a criminal act are they in fact not criminals? By denying a US Citizen their full constitutional rights they have violated Article 18 Section 242 to show you that the Police in this case did in fact commit a crime.

    http://www.law.cornell.edu/uscode/usc_sec_18_00000242—-000-.html

    Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both;

    So ckerst, now that you know the facts, don’t you agree the cops should be charged with violating Rice’s constitutional rights?

  3. ckerst– magazine articles have long lead times and this column was written and submitted long before the follow-up article you found in 30 seconds.

  4. Simon Jester says:

    If the cops were so concerned about Rice’s legal ability to possess firearms, why didn’t they go through the legal processes available to obtain a complaint, warrant, etc.? It would appear that they are infused with the “only one” syndrome when it comes to firearms ownership and following laws that we “little people” are subject to.

    Fire them all and incarcerate them for violations of civil and constitutional rights. Now.

  5. The police did not return the property until they were forced to do so by the threat of a pending lawsuit. That is not “doing their job”. If they had returned the property when they were asked to do so, that would be doing their job.

    What we have here is the intersection of the Nanny State with official terror of potential liability. Very likely the police did not return the property because they feared that if something “bad” happened, they would be sued. It took a more immediate fear of lawsuit to force them to do the right thing. The intersection of Nanny state and fear of liablility trends toward a government where all that is not mandated is forbidden, exactly the opposite of the American standard of “All that is not forbidden is allowed”.

    • Close, but not quite. Doing their job would entail restricting their actions to the limits placed on them by the Constitution as well as federal and state law. Their actions were blatantly illegal and they must be prosecuted to the full extent of the law. Failure to do so sets a very dangerous precedent as well as a message that the police are not to be trusted, respected, or obeyed. In short, as soon as a police officer strays outside the legal limits of conduct, they are no different than any other dangerous, armed criminal and are subject to criminal prosecution.

  6. Diamondback says:

    America was supposed to be the “land of the free” not a “nation of laws” used to prey upon the people and steal their property, money, freedom, liberties and future!

    Sue their arses under 28 USC Sections 241 and 242. There may also be a cause in 42 USC but I don’t remember the exact section right now.

    Sue, sue, sue. That’s the only thing they fear from us – at the time being that is!

    It’s coming though. Prepare, Resist and WIN!

  7. S Barringer says:

    Wow, a definite criminal act by the police. What they did was the equivalent of deciding to take someone’s drivers license because some cop (subjectively) decided that some senior shouldn’t drive because he perceives a disability. That disability must be proven before the license can be taken. This usually means a qualified medical person, a doctor, must agree that the disability prevents the senior from driving in a safe manner. –Proven–
    I think that the gov, at all levels, is testing us to see whether or not we will stand up and demand our Constitutional rights. Too many times, we have failed to do so, so they keep testing and, in some cases, taking our rights away.

  8. So, assuming she prevails and gets her possessions returned, will that constitute a “transfer” in which all firearms have to be registered with DEA? Seems like they will probably screw with her that way, too. I’d like to know the answer to this.

  9. “don’t you agree the cops should be charged with violating Rice’s constitutional rights?” and ” Sue their arses”

    Wrong. Or at least incomplete.

    First, file charges for burglary, felony grand theft, unlawful possession of stolen property, and whatever other charges might fit the bill. Dol unto them as they would unto you – pile on the charges. Then, if the court fails to uphold the law, file charges against the court and all individuals involved – DA’s, Judges, et al.

    Then, for each separate case, do as they did to O.J. File civil lawsuits.

    Treat them like what they are. Criminals.

    To do otherwise, and for any court to allow claims of qualified immuity” makes a mockery of the law. W3ell, more than the courts already do anyway.

    • What these Police Officers have done is wrong, both constitutionally and morally, a violation of this Veterans Legally Given Rights and just outright wrong!!!
      And above all else she is a veteran!!! Treat her with a modicum of respect!!!
      Being a vet myself and having a VA “approved” disability this does worry me!!! Who will be next and who will determine how Disabled someone is?? The police(not medically qualified), the courts(again not medically qualified), a doctor(hopefully a unbiased third party doctor not associated with either the state or the vet!!!
      If she were to sue the officers and the department she would undoubtedly win this hands down!!! If they get away with it in one state other states may and will follow!!! Better to put a stop to it now!!!!

  10. Woody W Woodward says:

    Those who are empowered by law to enforce law choose to disregard law and commit an unlawful act against a citizen, then attempt to employ privilege to circumvent the law in order to dodge the consequences of their actions.

    Sadly, unless Ms Rice has some special “pull” in the jurisdiction wherein this travesty occurred, or enough funds to afford a competent attorney and plenty of time to wait out city hall’s continuances she will more than likely have to be content with the return of her property.

    [W3]

  11. I definitely savored every little bit of it and I have you bookmarked to check out new stuff you post.

  12. Darth Hulk says:

    If you are “unqualified” to own a weapon then perhaps it shouldnn’t be sold to you through legal channels. If she passed the BATF & FBI background check then how would she have not been qualified if her disability & background di no prevent her from having such? Seriously. Just another attempt by Big Brother to do what they want & steal away rights AGREED in the Constitution that are given & granted by God & Life!!!!

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