Legal Help- "Tranportation of a Military Firearm"

[Avenger29]

Hey guys, I'm not in trouble but a very good friend of mine is. I'm down here in Greenwood and he lives up in Greenville. Early yesterday morning he was pulled over for a nonworking tag light by Greenville PD and after going through the usual "License and Registration" dance the officer saw his unloaded, with the bolt removed, old milsurp Mauser on the back seat of his car. The officer called for backup and they put him in cuffs and put him in the back seat of the cruiser but did not charge him straight away (yes, it is legal to do so).

They ended up calling in a judge who advised charging him with "Unlawful Transport of a Military Firearm" and they did so and he was taken to jail, held for 14 hours, and released on his own recognizance.

Now, the kicker is this. Plainly, as on SLED's own website, the charge does not apply to him at all.

Law:

SECTION 16-23-220. Unlawful transportation of machine gun, military firearm, or sawed off shotgun or rifle within State.

It is unlawful for a person to transport from one place to another in this State or for any railroad company, express company, or other common carrier or any officer, agent, or employee of any of them or other person acting in their behalf knowingly to ship or to transport from one place to another in this State a machine gun or firearm commonly known as a machine gun, military firearm, sawed off shotgun, or sawed off rifle, except as provided in Sections 16 23 250 and 23 31 330.
A person who violates the provisions of this section, upon conviction, must be punished pursuant to Section 16-23-260.

Definition of Military Firearm

(g) ?Military firearm? means any military weapon, firearm, or destructive device, other than a machine gun, that is manufactured for military use by a firm licensed by the federal government pursuant to a contract with the federal government and does not include a pistol, rifle, or shotgun which fires only one shot for each pull of the trigger.

Note that last part. Any idiot with a smartphone or computer can look that up on Sled's website and see that part, which clearly does not apply to an 80 year old bolt action Mauser. Well, at least it does to anyone with two brain cells to rub together.

Now my friend has done the smart thing...lawyered up and shut up (he's talking to his friends but not posting anything on Facebook or anything like that). He has consulted counsel and the lawyer is confident he can get the charges dropped via a simple letter or phone call but the lawyer wants $3500 to do the deed plus another $1500 if it goes to trial for a retainer (not to mention legal fees and such beyond that if it goes to trial.

I come here not to ask for money but for pointers and advice. I don't know the name of the lawyer he is consulting right now but if you know of any good upstate lawyers who are really good with firearms law it would be great if you could point me in their direction. Also if you know of any legal defense funds, groups, or ways to raise some money, shout at me. He is getting in touch with the NRA right now, too. Basically, anything ya'll can think of to point me towards would be great. We hope this can get dropped before going to trial but we are preparing an "Alamo defense" if it should go to trial.

 

[rotarymike]

Not knowing the 'rest of the story' is probably worth a lot, but that charge alone shouldn't garner that sort of legal fee. I'd take the lawyer up with the SC Bar for a fee dispute; $300-400 an hour is reasonable for an experienced lawyer. $3500 is highway robbery.

Of course, there could be other mitigating issues that bring the price up - rap sheet, etc.

Hell, if he's willing to pay travel costs I'd do it. PM me if interested.

 

[Avenger29]

He has no rap sheet other than traffic tickets.

I will PM you if needed, thank you for your generous offer. I thought the $3500 sounded high but as neither he nor I have ever needed to retain counsel, we don't have a reference point. ]

 

[rotarymike]

I usually start with misdemeanors at around $500 (depending on LOTS of variables). I don't usually do felony charges, but my mentor (an ex-prosecutor) does and starts at around $5k - but that's when there's some doubt about whether the client is guilty or the circumstances aren't good and we're looking at a plea or some jail time. For something like this, that should be able to be resolved with a phone call or series of emails at worst, much, much less.

 

[Avenger29]

Thank you for the info, sir. I really appreciate it as does my friend.

 

[armaborealis]

You may want to look into the NRA Civil Defense fund as well:
http://www.nradefensefund.org/

Same with the SAF.

EIther organization may also be willing to help with a lawsuit once the charges are dropped to at least recoup expenses.

 

[LiveFreeorDie]

If that's the whole story, it sounds like a gross misapplication of statutory law (read B.S.). This could be handled with a letter, a phone call, or dismissed at the preliminary hearing at worst. Has he hired the attorney yet? Let me know who it is and if I know him (or her) I can tell you if he's getting his money's worth. Sounds like a rookie freaked out at the sight of a gun (OMG, he has a weapon!) then had to find a charge to justify the arrest. I hope I never get stopped with my NFA items; the 5-0 wouldn't have a clue what to do and probably have never seen a tax stamp. Good luck to your friend.

 

[urbancommandox]

A bolt action rifle. With most likely the shortest police academy in the us no wonder sc law enforcement is a joke. Christ don't they show them guns in the academy. Wonder many peoples grandpas they hauled on to jail on the way to hunting.

 

[wylie]

So we have a cop who cannot find anything to arrest him for so he calls the Judge and they make up an illegal charge, this is the third time I have heard about anti-gun Greenville making up their own rules taking a dump on the Second Amendment and the people, am I missing something here is there something about Greenville I do not know, this case should be thrown out of court and charges dropped, and the cop and judge should be thrown in jail. I know they are doing this they're getting away with it, but how, does that town have a free ticket to do whatever they want to do

 

[11B3XCIB]

This is the same department that has a standard "run the serial number" policy without a search warrant.

 

[Midnight Raver]

Sounds like they are begging for some serious lawsuits there...

 

[John Canuck]

I hope your friend does well and beats this BS. It's a shame there is a group that has a habit of violating the rights of citizens, making up laws and generally dis-serving the public for which it is supposed to serve.

This thread was started for just this sort of thing, so I'll share it here even though it appears you may be getting some good advice already:
viewtopic.php?f=42&t=2581&p=24565#p24565

 

[Avenger29]

Thank you all for your assistance, we really appreciate it.

Sounds like a rookie freaked out at the sight of a gun (OMG, he has a weapon!) then had to find a charge to justify the arrest.

Definitely what it looks like on our end. I don't know if the cops thought they HAD to charge you once you are put in cuffs (they don't, they can just release you and say the cuffs were for officer safety and be on their way) or if they were just trying to cover up a mistake, but it took them a while to find a judge who came up with this (apparently the judge has never read the law he told them to apply, either)

By the way, do any of you more familiar with Greenville than me think they will release his rifle back to him once this is cleared up, or do they have one of those draconian "once it's in our possession, we destroy it" policies?

I'm going to pass along the list of the 2A friendly attorneys as well to him and see what we can do. I was worried sick after he got arrested but I think we have a real good chance of getting some great legal help and clearing this matter up rapidly...

 

[11B3XCIB]

If charges are dropped against him, they have to return his firearm. I read a case a while back (AR15.COM) where a guy was getting the run around after having charges dropped, trying to get a handgun returned. It took getting a letter from the DA who dropped the charges I believe. It's been a while since I read it, but ultimately, the police were doing everything they could not to turn it back over until it seemed like the guy was going to go after them.

 

[armaborealis]

In DC the cops permanently defaced some firearms without a good reason and are possibly getting sued.
http://www.washingtontimes.com/blog/gun ... iers-guns/

I imagine outright destruction would be an easy slam dunk lawsuit. Imagine if he authorities destroyed your car after a false DUI arrest when you blew 0.00.

Seriously, I'd have your friend contact NRA or SAF... Beyond just getting the charges dropped there may be a decent lawsuit here. Lawsuits or the threat thereof are one of the only effective ways to make these jurisdictions retrain their officers and change their behavior.

 

[carsontech]

I'm not sure why the officer had a problem with Avenger29's friend having a long gun in the backseat... actually, I do know why, but I'll save that rant for another time.

Most of you seem to have the idea, or may know, that what the original poster's friend was "doing" (possessing an unloaded rifle in the backseat of a vehicle) was legal.

As an exercise, let's look at the SC Code of Law for statutes, or lack of statues, to see why this may be legal...

From my research, according to state law, having an unloaded or loaded long gun in the back seat of a vehicle seems to be legal. Although, WMAs have there own regulations about possessing a long gun, but I'm not going to be talking about WMAs in this post.

See the following statute from the South Carolina Code of Law:

SECTION 50-11-760. Hunting from certain public roads and railroad rights-of-way prohibited; definitions; penalties.

(A) It is unlawful for a person to hunt from a public road or railroad right-of-way if the person does not have permission to hunt the land immediately adjacent to the public road or railroad right-of-way.

(B)(1) For purposes of this section, "hunting" includes:

(a) taking deer by occupying stands for that purpose; or

(b) possessing, carrying, or having readily accessible:

(i) a loaded centerfire rifle; or

(ii) a shotgun loaded with shot size larger than number four.

(2) For purposes of this section, "loaded" means a weapon within which any ammunition is contained.

(3) For purposes of this section, the terms "possessing", "carrying", and "having readily accessible" do not include a centerfire rifle or shotgun which is contained in a:

(a) closed compartment;

(b) closed vehicle trunk; or a

(c) vehicle traveling on a public road.

(C) A person who violates this section is guilty of a misdemeanor and, upon conviction, must be fined not less than one hundred dollars nor more than five hundred dollars or imprisoned for not more than thirty days.

(D) In addition to any other penalties, the department must suspend the hunting privileges of a person convicted of violating this section for one year from the date of the conviction.

HISTORY: [Derived from former Section 50-11-90 (1962 Code Section 28-308; 1958 (50) 1935; 1961 (52) 30, 506; 1965 (54) 477; 1969 (56) 274; 1977 Act No. 164, Section 1)]; 1988 Act No. 561, Section 1; 1993 Act No. 181, Section 1262; 2001 Act No. 69,Section 1; 2003 Act No. 50, Section 1.

http://www.scstatehouse.gov/code/t50c011.php


NOTE: For the rest of this post, in certain places, I will be substituting "centerfire rifle or shotgun with shot size larger than number four" with the term "long gun".

It appears that the statute defines "hunting" a few different ways. The following defines the "hunting", as relevant to this incident:

(b) possessing, carrying, or having readily accessible:
--(i) a loaded centerfire rifle; or
--(ii) a shotgun loaded with shot size larger than number four.

So, with that, we can take section (A) and replace the word "hunt" with that definition:

(A) It is unlawful for a person to possess, carry, or have, readily accessible, a loaded centerfire rifle or shotgun with shot size larger than number four on a public road or railroad right-of-way if the person does not have permission to possess, carry, or have, readily accessible, a loaded centerfire rifle or shotgun with shot size larger than number four on the land immediately adjacent to the public road or railroad right-of-way.

What that means, is that it is illegal for someone to be in possession of a loaded long gun on a public road if that person doesn't have permission of the owner of the adjacent land.

Very basic example:
It is illegal for you to possess a loaded long gun on the public road that runs adjacent to a grocery store if you don't have permission to possess that long gun on the property the grocery store owns.

As you may know, that which is not illegal, is legal. So possessing an unloaded long gun seems legal in the above situation, as there seems to be no law concerning unloaded long guns in that situation.


So, what if you have permission from the grocery store owner to posses loaded long guns on the grocery store property? Technically, carrying those long guns on the public roads and public sidewalks (assuming sidewalks are part of the public right-of-way), just outside of the perimeter of the grocery store, would be legal.

Were not finished yet, because there's an exception in the statute that "allows" loaded long guns anywhere in a vehicle (trunk, front seat, back seat, gun rack, etc):

(3) For purposes of this section, the terms "possessing", "carrying", and "having readily accessible" do not include a centerfire rifle or shotgun which is contained in a:
--(a) closed compartment;
--(b) closed vehicle trunk; or a
--(c) vehicle traveling on a public road.

Subsection (c) seems to be the exception that "allows" someone to to posses a loaded long gun "which is contained in a vehicle traveling on a public road." I take that to mean anywhere in a vehicle. I deduced that from the lack of the word "and", as well as the explicit use of the word "or".


Of course, since there's no statute or regulation, outside of WMAs, for an unloaded long gun, an unloaded long gun can be possessed on public roads while on foot or anywhere in a vehicle.


Keep in mind that everything discussed up to this point is state law, and does not supersede "local" law in cases of "careless or negligent discharge or public brandishment".

See the following statue:

SECTION 23-31-510. Prohibition against regulation of certain matters.

No governing body of any county, municipality, or other political subdivision in this State may enact or promulgate any regulation or ordinance which regulates or attempts to regulate the transfer, ownership, possession, carrying, or transportation of firearms, ammunition, components of firearms, or any combination of these things.

SECTION 23-31-520. Power to regulate public use of firearms; confiscation of firearms or ammunition.

This article does not affect the authority of any county, municipality, or political subdivision to regulate the careless or negligent discharge or public brandishment of firearms, nor does it prevent the regulation of public brandishment of firearms during the times of or a demonstrated potential for insurrection, invasions, riots, or natural disasters. This article denies any county, municipality, or political subdivision the power to confiscate a firearm or ammunition unless incident to an arrest.

I can't find a definition for the term "brandishment" in the SC Code of Law, but most dictionaries use the following definition:

1: to shake or wave (as a weapon) menacingly
2: to exhibit in an ostentatious or aggressive manner

http://www.merriam-webster.com/dictionary/brandish

To a reasonable person, a long gun sitting in the back seat of a vehicle doesn't fit either of those definitions.

If you run into a cop that that thinks brandishing is not what every other dictionary defines it as, you may beat the rap, but you might not beat the ride. That is, if a cop sees your loaded or unloaded scary rifle (AR, AK, etc). Of course, if it's out of view, concealed well under a blanket or something, they shouldn't notice anyway, but that's not the point.

We're not talking about loaded long guns hidden under a blanket. We're talking about an unloaded long gun, in plain site, in the back seat of a vehicle. From the statutes I could find relating to the subject, it appears that it's legal. Just as a having a loaded long gun, in plain site, in the back seat is legal.

The OP's friend shouldn't have been harassed by government employees with guns.

 

[John Canuck]

I was with you until you mentioned the reasonable man. It appears that standard isn't a criteria in some circles.

 

[rotarymike]

Nice statutory analysis. However, to get a complete picture you need to A. look at the legislative notes on the code sections cited (would explain exactly what the legislature meant the bill to do) and B. more importantly, relevant case law. Statutes are applied in accordance with previously decided cases, so what you read in the statute may not be how the law is actually interpreted. Look at the case law. If judge and jury decide you are guilty, you're going to jail regardless of the actual text of the law. You may win your appeal... in a few years. If you have the money.

Just a note of caution to anyone who is getting huffed up over this whole thing: we don't have the complete picture. We have one person's side, told through a 3rd party. You can armchair quarterback (or in this case, lawyer) all you want, but you need both sides, stare decisis, arrestee history, and to see the warrant/arrest paperwork before you can really figure out what was going on.

And as always, when discussing lawsuits, remember you can only sue the government, even a small municipal gov't, if they want you to. Typically that has been held to be the case if they maintain an insurance policy against the occurrence being sued over. So, cop car hits your car during a chase, you can sue because they have insurance on their cars and officer drivers. Probably don't carry insurance to cover handling damage to evidence. This is what happened in New Orleans after Katrina - they confiscated thousands of guns and stored them in shipping containers that flooded. Most were ruined. Individuals were mostly SOL because of sovereign immunity.

 

[fiundagner]

Actually, since you brought up Katrina, there was an interesting case decided in the supreme court today. The court rule 8-0 that the government must provide compensation for interfering with private property, even when that interference is only temporary. The case deals specifically with flooding of lands due to water released from a dam, but the decision used the word property, not land(s). Miriam-Webster defines property as

1
a : a quality or trait belonging and especially peculiar to an individual or thing
b : an effect that an object has on another object or on the senses
c : VIRTUE 3
d : an attribute common to all members of a class
2
a : something owned or possessed; specifically : a piece of real estate
b : the exclusive right to possess, enjoy, and dispose of a thing : OWNERSHIP
c : something to which a person or business has a legal title
d : one (as a performer) who is under contract and whose work is especially valuable
e : a book or script purchased for publication or production
3
: an article or object used in a play or motion picture except painted scenery and costumes.

I think 2-a, 2-b & 2-c may come into play in future decision regarding this. What brought it to mind was the flooding aspect. Maybe those Katrina owners want to bring their case back around? Also wondering how many future cases will be brought about this (specifically when the goverment sieze property and suspects are found innocent, etc).

 

[rotarymike]

Haven't read the decision, but usually property in a legal decision = real property (real estate). Personal property is referred to as such, or as chattel.