[fabsroman]

Lawsuit questions taking of property three years ago

Anthony Mora wants his stuff back--including the 41 guns taken by Gaithersburg police.

He's already asked the police who seized the guns that apparently were a threat to his safety.

The official police reply: Sign here, please.

But Mora won't sign--at least not the "Application for the Return of Firearms" that Gaithersburg police want him to fill out; Mora feels the questions it asks are an invasion of privacy aimed at embarrassing gun owners.

Compromises haven't worked. Neither side will budge.

So Mora filed a lawsuit in an attempt to end the stalemate by forcing police to return his guns.

"It's a classic case of government overreach," said Howard J. Fezell, Mora's attorney and a former National Rifle Association board member.

The suit, filed in federal court in Greenbelt July 22, seeks compensatory and punitive damages--with no dollar amounts specified--against the police who took and still have the guns, as well as an injunction ordering Gaithersburg to return Mora's property.

The suit also seeks a declaratory judgment that Gaithersburg has no authority to demand that Mora sign their "Application for the Return of Firearms," which Fezell claims violates Mora's constitutional rights as well as state laws pre-empting local jurisdictions from regulating the transfer of firearms.

A declaratory judgment concerns an interpretation of a law--in Mora's case, Fezell would ask the court to agree that state law precluded Gaithersburg from taking Mora's guns and doesn't permit the city from keeping them any longer.

A city attorney said Tuesday that Gaithersburg could not comment on the suit, as it hadn't yet been served a copy.

Fezell said Tuesday that the city would be served "very shortly."

The impetus for the suit occurred July 23, 2002, when police from Gaithersburg, the county and the county sheriff's department surrounded Mora near his Gaithersburg apartment, at 439 West Side Drive, after an acquaintance apparently told police Mora might be suicidal, Fezell said.

Mora, then a county firefighter, was readying for a weekend vacation when confronted by three officers "who had drawn their service weapons and yelled at the defendant to get on the ground," according to the complaint.

Police handcuffed Mora, who is still a firefighter and has since moved to Fairfield, Pa., and searched his apartment, where they found the 41 guns along with ammunition, gun-related books, a spotting scope and binoculars, among other items.

Mora has never been arrested or charged with any crimes.

Even more indefensible, Fezell said, is that police did all this without a search warrant or Mora's consent to search his property.

"They searched the gun safe, they searched the closets--everything," Fezell said. "They never had authority to search anything. They never had authority to seize anything."

The defendants, including Gaithersburg Police Chief Mary Ann Viverette, also have no right to ask Mora to fill out the firearms return form, Fezell said, explaining that it asks probing, personal questions that violate state law and discriminate against gun owners.

"They have this form that is totally off the wall in terms of what they're asking," Fezell said.

A copy of the police form provided by Fezell asks whether the person requesting the return of firearms is an alcoholic or drug addict and has ever attended 12-step meetings to deal with such problems.

Fezell said they haven't been able to "pin down exact" details of what happened the day police confiscated Mora's stuff. He said 911 tapes are kept by county police for 120 days and then discarded, and that Gaithersburg never got a copy of the tape.

But such details aren't as important to Fezell as the fact that state and federal laws appear to permit Mora to have guns, while Gaithersburg does not.

And that if the issue were about some other protected freedom, Gaithersburg wouldn't be asserting such authority. "If you're a gun owner," Fezell said, "it's a different story."