City police confiscates man's 41 gun collection three years ago and man has to sue

[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."

[DaMadman]

well clearly the guy must be a danger, why else would he have 41 guns and all that ammo

[jon lynn]

WHY, did the police go to him in the first place, it never specifies as to why they arrived.

[TheeBadOne]

Originally posted by jon lynn
WHY, did the police go to him in the first place, it never specifies as to why they arrived.

From the origional post:

Originally posted by fabsroman
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.

Suicide/Threat call

[denton]

If Mora hasn't broken any laws, was unarmed at the time the police intervened, and offered no resistance, and the police were not there to enforce any law, then it seems to me that the police committed armed robbery, assault with deadly weapons, burglary, grand theft, and thoroughly violated RICO under color of law. Why are they not doing time for multiple felonies?

[TheeBadOne]

Originally posted by denton
If Mora hasn't broken any laws, was unarmed at the time the police intervened, and offered no resistance, and the police were not there to enforce any law

Is that a question, or a statement of happenings?

Seems a reasonable course of action if a person made a credible threat of suicide by firearm ( I have no info to that effect, but it would be SOP to secure the person for an evaluation and secure the instrument(s) of suicide threat while there, be it pills, knife, or firearm).

[Niteowl]

Well I guess the mere fact that he was readying himself for a weekend of camping he must have been suicidal...duhhhhh! Had the cops done what they are supposed to do,IE; investigate,they may have figured it out that he was a firefighter(hey they might have even asked his captain??)I'm sorry but the LEO's are not always right...He should sue the pants off of them.

[denton]

Is that a question, or a statement of happenings?

I think the department and the officers are in deep legal do-do.

They cuffed him, and took him to the hospital for evaluation. Police officers need a court order, arrest warrant, or very sound legal basis before doing that, or it's unlawful imprisonment. JMO, but I think they need something a lot more substantial than "he might be suicidal" to cuff and incarcerate him.

Once he was in custody, he could not harm himself, and there was no need for further immediate action by the department. I can just hear the plaintiff's attorney:

So, officer Jones, where did you get your degree in phsychiatry?

I don't have one.

You're not licensed to diagnose mental illness in this state?

No.

Then exactly how did you determine that the plaintiff was suicidal?

We received a tip that he might be.

And how did you evaluate that tip, once you got to Mr. Mora's home?

We're not qualified to do that. We just took him into custody, and siezed his belongings.

You took him to the hospital?

Yes.

Did any of the doctors at the hospital diagnose him as suicidal?

No.

To your knowledge, he was treated and released?

Yes.

With no diagnosis?

That is correct.

So by what legal right did you enter his home, remove his belongings, and continue to hold them?

If what we are being told is accurate, and pretty much the whole story, the judge will drop kick the department through the goal posts of of over-reach, and the mortgage on Mr. Mora's house will be paid off. Of course, all the facts remain to been seen.

[fabsroman]

On this one, I think the police department, not necessarily the individual LEO's at the scene, are in the wrong. I would hate for this sort of action by police departments to become the norm. I would really hate for one of my clients to get pissed off at me in the future, and to get at me call the police department, log a tip that I am suicidal and that I have a plethora of guns, and next thing I know my collectors items are being tossed around as if they were my hunting guns, not that my hunting guns bet tossed around anyway.

On top of that, I could not imagine having to wait three years to get them back.

What I cannot believe is that the police department could not reach a compromise on this one.

Again, more of my hard earned tax dollars down the tube with lost Court time. Good thing I don't live 5 miles down the road in Gaithersburg or else it would be my tax dollars funding the city attorney.

[TheeBadOne]

Originally posted by denton
They cuffed him, and took him to the hospital for evaluation. Police officers need a court order, arrest warrant, or very sound legal basis before doing that

Ah, the crux of the matter. Who determines: legal basis

[denton]

Ah, the crux of the matter. Who determines: legal basis

You are right, of course. The legislature does, and the governor signs off on it, and it becomes law. Outside that, the police and courts have no authority to act.

We haven't been told what legal basis the police department thought they had. That remains to be seen, and is an important issue. Without a court order, or a warrant, my understanding is that generally they have to witness a crime being committed, or witness some clear and present danger to life, limb, or property in order to handcuff someone and haul them off. As far as we know at this point, none of those were present.

What they did was a major disruption of the man's life. You have to have an extremely clear and solid reason for making the level of intervention.

One problem, as fabs pointed out, is that the government has practically unlimited revenue, which they take from you and me. So the poor guy is paying his own attorney, and paying for part of Gaithersburg's legal bills, too. Still, I think the police department is in deep kim-chi.

[TheeBadOne]

Originally posted by denton
You are right, of course. The legislature does, and the governor signs off on it, and it becomes law. Outside that, the police and courts have no authority to act.

We haven't been told what legal basis the police department thought they had. That remains to be seen (but doesn't stop some from passing judgement), and is an important issue. Without a court order, or a warrant, my understanding is that generally they have to witness a crime being committed, or witness some clear and present danger to life, limb, or property in order to handcuff someone and haul them off. As far as we know at this point, none of those were present. (you must also add that we don't know that it wasn't present, or appear biased)

What they did was a major disruption of the man's life. You have to have an extremely clear and solid reason for making the level of intervention. (yes, and so far the whole story is not out there. If it was, this thread may not exist)

Still, I think the police department is in deep kim-chi. (and that is perfectly fine. It's your opinon, and far different than stating "They are in deep do-do" "They did wrong". Qualifiying it makes all the difference. Everyone is entitled to an opinion, but that doesn't mean it's the last word)

TBO

[denton]

If you are going to quote me, please quote accurately. My original statement was:

I think the department and the officers are in deep legal do-do.

Rather than:

.

far different than stating "They are in deep do-do"

Kindly take the time to read and understand before you criticize.

I have stated many times that we do not yet have all the facts. What I have said is that if the facts are as presented, then the department has some serious amends to make. I do not think you will find anything in any of my posts that conflicts with that simple statement.

Are you saying that if the facts are as presented, the department acted correctly?

If not, then we are probably in violent agreement.

[fabsroman]

I think we are going to have to start laying out fact patterns here. Kind of like when I write an opinion for a client of mine, I always say "According to the facts you have supplied me, which are the following: yadda, yadda, yadda, it is my legal opinion that you are SOL.

You guys are worried about the legislature and the governor signing law, how about the founding fathers that signed something called the Constitution. Last I checked, it protected against unreasonable searches and seizures, which this most likely was.

What I want to know TBO is whether or not the took away his driver's license and his knives.

As I said in a different post, more LEO's have been killed over the past decade in auto accidents than by firearms. That would lead me to believe that somebody could commit suicide by driving down the highway at 100+ and then entering oncoming traffic.

I think it is a bunch of BS that they confiscated this guys gun collection for 3 years. If the intent was to make sure that he did not commit suicide with the guns, I think they accomplished that. A three year cooling off period is a little much.


TBO,

You can try to defend this one on the we don't have all the facts yet, but lets assume the facts are exactly as laid out above. The LEO's responded on a tip. If you want, I'll try to get a copy of the Complaint and post it for everybody to read.

If I still had my federal Pacer ID, I could have pulled the Complaint up from the comfort of my office, but I don't do enough federal stuff nowadays to warrant having the system.

[TheeBadOne]

Fabs, if the suicide threat involved Guns as the Means, then they are taken. Makes no sense to take a car, DL, etc. However, he is brought in to talk with a Doc to offer professional opinon and help.