Posted on 07/31/2008 5:19:13 AM PDT by marktwain
GUILDERLAND -- When Lou Matteo got his handgun collection back, town police averted a legal battle based on a new U.S. Supreme Court decision upholding an individual's right to own a gun.
Matteo, 75, turned over his firearms in March after a verbal spat with his wife led to an order of protection against him. Guilderland police refused to give the guns back, citing a federal law barring anyone under an order of protection from possessing firearms.
But on June 26, the nation's high court struck down a District of Columbia ban on handguns. The ruling also said long-standing provisions barring handgun possession by felons did not violate the Second Amendment.
Matteo has never been convicted of a crime, and his attorney, Tom Marcelle, said the Supreme Court ruling meant he was entitled to have his guns returned.
Matteo's case is the second locally and one of many expected nationwide in the wake of last month's decision, called District of Columbia vs. Heller, challenging legislation that bans or limits handgun ownership.
"Without the D.C. case, we have no case. 'Heller' basically was an invitation for people to test Second Amendment cases," said Marcelle, who won a 2001 Supreme Court case that allowed an after-school Bible study group in Otsego County.
In one of the first challenges under the landmark ruling, a Schenectady man is seeking dismissal of charges that he lied because he failed to disclose he was the subject of a protective order when he filled out a form used for background checks on people purchasing a firearm.
In March, Matteo was accused of ripping the phone from his wife's hand when she tried to call police to report his verbal abuse, according to court records. Guilderland police issued an order of protection, and he turned over the guns, which are registered and possessed legally.
A week later, however, the case was dismissed by Town Justice John Bailey, who ordered Matteo's guns be returned.
The Matteos said they no longer even remember what prompted their quarrel. Marisol Matteo signed statements that her husband had never threatened her with a weapon and she was not concerned about him ever doing so. The domestic dispute case was over.
But the order of protection remained. Marcelle said under the "Heller" decision, Matteo, a law-abiding citizen, was allowed to have his guns.
Town Attorney Dick Sherwood denied any link between the Matteo case and the Supreme Court ruling. He said the town must follow the existing federal law: Returning the guns requires an order from federal court, not a town court.
Matteo's guns were returned after he filed his case in federal court. Sherwood said a change in the law would eliminate an illogical legal process.
"You have the power to take the guns away, you don't have the power to give them back," Sherwood said. "Our hands were tied."
For Marcelle, it is only a matter of time before a town attorney somewhere tests the legal system by refusing to return guns to a person who has not been convicted of a crime, and that case will further define rights under the Second Amendment.
Scott Waldman can be reached at 454-5080 or by e-mail at swaldman@timesunion.com.
-----------------------------------------------------
I believe that the above statement is false. In fact, once the case was dismissed and the guns ordered returned, I believe the town was violating the law by not returning his lawfully owned firearms.
I do.
A restraining order isn’t a conviction.
You can get a restraining order fairly easily, especially when a spouse is involved.
The problem is that a liberal leaning judge will see this as a tool to remove guns in a prophalactic ruling rather than based on real evidence.
a TEMPORARY order is issued ex-parte without the other side without hearing usually with just written request.
These illiterate cops are saying the TEMPORARY without hearing ruling results in a permanent loss of fundamental rights?!!
It is not just plain wrong, it is vulgar and obscene for police to make that stand.
Yep.
That’s the best advice upon the first hint of marital problems.
A buddy signed his over to a friend on my advice.
And I have no problem with most restraining orders.
Ordering a person to stay away from you, as long as it doesn’t significantly impact their life, is an OK idea under most circumstances. Most people respect them, but they won’t even pause the hard-core crazies.
Just had a guy in Indy kill his wife, her boyfriend and then himself.
Restraining order didn’t do jack sh!t.
Taking away rights, however, is just wrong.
My ex-wife took my 9mm during our divorce and gave it to her lawyer. I discovered it gone about two weeks after she did it. I call her lawyer and told her she was in holding a stolen gun and I wanted it returned. It was locked in the lawyers desk. I told the female lawyer that she would return the gun or I will be in her office with the Fairfax County Police for keeping a stolen gun. I got the gun right back.
That is idiotic. Possession of the pawn ticket can be used to show “possession”. Any judge with a dime store law degree will not fall for that BS stunt.
The judge could order the monies turned over for support and direct the person to forfeit the ticket.
after a full and fair hearing.
We have judges using the Ex-parte window to essentially bypass the fundamental rights test.
Imagine an exparte gag order on free speech until a hearing two weeks later.
The adjectives just keep on coming when describing our "government run amok" that is so pervasive these days.
But it is an excellent opportunity for the police to go rummaging through your safe and decide what might look better in their safe.
Agreed.
Both parties should be represented.
Are you one of those people who spews his deep dark secrets to any authority figure? Then NONE of my advice on anything is for you.
Alternately you can rent a room from a trusted friend, and store your firearms there. It’s not a “transfer”, since they are stored in a space that you are renting.
“Most states you cannot transfer a gun without a dealer.”
A common misconception. The reality is the inverse. Most states do not require a dealer to be involved in a private transaction.
There are only a few nanny States like New Jersey, New York, Massachusetts, and California that require gun transactions to go through a dealer.
I don’t know since I’ve never had occasion to do it, but I’m told that, if a person pawns a gun, that person must undergo the same background checks to redeem it from pawn as if they were buying it for the first time. There is no recorded gun registration in my state so, even though I have a carry permit, the state has no way of knowing whether I have guns or not.
stupid woman. there was most likely no need for an OOP here. she just wanted to screw her husband for a little bit and didn’t think of the consequences. why can’t people act like adults?
Yes. It is:
It is run by Alan Korwin, a good friend of mine. He is a great guy, and very knowledgeable.
Not quite. Two entities in two different locations can not simultaneously possess the same item(s). It's a good move and it certainly beats giving up your firearms to the police (which is more idiotic). Remember, this is not a divorce case.
Here you just had to go and tell the world about the one trick that old timers have been using since waaaaaay back when.
I’d have filed the stolen gun report before calling the lawyer’s office.
I was not as pissed off as I was later. I had not met her lawyer yet. When I did, we were having a meeting. I got my pound of flesh then. I had her lawyer do pissed off she gave into my demands just to get out of the meeting. A mind is a terrible thing not to play with.
We definitely need the law changed in that respect. No person in this country should ever be made to give up their firearms in the case of a divorce or order of protection. Divorce is particularly terrible though.
That’s why when I get married, we’re signing a prenuptial. No matter how much I love her. =)
Well, to me the deal is the lawyer, if it wanted to be a pain, could simply deny having the gun, making it into a he-said, it said argument about a firearm. Icky to have flopping around during a divorce case. It sounds like it was OK for you in the end, and that’s good.
Lawyers greatest weakness is they think they know everything and they think you are afraid of them. I know they do not and I do not fear them.
Very true.
You can get a restraining order fairly easily, especially when a spouse is involved.
This,too,is true.No judge in his/her right mind is gonna deny an application for a restraining order from a woman so as to avoid ever seeing the headline "Judge Smith Could Have Saved Mary Jones By Approving Restraining Order".
I can assure you that "domestic violence" occurs.I know because I saw it during my 20 year tenure working in a big city ER.I've seen women badly beaten by their hubby/boyfriend.I've seen women who were murdered by their hubby/boyfriend.In fact,one of my most vivid memories of my 20 years was of a woman shot in the forehead by her husband/boyfriend.She didn't even make it to the OR.
OTOH,I'll wager the clothes on my back that some (most likely many) of the claims that women make regarding DV are false.And it's the possibility of false accusations that cause me to demand some kind of hearing that the "defendant" is allowed to attend (and to present evidence in) before the "abuser's" gun rights can be suspended for more than a short period.
So how will this prenup be worded? "If I ever ask a judge to issue a restraining order against you I agree that you'll be able to retain possession and control of your guns"?
That'll give her a warm fuzzy feeling.
Did you ever see a man beaten by the woman? Most of the time, they are reluctant to admit it.
Most of the studies that I have read on the subject indicate that in domestic abuse, the victims are evenly split between men and women. It is just that women have political correctness on their side.
Men are more likely to use their hands. Women are more likely to use an implement.
As I read in one of the articles, domestic violence most often tends to be a “dance of mutual destruction”, despite the propaganda that the left has so successfully foisted off on the public.
Advantage: It hoses the opposing lawyer.
Disadvantage: When cops are involved, personal guns sometimes disappear never to be seen again.
Good point. Problem is, in some places, not involving them amounts to grounds for them to take the guns, regardless.
In this case, how do you figure? Someone was in possession of property stolen from him. He offered them the chance to return it and avoid prosecution. I can’t believe that’s against any law.
A few times.That is,there were a few cases where a guy came in assaulted claiming that his wife/girlfriend did it.
Most of the studies that I have read on the subject indicate that in domestic abuse, the victims are evenly split between men and women. It is just that women have political correctness on their side.
I have no personal knowledge that would confirm or refute this statement,However,my *gut* tells me that it's not,in fact,*evenly* split while,at the same time,I'm willing to assume that female on male DV does occur.
Men are more likely to use their hands. Women are more likely to use an implement.
Men use their hands and implements.I know this to be true.Regarding women...I don't know.
As I read in one of the articles, domestic violence most often tends to be a “dance of mutual destruction”, despite the propaganda that the left has so successfully foisted off on the public.
I have no trouble believing that in some cases women who are "battered" are not 100% blameless.That is...sometimes a woman will do or say something that fully warrants an insulting response but not a slap...or a baseball bat...or a bullet.I can also accept that some women fail to take adequate steps at the first sign of abuse but,rather,come back again and again.
With the prenup, she won’t be able to take half of everything I have, and thus, according to the High Chancellors of the Judiciaries, I won’t be tempted to argue and/or possibly even harm her about anything.
At least, that’s probably how they think in Liberal Land.
Do you really think it’s fair that a women hires a lawyer, steals half your stuff, then files an order of protection against you, and has the firearms your father and grandfather gave you, alone with every one you purchase yourself, confiscated? What if that’s over 150 firearms? THEN, you’d surely be angry at her, and that I do not say in jest.
Unfortunately, gun control laws often don't follow logic.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.