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Owner gets back guns taken by police
Timesunion.com ^ | 30 July, 2008 | SCOTT WALDMAN

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.


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; US: New York
KEYWORDS: banglist; gun; heller; lautenberg; shallnotbeinfringed
"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."

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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.

1 posted on 07/31/2008 5:19:13 AM PDT by marktwain
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To: marktwain
I have no problem with someone who has a restraining order against him/her being *temporarily* forbidden to possess firearms.But some kind of court procedure in which clear proof of “dangerousness” would have to be presented must be enacted to turn the temporary ban into a long term ban.
2 posted on 07/31/2008 5:28:54 AM PDT by Gay State Conservative (Obama:"Ich bein ein beginner")
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To: Gay State Conservative

I do.
A restraining order isn’t a conviction.
You can get a restraining order fairly easily, especially when a spouse is involved.


3 posted on 07/31/2008 5:32:59 AM PDT by SJSAMPLE
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To: Gay State Conservative

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.


4 posted on 07/31/2008 5:37:57 AM PDT by longtermmemmory (VOTE! http://www.senate.gov and http://www.house.gov)
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To: marktwain; Gay State Conservative
In NH the law is arrested for DV, weapons are seized, the perp can get them back by court order. This NH law maybe moot sine the SCOTUS has ruled.
5 posted on 07/31/2008 5:38:49 AM PDT by tiger-one (The night has a thousand eyes)
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To: SJSAMPLE

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.


6 posted on 07/31/2008 5:40:59 AM PDT by longtermmemmory (VOTE! http://www.senate.gov and http://www.house.gov)
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To: SJSAMPLE
You are correct but that doesn't stop them. They have done this for years and many people have been deprived of their guns(property) on a mere allegation. NEVER willing surrender you guns to the cops. Take them and pawn them until you get it cleared up.
7 posted on 07/31/2008 5:42:19 AM PDT by mad_as_he$$ (Constantly choosing the lesser of two evils is still choosing evil.)
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To: mad_as_he$$

Yep.
That’s the best advice upon the first hint of marital problems.
A buddy signed his over to a friend on my advice.


8 posted on 07/31/2008 5:47:18 AM PDT by SJSAMPLE
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To: longtermmemmory

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.


9 posted on 07/31/2008 5:49:32 AM PDT by SJSAMPLE
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To: SJSAMPLE

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.


10 posted on 07/31/2008 5:49:46 AM PDT by bmwcyle (If God wanted us to be Socialist, Karl Marx would have been born in America.)
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To: mad_as_he$$

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.


11 posted on 07/31/2008 5:50:44 AM PDT by longtermmemmory (VOTE! http://www.senate.gov and http://www.house.gov)
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To: SJSAMPLE

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.


12 posted on 07/31/2008 5:53:12 AM PDT by longtermmemmory (VOTE! http://www.senate.gov and http://www.house.gov)
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To: longtermmemmory
Vulgar, obscene, stupid, criminal, tyrannical, vicious, violating, etc...

The adjectives just keep on coming when describing our "government run amok" that is so pervasive these days.

13 posted on 07/31/2008 5:53:25 AM PDT by Dead Corpse (What would a free man do?)
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To: longtermmemmory
It is not just plain wrong, it is vulgar and obscene for police to make that stand.

But it is an excellent opportunity for the police to go rummaging through your safe and decide what might look better in their safe.

14 posted on 07/31/2008 5:59:17 AM PDT by TC Rider (The United States Constitution - 1791. All Rights Reserved.)
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To: longtermmemmory

Agreed.
Both parties should be represented.


15 posted on 07/31/2008 6:18:41 AM PDT by SJSAMPLE
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To: longtermmemmory
It is only idiotic if you let it be discovered. At the very least you can have the judge tell the pawn shop not to turn them back over to you until the matter is cleared up - in the unlikely event the deposit is discovered. But hey if you want to give your guns to the cops go right ahead. Most states you cannot transfer a gun without a dealer. Pawn shops are dealers so they can hold it without a transfer. in states where you can "give" your guns to someone you really trust.

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.

16 posted on 07/31/2008 6:20:28 AM PDT by mad_as_he$$ (Constantly choosing the lesser of two evils is still choosing evil.)
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To: mad_as_he$$

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.


17 posted on 07/31/2008 6:27:01 AM PDT by PapaBear3625 ("In a time of universal deceit, telling the truth is a revolutionary act." -- George Orwell)
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To: mad_as_he$$

“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.


18 posted on 07/31/2008 6:51:26 AM PDT by marktwain
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To: longtermmemmory

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.


19 posted on 07/31/2008 7:04:18 AM PDT by Emmett McCarthy
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To: marktwain
I'll take you word for it but I thought the preponderance of States require a dealer for transfer. I am most familair with Kalifornia so that is my main reference. In any case do not do something to transfer any guns that might result in a felony rather than a domestic misdemeanor. Isn't there a site for gunlaws (gunlaws.com?) or such?
20 posted on 07/31/2008 7:14:42 AM PDT by mad_as_he$$ (Constantly choosing the lesser of two evils is still choosing evil.)
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To: PapaBear3625
Good option - just make sure if you have a pissed of spouse she/he does not find out about it. Yes I have friends my wife of 25 years does not know about - as she does.
21 posted on 07/31/2008 7:16:29 AM PDT by mad_as_he$$ (Constantly choosing the lesser of two evils is still choosing evil.)
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To: marktwain

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?


22 posted on 07/31/2008 7:19:12 AM PDT by thefactor (contributing nothing of value to threads since 2001...)
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To: mad_as_he$$
“I'll take you word for it but I thought the preponderance of States require a dealer for transfer. I am most familair with Kalifornia so that is my main reference. In any case do not do something to transfer any guns that might result in a felony rather than a domestic misdemeanor. Isn't there a site for gunlaws (gunlaws.com?) or such?”

Yes. It is:

http://www.gunlaws.com/

It is run by Alan Korwin, a good friend of mine. He is a great guy, and very knowledgeable.

23 posted on 07/31/2008 7:23:33 AM PDT by marktwain
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To: longtermmemmory
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.

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.

24 posted on 07/31/2008 7:32:50 AM PDT by Niteranger68 (When it comes to Obama, just keep the change.)
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To: PapaBear3625

Here you just had to go and tell the world about the one trick that old timers have been using since waaaaaay back when.


25 posted on 07/31/2008 9:01:19 AM PDT by B4Ranch (Having custody of a loaded weapon does not arm you. The skill to use the weapon is what arms a man.)
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To: bmwcyle

I’d have filed the stolen gun report before calling the lawyer’s office.


26 posted on 07/31/2008 9:05:58 AM PDT by Cyber Liberty (Who would McQueeg rather have mad at him: You or the liberals? FREE LAZAMATAZ!)
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To: Cyber Liberty

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.


27 posted on 07/31/2008 9:46:33 AM PDT by bmwcyle (If God wanted us to be Socialist, Karl Marx would have been born in America.)
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To: marktwain

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. =)


28 posted on 07/31/2008 9:48:18 AM PDT by wastedyears (Show me your precious darlings, and I will crush them all)
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To: bmwcyle

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.


29 posted on 07/31/2008 9:50:39 AM PDT by Cyber Liberty (Who would McQueeg rather have mad at him: You or the liberals? FREE LAZAMATAZ!)
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To: Cyber Liberty

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.


30 posted on 07/31/2008 9:55:52 AM PDT by bmwcyle (If God wanted us to be Socialist, Karl Marx would have been born in America.)
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To: SJSAMPLE
I do.A restraining order isn’t a conviction.

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.

31 posted on 07/31/2008 9:56:05 AM PDT by Gay State Conservative (Obama:"Ich bein ein beginner")
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To: wastedyears
That’s why when I get married, we’re signing a prenuptial. No matter how much I love her. =)

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.

32 posted on 07/31/2008 10:00:19 AM PDT by Gay State Conservative (Obama:"Ich bein ein beginner")
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To: Gay State Conservative
“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.”

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.

33 posted on 07/31/2008 10:43:47 AM PDT by marktwain
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To: Cyber Liberty
I?d have filed the stolen gun report before calling the lawyer?s office.

Advantage: It hoses the opposing lawyer.

Disadvantage: When cops are involved, personal guns sometimes disappear never to be seen again.

34 posted on 07/31/2008 11:16:03 AM PDT by Still Thinking (Quis custodiet ipsos custodes?)
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To: Still Thinking

Good point. Problem is, in some places, not involving them amounts to grounds for them to take the guns, regardless.


35 posted on 07/31/2008 11:18:01 AM PDT by Cyber Liberty (Who would McQueeg rather have mad at him: You or the liberals? FREE LAZAMATAZ!)
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To: Cyber Liberty

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.


36 posted on 07/31/2008 11:22:39 AM PDT by Still Thinking (Quis custodiet ipsos custodes?)
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To: marktwain
Did you ever see a man beaten by the woman? Most of the time, they are reluctant to admit it.

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.

37 posted on 07/31/2008 11:27:54 AM PDT by Gay State Conservative (Obama:"Ich bein ein beginner")
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To: Gay State Conservative

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.


38 posted on 07/31/2008 12:11:46 PM PDT by wastedyears (Show me your precious darlings, and I will crush them all)
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To: Still Thinking
You make a great point of logic.

Unfortunately, gun control laws often don't follow logic.

39 posted on 07/31/2008 12:17:51 PM PDT by Cyber Liberty (Who would McQueeg rather have mad at him: You or the liberals? FREE LAZAMATAZ!)
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