Posted on 11/07/2011 3:43:05 AM PST by marktwain
Most people land in Milwaukee County's "gun court" as defendants, charged with carrying a concealed firearm, being a felon with a gun or using one in a reckless manner.
But once a month, people appear on their own accord to ask the judge for help getting guns back from police, who in their effort to keep dangerous weapons off the streets might seize any and all guns in certain situations and sort out the details later.
A gun's lawful owner may not be convicted, charged or even involved, such as when someone in their household uses it when they're away. Or the gun may have been confiscated during the owner's arrest for an offense that didn't involve the gun and results in a citation or misdemeanor conviction that still allows them to possess a firearm.
Their cases highlight the increasingly delicate balance between law enforcement, safety and gun rights, one likely to become even trickier as Wisconsin residents begin legally carrying concealed weapons.
About 20 such petitioners pleaded their cases in October:
A Glendale woman wanted the gun her husband had used to commit suicide. A Milwaukee man, not charged with any crime, said police had not only his guns but cash and papers they took from a safe during an April search of his house.
A Milwaukee woman said police took her handgun after responding to a domestic dispute, even though the gun wasn't used. One guy said police had kept his shotgun, which his former girlfriend fired through the floor of her upper unit when he wasn't around.
One man had shot at a burglar outside his house. One had his gun stolen by his son, who was later convicted of using it in a crime. A Greenfield man said he was supposed to get his gun back after his divorce was finalized, but accused police of stalling.
Over the objections of a prosecutor but citing state law, Circuit Judge Charles F. Kahn Jr. ordered many of the guns returned, though he strongly urged every petitioner to get rid of them anyway.
"It's not a good idea, and absolutely not necessary, to have a gun," he told the crowded courtroom, acknowledging the assembled group wasn't likely to embrace his recommendation.
"The guns cause people's deaths and disability," he said. "I see it over and over."
Milwaukee police routinely recover thousands of guns yearly, from those taken directly from suspects to those recovered from thieves, to guns just found in a street or a burned-out house. Many lawful owners get them back without going to court, said Milwaukee police Capt. Jason Smith.
"We only make them do that if there was an arrest, or a gun was used in a crime, or there's suspicion of a straw purchase, or someone calls to get the gun back and they have no idea how we came to have it in the first place," he said.
The department returned 550 guns from June 2009 through mid-October, he said, and not many returns were the result of the couple dozen petitions that go before a judge most months. The rest are periodically fed through industrial metal shredders.
"Some people, you're surprised they're showing up" in court seeking a gun returned, Smith said. "Some people just want to roll the dice."
Nik Clark, president of gun rights group Wisconsin Carry Inc., thinks no one should have to wait months or go to court to get back their lawful property, even guns.
"If and when no charges exist, a person shouldn't have to go prove they deserve their property back. It should be incumbent upon departments to return it," he said. Many petitions, he said, get "denied on a whim. It's de facto prosecution."
He cited the case of a group member who was arrested and his gun seized because someone saw him wearing it at a gas station. He wasn't charged, but after he petitioned to get his gun back, he was cited for having worn it within 1,000 feet of a school. In 2010, he sued in federal court, and the city last month agreed to pay $6,500 to settle the case. But police still have the man's gun. Balancing act
Kahn, who rotated into gun court in August after a long stint in the civil division, tells petitioners that if they aren't felons, can prove they are the lawful owners and if the gun isn't needed as evidence in a case, they are entitled to get it back. But if they used the gun in a crime, even if they weren't convicted, they are not.
In October, Kahn ordered the return of the shotgun to the man whose ex-girlfriend shot it through the floor of her upstairs apartment, as well as the firearms taken from the man who fired at a suspected burglar and a man arrested but never prosecuted for a domestic violence incident. He also ordered Glendale police to return the gun to the woman whose husband had used it to kill himself.
A couple people were told they needed to come back with more proof they owned the guns, like purchase receipts, or affidavits, a will or pictures that would corroborate claims that guns were passed down from a grandfather.
One man said that would be hard because police took his gun, cash and all his important papers - like the gun receipt - from his safe. Kahn ordered police to bring the papers to another hearing.
Prosecutors and police say there's one more reason to deny someone a gun - a federal regulation that says it's illegal to turn any weapon over to a drug user.
A case was back in front of Kahn after Milwaukee police refused to honor his earlier order to return Nathan Maurer's guns. They were confiscated when police went to Maurer's house after he was arrested on charges of shining a laser pointer at police April 1. Police also found marijuana in Maurer's bedroom and cited him. He was not charged or cited for using the laser pointer.
A prosecutor argued that since Maurer had admitted to an officer that he used marijuana, the federal regulation barred him from getting the gun for a year, even if he currently was not a user. Kahn said the city should have filed a motion for reconsideration, not just ignored his order. A hearing on that motion is now set for December. Making their case
Kevin Carter wanted a gun his son had stolen from him and used in a 2009 crime. After Kahn confirmed the son had been convicted, sentenced and no appeal was pending, he ordered the gun returned.
"But has this gun ever done anything good for you?" Kahn asked.
"Since I bought it, I maybe looked at three times," Carter said. "I might as well have it."
"Except that awful things happen," Kahn said.
In another case, Milwaukee police took Bernard X. Smith's gun when they searched his house in April after a confidential informant said he bought marijuana there twice. Police seized 1½ grams of the drug and a gun. Smith pleaded guilty to misdemeanor possession and served three days in jail.
He asked for the gun back but police cited the federal rule against giving guns to drug users.
Smith, 40, insisted he's not a user. Kahn said possessing marijuana doesn't automatically make Smith a user.
"Well, that and the pipe that was also recovered," said Assistant District Attorney Christopher Rawsthorne. "The court can draw inferences."
He asked Kahn to continue the hearing another month so he could bring in a police officer to testify about what Smith had said to him about using pot. Kahn agreed, but Smith just shook his head.
"I'm tired of this," he told Kahn. "I don't want to miss work. I'll take your advice and just let them destroy (the gun)."
Kahn told Smith that made more sense.
"I'll note you're withdrawing the petition because you decided to use greater wisdom," Kahn told him.
Wow! That judge is certainly not biased in any way!/S
Take the judges gavel away, force him to show he’s capable of using it safely. Proof of ownership is also required.
“The guns cause people’s deaths and disability,” he said. “I see it over and over.”
Hey judge, READ MY TAGLINE! Stinking brown shirt with a gavel, I swear
To his credit, he ruled on the law, not his preferences. Still, not quite as impartial as one might desire.
This judge has no bias whatsoever, none ...
"It's not a good idea, and absolutely not necessary, to have a gun CAR," (There are buses available.) ... "Guns CARS cause people's deaths and disability," ..... "I see it over and over."
The judge is inforcing the law in spite of his personal biases. I’d rather deal with a leftist judge who never the less follows the law honestly then some crooked RINO type judges; I’m a big boy who can take a few “lectures” from a leftist.
Say's the guy who works in a building surrounded by people carrying guns. What a hypocrite in a court violating the 4th Ammendment.
Sorry to disagree but my employees, people that are paid from my taxes, don't get to lecture me about matters that are settled by higher courts. Judges can deal in facts and keep their biased opinions to themselves.
“Smith said. “Some people just want to roll the dice.””
I am 45. Been rolling the dice since I was 18 and got my first rifle. I know probably close to 20 people all who have guns. Two of them have used their guns in a defensive role. Zero have used their guns to commit a crime, against a family member, suicide, or any other negative outcome.
I’ll keep rolling those Dice. Ted Kennedy’s car has killed more people than my guns!
““The guns cause people’s deaths and disability,” he said. “I see it over and over.”
Hey judge, READ MY TAGLINE! Stinking brown shirt with a gavel, I swear”
Yeah you see it Over and Over because you work in a position that deals with criminals! The people coming to see you are the people charge with committing the very offense. The judge has no idea of the scope of the issue. It’s like a drug dealer saying he is sad about people having cash. Because people go to him and use cash to buy drugs over and over and over.
Guns are just tools. If criminals didn’t have guns they would find some other way.
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
Second Amendment.
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed
It isn't rocket surgery. If a judge can't follow it, they need to be removed from the bench. With extreme prejudice if necessary.
"Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."
Where do states get the authority to set up these "courts" [gun court, drug court, DV courts]? Do the have language similar to Article III in their respective constitutions or do they just call it 'administrative action' or some such other meaningless nonsense?
To the contrary, Judge Kahn, your very remarks illustrate why it's an absolute necessity.
>Where do states get the authority to set up these “courts” [gun court, drug court, DV courts]? Do the have language similar to Article III in their respective constitutions or do they just call it ‘administrative action’ or some such other meaningless nonsense?
Yes, they do; ALL of the State Constitutions I’ve read set up a judicial branch.
As your profile indicates you a citizen of Texas, you might find this of interest/use: http://www.tlc.state.tx.us/pubslegref/TxConst.pdf
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