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The Scout, the suspect and the SWAT team Shooting:
Baltimore Sun ^ | 18 March 2002 | Gail Gibson, Michael James and Laura Barnhardt

Posted on 03/18/2002 3:06:32 AM PST by Lloyd227

Edited on 09/03/2002 4:50:07 AM PDT by Jim Robinson. [history]

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To: Lloyd227
Here is the first paragraph of an article from the Baltimore SUN. The full text is available in their archives here:

http://nl.newsbank.com/nl-search/we/Archives?p_product=BS&p_theme=bs&p_action=search&p_maxdocs=200&p_field_label-0=Section&s_dispstring=allfields(Braga)%20AND%20section(*)%20AND%20date(2002)&p_field_date-0=YMD_date&p_params_date-0=date:B,E&p_text_date-0=2002&p_field_advanced-0=&p_text_advanced-0=(%22Braga%22)&p_perpage=10&p_sort=YMD_date:D&xcal_useweights=no

As I did not wish to subscribe to their service I am unable to provide you with the prosecutors name.

No indictment of FBI agent in shooting
Pasadena man mistaken for bank-robbery suspect
'Serious breakdowns' revealed
Anne Arundel grand jury deliberates 20 minutes

Published on: July 3, 2002
Edition: FINAL
Section: TELEGRAPH
Page: 1A
Byline: SUN STAFF

Andrea F. Siegel and Laura Barnhardt

An Anne Arundel County grand jury decided yesterday not to indict an FBI agent who mistook an unarmed Pasadena man for a suspected bank robber and shot him in the face.The grand jury deliberated 20 minutes before declining to indict Special Agent Christopher Braga on charges of first-degree assault, second-degree assault or reckless endangerment in the shooting, county prosecutors said.Braga shot Joseph C. Schultz, 20, in the face with an M-4 rifle March 1. Schultz was riding in a car

Click here for the complete text of article 10
251 posted on 01/27/2003 2:31:49 PM PST by OTA
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To: Lloyd227
Here is the first paragraph of another article on the second page, stating that the probe into the shooting included testimony from Mr. Schultz:

Probe of FBI shooting begins
Grand jury hears from man wounded when mistaken for bank robber

Published on: June 26, 2002
Edition: ARUNDEL
Section: LOCAL
Page: 1B
Byline: SUN STAFF

Andrea F. Siegel

A grand jury investigating an FBI agent's mistaken shooting of an unarmed Pasadena man in March began taking testimony yesterday, with the wounded 20-year-old as one of the first witnesses.The Anne Arundel County grand jury is expected to hear many more witnesses as it considers whether to indict FBI Special Agent Christopher Braga for shooting Joseph Charles Schultz on March 1 as Schultz and his girlfriend returned from a trip to a mall.Braga mistook Schultz for a bank robbery

And another on the third page:

Grand jury to get FBI case
Panel to weigh indictment in mistaken shooting
Victim, girlfriend summoned
Agent who shot man, 20, not expected to testify

Published on: June 18, 2002
Edition: FINAL
Section: LOCAL
Page: 1B
Byline: SUN STAFF

Laura Barnhardt and Andrea F. Siegel

Anne Arundel County's prosecutor will ask a grand jury next week to decide whether an FBI agent who mistakenly shot and wounded a Pasadena man in March should be indicted in the case.Instead of determining himself whether the shooting was justified, State's Attorney Frank R. Weathersbee will begin presenting the case to a grand jury Tuesday, authorities confirmed yesterday.By asking for the grand jury to meet, prosecutors avoid some of the controversy that would surround a

Click here for the complete text of article 14





252 posted on 01/27/2003 3:01:25 PM PST by OTA
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To: OTA
FYI: I have arrested individuals for violations of federal law, and have tesified before both federal grand juries as well as in trial.

Let's adress the "state misdemeanor" question. Let's take a hypothetical. In 1979 you are charged with, and plead guilty to common law assault in Maryland. The maximun penalty is twenty (20) years, even though you may only receive a 1 year sentence even if that one year is probation or time served or thirty days in the county pokey. The (Federal) gun control act of 1968, specificly 18 U.S.C. 922(g)(1) prohibits a person who "has been convicted of a crime punishable by a term of imprisonment exceeding one year". If you can receive a sentence of one year and a day you are a "convicted felon" for purposes of the statute. Although you might not like it, that's the law. Now the question here is this......as an LEO how do you approach this situation? As I told you before I have given the person (providing there is no record of further violent criminal activity)the option of turning the firarm over to a third, non-prohibited person, selling it at a dealer or abandoning it. I dare say The U.S. Attorney's office here in Maryland wouldn't prosecute it anyway.

Now if you are dealing with a person with numerous assault convictions or additional convictions for more serious violent felonies (i.e. attempted murder, murder etc.) I would certainly approach the situation differently.
253 posted on 01/27/2003 3:40:49 PM PST by OTA
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To: OTA
Additionally yes,I have arrested illegal aliens, a number of whom have been deported.
254 posted on 01/27/2003 4:00:27 PM PST by OTA
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To: OTA
OTA,
Thank you for the updates and for the links to the article. I apologize for my rant and withdraw my attacks on Mr. Braga. While this situation still seems fishy judging by the newspapers, I was not aware that the evidence had been presented to a Grand Jury and this does put things in a different light.

Best regards,
Lloyd

255 posted on 01/27/2003 9:16:07 PM PST by Lloyd227
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To: OTA
If you are MD. LEO I have some questions:

Have you been instructed to follow up on leads generated by the Sniper Tip Line?

Are you aware of any ongoing investigation of gunowners being questioned based on Sniper Tip Line calls?

Are FFL yellow papers being collected, copied or the information gathered to investigate or question gunowners?

Is there a joint task force operating with any parameters dealing with so-called "assault rifles" owned by Maryland citizens?

If you go to conduct an interview based on a tip phoned in during the sniper shootings and the respondant tells you to, "Go to hell," will you leave them alone or will you consider it to be PC and report it as such?

256 posted on 01/27/2003 9:50:34 PM PST by nunya bidness (Your ad here!)
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To: nunya bidness
I am no longer assigned to the task force. I resumed my "regular"....lol....duties in November.
257 posted on 01/28/2003 5:48:04 PM PST by OTA
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To: Lloyd227; harpseal; Travis McGee
Lloyd:
My point thoughout my posts rests mainly on the premise that I won't post what I don't know or cannot prove through independent sources. Many of the posts here beginning with Mr. McGee's claim, later recanted, that ALL of the ATF, FBI SWAT / HRT / SRT team members come DIRECTLY from Military Specops groups reeks of unsubstantiation. I know it's not true and he CANNOT document it. Ditto for an alleged ATF fatal shooting in Towson MD. The same internet that provides access to this forum also constitutes the greatest research tool in the world. Everyone should use it to engage in research before putting mouth in gear.

It's Interesting that the title of this thread "The Scout, the Suspect and the SWAT team shooting" is the title of an article on the shooting in the Baltimore Sun, the same newspaper which I linked to with the articles about the Grand Jury investigation! Nobody cared to do the follow up. Listening to both sides of the story legitimizes debate, listening to one side simply legitimizes propaganda.

Best Regards: OTA



258 posted on 01/28/2003 6:12:39 PM PST by OTA
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To: Travis McGee; harpseal; Lloyd227
Mr. McGee:
Hmmm......I sense backpedaling. Lets map this out:

1.)First you state ALL of the FBI/ATF/SWAT/HRT/SRT members come DIRECTLY from Military Specops.

2.)You then state in another post a "Factoid" that it was approximately 75%. Where is your proof? Do you have any documentation to support your claims? What is a "Factoid"? It is obviously not a fact or you would have called it as such and backed it up with verifiable proof.

3.) By the way you now only mention the FBI. What happened to your claim about the ATF SRT's?

Let me draw a parallel.......I will state, without any proof whatsoever that:

1.)"The Moon is made of cheese"

Now, when challenged I will modify that statement, again without any proof (and based on some foggy personal recollection) that:

2.)"Well the dark side of the moon is made of apprximately 75% cheese" (This may constitute a "Factoid")

3.)I will, of course, fail to mention whatsoever the other side of the moon.

Do you research Mr. McGee.

Regards: OTA


259 posted on 01/28/2003 6:39:25 PM PST by OTA
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To: brityank
Dig a little deeper. See post 251 or:

http://nl.newsbank.com/nl-search/we/Archives?p_product=BS&p_theme=bs&p_action=search&p_maxdocs=200&p_field_label-0=Section&s_dispstring=allfields(Braga)%20AND%20section(*)%20AND%20date(2002)&p_field_date-0=YMD_date&p_params_date-0=date:B,E&p_text_date-0=2002&p_field_advanced-0=&p_text_advanced-0=(%22Braga%22)&p_perpage=10&p_sort=YMD_date:D&xcal_useweights=no

It wasn't buried anywhere.
260 posted on 01/28/2003 6:56:40 PM PST by OTA
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To: OTA
Ditto for an alleged ATF fatal shooting in Towson MD.

Now at this point I will call you out. I stated privately that I would post the specific references to this and I gave you a print reference which would have names and dates. You lying piece of filth. the fact that you did not choose to either wait for the online reference or look up the specific print reference does not give you a right to call me a or anyone else a liar.

Back up every one of your claims with specific referneces if you are such a hot shot. You claim a majority of the new recruits for the HRT are not former military spec ops. Please prove your point with a verifiable reference. You state you are always ready to back up your claims with immediate references.

I do not make the clkaim that I have every refertence handy for every factual incident in Amercan History that I will cite. No more than I could give an immediate refernce to the British attrocities at Fort Trumbull, CT can I give quick references to every incident in American History. History is defined as anything more than a month old.

So cite your reference for your factual claim about the make up of hostage recue teams and other special weapons and tactics units. Yoiu are the one who set the ground rules. I could simply rest on the fact I gave you a wayu to verify my staement about the Towson raid. I could also have cited a York PA raid where a cat was reportedly stomped to death by the ATF people as they were leaving. Yes, I will get that documentation also within the same two week period.

If you can not be a gentleman on these threads do not expect gentlemanly behavior in return. If you can not live with a reasonable time period for others to do research that you should have alre3ady done before posting we can not be responsible for your contumaceous ignorance.

Get a modicum of knowledge before you go accusing others of misrepresenting facts. Also it would be wise of you to review the posts of others before you go posting accusatory statements. If this is apparent of your attitude as a law enforcement officer you would be better in a Gestapo tyoe organixation than in any position in the USA where you operate under the color of law enforcement. There are number of present and former LEO's on these threads and they a base of knowledge of factual incidents you obviously lack although you should know of at least an incident that happened in your own state. Yet somebody from a couple states away is forced to do some research to prove a factual incident because you are too lazy to go to a public library and look up a past incident. No, I do not have access to archives of Maryland papers here in CT but I told you publicly and privately that a reference would be provided with a reasonable time. Given my rather full schedule it is a more than reasonable time. So before you state again that the Towson incident did not happen I suggest that you do your research yourself.

261 posted on 01/28/2003 8:36:24 PM PST by harpseal (Stay well - Stay safe - Stay armed - Yorktown)
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To: OTA
It wasn't buried anywhere.

From your #245: As I did not wish to subscribe to their service I am unable to provide ...

Prior to the settlement forced on Jim by the SLAPP suit by the WP and LAT; we were able to archive the stories here. I will not support their theft of our news [provided by our tax dollars by our 'employees'] and the history it is part of. The media corporations have eviscerated the First Amendment; as the political LEOs and their supplicants are eviscerating the Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth.

Unless that gun fired itself or the round cooked off, the shooting was not an accident; it was a violation of procedure by a grandstanding punk. Your support for him, and unwarranted aspersions to others on this thread tells me all I need to know about your socialist tendencies.

262 posted on 01/29/2003 7:21:06 AM PST by brityank (The more I learn about the Constitution, the more I realise this Government is UNconstitutional.)
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To: OTA; Lloyd227
The following is a link to a reference regarding the BATF incident in Maryland I was reffering too.

http://elfie.org/~croaker/individ.html#DETROIT
263 posted on 01/29/2003 10:13:57 AM PST by harpseal (Stay well - Stay safe - Stay armed - Yorktown)
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To: harpseal
Thanks harpseal, this looks interesting to say the least.

Best regards,
Lloyd

264 posted on 01/29/2003 10:56:28 AM PST by Lloyd227
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To: Lloyd227
I am certain many other links can be found and a library search would yoeld more articles. However, if OTH wants more documentation I charge $100/hr to do others historical research and fact checking. He now has some basis for looking up an incident that should give him a lot to think about. It is not an easy thing being a law enforcement officer and we need the best and the brightest in that job because in many ways that is the cutting edge about when and of we degenerate into tyranny. Now the simple fact is if a local law enforcement team made as many screw ups as the FBI did they owuld not be simply exhonorated due to prosecutorial discretion they would have faced a federal indictment for the negligence in not using proper felony stop procedures (supposedly standard procedure after the Platt Matix shootout in FL) in making the stop of the eagle scout and agent Braga would not have been in position to have his rifle fire wounding the young man in the face.

With the name and the date additional verification searches can be done. He has those now.

265 posted on 01/29/2003 11:32:28 AM PST by harpseal (Stay well - Stay safe - Stay armed - Yorktown)
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To: OTA
I did some searching to get the name and date. The date of the incident was admittedly unsure in my posts. you have the information you need to inform yourself of a precedent raid within your area of operations. We shall now see how honest you really are. If you really are a law enforcement officer we will also get some very good ideas of what type of law officer you are.

I really do hope you are not some power mad psycho wearing a badge because it lets you exercise authority over others but I guess we shall have to wait and see.

266 posted on 01/29/2003 11:36:53 AM PST by harpseal (Stay well - Stay safe - Stay armed - Yorktown)
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To: Travis McGee
I did a quick google search to get OTA a reference and I guess we shall see if we have a Jack Booted Thug or a real person who just did not have a whole lot of knowledge about what's gone on in the past.
267 posted on 01/29/2003 11:39:10 AM PST by harpseal (Stay well - Stay safe - Stay armed - Yorktown)
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To: OTA
Remember the case of Donald G. Arnold, Maryland's "Citizen Of The Year" who had all his guns confiscated just LAST YEAR because of a misdemeanor assault conviction stemming from a barfight THIRTY YEARS AGO:

268 posted on 01/29/2003 12:40:02 PM PST by harpseal (Stay well - Stay safe - Stay armed - Yorktown)
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To: harpseal; OTA
Sooner or later our armed federal agents are going to have to ask themselves if they are going to uphold their sworn oaths to defend the Constitution against all enemies foreign AND DOMESTIC, or if they are going to be the traitors themselves, and follow illegal orders to strip honest loyal Americans of their rights.
269 posted on 01/29/2003 12:54:05 PM PST by Travis McGee (----- www.EnemiesForeignAndDomestic.com -----)
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To: Darth Sidious
Dude, you are violating your own paragraph #3.
270 posted on 01/29/2003 1:23:32 PM PST by Rebelbase (Rock with Celtic roots at http://www.sevennations.com)
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To: Travis McGee
"I don't think the nation has been this dangerously split since 1860."

Mmmm...I don't know about that. IMO, those who fear the abuse of Federal authority are in the minority.

The more I talk with people about things like this, the more I am convinced that the majority of our society are the duller knives in the drawer.

They are sheep, following the media shepperd from one fantasy pasture to another.

Just look at the magazine racks at the grocery store. That is where Joe and Jane Blow get their news about what is important. For the most part the teasers read: ....."10 sex secrets that will drive your mate wild", "Fat Free Fun", "Brittany and Justin's Hot Date", etc. etc.

The bulk of society does'nt want to contemplate the potential nastiness that a loss of constitutional rights will entail. They want safety and perceive LEOs as offering that safety: "they will be there for us", "we don't need a gun", "that is what the police are for".

The constitution of the United States of America is a dusty old piece of paper as far as these people are concerned.

With a few exceptions, the outlying, rural areas are the only places I've managed to meet a few "reloaders" and other types who are preparing for the coming storm. The exceptions are several liberal types who see Patriot Act for what it is, but they have essentially nuetered themselves with passifism and will fold in with the rest of the sheep when the time comes.
271 posted on 01/29/2003 1:45:19 PM PST by Rebelbase (Rock with Celtic roots at http://www.sevennations.com)
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To: Rebelbase
I agree with your overall assessment and numbers. We are not the majority, Sheeple Nation is.

But we are motivated, armed, and have the Constitution as a bedrock to anchor us.

I've come up with a "social plate tectonics" analogy, where most of our country is in a slow, steady, powerful socialist drift. Sooner or later there is going to be a rupture, a crack where the bedrock constitutionalists will say NO MORE!

That may arrive at the point of gun confiscation over 30 year old misdemeanors, when the JBTs are getting ultra-legalistic to devise strategems for civilian disarmament, while blatantly in-our-faces ignoring squatter villages of illegal criminal invaders.

272 posted on 01/29/2003 4:30:53 PM PST by Travis McGee (----- www.EnemiesForeignAndDomestic.com -----)
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To: Lloyd227; OTA
I did not see the evidence presented to the Grand Jury but I am quite aware that any good attorney can to use a very famous quote indict a ham sandwich. By only presenting some of the evidence and not presenting enough evidence certainly the grand jury can come back with no true bill but that does not mean there was not enough evidence to indictr only that a prosecutor choose the evidence presented to avoid an indictment. Is this the case here I surely do not know. But I do know the agents did not follow standard procedure for the stop and a young man was severely injured. Such situations call for a petit jury trial.
273 posted on 01/29/2003 7:48:43 PM PST by harpseal (Stay well - Stay safe - Stay armed - Yorktown)
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To: harpseal
Understood. Since I wasn't there however, I was trying to avoid assuming that the prosecutor sabotaged the grand jury proceedings.

Judging by what I read in the papers, Mr. Braga, at minimum, should have been charged with negligent discharge of a firearm. Given the running argument with OTA, I just wanted to back out though.

Can't be everywhere and know everything and just have to let things go sometimes. The grand jury should have had access to the same newspaper stories we did. Can't explain how they failed to charge that thug with SOMETHING, but the fact is, they didn't charge him.

Just have to make a note of Mr. Braga's name and wait.

274 posted on 01/29/2003 8:51:14 PM PST by Lloyd227
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To: harpseal
Thanks for the research. Seems to be a long way and a long time from Towson in the 1990's. Interestingly enough that it happened in 1971, and the BATF was not established as the BATF until 1972. No name either.

Anyway, I'm glad narrowed it down Harpseal. Keep up the good work. I knew that it didn't occur where and when you initially stated as Towson has been in my area of responsibility since 1989, and I had never heard of such an incident.

As for the psycho bit, I don't really qualify. My wife has alluded to it from time to time but only during an arguments and not in relation to work............lol.

Regards: OTA
275 posted on 01/30/2003 1:58:46 PM PST by OTA
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To: OTA
True it would be interesting to see but the proceedings are kept secret in Maryland as they are elsewhere. But if a prosecutor can indict a ham sandwich why did the AA County States Attorney fail to get an inditment?

My guess is not enough probable cause. Like it or not that's what the Constitution requires.

Grand Juries in Maryland have subpoena power as well and can require the appearance of anyone they wish to call. Don't count out the collective intelligence of the citizenry charged with investigation of this matter. Sort of tough to include a grand jury in a whitewash.
276 posted on 01/30/2003 2:04:07 PM PST by OTA
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To: OTA
ATF was the original name and the B was added in 1972. The fact this happened in your area of responsibility should make you even more aware of it. Clearly there have not been major reforms put through the ATF as the same site has numerous more recent examples. I stated originally that there was an incident in Towson Maryland and I was not sure of the year. I never specifically claimed that it was in the 1990's but that checkingf through the furor over the discussion of Jack Booted thugs in the 1990's would yield the name and other specifics.

An innocent man paralyzed is not a joking matter and tends to be a very significant result at least to the paralyzed person and his family.

I ask you now about the Maryland man who was deprived of his civil rights that was cited more recently. If ordered to go seize any guns he possessed would you carry out that order? Knowing the facts of the case as stated. Would you do it? If the answer is yes I then refer you to the Nuremburg and Andersonville precedents of people following orders who faced punishment for following orders after a major political change.

By the way when I first posted this I was not absolutely certain of the Towson location only that it was somewhere arround there in Baltimore County.

What we are talking about is thirty year old charges that did were not subject to loss of civil rights at the time the person may have plea bargained.

What happens if subsequently driving at a speed over a specified limit becomes an offense that results in a loss of civil liberties? Would you enforce that? Remember disorderly conduct used to have a maximum under a year and usually is treated as a violation not even a misdemaenor in most juridictions.

A more likely case is Operating Under the Influence of alchohol becoming punishable by more than a year in jail or alternatively an implied consent violation being treated that way. In some states that has already been proposed for repeat offenders, but I am not talking about repeat offenders I am talking about the one time for a person over the .08 limit. How about if asd MAD has proposed they drop the limit down to where one beer with dinner causes one to be over the limit (.03) and in some case it has been proposed .01, what about then?

At this point, I am still more than a tad upset about your commenting on the case before I had a chance to do the research. I am further upset about your questioning the specifics of that case with discussing the fact that the FBI in the Braga case did not use proper felony stop procedures as supposedly all agents were ordered to do with any suspect they presume might be armed.

You have stated that you are a Maryland LEO. If you were involved in a stop of someone who you reasonably believed was armed would you just walk up to the car pointing a rifle with your finger on the trigger? I belive you would take a position where you could keep the occupants in view and order them to exit the vehicle carefully. Have subjects reach out the window to open the door from the outside? If you did not follow proper felony stop procedure and someone was shot would you not expect to be hung out to dry and be facing criminal charges?

277 posted on 01/30/2003 2:39:03 PM PST by harpseal (Stay well - Stay safe - Stay armed - Yorktown)
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To: harpseal
"Remember the case of Donald G. Arnold, Maryland's "Citizen Of The Year" who had all his guns confiscated just LAST YEAR because of a misdemeanor assault conviction stemming from a barfight THIRTY YEARS AGO:"

I have read, at length, articles on the link you posted. I have also read numerous additional commentary I found concerning Mr. Arnold. There is NO mention of any firearms being seized from Mr. Arnold. The articles refer to Mr. Arnold being refused a carry permit which he needed for his job as a security guard. Please look here, the latest commentary I could find on the subject:

http://www.gunowners.org/op0226.htm

Wherein this quote can be found:

"On two occasions Maryland's Handgun Permit Review Board (HPRB) has ruled against Curran and for giving Arnold his handgun permit restricting the use of his weapon to the time while he is "actively engaged" on his job and in Maryland only."

Please note that "Curran" refers to Joe Curran, the Maryland State AG.

It appears that, as far as I can understand from the commentary, that Mr. Arnold is allowed to carry a firearm on his job.

The firearms seized from an individual in Maryland refers to the case of Larry Dickens, a synopsis of which can be found here:

www.packing.org/news/article.jsp/5583

According to the commentary, Mr. Dickens had ammassed an impressive record of convictions for being unable to control his temper or keep his hands off others. Lets review:

1. 1983 - Assault
2. 1980 to 1983 - Two (2) assault and battery.
3. 1980 to 1983 - Two (2) additional assaults.

Sounds like the kind of chap I would want living next to me with firearms, don't ya think? Perhaps we should wait until he decides to pick up his firearm when he has another pissing contest with someone and gets his ass kicked. Happens quite a bit these days. Poor man just can't seem to contol his temper.

I hope this post helps clear up your obvious confusion over the facts of these two cases. Your post combined these two distinct situations into one.

Regards: OTA
278 posted on 01/31/2003 5:12:46 PM PST by OTA
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To: harpseal
Let me try to answer the latest myriad of questions you pose.

1.)"ATF was the original name and the B was added in 1972. The fact this happened in your area of responsibility should make you even more aware of it."

I am confused....the fact that the B was added in 1972 and was in my "area of responsibility" should make me more aware of it? I don't understand that statement. Complete sentences with a subject are easier for me to understand. If you are referring to the Maryland Man shot in 1971....the State of Maryland is not as large as say, Texas, I do not know where this incident happened. Do You? The article you linked to mentions simply "Maryland". Not every 30 year old case is known in detail to every LEO in Maryland. Sorry, but I was 9 years old at the time and lived over 400 miles from the state line. My interests didn't extend to reading out of state newspapers at that age. As for the ubiquitous alleged "Killing" by ATF in Towson I await your research.

2.) "An innocent man paralyzed is not a joking matter and tends to be a very significant result at least to the paralyzed person and his family."

I fail to see where any of my posts have made light of that incident. Perhaps you could be more specific.

3.) "I ask you now about the Maryland man who was deprived of his civil rights that was cited more recently. If ordered to go seize any guns he possessed would you carry out that order? Knowing the facts of the case as stated. Would you do it? If the answer is yes I then refer you to the Nuremburg and Andersonville precedents of people following orders who faced punishment for following orders after a major political change."

Please see my pervious reply to you regarding Mssrs. Arnold and Dickens. As you seem confused over the "facts as stated"
I am unsure as to which incident you refer to.

4.) "By the way when I first posted this I was not absolutely certain of the Towson location only that it was somewhere arround there in Baltimore County."

Again, which incident do you refer to? The location of the 1971 incident has not been found by either you or myself. Or do you again refer to the alleged killing by ATF in Towson? It daily gains momentum as a free republic urban legend. I await the results of your research.

5.) "What we are talking about is thirty year old charges that did were not subject to loss of civil rights at the time the person may have plea bargained."

Rule #1.... if you are charged with a crime GET A LAWYER! You know, if you can't afford a lawyer one will be provided at no cost to you (pass it on). Mr. Arnold's 1969 placed him in violation of 18 USC 922(g)(1), part of the gun control act of 1968. He has been prohibited, under federal law, since the date of his plea (entered into without a lawyer).

6.) What happens if subsequently driving at a speed over a specified limit becomes an offense that results in a loss of civil liberties? Would you enforce that? Remember disorderly conduct used to have a maximum under a year and usually is treated as a violation not even a misdemaenor in most juridictions. A more likely case is Operating Under the Influence of alchohol becoming punishable by more than a year in jail or alternatively an implied consent violation being treated that way. In some states that has already been proposed for repeat offenders, but I am not talking about repeat offenders I am talking about the one time for a person over the .08 limit. How about if asd MAD has proposed they drop the limit down to where one beer with dinner causes one to be over the limit (.03) and in some case it has been proposed .01, what about then?

Harpseal you are quite good at posing hypotheticals. I am not a lawyer. It's not a cop out (no pun intended), but I don't have an answer for you. If it's a prohibiting conviction I presume that the answer would be the same as my reply to #5.

7.) "At this point, I am still more than a tad upset about your commenting on the case before I had a chance to do the research. I am further upset about your questioning the specifics of that case with discussing the fact that the FBI in the Braga case did not use proper felony stop procedures as supposedly all agents were ordered to do with any suspect they presume might be armed."

First, sorry about your ruffled feathers, you should develop a thicker skin. It's very helpful to possess one here.
As for the felony stop prceedures, or lack of same, followed in the Braga / Shultz shooting please note that violation of departmental procedure is not a crime. Check the Constitution. I agree with you that it contributed to the events as they unfolded but again, the simple fact that proceedures are or are not followed does not prove guilt or innocence.


8.) "You have stated that you are a Maryland LEO. If you were involved in a stop of someone who you reasonably believed was armed would you just walk up to the car pointing a rifle with your finger on the trigger? I belive you would take a position where you could keep the occupants in view and order them to exit the vehicle carefully. Have subjects reach out the window to open the door from the outside? If you did not follow proper felony stop procedure and someone was shot would you not expect to be hung out to dry and be facing criminal charges?"

I believe it would be beneficial at some point in the future that you take the opportunity to do a ride along with an average street cop. Ask for a precinct or sector with a high volume of violent crime. Read a binder or two of the department's general orders. Check and see if the officer has the general orders memorized and see if he correctly applies them in every situation you and he respond to that night. See if the situations all unfold "by the book".

I have been involved in many felony car stops, with armed individuals in the vehicle. Sometimes they stop right away, often the don't. Sometimes they get out of the car, sometimes they don't. If I always followed your apparent definition of "proper proceedure" I'd still be out there waiting for the bad guys to comply.

Since you are an afficiando of hyportheticals here is one for you:

Maybe when the bad guys finally decide to comply and pull over they've pulled up next to a school playground at recess or a supermarket parking lot. Should I call set up a perimiter and call for a hostage negotiator as I see him slap a magazine into his Mini-14? I really don't expect an answer but I hope you see my point.

I have approached vehicles following a stops with my weapon drawn, for example once following a shooting from a vehicle and once when three known armed individuals were on their way to shoot a rival drug dealer. They did not comply with numerous commands to play nice and exit the vehicle, open the door from the outside etc. In the case with the three individuals they finally stopped on a three lane highway when traffic came to a standstill. Traffic had stopped due to an accident that had happened moments before and without their or my knowledge. I doubt that the innocent motorists stuck sitting next to three armed individuals would have appreciated my calls for the SWAT team and the hostage negotiator who would have been stuck futher back behind me in the same traffic. Calling them out would have presented the possibilty of a hostage, a carjacking, or another innocent person being shot in and exchange of gunfire.

I have not seen, in any account, that SA Braga approached the vehicle with his finger "on the trigger". Have you? My training has always been to keep your finger off the trigger until you are ready to shoot. I'm resonably sure that that is somewhat standard for firearms training in the LEO community.

My point here Harpseal is twofold. "Proper proceedure" does not cover each and every situation. They don't always unfold in real life like you see on TV. I was not at the shooting of Mr. Shultz that night but I still believe that SA Braga would not have shot had he not sensed a threat (correctly or apparently, incorrectly). From accounts I read in the Baltimore Sun Mr. Shultz may have been unbuckling a seatbelt in respose to the agents commands. If SA Braga saw a seatbelt in Mr. Shultz's hands as he brought it up from his lap he may have mistaken a chrome plated buckle for a firearm in the dim light. Not making excuses here, just presenting food for thought.

Secondly If I did not follow proper proceedure and shot at, and killed an armed individual who pointed a firearm at me, I would not expect to be brought up on criminal charges. Would you?

However if I continually presented facts in court as loosely and as imprecisely as you present them here I would expect at least a finding of no crediblity by a judge or jury....at the worst perhaps a charge of perjury. But obviously nobody here has to present facts under oath. So why should anyone worry about being precise?


Regards: OTA
279 posted on 01/31/2003 7:02:54 PM PST by OTA
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To: harpseal
I agree with you. If the situation resulted in an indictment it surely would call for a petit jury trial. But..................
280 posted on 02/01/2003 7:53:13 PM PST by OTA
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To: harpseal
Two weeks.....three weeks......four weeks.....five weeks....I eagerly await you verifiable facts in regard to the alleged BATF killing in Towson, MD sometime in the 1990's.

What?........couldn't find anything?....thought so.

Regards: OTA


281 posted on 03/01/2003 5:27:39 PM PST by OTA
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To: OTA
"But if a prosecutor can indict a ham sandwich why did the AA County States Attorney fail to get an inditment? My guess is not enough probable cause. Like it or not that's what the Constitution requires. Grand Juries in Maryland have subpoena power as well and can require the appearance of anyone they wish to call. Don't count out the collective intelligence of the citizenry charged with investigation of this matter. Sort of tough to include a grand jury in a whitewash.

According to the above articles the prosecutor brought up posibilities of wreckless endangerment, 1st, or 2nd degree assault, nothing else. Those are ridiculous and the prosecutor knows it. The fed LEO was acting in good faith in the performance of his duties. That's an institutional out for what he was charged with. IOWs he's effectively immune from prosecution.

Here's the MD case you're looking for, it was from 1971.

[Cite as Ballew v. U.S., 389 F. Supp. 47 (D. Md. 1975), aff'd without opinion, 539 F.2d 705 (4th Cir. 1975).]

Kenyon F. BALLEW, Plaintiff

v.

UNITED STATES of America, Defendant.
Civ. No. 72-283-H.

United States District Court, D. Maryland
Feb. 7, 1975.

John T. Bonner, Silver Spring, Md., for plaintiff.

J. Charles Kruse and David B. Waller, U. S. Dept. of Justice, Washington, D. C., and George Beall, U. S. Atty., and James E. Anderson, Asst. U. S. Atty., Baltimore, Md., for defendant.

ALEXANDER HARVEY, II, District Judge:

In this civil action, plaintiff is suing the United States under the Federal Tort Claims Act [footnote 1], seeking damages for personal injuries sustained by him when he was shot while federal agents and county police officers were attempting to conduct a search of his apartment pursuant to a search warrant issued by a United States Magistrate. By agreement of the parties, a trial has been held first in this case solely on the issue of liability, with the issue of damages reserved for later trial, if necessary.

Armed with a search warrant issued by a United States Magistrate, a team consisting of agents of the Alcohol, Tobacco and Firearms Division of the Department of the Treasury (ATFD) and officers of the Montgomery County and Prince George's County Police Departments went to plaintiff's apartment in Silver Spring, Maryland, on June 7, 1971. The federal agent who was in charge of the operation, Marcus J. Davis, had submitted an affidavit to the Magistrate, stating that he had reason to believe that there was then being concealed in plaintiff's apartment hand grenades which were not registered as required by law. [footnote 2] Although there were indications that someone in the apartment was aware of the presence of the law enforcement officers seeking entrance, plaintiff did not respond to several knocks at the door. A battering ram was then used to open the door, and upon entry, the agents and police officers were confronted by plaintiff pointing a revolver in their direction. Gunfire ensued, and plaintiff was shot in the head and seriously wounded. In this suit, he claims that his injuries were proximately caused by a series of acts of negligence of agents of the federal government. Pursuant to applicable statutes, the case was tried by the Court sitting without a jury. 28 U.S.C. sections 1346(b), 2402, 2674.

Besides denying that its agents were negligent and alleging contributory negligence on the part of the plaintiff, the government asserts a number of other defenses, as follows: (1) that if plaintiff were shot by a federal agent, his claim would be barred by 28 U.S.C. section 2680(h) which makes the Federal Tort Claims Act inapplicable to a claim arising out of an assault and battery; (2) that if plaintiff were shot by a county police officer, then any negligence of agents of the federal government was not the proximate cause of his injuries; (3) that plaintiff's suit is barred by the discretionary function exception contained in 28 U.S.C. section 2680(a) of the Act; and (4) that plaintiff may not recover in this action because the government agents acted in good faith and with a reasonable belief in the validity of the search and the way it was conducted.

Under the facts of this case, the first two defenses asserted by the government place plaintiff on the horns of a dilemma. Plaintiff did not sue the federal agents here involved individually, asserting a federal cause of action under the Fourth Amendment of the type recognized by Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Nor did plaintiff sue the county police officers involved under 42 U.S.C. section 1983, asserting violation of his Fourth Amendment rights by persons acting under color of state law. See Street v. Surdyka, 492 F.2d 368 (4th Cir. 1974) ; Hill v. Rowland, 474 F.2d 1374 (4th Cir. 1973). Rather plaintiff chose to invoke the Federal Tort Claims Act and sue the United States, alleging that the negligence of government agents proximately caused his injuries. But if an agent of the United States fired the shot which wounded plaintiff, he is barred from bringing suit by section 2680(h) of the Act. [footnote 3] Alaniz v. United States, 257 F.2d 108 (10th Cir. 1958) ; United States v. Faneca, 332 F.2d 872 (5th Cir. 1964), cert. den, 380 U.S. 971, 85 S.Ct. 1327, 14 L. Ed.2d 268 (1965); Nichols v. United States, 236 F.Supp. 260 (N.D.Miss. 1964) ; Smith v. United States, 330 F. Supp. 867 (E.D.Mich.1971). And if a county police officer fired the critical shot, the question presented is whether plaintiff can prove that the negligence of agents of the federal government was the proximate cause of his injuries or whether the intentional act of a third person, was not a superseding legal cause. See Restatement Torts, 2d sections 448 and 449.

Plaintiff argues that the evidence here shows that the critical shot was fired by a county police officer and relies on those cases which have held that the assault exception to the Federal Tort Claims Act applies only to assaults by agents of the federal government and not to assaults by third parties which the government fails to prevent. Aluniz v. United States, 305 F.2d 285, 287 (2d Cir. 1962), aff'd 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963) ; Panella v. United States, 216 F.2d 622 (2d Cir. 1954) ; see Gibson v. United States, 457 F.2d 1391 (3rd Cir. 1972) ; Rogers v. United States, 397 F.2d 12, 15 (4th Cir. 1968). Quite clearly, the facts of those cases are quite different from what occurred here. But it is not necessary in this case to determine whether plaintiff has been able to avoid the twin pitfalls of the assault exception and the existence of a superseding legal cause. There are more compelling reasons why plaintiff cannot recover in this case. On the record here, this Court concludes both that agents of the United States were not negligent in acting as they did before the shooting, and that plaintiff's injuries were caused by his own contributory negligence. A full recounting of the facts is necessary. [footnote 4]

The Facts

Shortly after the middle of May, in 1971, Special Agent Marcus J. Davis of the ATFD received information from Detective W. F. Seminuk, of the Prince George's County Police Department, in- dicating that a quantity of hand grenades had been observed by a confidential reliable source in Apartment No. 2 at 1014 Quebec Terrace, Silver Spring, Maryland. Davis had worked with Seminuk before, and the county police officer had previously supplied him with verified information which Davis had used in his work as a federal law enforcement officer.

Several weeks later, Agent Davis decided to seek a search warrant for the apartment in question. On Friday, June 4, 1971, Davis telephoned Assistant United States Attorney Charles G. Bern- stein and relayed to him the information received from Seminuk. Seminuk had been told by a confidential reliable source that he had seen a quantity of hand grenades and also handguns in Apartment No. 2 at 1014 Quebec Terrace. The source also told Seminuk that the reported owner of these firearms was a white male known as Ken, that Ken owned a white Jeep with Maryland license plate HJ-5337 and that Ken had been observed in the recent past playing with several hand grenades in the rear of 1014 Quebec Terrace.

After being apprised of the information which Davis had received from Seminuk, Bernstein told Davis that he did not think it was sufficient for a search warrant and suggested that he develop more information before seeking the warrant. On Saturday, June 5, 1971, Davis spoke to Police Officer Louis Ciamillo of the Montgomery County Police Department, who told him that he bad received information from a source residing in the vicinity of 1014 Quebec Terrace that the police would receive a false criminal report in the vicinity of that apartment building and that police would be shot when they responded to this call. On Sunday, June 6, 1971, Davis spoke to Police Officer Royce R. Hibbs of the Montgomery County Police Department, who told him that other officers had that very day interviewed an individual who advised them that they had observed a quantity of firearms in Apartment No. 2 at 1014 Quebec Terrace and that the owner of those firearms was a white male who owned a white Jeep. Officer Hibbs also told Davis that on an average of once a week, his police department received reports of firearms being discharged in the vicinity of the apartment building in question, but when the police went to the area to investigate all firearms and suspects had disappeared.

On Monday, June 7, 1971, Davis' had another agent of ATFD check with the Maryland Department of Motor Vehicles, and it was ascertained that the owner of the vehicle with Maryland license plate HJ-5337 was Kenyon Franklin Ballew, 1014 Quebec Terrace, Apartment No. 2, Silver Spring, Maryland. Davis next telephoned Detective Seminuk and verified the information he had received from Seminuk several weeks before. Davis had also ascertained that Kenyon Franklin Ballew had been arrested on November 20, 1970 for carrying a concealed weapon and that the National Firearms Registration and Transfer Record revealed no firearms registered in the name of Kenyon Franklin Ballew.

Thereupon, Davis called Assistant United States Attorney Bernstein and told Bernstein of the additional information he had secured in the past several days. [footnote 5] Bernstein advised Davis that in his opinion Davis had sufficient probable cause for the issuance of a search warrant, and he told Davis to go ahead and apply for the warrant. Davis did so, preparing the necessary papers, including an affidavit, and presenting them to United States Magistrate F. Archie Meatyard, Jr. After reviewing the papers, Magistrate Meatyard signed the search warrant on the afternoon of June 7, 1971, authorizing a search of Apartment No. 2, 1014 Quebec Terrace, Silver Spring, Montgomery County, Maryland, for hand grenades not registered as required by law. The affidavit executed by Davis in support of his application for the warrant provided as follows:

Your affiant stated that on June 7, 1971, he received information from Det. W. F. Seminuk, Prince Georges County Police Department, Hyattsville General Assignment Section, Hyattsville, Maryland to the effect as follows: that a confidential reliable source (the source's reliability is based on three separate reports of burglaries in the Langley Park area of Montgomery and Prince Georges Counties, Maryland which, according to police reports, in fact, took place or were attempted) told that detective that on May 5 or 6, 1971, the source observed a quantity of hand grenades in Apartment # 2, 1014 Quebec Terrace, Silver Spring, Maryland. The source stated it also observed a quantity of hand guns in that apartment. The source stated that the reported owner of these firearms is a white male known as "Ken", who operates a white jeep. The source stated that it also observed "Ken" playing with several hand grenades in the rear of 1014 Quebec Terrace, Silver Spring, Maryland, in the recent past. Det. Seminuk stated that the white jeep, reported by the source as "Ken's", has 1971 MD. license HJ-5337 affixed thereto. Department of Motor Vehicles for the state of Maryland reveal that this li- cense plate is registered to Kenyon Franklin Ballew, 1014 Quebec Terrace, Apartment # 2, Silver Spring, Maryland.

Your affiant stated that in June 6, 1971, he received information from Pvt. Royce R. Hibbs, Montgomery County Police Department, Silver Spring, Maryland, as follows: On that date, Det. Sgt. Roger Milstead, MCPD, and Det. Sgt. Wreford Norris, MCPD, interviewed a source at Silver Spring Detective Bureau, MCPD, Silver Spring, Maryland. The source stated that it had observed in the recent past, a quantity of firearms, mainly a carbine, a .44 caliber pistol, a .45 caliber pistol, and other firearms, in Apartment # 2, 1014 Quebec Terrace, Silver Spring, Maryland. The source identified the owner of those firearms as a white male who owns a white jeep.

Private Hibbs also advised your affiant that on an average of once a week, his police department has received reports of firearms being discharged from the vicinity of 1014 Quebec Terrace, Silver Spring, Maryland. Upon arrival in the area, in response to these reports, all firearms and suspects had disappeared.

Your affiant stated that on June 5, 1971, he received information from Private Louis Camillo, MCPD, Silver Spring, Maryland, as follows: That on 1/1/71, in the presence of Cpl. James Mahoney, MCPD, a source, who resides in the vicinity of 1014 Quebec Terrace, Silver Spring, Maryland, stated that one day the police would receive a false criminal report in the vicinity of 1014 Quebec Terrace, Silver Spring, Maryland. When the police responded to this call, they would be shot. Private Camillo stated, to his knowledge, several other threats of this nature have been received by this police department.

Maryland State Police Department records reveal that Kenyon Franklin Ballew was arrested on November 20, 1970, for carrying a concealed weapon (Case No. # 24587).

Your affiant states that a check with the National Firearms Registration and Transfer Record, Alcohol, Tobacco and Firearms Division, Washington, D. C., by Special Investigator William H. Seals, June 7, 1971, reveals no firearms are registered to Kenyon Franklin Ballew.

Agent Davis then called Assistant United States Attorney Bernstein again, advising him that the search warrant had been issued. Bernstein told Davis to keep him advised, whereupon Davis undertook to brief and assemble a team of federal agents of ATFD and of county police officers to conduct the search as soon as possible. [footnote 6] Some 12-14 law enforcement officers were assembled, consisting of 8-10 county policemen and 4 federal agents. In fact, there were two search warrants to be served at the same time at 1014 Quebec Terrace, one for Apartment No. 2, occupied by the plaintiff, and the other at Apartment No. 102, occupied by an individual named James Russell Thomas. Half the team was assigned to the Thomas apartment And the other half to the Ballew apartment. The apartment building at 1014 Quebec Terrace was located in a high crime area, which was described by one witness as a "haven for known criminals." [footnote 7] The agents and police officers had been warned to take Special precautions in serving the warrant, in view of the reports of firearms in Apartment No. 2 and the threat received that a police officer responding to a call might be shot without warning.

Shortly before 8:30 P.M. on June 7, 1971, the law enforcement officers entered the building through a laundry room and then proceeded by way of a flight of stairs to an interior hallway and a door which led from the hallway into the living room of Apartment No. 2. [footnote 8] At the time, the apartment was occupied by both plaintiff and the woman he was then living with, Mrs. Saraluise McNeil. [footnote 9] Special Agent William H. Seals of the ATFD approached the door first and knocked in a normal manner. When there was no response, Agent Seals pounded on the metal door with his fist and shouted in a loud voice, "Federal officers with a search warrant, open up." [footnote 10] Again there was no re- sponse. Agent Seals then put his ear to the door and heard sounds as if someone were moving away from the door. At this point, having concluded that the occupants of the apartment did not intend to comply with his order to open up, Agent Davis ordered the use of a battering ram which the officers had brought with them. Several blows with the ram were necessary before the door finally came open some 12 to 18 inches. Agent Seals entered first, noticing immediately that some effort had been made to barricade the door. [footnote 11] As Agent Seals moved into the room, he suddenly looked up and saw the plaintiff standing nude in an area beyond the living room with a long-barreled revolver pointed in the Agent's direction. Shouting, "He's got a gun," Agent Seals drew his own pistol from his holster, fired a shot and moved to the left to take cover. [footnote 12]

Montgomery County Police Officer Royce R. Hibbs was the next member of the team to enter the room. He likewise observed plaintiff pointing a handgun in his direction. Hibbs ducked to the right, firing several shots as he sought to move to a place of safety.

Next into the room was Officer Louis Ciamillo of the Montgomery County Police. When he saw plaintiff pointing a revolver in his direction, he took careful aim with his pistol and fired. From the evidence, this Court finds that Officer Ciamillo fired the shot which struck plaintiff in the head. Plaintiff fell to the floor bleeding profusely, firing his own weapon as he fell. It cannot be determined on the record here whether plaintiff attempted to fire his weapon at the police officers before he himself was struck. What is clear is that his revolver did not discharge until he was actually falling and that the projectile from his revolver was discharged in a downward direction.

Also in the apartment at the time was Mrs. McNeil, who had likewise armed herself with a loaded pistol before the shooting occurred. Clad only in her underwear, she surrendered to the officers when ordered to do so, becoming hysterical and shouting, "Help, murder, police," when she saw plaintiff lying wounded on the floor. An ambulance was called, and plaintiff was removed to the hospital. The agents and officers then undertook a search of the premises, recovering a large quantity of firearms, powder, am- munition, primers, fuses and other firearm parts, including the following grenade-type items: [footnote 13]

(1) 1 practice rifle grenade, marked "inert";

(2) 1 smoke or gas grenade canister, with no fuse assembly;

(3) 1 smoke or gas grenade canister, with fuse assembly;

(4) 1 practice hand grenade, with fuse assembly;

(6) 1 plastic grenade, baseball type, with fuse assembly.

The Issue of Negligence

From the facts set forth hereinabove, this Court concludes that agents of the federal government were not negligent in securing a search warrant for plaintiff's apartment and in un- dertaking to conduct a search of such premises after the warrant was issued. In preparing and presenting the affidavit submitted to Magistrate Meatyard, Agent Davis acted reasonably and in the exercise of due care. In thereafter planning the search and in actually carrying it out, Agent Davis and the other federal agents acted as reasonably prudent persons would under all the circum- stances. When Agent Seals fired his pistol at plaintiff inside the apartment, he was acting reasonably under the emergency conditions then existing in order to avoid injury to himself. [footnote 14] Acts performed under the stress of an emergency are to be judged for negligence with a different measure from that used in weighing acts performed under normal conditions. United States v. Jasper, 222 F.2d 632, 633 (4th Cir. 1955).

When he first entered plaintiff's living room, Agent Seals became immediately aware of the attempted barricade of the door, and it was reasonable for him to assume that the occupants of the apartment were actively resisting the entry of the law enforcement officers. When he was then confronted with the plaintiff pointing a revolver at him, he was justified in shooting first before the plaintiff fired at him. In a Federal Tort Claims suit such as this one in which acts of a government agent are being challenged, the court "must not too strictly limit what a federal officer should do in carrying out a dangerous duty imposed on him * * * by virtue of his office." United States v. Folk, 199 F.2d 889, 892 (4th Cir. 1952).

Plaintiff argues that Agent Davis should have undertaken a more extensive and careful investigation before seeking a search warrant from the Magistrate. The simple answer to this contention is that Davis' belief stated in the affidavit that there were unregistered hand grenades in Ballew's apartment proved to be entirely accurate. This Court finds that several of the grenades seized by the federal agents on June 7, 1971 in Ballew's apartment, in combination with components likewise seized, were firearms as defined in the National Firearms Act and had not been registered as required by law.

Plaintiff contends that the items seized were harmless when found, were neither designed nor intended to be used as firearms and therefore were not in violation of federal law. The evidence in this case does not support such contention.

26 U.S.C. section 5861(d) makes it unlawful for any person "to * * * possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record; * * *." section 5845(a)(8) defines firearm as "a destructive device." The term "destructive device" is further defined as follows in section 5845(f):

(f) Destructive device.-The term "destructive device" means (1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellant charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, or (F) similar device; (2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary or his delegate finds is generally recognized as particularly suitable for sporting purposes; and (3) any combination of parts either designed or intended for use in converting any device into a destructive device as de- fined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled. The term "destructive device" shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordinance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684(2), 4685, or 4686 of title 10 of the United States Code; or any other device which the Secretary of the Treasury or his delegate finds is not likely to be used as a weapon, or is an antique or is a rifle which the owner intends to use solely for sporting purposes.

In United States v. Freed, 401 U.S. 601, 609, 91 S.Ct. 1112, 1118, 28 L.Ed.2d 356 (1971), Mr. Justice Douglas observed that the National Firearms Act "is a regulatory measure in the interest of public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act." More recently, the United States Court of Appeals for the Fourth Circuit has had occasion to construe section 6845(f) in United States v. Morningstar, 456 P. 2d 278 (4th Cir. 1972). At page 280 of that opinion, the Court said the following:

Section 5845(f), subparagraph (1) deals with explosive and incendiary devices which have no business or industrial utility. They are covered regardless of their intended use. Subparagraph (2) is inapplicable because it refers to weapons. Subparagraph (3) deals with two types of materials "from which a destructive device may be readily assembled.". The first type is a "combination of parts. . . designed. . . for use in converting any device into a destructive device. . ." [Emphasis added] such as a bomb. This type includes, for example, the unassembled parts of a military fragmentation or incendiary bomb. Because of their design they are proscribed regardless of how the possessor intends to use them. If Congress had resolved not to include commercial explosives, it could have stopped at this point. Instead, in subparagraph (3) it defined a second type of illegal materials as a "combination of parts. . . intended for use in converting any device into a destructive device. . . ." [Emphasis added] such as a bomb. It is apparent, therefore, that Congress provided that the use for which these materials are intended determines whether they fall within the Act. (Emphasis in original.)

At page 281, the Court went on to say:

On its face, the definition of a destructive device gives fair notice to a person of ordinary intelligence that includes any combination of parts intended to be used as a bomb or weapon and from which a bomb or weapon can be readily assembled. See United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954).

Included among the many items seized in plaintiff's apartment on June 7, 1971 were a practice fragmentation hand grenade, a plastic, baseball type grenade, and a smoke or gas grenade canister. (Defendant's Exhibits Nos. 6, 7 and 8). Each of these items was equipped with a grenade fuse assembly. Also recovered in proximity to the grenades were several cans of black powder and a number of cans of smokeless powder suitable for use in rifles, pistols and shotguns. (Defendant's Exhibits Nos. 10-15, inclusive). From the testimony of the witness Scroggie (called as an expert by the government) and from an examination of the exhibits themselves, including photographs of various tests conducted by the government, this Court finds that these three grenades together with the powder seized were in combination both designed and intended to be used as destructive devices. Although these grenades could not have been exploded as found, they could have been fully activated merely by adding either the black powder or the smokeless powder likewise seized in plaintiff's apartment on June 7, 1971. [footnote 15] Unassembled parts of a hand grenade, like parts of a military fragmentation bomb, would be a combination of parts "designed" for use in converting any device into a de- structive device within the meaning of section 5845(f)(3). See United States v. Morningstar, supra, 456 F.2d at 280. In United States v. Shafer, 445 F.2d 579 (7th Cir. 1971), cert. den. 404 U.S. 986, 92 S.Ct. 448, 30 L.Ed.2d 370 (1971), the Court held that grenade shells, fuses and powder in combination constituted a "de- structive device" under section 5846(f), even though unassembled. In United States v. Kiliyan, 456 F.2d 555 (8th Cir. 1972), a training grenade, similar to Defendant's Exhibit No. 6 in this case, was held to be in violation of this statute.

Plaintiff relies on that part of section 5845(f) which provides that "the term 'destructive device' shall not include any device which is neither designed nor redesigned for use as a weapon, * * *." It is argued that possession of ordinary household articles would result in a violation of the law if the government's interpretation of the statute is accepted here. Such argument was specifically rejected in United States v. Davis, 313 F.Supp. 710, 714 (D.Conn. 1970), in which the Court found that cloth, gasoline and bottles which could be used to construct a Molotov cocktail were a combination of parts in violation of section 5845(f). The Court concluded that what Congress meant by the term "combination" was "an association of the components of a destructive device, at the same time and place, capable of being converted into a destructive device-not an actual union of parts in an assembled device." See also United States v. Ross, 458 F.2d 1144, 1145 (5th Cir. 1972).

Moreover, the grenade shells themselves in this case had been "redesigned" for use as a weapon. Thus, the component parts seized here would also fall within the second type of illegal materials proscribed by section 5845(f)(3), as the evidence shows that in combination they were "intended" to be converted into destructive devices such as active hand grenades. [footnote 16] Plaintiff was a collector of firearms and ammunition of various types and was in possession of a large quantity of weapons, devices and component parts at the time of the raid on June 7, 1971. Plaintiff spent much of his spare time disassembling, cleaning and re-assembling his weapons and firing them at practice ranges. He had inserted pistol primers in the fuse assemblies of the smoke grenade (Defendant's Exhibit No. 8) and the practice hand grenade (Defendant's Exhibit No. 6), had placed paper caps in the fuse assembly of the plastic grenade (Defendant's Exhibit No. 7) and had done other work on these devices designed to reactivate them. By placing live pistol primers in two of these grenades, plaintiff clearly disclosed his intention to make them explosive. Plaintiff argues that the smoke grenade contained no delay element and therefore could not in fact be used as a true hand grenade. Although as reactivated the smoke grenade could not be thrown with- out causing injury to the thrower, it was quite capable of being used with other items in the apartment as a booby trap and as such constituted a destructive device within the meaning of section 5845(f) (3).

Plaintiff next argues that the affidavit of Agent Davis, submitted in support of the application for the search warrant, does not meet the standards laid down by the Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). In particular, it is claimed that the information used was stale, that Davis should not have included in his affidavit hearsay information received by Detective Seminuk and relayed to Agent Davis, and that some of the information in the affidavit was erroneous. [footnote 17] There is no merit to any of these contentions. The information included in the affidavit indicating that plaintiff had illegal hand grenades in his apartment later proved to be completely accurate, as the original and supplementary returns disclosed. When information comes to an affiant through official channels, as here, it is not necessary that the affiant must personally know that the source was reliable. Travis v. United States, 362 F.2d 477, 481 (9th Cir. 1966) ; United States v. Shipstead, 433 F.2d 368, 372 (9th Cir. 1970); see United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Finally, the accuracy of the affidavit is not significantly affected because the motor vehicle owned by plaintiff was described therein as a white Jeep when in fact plaintiff owned a white Ford Bronco. There was no material misrepresentation of the facts here. The evidence indicates that a Ford Bronco looks like and could readily be described as a Jeep. The significance of information in the affidavit relating to the so-called "Jeep" is that records of the Maryland Department of Motor Vehicles confirmed the accuracy of the confidential informant's report that a man named Ken owned a motor vehicle with Maryland license HJ-5337 and lived in Apartment No. 2, 1014 Quebec Terrace. This Court concludes that the affidavit of Agent Davis under attack here satisfies the requirements of Aguilar v. Texas, supra, and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Plaintiff claims that Davis was negligent in assembling a team as large as 12 to 14 men to carry out the raid. But the evidence shows that plaintiff lived in a high crime area and that two search warrants were to be served in the building at the same time. Two county police officers were left outside to guard the police cruisers, leaving 5 or 6 federal agents and county officers to serve the warrants at each apartment. Agent Davis was not negligent in assembling a team of this size.

Finally, plaintiff argues that Agent Davis did not wait long enough at the door of plaintiff's apartment before ordering the use of the battering ram. But the evidence discloses that fair and adequate warning bad been given to the occupants of plaintiff's apartment before efforts were undertaken to open the door forcibly. After twice knocking on the door and announcing the presence of federal agents in a loud voice and after hearing sounds from within indicating that someone was moving away from the door, Agent Davis acted reasonably in ordering the use of the battering ram. Five or six blows by the ram were necessary,before the door was forced open. At any time while the ram was being used, plaintiff could have avoided damage to his door (and presumably the later personal injuries he sustained) by opening the door and admitting the officers who were then lawfully engaged in serving this federal warrant.

The Issue of Contributory Negligence

Even had he been able to produce at trial proof of negligence on the part of agents of the government, plaintiff would still not be entitled to recover damages in this case. The evidence here indicates that plaintiff's injuries were the direct result of his own contributory negligence.

From the evidence here, this Court finds that plaintiff heard the law enforcement officers at his door. [footnote 18] Rather than admitting the officers and submitting to a search of his premises, plaintiff chose to resist the lawful right of the agents to enter his apartment. Attempts were made to barricade the door and prevent entry by the officers. Even more imprudently, plaintiff and Mrs. McNeil armed themselves and prepared to shoot it out with the officers. After Agent Seals had entered the apartment and fired the first shot, plaintiff continued to point his loaded revolver at the other agents and officers who followed Seals into the room. Even after the first shot, plaintiff could have avoided injury to himself by taking cover and surrendering his weapon, or at the very least by not pointing his revolver at the other officers who entered the room after Agent Seals. His own negligent actions led directly to the serious injuries he suffered.

The credible evidence in this case does not support plaintiff's contention that he did not know that these men in his apartment were law enforcement officers. This Court finds that plaintiff did in fact hear the knocking and the loud announcement that federal officers were at the door with R search warrant. Although dressed in civilian clothes, a badge was prominently displayed by Agent Seals who was the first law enforcement officer to enter the apartment.

Whatever plaintiff was doing in the nude before the officers entered his apartment, he was not, as he claims, in the bathtub when they first knocked on his door. The evidence discloses, in the words of one witness, that he was "bone dry" when shot. More likely, plaintiff was not dressed when be first heard law enforcement officers at his door and in his haste to arm himself and try to keep them out, be did not take the time to clothe himself.

Conclusion

For the reasons stated, the plaintiff is not entitled to recover damages for the injuries he has sustained. Judgment is therefore entered in favor of the defendant, with costs.

FOOTNOTES

1. 28 U.S.C. sections 2671-2680.

2. Provisions of the National Firearms Act make it unlawful for any person to possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record. 26 U.S.C. section 5861(d). As used in the Act, the term "firearm" includes a "destructive device", and an explosive grenade is a destructive device. 26 U.S.C. sections 5845(a)(8) and 5845(f).

3. Under 28 U.S.C. section 2680, the provisions of the Federal Tort Claim Act do not apply to "(h) Any claim arising out of assault, battery, * * *".

4. Findings of fact and conclusions of law pursuant to Rule 52(a), F.R.Civ.P., are embodied in this opinion, whether or not expressly so characterized.

5. Bernstein did not remember two telephone calls to him made by Davis on June 7. However, Bernstein's recollection of these events was understandably poor. This Court accepts Davis' testimony that he called Bernstein once during the morning of June 7, 1971 before applying for the search warrant and again in the afternoon after the warrant had been issued.

6. The federal agents were briefed at the ATFD office at Falls Church, Virginia. Subsequently, another briefing was held with all the participating law enforcement officers in attendance at the Silver Spring District Police Station.

7. Mrs. Ballew herself described the area as a "rough neighborhood."

8. Plaintiff argues that the officers did not enter through the "front" door. Whether or not the door entered could be called the front door, the evidence discloses; that it was one of the principal means of gaining entrance into plaintiff's apartment.

9. Some seven months after this incident, Mrs. McNeil married plaintiff. Thus, when she testified at the trial, she was plaintiff's wife.

10. One police officer, stationed outside the building, testified that he could hear the pounding and the command from where he was then located.

11. Pillows lead been stacked against the door and a chair had been placed so as to block access to Ballew's living room.

12. The evidence indicates that Seals did not enter the room with his gun in his hand. Seals drew his pistol only after he saw the plaintiff aiming at him with a revolver.

13. Items (2) through (5) were included in the original return filed with Magistrate Meatyard on June 14, 1971. Item (1) was included in the supplementary return of July 1, 1971.

14. Of course, the federal agent's shot did not strike plaintiff. Even assuming that the shot fired by Agent Seals caused County Of- ficer Ciamillo to shoot plaintiff, the federal agent was not negligent in opening fire first under the circumstances here.

15. In addition, the practice land grenade would have required a plug at the bottom to retain the charge. Any ordinary material such as wood, wax, lead or paper would have been sufficient for this purpose.

16. The law requires merely that the component parts be "designed or intended" to be converted into a destructive device. Here, both parts of the test have been satisfied.

17. The evidence indicated that plaintiff owned a Ford Bronco rather than a Jeep.

18. Because of his injuries, plaintiff was unable to testify at the trial. Other testimony and evidence in the case lead to this finding that he knew of the presence of these federal agents and of their purpose.

282 posted on 03/01/2003 10:51:34 PM PST by spunkets
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To: OTA
When your check for doing historical reseach for you arrives you have a right to complain. I gave you a reference and you failed to follow through
283 posted on 03/02/2003 5:31:41 AM PST by harpseal
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To: harpseal
Harpseal:

Once again, please explain your logic. You make a claim and ask me to prove the facual basis? Usually when someone makes a statement they have some foundation in fact to rest their claim on. It's somewhat akin to someone writing a history text and telling the reader to write the footnotes and bibliography.

Thank you for your research but I still await the factual basis for your claim that the BATF killed someone in Towson, MD in the 1990's.

Regards: OTA
284 posted on 03/02/2003 8:21:37 AM PST by OTA
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To: spunkets; harpseal
"The evidence here indicates that plaintiff's injuries were the direct result of his own contributory negligence.

From the evidence here, this Court finds that plaintiff heard the law enforcement officers at his door. [footnote 18] Rather than admitting the officers and submitting to a search of his premises, plaintiff chose to resist the lawful right of the agents to enter his apartment. Attempts were made to barricade the door and prevent entry by the officers. Even more imprudently, plaintiff and Mrs. McNeil armed themselves and prepared to shoot it out with the officers. After Agent Seals had entered the apartment and fired the first shot, plaintiff continued to point his loaded revolver at the other agents and officers who followed Seals into the room. Even after the first shot, plaintiff could have avoided injury to himself by taking cover and surrendering his weapon, or at the very least by not pointing his revolver at the other officers who entered the room after Agent Seals. His own negligent actions led directly to the serious injuries he suffered.

The credible evidence in this case does not support plaintiff's contention that he did not know that these men in his apartment were law enforcement officers. This Court finds that plaintiff did in fact hear the knocking and the loud announcement that federal officers were at the door with R search warrant. Although dressed in civilian clothes, a badge was prominently displayed by Agent Seals who was the first law enforcement officer to enter the apartment.

Whatever plaintiff was doing in the nude before the officers entered his apartment, he was not, as he claims, in the bathtub when they first knocked on his door. The evidence discloses, in the words of one witness, that he was "bone dry" when shot. More likely, plaintiff was not dressed when be first heard law enforcement officers at his door and in his haste to arm himself and try to keep them out, be did not take the time to clothe himself.

Conclusion

For the reasons stated, the plaintiff is not entitled to recover damages for the injuries he has sustained. Judgment is therefore entered in favor of the defendant, with costs."

Interesting that this disproves the myth posted by Harpseal
regarding this incident. Harpseal stated that it was the ATF who shot Ballew when it was actually a Montgomery County, Maryland Police Officer. The ATF agent's shot did not hit him.

Thanks for your research.

Regards: OTA


285 posted on 03/02/2003 8:45:27 AM PST by OTA
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To: OTA
This particular court ruling leaves more unanswered questions than it does answers. Contributory negligence so that one can not collect in a suit against the government when there are some very distinct questions and when no evidence of a felony was found makes one very much question such a finding. You asked me to do the research when it was up to you and as for the "research" would you be kind enough to post where this research comes from? All we have at present is an unsourced quote. Without the full transcriy at least availabel from some other verifiable source we have a possibly biased conclusion.

If this is not a court transcript then we must question it further. Also what did the appeals court say?
286 posted on 03/02/2003 9:36:35 AM PST by harpseal
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To: harpseal
This is the final court doc. Since I could not find any appeal, I think there was none.
287 posted on 03/02/2003 10:52:32 AM PST by spunkets
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To: harpseal; spunkets; Lloyd227
Your quote:

"You asked me to do the research when it was up to you"

Is quite puzzling. I just simply asked you to back up your statement. Please refer to my previous post #284 on this thread. Since when, in the accepted rules of debate, is it encumbent on me to prove your point? Sort of bass ackwards harpseal.

Perhaps you would desire me to prove a negative (i.e. prove that it didn't happen). I would then simply provde you with link to the Towson Times and Baltimore Sun archives in which you could see that there is no mention of this alleged killing. You could, for that matter, search the Washington Times as well as it would probably make news in DC as well.

I simply asked you to provide SOME verifiable proof to buttress your claim that the BATF shot and killed someone in Towson, MD in the 1990's. You asked for two weeks. That was five weeks ago. I'm not going to "mail you a check" for the time it takes you to back up some nebulous claim. If you don't have the proof don't make the statement. If it was an incorrect statement simply say so. Otherwise you simply appear, at least in my humble opinion, to be full of hot air. You can bust my chops all you want harpseal but it won't make an incident occur when it didn't.

Let me distill this even further. YOU made a claim. I said it was bunk, called you on it, and asked you to prove it. You can't. Period.

Regards: OTA










288 posted on 03/02/2003 5:55:56 PM PST by OTA
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To: spunkets
Could you please let us know where you found this? A link would be great.

Regards: OTA
289 posted on 03/02/2003 5:57:58 PM PST by OTA
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To: OTA
You should be able to pull it off this link
290 posted on 03/02/2003 6:24:14 PM PST by spunkets
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