Friday, May 30, 2008

Drew Peterson's First Legal Shot Fired At Prosecutor On That Gun Charge


Joliet ILDrew Peterson’s lawyer, Joel Brodsky has filed a motion on simple, plain English grounds to dismiss the complaint filed over a gun seized last November by Bolingbrook police.

When the gun was seized Peterson was a police sergeant and member of the department’s SWAT team. The rifle was equipment that was used in connection with that assignment.

Unlike many police departments across the country, Bolingbrook requires their officers to find and purchase their own duty weapons. The officers are reimbursed through their police uniform allowance. That includes any weapons used by the SWAT team.

The complexities of department technicalities about issues of barrel length are just that, departmental issues. The weapons themselves are covered under a federal law preemption that immunizes the officers from criminal prosecution under any state law. Peterson was charged under Illinois law that cannot be used against him.

Frustrated state police investigators have no evidence of murder so they took another route to disrupt Drew Peterson’s life. Perhaps someone should have bothered to read the law first.

Here’s a motion filed today in The Circuit Court of Will County, IL:
Read this doc on Scribd: Dismiss Motion

26 comments:

TheBronze said...

This isn't going to fly. Not to mention that the motion has the wrong date on it, the intent of LEOSA was to allow "concealed weapons" (as specifically stated in USC) to be carried in all states. LEOSA preempts CERTAIN state laws only regarding carrying a concealed weapon, not for other weapons-related state laws (i.e. possession of certain types of weapons).

LEOSA does NOT preempt ANY Federal Laws regarding firearms.

So, LEOSA does not cover Peterson for owning an assault-weapon (AW) that has a barrel length under the Federal minimum of 16" regardless of whether he was a police officer or not. There is no legal exemption from the 16" barrel length for police officers, for short-barreled rifles (SBR's).

In Kalifornia, an LEO may only purchase an AW if authorized by their dept and for duty-use only. The LEO may not purchase/own an AW that is an SBR because it is illegal Federally (and under CA state law).

If a firearm is illegal to own, either under State or Federal law, LEOSA provides no protection for that.

Peterson will go down for this, when all is said and done.

Crimefile said...

Mr. Bronze:

What was the, “Wrong date on the Motion?” I suspect you are referring to the date the weapon was seized at Peterson’s home. That was November 1, 2007. They just got around to making the arrest and beginning a prosecution.

There was and is no wrong date.

1. The so Called “Assault Weapons ban has expired and in no longer on the books.
2. The California State law you quote thankfully does not reach Illinois or the other states.
3. Concealed weapon was used, NOT “HANDGUN”. A short rifle or shotgun was not excluded from the law that immunizes Peterson.

When all is said and done there are two issues that will free Peterson fro this bogus charge. The first being they measured the barrel wrong and it’s longer than 16”. The second is Peterson’s current motion will prevail in court.

In addition to the above a real wild card will be the US Supreme Court’s decision in D.C. V. Heller that will tell us if there if gun possession is in fact a right or a privilege subjects to prohibitions. That decision will be the law of the land as of any Monday before June 24, 2008.

If they want Peterson they will have to find a lawful way to get him rather than by violating his civil rights.

The Bill of Rights still exists in America and it protects more than just suspected criminals.

TheBronze said...

Um, yeah, see #2 in the motion. Wrong date. 1 Nov 2008 hasn't happened yet...

This has nothing to do with the expired Federal AW ban. Both Federal and (apparently) Illinois law make it illegal to possess a rifle with a barrel less than 16". There is no LEOSA exemption for that, even if you think that LEOSA covers rifles, which it doesn't.

Apparently, you didn't read (or comprehend) most of what I wrote. I wasn't saying that California law affected Peterson. But the point still remains. Peterson's lawyer is trying to stretch LEOSA to make it fit where it doesn't and Peterson will go down for it, because LEOSA doesn't cover him.

His Chief said that it was a personal weapon and not cleared by the police department. Even if it was a personally owned weapon, authorized by the department, Peterson isn't allowed to possess a barrel less than 16" long according to Federal (and probably State) Law. TEHRE IS NO LEOSA EXEMPTION FOR THAT. LEOSA doesn't mean what you and his lawyer think it means.

How do you figure that the barrel was measured wrong? I can plainly see from that picture that the barrel is way less than 16". It looks to be a 10" barrel. Unless the flash-suppressor is permanently attached (pinned and welded on) it doesn't count towards barrel length.

You're betting on the wrong horse, Paul.

Crimefile said...

Mr. Bronze:
You’re right about the year! It must have been a typo,

As for LEOSA, it covers concealable firearms rather than handguns. A short barrel rifle with a folding stock will conceal quite nicely even under your skirt, won’t it?

Don’t forget that ringer Supreme Court ruling due any minute.

TheBronze said...

A rifle (even an SBR) is not considered a "concealable weapon" in any jurisdiction that I know of. Doubtful that a court will rule that that is what LEOSA refers to, either.

Crimefile said...

Congress could have used the word handgun, pistol or revolver. Instead, in their infinite wisdom used a very ambiguous term, concealable firearm. That was to include short entry style rifle and shotguns. If you can conceal it, it qualifies.

Anonymous said...

A major problem with gun laws is they are written by the gun-haters trying to ban guns. Because of the gun-hater’s ignorance they are passing all kinds of laws that a. Don’t really ban what they are trying to ban. b. Ban things they really did not intend to ban. This same thing constantly happens at every level of government.

Joel A. Brodsky said...

The November 1, 2008 date is a typo. It should be November 1, 2007, the date on the criminal complaint. I don't understant thebronze's comment. Local cops use short barreled rifles all the time, (the MP5 issued to Peterson by the BB police dept. had a short barrel!) So how can they be totally illegal even if they are a duty weapon? LEOSA makes no distinction between duty weapons and private weapons. LEOSA makes it legal for a qualified law enforcement officer to conceal carry any weapon (except machine gun, silncer, or bomb), anywhere in the USA. Of course if one can conceal carry, then one can possess, reveal, transport, and store the weapon. (congress obvioiusly didn't intend for the officer to bath and sleep with the weapon concealed on his person 24/7) LEOSA applies to Peterson's situation and we will prevail on the motion to dismiss.

Anonymous said...

An Act
To amend title 18, United States Code, to exempt qualified current and former law enforcement officers from State laws prohibiting the carrying of concealed handguns.

I just reviewed the LEOSA to see what the definition of "firearm" was. It kind of contradicts itself, in that the Act states that it exempts the carrying of concealed "HANDGUNS" as stated above.
Then in the following section the term firearm is limited as outlined below:
`(e) As used in this section, the term `firearm' does not include--
`(1) any machine gun (as defined in section 5845 of the National Firearms Act);
`(2) any firearm silencer (as defined in section 921 of this title); and
`(3) any destructive device (as defined in section 921 of this title).

Kind of confusing, but I'm betting that this boils down to handguns only.

TheBronze said...

Joel,

Yes cops carry SBR's all the time, because they're department property!

A cop can not carry a personally owned SBR unless it is a) owned by the department or b) he has a tax-stamp for a personally-owned SBR (meaning: he went through the process with the BATFE, paid his $200 and received government approval (the tax-stamp) to own said rifle). In this case, it doesn't appear that Peterson satisfied either of those two requirements.

Let me be clear, there is NO federal exemption for a police officer to carry an SBR (except for the two exceptions I listed above).

LEOSA certainly doesn't provide it.

Also, SBR's were not the intent, or the language of LEOSA. Handguns ("concealable weapons") were/are. As I said before, no jurisdiction considers a SBR a "concealable weapon". Show me one (either in IL or Fed law) that does.

Once again, LEOSA applies to the carrying of handguns ("concealable firearms") across the US. It preempts state laws only in regard to concealed carry, not anything else (i.e., ownership/possession of a certain weapon). If a weapon is illegal to own/possess under State Law, LEOSA doesn't change that.

So here are my questions to you:

1) Does IL state law allow for a cop to posses a personally owned SBR?

2) If so, why are you invoking LEOSA? Either way, it doesn't apply to this case because his arrest isn't for carrying a concealed weapon, it was for possessing an illegal weapon.

3) Did Peterson's chief authorize him to carry that specific rifle as a "duty-weapon"?

4) Was the flash-suppressor "permanently affixed" to that rifle, as required by law?

I eagerly await your answers...

TheBronze said...

Paul, in re-reading my last comment, the first paragraph should be changed to this:

A cop can not carry an SBR unless it is a) owned by the department or b) he has a tax-stamp for a personally-owned SBR (meaning: he went through the process with the BATFE, paid his $200 and received government approval (the tax-stamp) to own said rifle). In this case, it doesn't appear that Peterson satisfied either of those two requirements.

Can you either fix that one, or post this one. It was edited for clarification.

Joel A. Brodsky said...

thebronze:
In answer to your questions.
(1) Yes, if the weapon is used "in the performance his duty", a officer in Illinois can possess a short barreled rifle. Your confusion stems from the fact that in the midwest most duty weapons are privately owned. This is not the case is the rest of the country. The AR-15 is on the approved list of optional weapons for swat officers issued by the bolingbrook pd. Officers can purchase these weapons at there own expense for swat use if they want. If the weapon is purchsed from a private party (another cop) or with a long barrel (that is later replaced with a short barrel) then no BATFE approval is required. (What is the citation of the federal law you say prohibits cops from possessing privately owned SBR's used in the line of duty?)
2. LEOSA cearly applies to Peterson's case. The statute refers to firearms, not handguns. (preambles are not part of the statute!) If he can legally conceal carry the firearm, then he can possess the firearm in an unconcealed fashion when it is not being conceal carried (unless you tell me congress intended him to shower with the gun concealed on his person) LEOSA is part of the federal fireams statute, which defines (sec. 921) both "firearm"and "handgun". Firearm includes rifles. Congress used the term "firearm" in LEOSA not handgun so rifles that can be concealed are covered. (An AR-15 with an allegedly short barrel and a collapsible stock is concealable!)
3. Yes. He was specifically authorized by a prior chief to use this specific weapon, and he was authorized by the current chief when the department issued written lists each year that listed each officer and which weapons they qualified with and were authorized to use.
4. The flash suppressor was screwed onto the end of the barrel which is threaded specifically for the suppressor.

TheBronze said...

Joel,

Thanks for your replies.

To answer your question it is illegal (under Federal law) for ANYONE (an individual) to own a rifle with a barrel under 16", unless they have a tax-stamp from the gov't authorizing them to own/possess it. This is under the Nat'l Firearms Act of 1934. There is no exemption for LEO's under Fed. Law.

Regarding the flash-suppressor: it only counts towards the length of the barrel if it is "permanently affixed". If it can be easily removed (as you said it can), it isn't considered "permanently affixed", therefore his barrel is under the legal length of 16", therefore illegal under Fed. Law and IL State Law (unless there is an exemption for privately-owned rifles by LEO's under State Law).

You said "If the weapon is purchsed from a private party (another cop) or with a long barrel (that is later replaced with a short barrel) then no BATFE approval is required." That is not correct. As I said, there is NO expemtion for LEO's to possess SBR's without BATFE approval (tax-stamp). Regardless of whether it is legal for an IL LEO to own/possess an SBR, it's still illegal under Fed. Law. If Drew was authorized by the dept. and IL State Law to own that rifle, he is still in violation of Fed. Law.

Rifles cannot be concealed, by their very nature (of length). The intent of LEOSO was for LEO's to be able to carry CONCEALED HANDGUNS across the US, not for them to be able to carry anything they want. Read the text of HR 218 (http://www.leaa.org/218/218text.html)
Like I said, show me any jurisdiction that says that a rifle (SBR or not) is considered a "concealable firearm". You can't.
I'll agree that 18USC, 926 has poor wording, but the intent is for handguns, not rifles. Obviously a court will hash that part out later.

Having said all that, I'll concede to you that IF Drew was authorized by the Dept. and IL Law to carry that SBR, then he'll be found not guilty, but it's not because of LEOSA.

Let's say that LEOSA does cover rifles (which it doesn't). LEOSA does not cover him for having an SBR, because it's illegal under Fed. Law to possess a rifle under 16" w/out BATFE approval. LEOSA provides no exemption from other Fed. firearms laws (SBR's in this case) and only gives State Law exemptions for laws relating to the carrying of concealed weapons. Either way, he isn't covered by LEOSA.

As far as I know, Drew was charged under State Law, not Fed. Like I said, IF Drew was authorized by the Dept. and IL Law to carry that SBR, then he'll be found not guilty, but it's not because of LEOSA.

However, if Drew got the AR-15 authorized by the dept. with a barrel that was the legal minimum of 16" and then cut the original barrel down or changed barrel's to a shorter barrel, he violated Fed. Law, and maybe dept. policy.

Crimefile said...

This case will end in a legal determination by a Judge that:
1. The barrel is simply over 16” long.
2. Peterson is immune to state prosecution because his SWAT duty rife is indeed cancelable.

There will be not trial or finding of Not Guilty. The case will never proceed that far.

Let’s agree to disagree. The loser of this argument will by a beer for the winners.

TheBronze said...

1) No. The picture plainly shows that's not the case.

2) That might be true, but it won't be because of LEOSA. A rifle is not a concealable weapon.

I think you're wrong. We'll see...

Crimefile said...

Mr. Bronze, tell me please, how does the photograph show that the state police are correct in their claim the barrel in exactly 3/8’’ shorter than 16”?????

Crimefile said...

Mr. Bronze are you saying you can hide that little rifle under your miniskirt? Sure you can!

TheBronze said...

Because the barrel is measured from the chamber end of the barrel to the end of the threaded part of the barrel (where the flash suppressor attaches). The barrel in that picture is approx 11" to 11.5" long.

Here is a pic that will help you:
http://www.bushmaster.com/images/catalog/xm_15_zoom/BCWA2F%2011-5.jpg

Again, the flash-suppressor is not counted towards barrel length unless it's permanently affixed. Joel said that it isn't, therefore, it doesn't count.

Don't ask me about the ISP, I don't work for them, don't know what they said and don't know where the 3/8" comes from.

Just because I can hide it under my skirt, doesn't mean that it's concealable. Concealable/concealed is a legal definition. Concealable/concealed refers to a handgun, not a rifle.
I.E., say I'm carrying a sawed-off shotgun down my pant leg. I wouldn't get arrested for carrying a concealed weapon, I'd get arrested for possessing an illegal weapon, because it's sawed-off. The sawed-off shotgun isn't a concealed/concealable weapon and neither is Drew's rifle.

Like I said, show me a State or Fed. Law that refers to a rifle as a concealable/concealed firearm and I'll admit I was wrong.

TheBronze said...

This is what a true 16" barrel looks like:

http://www.bushmaster.com/images/catalog/le_mil_zoom/MCWA3F%2016.jpg

Anonymous said...

1. There are procedures (tax stamps) required for a person, or even a police department, to own a rifle such as the one in question.
2. The federal law quoted does not protect / apply to Drew Peterson. In the text quoted in the motion it clearly states the law does not protect an officer who is: "the subject of any disciplinary action by the agency."
Peterson was under disciplinary action by his agency due to an unrelated incident at the time of his wife's disappearance.

TheBronze said...

Just FYI, tax-stamps aren't required for dept's because they're gov't entity's. They can buy whatever types of weapons they want.

I didn't know Drew was undergoing discipline, but if so, LEOSA wouldn't cover him. It doesn't anyway.

TheBronze said...

Joel,

By your logic, would Drew be able to carry a .50 cal Barret rifle if it was illegal in IL (I don't know whether it is or isn't) under LEOSA?

TheBronze said...

To anonymous: I was incorrect. Dept's do have to get the tax-stamp, but they don't have to pay the fee's.

Crimefile said...

Geraldo knows nothing at all about firearms. The barrel on Peterson’s SWAT rifle was a shorter replacement barrel but I believe the one on the rifle is 16.1” in length. The Colt barrel that came on that frame was much longer than the law requires.

I don’t give a rat’s ass about the investigation into the disposition of Peterson’s wives. He’s absolutely innocent because he has not been convicted of anything. He’s never even been charged.

You’re reaction to the peterson publicity is un-American to say the least.

Unless someone can establish that either Peterson wife was actually murdered these cases are over. If one or both were murdered they will have to locate and charge a suspect.

No suspect can be convicted until either a guilty plea is entered or a jury finds the suspect guilty beyond a reasonable doubt.

Frankly, I don't believe that Peterson will be more than the subject of a lot of malicious gossip. We will have to wait and see.

The Taliban have a system of justice that would suit too many Americans these days.

Anonymous said...

Ok the supreme court ruled today how does it effect Drew's case?
He Still needed the tax stamp to own that thing?

Crimefile said...

After reading Heller I don't anticipate and impact on the Peterson case.

The issues of the actual barrel legnth and the federal exemption are his only avenues.