Wednesday, June 4, 2008

Should Drew Peterson Move To Dismiss Weapons Charges? Update 7-31-08 by Legal Pub

This is intended for legal scholars. It is not about Stacy Peterson, nor is it about whether D.P. is guilty of murder. A poster questioned whether the weapons charges were legitimate. On or about 5-21-08, Peterson was arrested for having an illegal weapon. The weapon had been seized shortly after Stacy's disappearance. One gun had a barrel 3/16 of an inch too short. D.P. claims he owned this gun while he was a police officer and therefore he should be excused. Charges remain pending. Joel Brodsky issued a press release: "The allegation is that Drew Peterson had ... an AR-15 assault rifle that had too short of a barrel. According to Illinois law, the barrel of a rifle may not be shorter than 16 inches. State police say this particular ... barrel ... was 3/8 of an inch too short. This weapon ... was used by Drew while he was a Bolingbrook, Ill. police officer. Under Illinois state law, police officers are exempt from barrel length requirements for duty weapons... Authorities seized the weapon ... while Drew was a sergeant and a member of the SWAT team... He did not resign until after the weapons were seized..."
Consider the following Motion to Dismiss...

Now comes the Defendant, ... and pursuant to 725 ILCS 5/114-1, and the inherent authority granted under People v. Newberry, 166 Ill. 2d 310 (1995) moves this Court to enter an order dismissing the above referenced charge. In support of this motion the Defendant states:
1. Defendant is charged with Unlawful Use Of A Weapon under 720 ILCS/24(a)(7)(ii), to wit: having possession of a rifle, a Colt Sporter Lightweight AR-15 .223 Caliber Serial# SL025365, with a barrel length less than 16 inches in length on November 1, 2007.
2. On November 1, 2007, there was in full force and effect a law enacted by the Congress of the United States which states at 18 USCS 926B: (Exhibit “A”)
“§ 926B. Carrying of concealed firearms by qualified law enforcement officers (a) Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified law enforcement officer and who is carrying the identification required by subsection (d) may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b). (b) This section shall not be construed to supersede or limit the laws of any State that--(1) permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property; or(2) prohibit or restrict the possession of firearms on any State or local government property... (c) As used in this section, the term "qualified law enforcement officer" means an employee of a governmental agency who--(1) is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and has statutory powers of arrest;(2) is authorized by the agency to carry a firearm;(3) is not the subject of any disciplinary action by the agency;(4) meets standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm;(5) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and(6) is not prohibited by Federal law from receiving a firearm.(d) The identification... is the photographic identification issued by the governmental agency for which the individual is employed as a law enforcement officer.(e) ..."firearm" does not include--(1) any machine gun (as defined in section 5845 of the National Firearms Act [26 USCS § 5845]);(2) any firearm silencer (as defined in section 921 of this title [18 USCS § 921]); and
(3) any destructive device (as defined in section 921 of this title [18 USCS § 921]).”

3. The Law Enforcement Officers Safety Act of 2004, exempts qualified law enforcement officers from the application of state laws regarding carrying of concealed firearms.
4. Drew Peterson was a “qualified law enforcement officer” within the meaning of 18 USC 926B on November 1, 2007.
5. On November 1, 2007, Defendant Drew Peterson had photographic identification issued by the Village Of Bolingbrook Police Department required by 18 USC 926B.
6. The firearm identified in the complaint is not any type excluded by 18 USC 926B(e). It is not a machine gun, does not have a silencer, and is not a destructive device as defined by 18 USC 921.
7. The firearm was shipped or transported in interstate commerce since its manufacture at Colt’s factory in Hartford, Connecticut and its seizure by the Illinois State Police in Will County, Illinois on November 2, 2007.
8. The firearm identified in the complaint is capable of being carried in a concealed manner.
9. That since the enactment of this statute on July 22, 2004, Congress has preempted the laws of the individual states and their political subdivisions concerning law enforcement officers accountability to state and local firearms laws.
10. Congress has made it legal for qualified law enforcement officers to conceal and carry any weapon, (other than a machine gun, a silencer equipped gun, or destructive devise), despite any state or local law to the contrary, preempting and superseding all such state and local laws.
11. As a direct and necessary corollary of the right to carry such a weapon in a concealed manner is the necessary right of the said officers to possess, transport, and store said firearms while they are not carrying them.
12. Therefore, Defendant was entitled by Federal law to carry, possess, transport and store said weapon despite contrary state law.
13. Because of this federal exemption, Defendant is immune from prosecution for Unlawful Use Of A Weapon under 720 ILCS/24(a)(7)(ii) for possession of said weapon on November 1, 2007. This Court lacks jurisdiction to prosecute the Defendant for the state offence of Unlawful Use Of A Weapon under 720 ILCS/24(a)(7)(ii). Consequently, the complaint fails to state an offence for which the Defendant can be charged and convicted.
WHEREFORE, Defendant Drew Peterson prays that this Court enter an order dismissing the the charges against him with prejudice and discharge his bond without further delay.

If Joel A. Brodsky and Andrew Abood file such a motion, should the judge dismiss the charges? What do you think?

Update 7-31-08: Joel Brodsky on behalf of Drew Peterson moved to dismiss the charges based on Law Enforcement Safety Act of 2004 enacted by Congress as 18 U.S.C. Sec. 926b (LEOSA.) On 7-30-08, Circuit Judge Richard C. Schoenstedt ruled that Peterson was a qualified law enforcement officer under LEOSA. He further ruled that the Peterson maintained a right to carry a concealed firearm pursuant to LEOSA. The court did not yet make a definitive ruling on whether Peterson can still be charged with possessing an illegal firearm regardless of the protection he is afforded under LEOSA. Since this was a motion to dismiss a charge pending pursuant to a Bill of Indictment presented by the Grand Jury, "the burden is on the defense to show this Court by a preponderance of the evidence that even taking matters in the best light for the State, as a matter of law the Bill of Indictment is so insufficient that it must be dismissed. For the defense to be successful at this stage, this Court would be required to make certain assumptions on behalf of the defense, and against the State as to the intent and meaning of LEOSA. Given the burden as described, this Court declines to do so. " (In sum, the charge survives for now, but it looks like the State won't be able to meet it burden at trial on the gun charge.)

Update 8-18-10: The UUW Gun case is set for hearings on Peterson's motion to dismiss on Monday August 23

40 comments:

Law Man said...

Wow, preemption was not my strong suit. However, my initial impression is that D.P. attorneys may want to consider filing for removal to federal court on the issue of preemption.

If there is preemption, then the state court has no jurisdiction to proceed.

Law Man

Jailer said...

J.B. mentioned immunity for officers under state law in his press release. Should he not also reference the state law if it does in fact provide immunity?


Jailer

Anonymous said...

I realize, that you probably paraphrased what the motion would be, but I also think reference to state law, if it is helpful, should be made. I also agree that if the argument is federal premption, one would want to get the federal court involved. Most state court judges are reluctant to follow federal law if they are not familiar with it.

Legal Pub said...
This comment has been removed by the author.
Anonymous said...

I know little of the law. While I think Peterson is nasty, I think the weapons charge is complete b*llsh*t.


Holly

Legal Pub said...

Yes, I did paraphrase the motion and edit it some to fit the post. The basics of the motion remain. Any specifics can and should be shared with J.B.

Ms Calabaza said...

I agree with Holly. Although, I'm not a legal scholar I do think this charge is BS.

Anonymous said...

Got to agree, motion seems wordy, but the charges are utter b.s.

Anonymous said...

I think the motion is well founded. I would try a similar motion and if it did not work, attempt to remove to federal court.

Zinger

Anonymous said...

Gun charges should go by by

Anonymous said...

I always thought the weapons charge was bogus!

Anonymous said...

No. 18 USCS 926B as it reads here refers to the carrying of concealed weapons, not the carrying of modified illegal weapons. I don't think it's applicable.

Anonymous said...

If you can carry the weapon, you can certainly possess the weapon.The question is whether the statute preempts state regulation of all weapons except the prohibited ones, machine gun etc.

I read the statute in favor of the preemption argument. If so, it does not matter if the gun was altered just so that it is not one of the statutorily prohibited weapons.


Bruce

Anonymous said...

I would try to remove the case to federal court if the motion to dismiss does not work.


B.N.

jail house lawyer said...

As a jail house lawyer (no formal training) can I comment? Seems to me this is an attempt to throw a bunch of crap on the wall to see what sticks. The charge is bogus. If you think he murdered the women, indict him. If you don't, don't go out of your way to make up charges that would not normally be filed against cops.

Anonymous said...

Motion to dismiss is definitely worth a shot.

Anonymous said...

Premption argument is unlikely to fly in state court. State court judges tend to view federal law as almost a foreign concept. The argument itself is very creative.

Anonymous said...

I'm surprised that his own lawyer hasn't weighed in with an opinion here. LegalPub, are you asking on J. Brodsky's behalf?

Legal Pub said...

I suspect J.B. will file a similar but much better motion. But I am genuinely curious as to what others think if J.B.'s files a federal preemption argument.

Personally, unless there is something that I do not know, I suspect that the gun charge will never be tried. But perhaps there is something that I do not know about Illinois law on the subject.

In the interim, any other comments on the federal preemption issue?

Anonymous said...

I think D.P. should just punt.

Anonymous said...

Item #12:

"Therefore, Defendant was entitled by Federal law to carry, possess, transport and store said weapon despite contrary state law."

Maybe it is just the legal wording but this statement makes it sound like he is admitting guilt of disobeying a state law. So couldn't it theoretically backfire as admittance of breaking a state law if they don't agree he had a federal exception??

Joel A. Brodsky said...

My further reasearch on the federal statute in question the "Law Enforcement Officer Saftey Act" (LEOSA) has revealed that congress intended it to cover concealable assault rilfes like the AR-15 in question (alleged short barrel and colapsable stock) During the house committee debates an amendement was offered (Scott Amendement) to have assault rifle type weapons to the those excluded from coverage under the statute (like machine guns and silencer equiped guns. The amendement was denied. Therefore, congress specifically intended LEOSA to apply to assault rifles like the AR-15. Further, there is a New York case now being reported on Westlaw (NY vs. Booth, 2008) where it was decided that even if it is against an officers department rules to own or carry a specific weapon, LEOSA still gives the officer imunity because LEOSA is intended to cover privately owned weapons, not just duty weapons.

Legal Pub said...

Sounds like Joel has it under control... Good comments. Maybe #12 should be reworded to say "alleged" to make sure there is no admission.

Anonymous said...

The Booth case will have no precedent value in Illinois state court.

Anonymous said...

?

Anonymous said...

Can we get into the non legal stuff now like, yah, he may be innocent of weapons charges but I say still put him in jail because my neighbor knows a friend who has a brother in law whose cousin says D.P. is a bad person who does not clip his toe nails?

Anonymous said...

CHUCKLES??!!

Legal Pub said...

Update 7-31-08: Joel Brodsky on behalf of Drew Peterson moved to dismiss the charges based on Law Enforcement Safety Act of 2004 enacted by Congress as 18 U.S.C. Sec. 926b (LEOSA.) On 7-30-08, Circuit Judge Richard C. Schoenstedt ruled that Peterson was a qualified law enforcement officer under LEOSA. He further ruled that the Peterson maintained a right to carry a concealed firearm pursuant to LEOSA. The court did not yet make a definitive ruling on whether Peterson can still be charged with possessing an illegal firearm regardless of the protection he is afforded under LEOSA. Since this was a motion to dismiss a charge pending pursuant to a Bill of Indictment presented by the Grand Jury, "the burden is on the defense to show this Court by a preponderance of the evidence that even taking matters in the best light for the State, as a matter of law the Bill of Indictment is so insufficient that it must be dismissed. For the defense to be successful at this stage, this Court would be required to make certain assumptions on behalf of the defense, and against the State as to the intent and meaning of LEOSA. Given the burden as described, this Court declines to do so. " (In sum, the charge survives for now, but it looks like the State won't be able to meet it burden at trial on the gun charge.)

Anonymous said...

Ok. I give Brodsky credit on this one. He looks like he was right on the weapons charge. Maybe he is a better lawyer then some of us gave him credit for!

Anonymous said...

Brodsky, I don't like him but even I have to admit he did a good job on this one...

Anonymous said...

Wow

Anonymous said...

Okay, Yuk. I admit it. Joel B. appears to be right on this one. I am now eating my humble pie.

Anonymous said...

J.B. was right on this one!

Anonymous said...

The weapons charges against Peterson always were a crock! Prosecutors, play straight. If you get an indictment then do it. If not, let the man be.

Anonymous said...

Yup, exagerated handling because it was drew.

Anonymous said...

The prosecution removed this judge from the murder case because he ruled in Peterson's favor on the weapons charge. Talk about trying to be unfair. The judge made the right decision on the weapons charge. And while I hate D.P., you go t to decide cases according to due process. This is not a win at all costs system.

Legal Pub said...

Update 5-29-09: The remains found last week near a blue barrel are not those of Stacy Peterson or Lisa Stebic. Testing done on the remains showed they belonged to a male. .

Legal Pub said...

Update 4-30-10: Lawyering up. Drew Peterson has added Chicago defense attorneys Steven Greenberg, Ralph Meczyk and Darryl Goldberg to his defense team. The three join Joel Brodsky, his partner Reem Odeh and attorney Joseph Lopez. Peterson will be tried in June for the alleged murder of his third wife Kathleen Savio in 2004.

Legal Pub said...

Update 8-18-10: The UUW Gun case is set for hearings on Peterson's motion to dismiss on Monday August 23, 2010.

Anonymous said...

Interesting rational on ownership rights. I think the court made a mistake on the issue.