March 16, 2010
Col.
Jim Konrad, Director
Division
of Enforcement
Minnesota
Department of Natural Resources
Re: In the Matter of the Appeal of the Notice of
Seizure and Intent to Forfeit Firearm, CF No. 367041
OAH Docket No. 3-2000-21153-2
Dear Col. Konrad:
The above-entitled matter came on for a prehearing
telephone conference call on March 8, 2010.
The Administrative Law Judge, Conservation Officer Julie Siems, Cindy
Meyer, and Benjamin Meyer participated in the telephone conference. The parties agreed that no formal hearing
would be needed and that the ALJ would make a recommendation in this matter
based on the record created during the telephone conference.
During the November 2009 deer hunting season,
Chief Sjolander of the Kenyon Police Department advised Conservation Officer
Siems that Ben Meyer had shot a deer, despite the fact that he was not allowed
to use or possess a firearm because of a conviction for third-degree assault
several years ago. Officer Siems independently
determined that Mr. Meyer had obtained a license to hunt with a firearm on
November 6, 2009. He had registered a
deer taken on November 7, 2009. She also
checked his criminal history and verified the third-degree assault conviction.
On November 10, 2009, after confirming
the above information, Officer Siems ran into Mr. Meyer at a gas station. Mr. Meyer does not dispute that his
conviction disqualifies him from using or possessing a firearm. In this conversation, he acknowledged that he
had shot the deer with a .50-caliber Thompson/Center in-line muzzleloader,
which he said he had purchased after doing some internet research and
concluding that a felon could possess a muzzleloader because no criminal history
check was required in order to purchase it.
Mr. Meyer also advised Officer Siems that he was on his way to his
mother’s home to butcher the deer. His
mother is Cindy Meyer.
After confirming with
In a living room on the lower level of
the home, Officer Siems observed a black gun case on the floor. The case was spattered with mud and was near
a pile of camouflage clothing. Officer
Siems asked Ms. Meyer to open the case, and she did. Inside was a newer-model Thompson/Center
muzzleloader with a camouflage finish. Officer
Siems issued a Notice of Seizure and Intent to Forfeit a Firearm, and Ms. Meyer
signed the notice acknowledging receipt.
She thereafter advised her son, in the presence of Officer Siems, that
the citation included instructions on appeal processes for “how to get your
gun—I mean, my gun, back.”
Ben Meyer maintained in the hearing
that he borrowed the gun from his father, who is too ill to use it. Ms. Meyer maintained that she purchased the
gun several years ago. This testimony is
inconsistent with Ben Meyer’s initial statements to Officer Siems that he had
purchased the gun recently after doing some internet research and hearing a
lawyer on a radio program say that persons convicted of violent crimes could
use muzzleloaders because they are not considered firearms in some places.
A third-degree assault is considered a
crime of violence under Minn. Stat. § 624.712, subd. 5 (2008). A person who has been convicted of a crime of
violence is not entitled to ship, transport, possess, or receive a firearm for
the remainder of the person’s lifetime.[1] The law further provides that a DNR
enforcement officer must seize firearms possessed in violation of state or
federal law or court order.[2] A firearm is a gun that discharges shot or a
projectile by means of an explosive, a gas, or compressed air.[3] A muzzleloader fits this definition. Moreover, it is not important who originally
bought the muzzleloader. The DNR has
authority to seize and forfeit firearms that are possessed in violation of the
law or court order, regardless of who may own the weapon.
The Department has proved that Officer
Siems properly seized a firearm possessed by Mr. Meyer in violation of state
law. The Administrative Law Judge
accordingly recommends that the Commissioner affirm the citation and forfeiture
of the weapon.
I am closing our file in this matter
and returning the record. Pursuant to
Minn. Stat. § 116.072, subd. 6(e), the Commissioner must wait at least five
days after receipt of this recommendation before making a final decision. Within those five days, Ben Meyer or Cindy
Meyer may comment on this recommendation. The Commissioner must send a copy of
the final decision to the Meyers. If the
Commissioner fails to act within 90 days after the record before the
Commissioner closes, this recommendation will become the final decision in this
matter.
Sincerely,
s/Kathleen D.
Sheehy
_______________________
KATHLEEN
D. SHEEHY Administrative
Law Judge
Encl.
cc: C.O. Julie Siems
Mr. Ben Meyer
Ms. Cindy Meyer