Ex-BLPD Chief Gundersen Cleared Of All Felonies – March 16, 2012

Friday, March 16, 2012
Dave Gundersen

Kevin L. Hoover

Eye Editor

BLUE LAKE – Former Blue Lake Police Chief David Gundersen has been cleared of all major charges first filed against him in 2008.

Gundersen was originally charged with eight felonies, including spousal rape, witness tampering, possession of a machine gun and a silencer. He was also charged with three misdemeanors, including violation of a court order, possession of a controlled substance and unauthorized disclosure of information.

The rape charge and two of the misdemeanors were dismissed. After a jury trial in September, 2008, Gundersen was found guilty of the submachine gun and silencer possession felonies, plus a misdemeanor charge of violating a court order.

He was also found guilty of 11 misdemeanor charges of battery over surreptitious photographs taken of his ex-wife and BLPD colleague, Darcy Seal, when she was asleep. But those charges were later tossed out due to the statute of limitations. The single misdemeanor charge of violating a court order was not appealed, and still stands.

Gundersen was sentenced to two concurrent two-year terms, which were suspended. He was placed on four years probation and sentenced to 354 days in county jail but got credit for time served, which accounted for all but a few days of the sentence. He appealed the two weapons charges in December, 2008.

On Thursday, March 15, a state appeals court overturned the two felony convictions. Gundersen had contended that Humboldt County Superior Court Judge Marilyn Miles failed to adequately instruct the jury about exemptions in state law that allow regular, salaried, full-time police officers to possess machine guns and silencers. He claimed that his possession the Heckler & Koch MP5 submachine gun and silencer were within the scope of his duties.

Through his attorney, Russell Clanton of Arcata, Gundersen argued that the prosecution was required to prove beyond a reasonable doubt that the exemptions did not apply. He contended that had the trial court told the jury that the prosecution was required to prove unlawful possession of the weapons, it would have understood the applicable exceptions.

The appeals court’s decision cites case law which requires that juries must be properly instructed regarding burden of proof, and that the trial court didn’t indicate which party – prosecution or defense – was required to prove whether the exemptions were applicable or what the standard of proof was.

States the appeals court’s decision, “The [jury] instructions were confusing because they informed the jury that the prosecution was required to ‘prove’ appellant ‘possessed’ the items in question but failed to direct the jury that the prosecution was required to prove appellant possessed them ‘unlawfully.’”

Continues the appellate decision, citing case law, “A reviewing court ‘must consider the arguments of counsel in assessing the probable impact of the instruction on the jury.’

“We conclude that the trial court erred in failing to instruct the jury on the burden of proof applicable to the exceptions of liability for unlawful possession of a machine gun and a silencer.”

The decision acknowledges that there was “A great deal of circumstantial evidence that appellant possessed the MP5 and the silencer outside the scope of his official duties.” This included the fact that the weaponry in question was kept in a locked safe at Gundersen’s home, that the weapons weren’t logged as Blue lake Police Dept. weapons and weren’t registered with the state. Further, they weren’t obtained in the same manner as the rest of the BLPD arsenal, nor were the department’s officers trained in their use.

But the appeals court decided that those facts were “weakened” by the fact that Gundersen was on duty 24/7, with after-hours calls to BLPD routed to his home. Nor was the official BLPD weapons inventory considered a complete listing.

“Undoubtedly, the evidence raised serious questions about appellant’s possession of the MP5 and silencer,” the decision states. “But the issue for the jury was whether the evidence proved beyond a reasonable doubt that appellant’s possession was unlawful. Had the jury been properly instructed, we could confidently say the evidence was sufficient to support its verdict… The convictions for unlawful possession of a machine gun and unlawful possession of a silencer must be reversed.”

The appellate court decision misspells Gundersen’s name as “Gunderson” throughout the document. The Humboldt County District Attorney’s Office could re-file the charges. Attorney Russ Clanton declined comment.

Tags: , ,

20 Responses to “Ex-BLPD Chief Gundersen Cleared Of All Felonies – March 16, 2012”

  1. Jim D'Andi

    So, who was the Judge that gave the jury such confusing instructions that resulted in a reversal? Is this a case of incompetent judicary?

    #57740
  2. blackcoffee

    The judge in the original trial apparently did not see his extreme collection of guns as part of the job of a (the) Blue Lake cop.

    “He claimed that his possession the Heckler & Koch MP5 submachine gun and silencer were within the scope of his duties.”

    A reasonable position that has been overturned on appeals.

    #57748
  3. Bill Johnson

    Looks like another waste of taxpayer money by this Paul guy…he should be fired.

    #57752
  4. Mitch

    I don’t understand the story. You say he’s been cleared. Has the court dismissed the charges, or is it that he would have to be re-tried due to a judge’s error? If the latter, he hasn’t been cleared; the decision has been thrown out due to improper procedure.

    Can the case can be re-filed, or would that be double-jeopardy?

    #57760
  5. Thanks for the questions.

    The guilty verdict was thrown out on a procedural error, which is not the same as being found not guilty. The latter would rule out any further prosecution due to double jeopardy.

    So the DA could re-file charges, which is a very real possibility.

    #57761
  6. Mike Daley

    I can’t even read this whole article because it’s disgusting. I know this guys ex wife and I remember her telling us countless stories of abuse done onto her by her husband, especially about him raping her repeatedly. She use to tell us about all the marijuana, guns, narcotics and MONEY her husband would steel from people he would pull over on the side of the road!! There’s a special place in hell for this guy, along with a few other law breaking officers.
    I thought I read last week in the Arcata Eye Newspaper that you only covered Arcata related news? Why are you talking about a Blue Lake cop when you didn’t cover the Eureka cop who killed that woman? And don’t tell me it’s because he has a lawyer from Arcata…

    #57811
  7. We used to do a lot more Blue Lake coverage, and reported the previous installments of this story going back to 2008.

    Also the attorney, Russ Clanton, is from Arcata. He even held a press conference in our building when Gundersen was first arrested.

    #57813
  8. Neal

    GUNDERSEN IS CROOKED SCUMBAG!!!

    #57822
  9. bilybobbobrob

    A total waiste of time the first time. and I hope they dont even think about burning up another 300,000 of taxpayer money for another……..

    #57827
  10. Adam

    Let the white man destroy himself!

    #57831
  11. Richard

    Paul Gallegos for president

    #57868
  12. Melvin Hicks

    Of course his name was misspelled. It will be the technical trick to fry him.

    #57889
  13. Melvin Hicks

    He may be the monster you say. Most piggies are. But he has pissed someone important off highly or he would be covered for. The system allows cops to be monsters. They bring in too many dollars!

    #57890
  14. Dena

    I know Darcie also. She is a sweet nice person. I was married to a man in a very respectable job and he was a monster too. When people see these people in public they think one thing but you never know what goes one behind closed doors.

    #57916
  15. Starbucks

    Hope Gallegos retries this POS. He has no health problems. He has used his health to get out of EVERY condition of his probation. If Gallegos actually does his job he will find that Gunderson is fit for a retrial!

    #58000
  16. RUKiddingMe

    David Gunderson is a serial rapist!! Always has been. My friend who lived in Garberville was sexually assaulted by him in 1988. Gallegos needs to put this monster away for good. He is a danger to society and he will continue to assault women.

    #58071
  17. macadoshius

    Sorry folks..justice wont work for the people as long as these cops get to hide behind their badge status..and the classic cop verbage like he needed a MP5 and silenced pistol..Course if it was me or you …..

    #58156
  18. Mark Sailors

    Imagine that, a local judge not giving proper instruction about the law to the jury…
    Seem like the powers that be seem to have that problem a lot.

    http://www.tokeofthetown.com/2012/03/ca_county_taking_away_children_of_medical_cannabis.php

    http://www.tokeofthetown.com/2012/03/deputies_medical_marijuana_compliance_checks_anger.php

    http://www.tokeofthetown.com/2012/03/judge_orders_california_city_to_let_marijuana_disp.php

    And who ever would have believed in a thousand years that this guy would come around…
    http://www.tokeofthetown.com/2012/03/pat_robertson_says_marijuana_should_be_legal.php

    #58201
  19. RUKiddingMe

    The big question is whether or not the DA will retry the case..I think he should. It scares me to think this man could possibly be a cop again.

    #58292
  20. [...] argued that the prosecution was required to prove beyond a reasonable … Read more on Arcata Eye Posted in Mp5 | Tags: Anthony, charge, could, face, Grainger, murder, Officer, over, [...]

    #60694

Leave a Reply

You must be logged in to post a comment.