Do the authorities take yours?

[billyscott]

So, they take your weapon and if you don't have a backup the next goblin does what he want's to???

[Guest WyattEarp]

really Wyatt?

You shoot someone, in your home or otherwise and the cops should leave the guns in your hand? Then if the DA prefers charges they can come back with a warrant to get your gun. What is to stop you from throwing the gun in the river?

You shoot someone, no matter why and your gun is evidence, they are taking it right now.

You just shot someone, and you are worried about your piece? I would be more concerned with the fact that I just killed someone. But thats me, I dunno.

as for bass ackwards, yep, probably is. But it is how it is and it's not changing.

I doubt the prosecutor would bother to tell me he was going to bring charges, or call a press conference and announce it. he's going to file the charges, and if the Grand Jury comes back with an indictment, he's going to make sure it's a sealed Grand Jury Indictiment so that it's not leaked to the public, then he's going to send officers with a warrant to pick me up and collect my handgun. If I've believed I did nothing wrong, then why would I be throwing my handgun in the river?

damn right I'm worried about my piece. It's my means of protection and if the law is taking out of my hands after I've shot someone in a justified manner, you bet your ass I'm making a stink about it. Not everyone can afford to go buy a bunch of handguns. So what I am supposed to do

if the bad guy's pissed off brother decides he wants revenge and I'm not able to defend myself because my damn gun is in some police storage locker?

I've never shot anyone, so I don't claim to know how I'll feel, but from my perspective right now, doubt I'd be shedding too many tears or getting emotional or distraught over shooting or killing a bad guy who broke into my home.

[DaveTN]

I doubt the prosecutor would bother to tell me he was going to bring charges, or call a press conference and announce it. he's going to file the charges, and if the Grand Jury comes back with an indictment, he's going to make sure it's a sealed Grand Jury Indictiment so that it's not leaked to the public, then he's going to send officers with a warrant to pick me up and collect my handgun. If I've believed I did nothing wrong, then why would I be throwing my handgun in the river?

damn right I'm worried about my piece. It's my means of protection and if the law is taking out of my hands after I've shot someone in a justified manner, you bet your ass I'm making a stink about it. Not everyone can afford to go buy a bunch of handguns. So what I am supposed to do

if the bad guy's pissed off brother decides he wants revenge and I'm not able to defend myself because my damn gun is in some police storage locker?

I've never shot anyone, so I don't claim to know how I'll feel, but from my perspective right now, doubt I'd be shedding too many tears or getting emotional or distraught over shooting or killing a bad guy who broke into my home.

Part of the job of the first responding Officers is to make the scene safe, secure the scene, and protect any evidence.

The investigators will then arrive and possibly even someone from the DA’s office. These peoples job is to find out what happened. I know you don’t believe this, but if you are justified these people are the best chance you have of not being charged. Becoming uncooperative with them could ruin your life; don’t become your own worst enemy. If you can’t control yourself from becoming uncooperative you need to keep your mouth shut and contact an attorney right then. Have you thought about that? Do you have an attorney that you can contact outside normal business hours? If you are going to refuse to make a statement this is the single most important issue you should address prior to needing one.

If you have been in a justified shooting and they have taken your weapon, get on here and shoot me a PM. I will make a post and I am confident we will have the cash for you to buy a new gun that day.

I have a 60D and many guns, you have a 7D and a 5D and 1 gun; your priorities are messed up.

[JayC]

When they are satisfied the investigation is over and the gun is no longer needed as evidence.

You are quoting law that has to do with disarming a permit holder; has nothing to do with securing evidence from a crime scene.

You'll note it doesn't say anything about evidence in that law... A HCP permit holder maybe disarmed by a law enforcement officer, but the firearm must be returned to the HCP holder once the HCP holder is no longer detained unless the HCP is under arrest...

Seems pretty cut and dried to me... I can also point to a number of news articles where HCP holders had their firearms returned to them at the scene of what appeared to be a justified shooting...

Personally I don't like 39-17-1359t as it's too broadly worded in allowing an officer to disarm you.... but the one saving grace is the officer has no choice but to arrest you, or return your firearm before leaving.... no exceptions short of a court order to collect the firearm as evidence.

[DaveTN]

You'll note it doesn't say anything about evidence in that law... A HCP permit holder maybe disarmed by a law enforcement officer, but the firearm must be returned to the HCP holder once the HCP holder is no longer detained unless the HCP is under arrest...

Seems pretty cut and dried to me... I can also point to a number of news articles where HCP holders had their firearms returned to them at the scene of what appeared to be a justified shooting...

Personally I don't like 39-17-1359t as it's too broadly worded in allowing an officer to disarm you.... but the one saving grace is the officer has no choice but to arrest you, or return your firearm before leaving.... no exceptions short of a court order to collect the firearm as evidence.

Do that. Point me to all these news articles where the DA had not yet ruled a homicide was justified and the shooter was left at the scene with the weapon used in the shooting. Even a Police Officers weapon is usually taken in a shooting.

You may get a DA at the scene that can make that determination, but I would say that’s highly unlikely. You are probably going to get an assistant on call.

We will just have to agree to disagree. Evidence is evidence and you are making an argument that because you have a HCP the investigating Officers need to decide right then if you are going to be charged. I guess that’s possible but I doubt anyone would force that situation.

[tnhawk]

If the DA charges you after a shooting, are you going to be able to purchase another gun before the charge is cleared?

I'd prefer the property room have my XD or glock, than my Wilson.

[Mike.357]

If the DA charges you after a shooting, are you going to be able to purchase another gun before the charge is cleared?

I'd prefer the property room have my XD or glock, than my Wilson.

You should be able to pass a background as long as you are not convicted. I would guess you would be delayed but pass the background on appeal.

[Mike.357]

I doubt the prosecutor would bother to tell me he was going to bring charges, or call a press conference and announce it. he's going to file the charges, and if the Grand Jury comes back with an indictment, he's going to make sure it's a sealed Grand Jury Indictiment so that it's not leaked to the public, then he's going to send officers with a warrant to pick me up and collect my handgun. If I've believed I did nothing wrong, then why would I be throwing my handgun in the river?

damn right I'm worried about my piece. It's my means of protection and if the law is taking out of my hands after I've shot someone in a justified manner, you bet your ass I'm making a stink about it. Not everyone can afford to go buy a bunch of handguns. So what I am supposed to do

if the bad guy's pissed off brother decides he wants revenge and I'm not able to defend myself because my damn gun is in some police storage locker?

I've never shot anyone, so I don't claim to know how I'll feel, but from my perspective right now, doubt I'd be shedding too many tears or getting emotional or distraught over shooting or killing a bad guy who broke into my home.

I hear what you are saying but don't agree. You know you are not a flight risk, and you know you did nothing wrong, but the DA or cops don't know that necessarily.

I have never shot anyone, but I think you would have to be fairly hardened or used to shooting people for it not to be especially upsetting. But that's me.

[Fallguy]

If you have an HCP and are not arrested, they are required by law to return your firearm to you.

The officer shall return the handgun to the permit holder before discharging the permit holder from the scene.... provided that the permit holder has not violated any provision of this section and provided the permit holder has not committed any other violation that results in the arrest of the permit holder.

TCA 39-17-1351t

So unless they go and get a court order to seize the firearm, under TN law unless you're arrested, you get to keep the handgun.

So what if you don't have a HCP since you don't need one in your own home?

I really thought the above was more if you were being detained to check the status of you HCP.

[wjh2657]

Strictly a lawyer question. Like most gun-related matters there are no nice neat one sentence answers. Those who quote one part of the law are like those who quote one Bible verse and then say “so says the word of the Lord”, they are only scratching the surface and are totally out of the picture.

My legal beagle informs me that it will vary from jurisdiction to jurisdiction and also by size of jurisdiction. If you know the local sheriff or police chief, chances are good that you will get your gun back with a minimum of hassle. If you live in a large city, you are in a world of trouble. Most large cities will require a court order to get the weapon back, regardless of circumstances. It is evidence and therefore the jurisdiction’s property now. Charges being dropped against you does not necessarily mean that the case is closed. In a homicide the case may be kept open until all avenues of investigation are done ( i.e.why was he in your house, did you know him previous to the shooting, was this part of a string of break-ins , thus an open case?) any and all of these could require all evidence be kept. To you it is “open and shut” but a larger LEA will rarely see it that way. Also charges being dropped does not mean you are not still a suspect, therefore again evidence will be kept. Usually, once anything goes into an evidence box, it has entered a black hole, never to see the light of day again (This is not inevitable, just “worse case” scenario)

Really, in this case, the best thing that could happen ifyou really want weapon back is for a trial to occur and you be found not guilty ( there is no ”innocent” in law) which would close case and give you legal justification to file to retrieve your weapon with a court order. Either way it is going to cost more for a lawyer than your gun is worth (unless it is a platinum plated and diamond encrusted Kimber! Which of course will no longer be in the Evidence box!) so you may just be better off with a new gun.

Although I have never had weapon go into evidence, I was held up at gun point in Chicago many years ago and l had a wallet full of money and credit cards go into evidence. The culprit was caught but not charged due to a discrepancy on part of the arresting officer. But since he was not tried in court, the case is still considered open. My wallet and money are still in the evidence box at the Chicago PD evidence room. (Yes, I did try to get it back, for some family pictures in the wallet, and no go.)

BTW, I have a S&W 637 to back up my 642 if it is ever confiscated. I also have two Mossberg 500 to back up loss of the house SD.)

Edited December 4, 2011 by wjh2657
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[TMF]

I would gladly hand over my weapon in the event of a self defense shooting. I don't think this is a 2A issue at all. If an intruder was to break into your house and you killed him (in self-defense) with a claw hammer they would take the claw hammer in as evidence. I'm sure you could get it back once the investigation was completed, but in the meantime this is the process of the law. I also have more weapons so I'm not worried about giving up my Glock; I'll use one of my other pistols. If I didn't have more guns I'm sure there are plenty of people that would lend me one in the interim.

With all that said, I would exaust every legal avenue to retrieve what is rightfully mine once all was said and done. What's mine is mine.

[JayC]

Jewelry Store owner shoots suspect, police don't take the sotgun used:

http://www.tngunowners.com/forums/general-off-topic/63825-smyrna-jewelry-store-clerk-shotguns-passenger-side-robbers-getaway-car-2.html

I'm aware of at least 2 other cases where firearms were returned at the scene of an obvious self defense shooting, one involving a man walking in on a gas station hold up which happened in North Nashville about 3 years ago, and another involving a car jacking case from about 12 years ago, where the car jacker was shot while getting into a car. I don't have time to find the news articles...

I'm sure if the police department wants your firearm, they'll have no problem getting a warrant for it... but the law is very clear that HCP holders must have their firearm returned when released from custody unless they are being arrested.

Do that. Point me to all these news articles where the DA had not yet ruled a homicide was justified and the shooter was left at the scene with the weapon used in the shooting. Even a Police Officers weapon is usually taken in a shooting.

You may get a DA at the scene that can make that determination, but I would say that’s highly unlikely. You are probably going to get an assistant on call.

We will just have to agree to disagree. Evidence is evidence and you are making an argument that because you have a HCP the investigating Officers need to decide right then if you are going to be charged. I guess that’s possible but I doubt anyone would force that situation.

[JayC]

So what if you don't have a HCP since you don't need one in your own home?

I really thought the above was more if you were being detained to check the status of you HCP.

39-17-1351t - show me where it's limited to just checking the status of your permit? The law is very clear, a police officer can disarm you, but he must return the firearm or arrest you.

As for people without permits, or other types of firearms other than handguns, I'm guessing it's up to the police if they take it as evidence or not... What stops an over zealous officer from taking all your firearms in the house to make sure they aren't the firearm used in the shooting? Nothing.

Lets be honest 39-17-1351t isn't going to stop them from taking the firearm if they want it... they'll go and get a warrant/court order for the firearm, or they'll just take it violating the law and hope you don't know any better. Yet another problem with 39-17-1351t there is no criminal charge for violating the law. But at least with a permit, you'd stand a good chance of forcing the return of the handgun in short order.

[Fallguy]

39-17-1351t - show me where it's limited to just checking the status of your permit? The law is very clear, a police officer can disarm you, but he must return the firearm or arrest you.

As for people without permits, or other types of firearms other than handguns, I'm guessing it's up to the police if they take it as evidence or not... What stops an over zealous officer from taking all your firearms in the house to make sure they aren't the firearm used in the shooting? Nothing.

Lets be honest 39-17-1351t isn't going to stop them from taking the firearm if they want it... they'll go and get a warrant/court order for the firearm, or they'll just take it violating the law and hope you don't know any better. Yet another problem with 39-17-1351t there is no criminal charge for violating the law. But at least with a permit, you'd stand a good chance of forcing the return of the handgun in short order.

Well I did say it is just what I thought.... But again I don't think having a HCP was intended to give you some sort of benefit that others don't have when it comes to investigating a shooting.

That said...in the end I think this is one of those "it depends" questions.

Although hard to read with black on black, I thing what whj2657 had to say is probably pretty close to right....

[dou44]

i keep my cz82 loaded and handy for this but i can all so get my hands on my xd40. if you only have one pistol you should buy another even if it is cheap. just make sure that it will go bang every time it needs to.

[TMF]

39-17-1351t - show me where it's limited to just checking the status of your permit? The law is very clear, a police officer can disarm you, but he must return the firearm or arrest you.

That has nothing, nothing to do with a shooting investigation... nothing.

[JayC]

That has nothing, nothing to do with a shooting investigation... nothing.

Really, because it says the only way a police officer can disarm a HCP holder is under 39-17-1351t, this law was passed with the intent to prevent police departments from disarming otherwise law abiding citizens, so the language of must return the firearm or arrest the person was added. I remember a couple of departments playing some games with disarming HCP holders and keeping their firearms for various reasons and this law was added to prevent that.

So, under what law short of a court order/search warrant does a police officer take an HCP holders handgun? Because if there isn't allowing allowing it, it's prohibited.

I don't see an investigation exception to 39-17-1351t do you?

[mikegideon]

Really, because it says the only way a police officer can disarm a HCP holder is under 39-17-1351t, this law was passed with the intent to prevent police departments from disarming otherwise law abiding citizens, so the language of must return the firearm or arrest the person was added. I remember a couple of departments playing some games with disarming HCP holders and keeping their firearms for various reasons and this law was added to prevent that.

So, under what law short of a court order/search warrant does a police officer take an HCP holders handgun? Because if there isn't allowing allowing it, it's prohibited.

I don't see an investigation exception to 39-17-1351t do you?

I don't have the necessesary tools to argue here, but I think you're wrong. We have already heard from a Memphis area LEO. Their SOP is to take the gun in as evidence. I think you're missing an exception somewhere. Maybe Mikepapa or Pat Stegall will pop in with the missing info.

[TMF]

Really, because it says the only way a police officer can disarm a HCP holder is under 39-17-1351t, this law was passed with the intent to prevent police departments from disarming otherwise law abiding citizens, so the language of must return the firearm or arrest the person was added. I remember a couple of departments playing some games with disarming HCP holders and keeping their firearms for various reasons and this law was added to prevent that.

So, under what law short of a court order/search warrant does a police officer take an HCP holders handgun? Because if there isn't allowing allowing it, it's prohibited.

I don't see an investigation exception to 39-17-1351t do you?

Okay, show me the law that states the investigating officer cannot take a claw hammer as evidence without an arrest of the owner.

The code you're referring to is specifically addressing HCP holders. So you are suggesting that if you shoot someone in your home you are somehow in a different category than someone who does not have a HCP?

I'm no lawyer, but I do know that a police officer doesn't have to have a warrant to render personal property as evidence. If you shoot and kill someone in your home does your home not become a crime scene? Can you tell the police to come back with a warrant before they enter your home to conduct the investigation? Do you get to keep the slugs that entered the intruder and killed him? Technically those slugs are yours, right? How 'bout the shell casing and the placement of them on the floor? Yours too, right?

That code is there to provide a defense to carrying a weapon; it's not there to dictate what law enforcement can or can't do during the conduct of a homicide investigation. If you believe different then you're in for a big shocker in the event you shoot someone in self defense in Tennessee.

[tnhawk]

You should be able to pass a background as long as you are not convicted. I would guess you would be delayed but pass the background on appeal.

Question 11.b on ATF Form 4473 asks if the purchaser is under indictment for a crime punishable by imprisonment for a term exceeding one year. Before a not guilty ruling is made, wouldn't this question, on the NICS check, prevent the purchase of a handgun?

[Guest WyattEarp]

I hear what you are saying but don't agree. You know you are not a flight risk, and you know you did nothing wrong, but the DA or cops don't know that necessarily.

I have never shot anyone, but I think you would have to be fairly hardened or used to shooting people for it not to be especially upsetting. But that's me.

not everyone will always agree, and that's ok we're all entitled to our viewpoints and opinions, so long as we keep them constructive and productive and don't make them personal. But maybe the prosecutor could just ask for your passport if you have one, and place you on a no-fly list until the investigation is done?

i mean, if you have nothing to hide and you didn't do wrong, you're not thinking of leaving the country or the state, or fleeing. at least I wouldn't be.

You should be able to pass a background as long as you are not convicted. I would guess you would be delayed but pass the background on appeal.

you can pass one up to the point where you are indicted or formally charged with a crime. Im not sure and I'll have to see if I can find it, but I think the form when I went to by my handgun in Sept, asked if I was under investigation for any crimes too, but I will have to find it.

if you're indicted or charged, you have to wait for the process to conclude before you can buy one from an FFL. There's nothing that says you can't buy one private party, since there's no requirements aside from being 18 or older, and not knowingly selling to someone who is a felon or under investigation.

I would gladly hand over my weapon in the event of a self defense shooting. I don't think this is a 2A issue at all. If an intruder was to break into your house and you killed him (in self-defense) with a claw hammer they would take the claw hammer in as evidence. I'm sure you could get it back once the investigation was completed, but in the meantime this is the process of the law. I also have more weapons so I'm not worried about giving up my Glock; I'll use one of my other pistols. If I didn't have more guns I'm sure there are plenty of people that would lend me one in the interim.

With all that said, I would exaust every legal avenue to retrieve what is rightfully mine once all was said and done. What's mine is mine.

I don't believe it's a 2A issue either, I believe it's a 4th Amendment issue regarding unlawful seizure. My point is, you have said you shot the guy, and killed him because he was in your home. What valid NEED is there to take the weapon? They don't need to match ballistics of bullet to gun, because you said you shot him in self-defense. eliminates that question.

can't say a crime was committed because there's been no charges, and no one was arrested. this just confuses me that people would be willing to accept the unlawful seizure of their weapon following a legal shooting. I'm baffled.

If someone stole your car, and you were able to go and retrieve it, are you going to let the cops tow it to the impound lot as evidence until after the investigation is over??? and be without a car?

[Makiaveli]

What valid NEED is there to take the weapon?

Look at it from the cop's point of view. Someone was shot, and the admitted shooter SAYS it was self-defense. Should they just pack up and go home? I mean you don't have a record, etc so there is obviously zero chance you are lying right?

Add in the fallout if it turns out you were lying, and go on to shoot someone else with that gun since they didn't do a decent job investigating.

As to the car bit, you didn't kill someone with the car, it was the stolen property. And let's say the cops did want to take it, how exactly would you resist said impounding without risking being impounded yourself?

[DaveTN]

not everyone will always agree, and that's ok we're all entitled to our viewpoints and opinions, so long as we keep them constructive and productive and don't make them personal. But maybe the prosecutor could just ask for your passport if you have one, and place you on a no-fly list until the investigation is done?

i mean, if you have nothing to hide and you didn't do wrong, you're not thinking of leaving the country or the state, or fleeing. at least I wouldn't be.

We aren’t talking about you we are talking about evidence. The chain of custody can’t be broken…. Period. Unless the DA says he doesn’t need/want the gun; its evidence in a shooting and is taken.

I don't believe it's a 2A issue either, I believe it's a 4th Amendment issue regarding unlawful seizure. My point is, you have said you shot the guy, and killed him because he was in your home. What valid NEED is there to take the weapon? They don't need to match ballistics of bullet to gun, because you said you shot him in self-defense. eliminates that question.

can't say a crime was committed because there's been no charges, and no one was arrested. this just confuses me that people would be willing to accept the unlawful seizure of their weapon following a legal shooting. I'm baffled.

Court isn’t held at the scene. Those arguments will be made in front of a Judge.

If someone stole your car, and you were able to go and retrieve it, are you going to let the cops tow it to the impound lot as evidence until after the investigation is over??? and be without a car?

If that car was used in a crime and they want to process it; absolutely you will stand by and watch them take it.

[Mike.357]

Question 11.b on ATF Form 4473 asks if the purchaser is under indictment for a crime punishable by imprisonment for a term exceeding one year. Before a not guilty ruling is made, wouldn't this question, on the NICS check, prevent the purchase of a handgun?

you may be correct, in my case I was not looking at over 11/29 thats must be where my confusion came in. I redact my previous comment.

[Mike.357]

not everyone will always agree, and that's ok we're all entitled to our viewpoints and opinions, so long as we keep them constructive and productive and don't make them personal.

i try to keep it that way, the personal thing i mean. if i don't then I hope I get called out on it. Lots of times the peronal thing is moslty just poor use of words.