Do the authorities take yours?

[JayC]

I can't prove a negative, I have shown a state law that is supposed to prevent the disarming of a HCP holder unless they're being arrested... I'm not aware of any law short of some form of court order/search warrant that would allow the police to take custody of that handgun.

I and a number of others have stated it's our belief that having an HCP does place you in a different category than someone who does not... for example if you shoot somebody in your home, even if you're not required to have a permit to carry a loaded firearm, you're still required under state law to display your permit upon request. So yes there are different standards under the law for certain things for a HCP holder vs someone without a permit IMHO.

As I've said 39-17-1351t isn't going to stop a police department from taking the handgun, only that it appears that short of a court order/search warrant it does prevent them from legally taking the handgun of a HCP holder is carrying without charging the HCP holder with a crime. I can't find an example of case law on point either way...

Would be pretty sad if some murderer got away because the handgun was tossed out as illegally obtained.

I would argue that 1351t is there to allow officers to disarm you while detaining you in the name of "officer safety", but requires them to return the firearm in all circumstances, other than a single exception for arrest... I don't see exceptions for investigations of any level.

I don't have access to a copy of Tennessee Evidence Law, Sixth Edition here at the house, I know from my own experience working with federal law enforcement, even if they are given permission to enter a house, see evidence of a crime, and the suspect then revokes the permission to be there, the feds will pull back (also barring the occupants from stay), and wait for a search warrant before re-entering and removing any evidence from the crime scene. Now the examples I personally were involved with didn't involve possible victims that needed medical attention, but my guess is barring somebody laying in the floor dying, they'd do the same if you started to crate a stink about them being in your house without your permission to make sure nothing got kicked from court.

If I'm involved in a self defense shooting, the fact that my firearm is illegally held as evidence isn't going to be in my top 100 issues list... I'll go to the safe and pull out a backup firearm and start carrying it... if they take them all, I'll get a family member or friend to loan me a firearm to carry until I can get my returned or purchase a new one.

If the police don't arrest somebody at the scene, then they shouldn't be allowed to disarm them... it's not like a DA can't go dance for a search warrant an hour later and recover the firearm, there is no reason to not arrest a person, yet have a need to disarm them without due process of law.

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.

Edited December 4, 2011 by JayC

[Makiaveli]

I think apples are getting mixed into the pear basket. It seems clear that the HCP law are intended to cover only incidents that involve the HCP. Not to overwrite the laws pertaining to other issues. The bit about showing your permit after a shoot seems disingenuous. You would have to show it if asked if you were simply reporting someone stealing your newspaper from your porch. Or if you bumped into the cop at the corner store.

[JayC]

I think apples are getting mixed into the pear basket. It seems clear that the HCP law are intended to cover only incidents that involve the HCP. Not to overwrite the laws pertaining to other issues. The bit about showing your permit after a shoot seems disingenuous. You would have to show it if asked if you were simply reporting someone stealing your newspaper from your porch. Or if you bumped into the cop at the corner store.

Read 39-17-1351t and tell me where it is limited in anyway other than arrest. Have you bothered to read the statue?

[Just2Honor]

Seems to me I've read on this forum that in this state it is Against The Law To Carry A Weapon, BUT a HCP gives me a defense against that crime and ONlY that crime. That statue only applies to my carrying a firearm, not how I might use it. This is an important point in my mind--carrying, not using. SEPARATE laws covers my killing someone with any means--gun, claw hammer, etc. The normal rules of processing a crime scene and collecting evidence will probably take place, including the retaining of ANY items deemed a part of the killing. The items are still mine, they're just being held pending the outcome. Maybe I'll get lucky, a DA will say my actions were justified under the SEPARATE laws covering self-defense and the Castle Doctrine. My claw hammer or whatever will be returned or maybe not even taken. But there is no guarantee. I might have to go through the processes of the legal system. In that event, I'll get my other hammer out of my tool box.

[shoota40]

they take the gun for evidence , no exceptions. if you are cleared you might get your gun back after a long time.

[JayC]

they take the gun for evidence , no exceptions. if you are cleared you might get your gun back after a long time.

That's just not a fact, there are documented cases of non-HCP holders who didn't have their firearms collected as evidence at a justified self defense shooting scene. It only took me a few minutes of searching to find one from just a few months ago.

[Guest pfries]

From what I have been able to find, they could take it regardless of whether or not it was legal. If they did take it, it would potentially fall under the exclusionary rule. The exclusionary rule however does not apply in civil cases, in a grand jury proceeding, or parole revocation hearing. If they decided to press charges, they would more than likely be able to get the gun admitted as evidence. They could accomplish this under the Silver Platter Rule in Nix vs. Williams the courts held that if evidence obtained in the unlawful search or seizure would have more than likely been found eventually even without said search warrant (inevitable discovery); the evidence may be brought forth in court. So yes, they could get their hands on it and could potentially use it against you in court. Once you admit to using your gun in self-defense you have in essence admitted to committing homicide. The DA and potentially a grand jury have to side with you in that it was self-defense, the shooting was justifiable, and the shooting falls under the Castle doctrine.

Under the Castle doctrine, certain things are presumed these things do not at that juncture stand as proven. When the police arrive on scene, they have no way of knowing if that person was legally allowed to be there. That is just one of the instances in which you would lose protection of the Castle doctrine.

Can they take it?

YES

Will they take it?

PROBABLY

Do they have to take it?

NO

However, all involved would probably catch he** from the DA and their superior officers if they did not.

[TMF]

If the police don't arrest somebody at the scene, then they shouldn't be allowed to disarm them... it's not like a DA can't go dance for a search warrant an hour later and recover the firearm, there is no reason to not arrest a person, yet have a need to disarm them without due process of law.

See this isn't about "disarming" anyone. This is about taking something as evidence. The fact that it's a pistol and you have a HCP is inconsequential here. Besides, I don't need a HCP to carry on my own property anyway. Disarming suggests taking the weapon for the safety of the officer or other citizens. Taking a weapon as evidence in a homicide is not for the intent of "disarming". This is about evidence, not about what rights or privilages you have as a HCP holder. The weapon used in the killing would be no different than a claw hammer, bat, knife, broadsword or anything else used to kill someone. And no, you don't have to be arrested in order for an officer to take something as evidence. If you tell the officer that you used (insert weapon here) to kill someone then that is evidence in a homicide investigation. If you accidentally kill someone with your car do you think the officer is just going to let you drive away in that car simply because there isn't sufficient evidence at the time to arrest you?

Your HCP has ZERO to do with how the law is going to treat the situation if you shoot and intruder. Zero. You are in the same category as everyone else who may legally possess a firearm in their home.

[daddyo]

This thread makes a good case for keeping records of your serial numbers, receipts, and photos of all your firearms, with close ups of the details.

IF a cop confiscates your firearm after SD event, get a receipt.

[JayC]

First, the effect of taking this 'evidence' when the office doesn't have enough probably cause for an arrest is the person not being arrested is disarmed. You can smear a bunch of makeup on the pig, but it's still a pig.

Second, I've quoted a statue that clearly says HCP holders must either be arrested or have their firearm returned to them when discharged from the scene, yet you talk about conjecture over and over again... So it's simple show me a statue that backs up your claim. Show me a single case where a court has ruled 1351t does not apply in the case of a self defense shooting.

I very well may not be right, but 1351t is there to protect pre-screened law abiding citizens from being disarmed unless they are arrested for a reason, and it provides no exceptions for investigations or possible crimes that might have been committed with that firearm.

See this isn't about "disarming" anyone. This is about taking something as evidence. The fact that it's a pistol and you have a HCP is inconsequential here. Besides, I don't need a HCP to carry on my own property anyway. Disarming suggests taking the weapon for the safety of the officer or other citizens. Taking a weapon as evidence in a homicide is not for the intent of "disarming". This is about evidence, not about what rights or privilages you have as a HCP holder. The weapon used in the killing would be no different than a claw hammer, bat, knife, broadsword or anything else used to kill someone. And no, you don't have to be arrested in order for an officer to take something as evidence. If you tell the officer that you used (insert weapon here) to kill someone then that is evidence in a homicide investigation. If you accidentally kill someone with your car do you think the officer is just going to let you drive away in that car simply because there isn't sufficient evidence at the time to arrest you?

Your HCP has ZERO to do with how the law is going to treat the situation if you shoot and intruder. Zero. You are in the same category as everyone else who may legally possess a firearm in their home.

[Fallguy]

First, the effect of taking this 'evidence' when the office doesn't have enough probably cause for an arrest is the person not being arrested is disarmed. You can smear a bunch of makeup on the pig, but it's still a pig.

Second, I've quoted a statue that clearly says HCP holders must either be arrested or have their firearm returned to them when discharged from the scene, yet you talk about conjecture over and over again... So it's simple show me a statue that backs up your claim. Show me a single case where a court has ruled 1351t does not apply in the case of a self defense shooting.

I very well may not be right, but 1351t is there to protect pre-screened law abiding citizens from being disarmed unless they are arrested for a reason, and it provides no exceptions for investigations or possible crimes that might have been committed with that firearm.

I'm sure if you make a big stink about not giving over your weapon unless arrested....he'll arrest you. I'd say the dead body gives plenty of PC. You may bond out...you may even be ROR (Released on Reconsigns) but you won't get the firearm back.

I think one reason the TCA is divided up into different Titles, Chapters, Sections and sub-sections is because it's not one large document where one sentence in one part applies across the board. See 1-3-103 & 1-3-110

Just think for a second, do different rules of evidence etc... apply to a homeowner that happens to have a HCP and uses a handgun as opposed to using a shotgun, rifle, hammer, golf club, etc.... or a homeowner that doesn't have a HCP at all......

[JayC]

Not that it will end this disagreement, but 1351(t) is only listed in one AG opinion letter:

The grounds under which a police officer may hold and/or seize a handgun in the possession of a permit holder are listed in Tenn. Code Ann. § 39-17-1351(t).

http://harrislawoffice.com/content/areas_of_practice/tennessee_firearms/agopinions/ag_05-154.pdf

I still can't find any case law on the subject... until we have an AG opinion on point or case law continuing to argue I'm right is a waste of time

[Guest pfries]

Not that it will end this disagreement, but 1351(t) is only listed in one AG opinion letter:

http://harrislawoffice.com/content/areas_of_practice/tennessee_firearms/agopinions/ag_05-154.pdf

I still can't find any case law on the subject... until we have an AG opinion on point or case law continuing to argue I'm right is a waste of time

I am befuddled. That is in reference to an officer taking your permit not your weapon. Did I miss something?

[wjh2657]

This thread makes a good case for keeping records of your serial numbers, receipts, and photos of all your firearms, with close ups of the details.

IF a cop confiscates your firearm after SD event, get a receipt.

LEAs do not normally issue receipts for evidence. You are a suspect in a crime investigation, they are not responsible to you for whatever evidence they collect. Property rights go to the winds when that property becomes evidence.

If a FT/CSI team ( less than 500 LEAs in the U.S. have FT/CSIs) is involved your weapon will be inventoried and logged before it even leaves your house (still no receipt though). If the Investigators is a detective or Uniform Officer, your weapon is going into his trunk in a plastic baggy. Hopefully he makes a note when he gets back to the station and records the conditions of seizure before he turns it into the evidence locker. Usually no search warrant is required on an active crime scene. If you argue with them for a receipt or start screaming that you are going to sue them you will probably end up charged on the scene for impeding the investigation. Just shut up, do what they say and buy another gun later. Once the case is resolved you can start proceedings to get your weapon back, but at best, it will be awhile (years.) It will probably cost you more in lawyer fees than the gun is worth. No receipts, sorry.

[TMF]

I'd say the dead body gives plenty of PC.

Just think for a second, do different rules of evidence etc... apply to a homeowner that happens to have a HCP and uses a handgun as opposed to using a shotgun, rifle, hammer, golf club, etc.... or a homeowner that doesn't have a HCP at all......

I thought a dead body would be plenty of probable cause too, but I guess if you have your HCP badge it's a different story. I'm glad I paid $100 bucks and waited a couple of weeks for it; now if I shoot somebody I can tell the police officer to get a warrant if he wants my weapon.... I just have to show him my badge. Too bad for all those gun owners without one, huh?

[Guest bkelm18]

I thought a dead body would be plenty of probable cause too, but I guess if you have your HCP badge it's a different story. I'm glad I paid $100 bucks and waited a couple of weeks for it; now if I shoot somebody I can tell the police officer to get a warrant if he wants my weapon.... I just have to show him my badge. Too bad for all those gun owners without one, huh?

Throw in a CCW Sash and you'll have diplomatic immunity.

[daddyo]

And with a CCW badge you have double secret diplomatic immunity.

[mikegideon]

Throw in a CCW Sash and you'll have diplomatic immunity.

That guy needs an ass whippin'

[TMF]

Throw in a CCW Sash and you'll have diplomatic immunity.

Please tell me the man in this picture is serious. This is awesome.

[Guest bkelm18]

Please tell me the man in this picture is serious. This is awesome.

Yep. That's a real product you can buy.

[monkeylizard]

This may be a stupid question, but isn't evidence used to connect a person with a crime? So the OP tells the responding officer "I shot that dude in my living room when he broke in on me while I was eating popcorn and watching some really interesting threads on TGO. Are you a TGO member? No? You should join. It's great." What need is there for evidence to connect the OP to the shooting? There's a dead body and a confession. I mean, is CSI going to show up next and dust the OP's house to find his fingerprints to place him at the scene? He just confessed to the shooting.

I fully understand that in the real world, the gun may or may not be confiscated. I'm just curious as to why it would be needed as "evidence" in a case like this?

[Guest bkelm18]

This may be a stupid question, but isn't evidence used to connect a person with a crime? So the OP tells the responding officer "I shot that dude in my living room when he broke in on me while I was eating popcorn and watching some really interesting threads on TGO. Are you a TGO member? No? You should join. It's great." What need is there for evidence to connect the OP to the shooting? There's a dead body and a confession. I mean, is CSI going to show up next and dust the OP's house to find his fingerprints to place him at the scene? He just confessed to the shooting.

I fully understand that in the real world, the gun may or may not be confiscated. I'm just curious as to why it would be needed as "evidence" in a case like this?

So no one has ever lied to a police officer, ever?

[Fallguy]

This may be a stupid question, but isn't evidence used to connect a person with a crime? So the OP tells the responding officer "I shot that dude in my living room when he broke in on me while I was eating popcorn and watching some really interesting threads on TGO. Are you a TGO member? No? You should join. It's great." What need is there for evidence to connect the OP to the shooting? There's a dead body and a confession. I mean, is CSI going to show up next and dust the OP's house to find his fingerprints to place him at the scene? He just confessed to the shooting.

I fully understand that in the real world, the gun may or may not be confiscated. I'm just curious as to why it would be needed as "evidence" in a case like this?

Because people lie...

Maybe my girlfriend who is an escaped felon shot the guy with the gun she stole while escaping and I told her to leave before the police got there. When the police get there I say it was me blah blah blah. Maybe even before the police get there I shoot the guy a couple of times with my pistol, so mine is freshly fired and I have gun shot residue on my hand.

I really need to quite watching so many crime dramas.....lol

[monkeylizard]

This may be a stupid question

I stand by my disclaimer.

Thanks guys. This continues to reinforce my belief that I'd be really bad at crime.

[TMF]

This may be a stupid question, but isn't evidence used to connect a person with a crime? So the OP tells the responding officer "I shot that dude in my living room when he broke in on me while I was eating popcorn and watching some really interesting threads on TGO. Are you a TGO member? No? You should join. It's great." What need is there for evidence to connect the OP to the shooting? There's a dead body and a confession. I mean, is CSI going to show up next and dust the OP's house to find his fingerprints to place him at the scene? He just confessed to the shooting.

I fully understand that in the real world, the gun may or may not be confiscated. I'm just curious as to why it would be needed as "evidence" in a case like this?

Usually when there is a dead body with bullet holes in it police are expected to do more than just take the shooter's word for it. I'm not going to pretend to be a law enforcement expert here, but I'd like to think that the most obvious and logical course of action would be to secure critical evidence to prevent crime scene contamination so I can do my utmost to conduct an investigation to clear a justified shoot or prosecute a murder case... unless, of course, the shooter had a HCP. Then I would have to abide by a totally different set of rules to accommodate an individual deemed by DOS as fit to carry a weapon in public.... well, unless I'm Martin Riggs, then I can shoot him on sight or challenge him to a round of hand-to-hand in the front yard. Martin Riggs' badge, as you know, trumps all HCP badges, sashes, rock, paper AND scissors.