Do the authorities take yours?

[monkeylizard]

but not lizard or spock.

ThinkGeek :: Rock Paper Scissors Lizard Spock

[wjh2657]

What in the Sam Hill does an HCP have to do with any of this? The scenario was set to take place in your home, no permit involved. Also, an HCP is a permit to carry, not a permit to use. Once you shoot somebody you are in a whole different ball came than the carry game. You are just like anybody else who shoots somebody, you are a suspect and your weapon is evidence. No warrant, actual crime suffices for action, gun goes in evidence box in back shelf of evidence locker. You are not automatically authorized to shoot somebody because you have an HCP. Castle Doctrine does not give you immunity from criminal prosecution and or attendant investigation. CD gives you a viable defense argument in court or for Grand Jury Indictment. HCP means you didn't break another law by just having the gun, away from your home.If at home, HCP is non issue.

[JayC]

What in the Sam Hill does an HCP have to do with any of this? The scenario was set to take place in your home, no permit involved. Also, an HCP is a permit to carry, not a permit to use. Once you shoot somebody you are in a whole different ball came than the carry game. You are just like anybody else who shoots somebody, you are a suspect and your weapon is evidence. No warrant, actual crime suffices for action, gun goes in evidence box in back shelf of evidence locker. You are not automatically authorized to shoot somebody because you have an HCP. Castle Doctrine does not give you immunity from criminal prosecution and or attendant investigation. CD gives you a viable defense argument in court or for Grand Jury Indictment. HCP means you didn't break another law by just having the gun, away from your home.If at home, HCP is non issue.

Read the entire thread... there is a dispute on whether TCA 39-17-1351t prevents an officer from seizing a HCP holders handgun as evidence unless the HCP holder is arrested at the scene. The plain wording of the law would seem to prohibit the confiscation, others believe that law doesn't prevent it.

Although nobody has been able to find case law/statue on point either way.

[wjh2657]

"Look Officer, I just shot this scumbag but I have a Tennessee HCP so you have to give me my gun back"

Try the above and then write and let me know how it turned out!

[mikegideon]

"Look Officer, I just shot this scumbag but I have a Tennessee HCP so you have to give me my gun back"

Try the above and then write and let me know how it turned out!

You gotta wear the sash or it won't work.

[Makiaveli]

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

I'm not disputing the fact that the HCP law says they have to return it etc. I am saying that it is my belief that one or both of the following is true, that it was never meant to interpreted as applying to anything other than a cop disarming you for his protection while he verifies your permit and this is what would hold in court, and/or there is language in another part of the statute that limits this law if it conflicts with another existing statute.

**edit**

Assuming the following is accurate, then I believe the part that says once the officer has determined the permit holder is not a threat would allow the officer to confiscate the weapon until someone made such a determination. Given that the permit holder had just shot someone, I would think that would constitute justification to believe you could be a threat.

T.C.A. 39-17-1351(t)

Any law enforcement officer of this state or of any county or

municipality may, within the realm of the officer’s lawful jurisdiction

and when the officer is acting in the lawful discharge of the officer’s

official duties, disarm a permit holder at any time when the officer

reasonably believes it is necessary for the protection of the permit

holder, officer or other individual or individuals. The officer shall

return the handgun to the permit holder before discharging the permit

holder from the scene when the officer has determined that the permit

holder is not a threat to the officer, to the permit holder, or other

individual or individuals 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.

Edited December 5, 2011 by Makiaveli

[vontar]

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.

And ask for a loaner.

Serious I believe it would be considered a crime scene and as they secure it I would be concerned they would want to take more then the 1 gun used.

I don't believe one could prevent them from taking the 1 gun used as they have been called out to investigate a shooting.

Once certain crimes have been reported it is out of the reporting parties hands as to what happens next.

The Crime is the break in and the SD shooting is just a second part of the event. However the gun used is now linked and becomes evidence in the crime.

As I said I would be more concerned with them having interest in other guns in the home, however go back and don't blurt out to much.

Call 911 to report the break in

only type of statement, I was in fear for my wife and my life or something like that.

You fully intend to co operate after you discuss with your lawyer.

http://www.tngunowners.com/forums/handgun-carry-self-defense/15780-legal-perspectives-use-deadly-force.html

Might even request to go to the hospital. After reading this it makes tons of sense.

[JayC]

So under normal circumstances (say a traffic violation) if you're detained and disarmed, he must return the handgun to you unless you're being arrested. I think there is general agreement that a police officer in TN can't keep your handgun unless they arrest you as a result of a traffic stop. (Or a violation of 39-17-13xx)

While a self defense shooting is significantly more serious of an interaction with the police than a traffic stop, where in the law does that officially change the status of the 39-17-1351t protection?

There is no AG opinion or case law on point anybody has brought up... so it's a disagreement that can't be resolved... I've repeatedly said if they want the handgun they'll get it... either through a court order or just taking it in violation of the law... 1351t does not contain any criminal/civil liability for an officer who violates the statue, so they have little to fear from it later being determined to be an illegal seizure.

The legislature placed this blanket protection in the law because a number of departments were violating the spirit of the disarm for officer safety provision in just the manner you're describing.

I'm not disputing the fact that the HCP law says they have to return it etc. I am saying that it is my belief that one or both of the following is true, that it was never meant to interpreted as applying to anything other than a cop disarming you for his protection while he verifies your permit and this is what would hold in court, and/or there is language in another part of the statute that limits this law if it conflicts with another existing statute.

**edit**

Assuming the following is accurate, then I believe the part that says once the officer has determined the permit holder is not a threat would allow the officer to confiscate the weapon until someone made such a determination. Given that the permit holder had just shot someone, I would think that would constitute justification to believe you could be a threat.

T.C.A. 39-17-1351(t)

Any law enforcement officer of this state or of any county or

municipality may, within the realm of the officer’s lawful jurisdiction

and when the officer is acting in the lawful discharge of the officer’s

official duties, disarm a permit holder at any time when the officer

reasonably believes it is necessary for the protection of the permit

holder, officer or other individual or individuals. The officer shall

return the handgun to the permit holder before discharging the permit

holder from the scene when the officer has determined that the permit

holder is not a threat to the officer, to the permit holder, or other

individual or individuals 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.

[Guest WyattEarp]

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.

"evidence" as you say is when a crime is committed. other than the bad guy being in my home, what crime was committed? But I digress, not going to sit here and argue, we'll just agree to disagree, you see it your way, I see it mine.

nah, i dont have a 7D and a 5D, i got rid of the 5D for the 7D, because the 5D wasn't meeting my needs.

[Guest WyattEarp]

Read the entire thread... there is a dispute on whether TCA 39-17-1351t prevents an officer from seizing a HCP holders handgun as evidence unless the HCP holder is arrested at the scene. The plain wording of the law would seem to prohibit the confiscation, others believe that law doesn't prevent it.

Although nobody has been able to find case law/statue on point either way.

sorry, but that TCA you're citing does not pertain to the confiscation of your weapon after a SD shooting in your own home. anywhere outside the home and off of your property, I'm with ya on what you're saying.

and I agree, the AG needs to offer an opinion on the unlawful seizure of a handgun in the situation I described, as well as the one you described, so we can get rid of the grey areas.

I think a good for us TGO members to do would be to write down all the GREY AREA rules and laws, and submit them to our lawmakers and request that they further define or clarify these laws, so that someone doesn't end up making a bad decision based on the knowledge that they have, and find themselves sitting in front of a jury of 12, wondering what wrong, and how they landed there.

[Oh Shoot]

"evidence" as you say is when a crime is committed. other than the bad guy being in my home, what crime was committed? ..

If you kill someone who forcibly enters your home, you could still be charged and found guilty of murder or manslaughter, you know. The "castle law" is not a free pass for execution, only a presumption, lacking evidence to the contrary, that you were justified because you had a reasonable fear of death or serious bodily injury.

- OS

Edited December 6, 2011 by OhShoot

[DaveTN]

"evidence" as you say is when a crime is committed. other than the bad guy being in my home, what crime was committed? But I digress, not going to sit here and argue, we'll just agree to disagree, you see it your way, I see it mine.

Once again…. A homicide. Now the question is was it justifiable or not. Luckily for you the Officers at the scene don’t decide that. The coroner and the DA will make those decisions and they will make them after an autopsy and a complete investigation. All evidence will be secured and all reports and interviews will be forwarded for them to make that determination.

That’s just my opinion from working crime scenes.

[TGO David]

I'm not giving them mine without a serious fight about it. Sorry. I'd probably lock mine up in the safe while dialing 911.

A hipoint in the same caliber is a good idea though.

This is dumb thinking and will end up with charges being filed against you as well. Don't be stupid.

[daddyo]

I wish Mr. Stegall would weigh in on this....

[TMF]

So under normal circumstances (say a traffic violation) if you're detained and disarmed, he must return the handgun to you unless you're being arrested. I think there is general agreement that a police officer in TN can't keep your handgun unless they arrest you as a result of a traffic stop. (Or a violation of 39-17-13xx)

Clearly. This is meant to prevent an officer from confiscating a your weapon if you have a valid HCP. Since carrying is illegal in TN, LE needs that guideline in order to make it clear that confiscating a weapon from someone who is legally authorized to carry it is not okay unless the officer has a reasonable fear for his safety.

While a self defense shooting is significantly more serious of an interaction with the police than a traffic stop, where in the law does that officially change the status of the 39-17-1351t protection?

Because that protection is referring to what the officer can or can't do in regards to DISARMING a HCP holder during the normal course of carrying a weapon. It mentions "arrest" in there so the officers know that they cannot keep the weapon unless they haul that person to jail. A SD shooting and subsequent investigation have nothing to do with this since the officer isn't DISARMING the person but instead they are taking the weapon as evidence. It's not about AG opinion or anything of the like. The reason there is no precedented case is most likely because an SD shoot that involved a HCP holder resulted in the officers allowing the shooter to keep their weapon or they took it as evidence without issue because using the argument of "I have a HCP and therefore have different rights" is so incredibly ludicrous that it is likely never to have come up.

What you're suggesting here is that a HCP holder has more rights than the average citizen that uses a weapon to defend themselves. Your HCP doesn't give you any permissions or put you in any special category in a police investigation. It just doesn't. It is a card issued by the DOS that keeps you from getting arrested for carrying a weapon in public. If you then use said weapon against someone the only thing that HCP does is prevent weapons charges from being filed. It doesn't keep the police from confiscating personal property (the weapon) for a homicide investigation. By that rationale you believe that if your neighbor, who doesn't have a HCP, is somehow given less protections under the law for using their firearm in self defense. Not only is this not true, but this will never happen ever, ever.

[Makiaveli]

As I quoted above the language doesn't say unless you are arrested. That is ONE of the conditions. Given that you just shot someone an argument could be made that the officer thought you were a danger to others. Thus he would be legally allowed to keep your weapon as long as he could articulate a valid reason for believing this was the case.

[JayC]

Clearly. This is meant to prevent an officer from confiscating a your weapon if you have a valid HCP. Since carrying is illegal in TN, LE needs that guideline in order to make it clear that confiscating a weapon from someone who is legally authorized to carry it is not okay unless the officer has a reasonable fear for his safety.

It's more limiting than preventing an officer from confiscating the weapon for officer safety, it prevents the officer from confiscating the weapon unless an arrest is made. That is a key part of the statue.

What you're suggesting here is that a HCP holder has more rights than the average citizen that uses a weapon to defend themselves. Your HCP doesn't give you any permissions or put you in any special category in a police investigation. It just doesn't. It is a card issued by the DOS that keeps you from getting arrested for carrying a weapon in public. If you then use said weapon against someone the only thing that HCP does is prevent weapons charges from being filed. It doesn't keep the police from confiscating personal property (the weapon) for a homicide investigation. By that rationale you believe that if your neighbor, who doesn't have a HCP, is somehow given less protections under the law for using their firearm in self defense. Not only is this not true, but this will never happen ever, ever.

I wouldn't suggest that HCP holders have more rights, but they do have more privileges under the law, those privileges are mostly defined in 39-17-13xx, including 39-17-1351t.

Can we agree on some facts?

1. There is no known case law on the subject of whether 39-17-1351t prevents confiscation of a handgun at the scene of a self defense shooting where the HCP holder is not arrested?

2. There is no AG opinion letter directly on point?

3. There maybe a statue allowing the confiscation of evidence without a warrant at certain crime scenes (sure would be nice for somebody to locate this statue)

4. Until 1 or 2 are found or happen, there is no way to resolve this disagreement?

I've repeatedly stated, if they want the firearm as evidence they're going to get it, there is nothing we as HCP holders can do to stop it today.

I'm also saying the intent of the legislature when they wrote 39-17-1351t was to remove the officers ability to use judgement in cases of weapons confiscation from HCP holders. They can temporarily disarm permit holders, but unless they arrest the permit holder they're required to return the firearm before discharging the holder from the scene.

[JayC]

As I quoted above the language doesn't say unless you are arrested. That is ONE of the conditions. Given that you just shot someone an argument could be made that the officer thought you were a danger to others. Thus he would be legally allowed to keep your weapon as long as he could articulate a valid reason for believing this was the case.

Reread the statue, you'll notice that pesky AND word... It means that condition X and condition Y must both be valid, condition Y is the arrest of the permit holder, no arrest no keeping the handgun.

Otherwise when you're stopped for a traffic violation, and the officer felt you posed a threat to him or others he could keep your firearm. I think virtually everybody is in agreement that would violate 39-17-1351t.

Edited December 6, 2011 by JayC

[TMF]

As I quoted above the language doesn't say unless you are arrested. That is ONE of the conditions. Given that you just shot someone an argument could be made that the officer thought you were a danger to others. Thus he would be legally allowed to keep your weapon as long as he could articulate a valid reason for believing this was the case.

Still, this would have nothing to do with codes regarding HCP holders. The officer wouldn't be DISARMING anyone, he would be taking the weapon as evidence. We're talking about two totally different things that have nothing to do with each other. Whether or not the individual has a HCP has nothing to do with a police investigation into a homicide.

[mikegideon]

I'm also saying the intent of the legislature when they wrote 39-17-1351t was to remove the officers ability to use judgement in cases of weapons confiscation from HCP holders. They can temporarily disarm permit holders, but unless they arrest the permit holder they're required to return the firearm before discharging the holder from the scene.

I would think that it's the DA's judgement with a homicide. If I had that job , I may ask for (or demand) a standing policy... If there's a homicide, get the gun. If it's SOP in some jurisdictions to confiscate the evidence, it might be safe to assume that the DA has checked the statutes.

[MikePapa1]

Let me admit I read the first several pages and then, frankly, lost interest. As the thread continues I thought I'd add my two cent's worth. If you are involved in a self defense shooting unless the facts are immediately determinable, your gun will be held as evidence until the DA or the Grand Jury determines charges are not appropriate. It really is that simple. All the arguing aside, that's what's going to happen.

[mikegideon]

Let me admit I read the first several pages and then, frankly, lost interest. As the thread continues I thought I'd add my two cent's worth. If you are involved in a self defense shooting unless the facts are immediately determinable, your gun will be held as evidence until the DA or the Grand Jury determines charges are not appropriate. It really is that simple. All the arguing aside, that's what's going to happen.

Bye bye Sig. Get you some plastic

[Fallguy]

JayC did you read the codes I posted about the TCA itself?

Don't you think that those mean that one sentence in on sub-part doesn't limit, change or apply all across the code?

I have tried to find codes on conficastion/seizure of evidence, so far nothing directly on point.

[TMF]

Can we agree on some facts?

1. There is no known case law on the subject of whether 39-17-1351t prevents confiscation of a handgun at the scene of a self defense shooting where the HCP holder is not arrested?

2. There is no AG opinion letter directly on point?

3. There maybe a statue allowing the confiscation of evidence without a warrant at certain crime scenes (sure would be nice for somebody to locate this statue)

4. Until 1 or 2 are found or happen, there is no way to resolve this disagreement?

I've repeatedly stated, if they want the firearm as evidence they're going to get it, there is nothing we as HCP holders can do to stop it today.

I'm also saying the intent of the legislature when they wrote 39-17-1351t was to remove the officers ability to use judgement in cases of weapons confiscation from HCP holders. They can temporarily disarm permit holders, but unless they arrest the permit holder they're required to return the firearm before discharging the holder from the scene.

The facts are what they are. What I'm saying is that 39-17-1351t has nothing to do with a homicide investigation or how it's handled. If it was then there would be two sets of rules for a SD shoot: One for HCP holders and one for everyone else. This is not the case at all. I'm not a lawyer or LE, but I do know that when there is a crime scene police officers don't have to wait on a DA or warrant to rope it off, secure evidence and begin an investigation. If the weapon happens to be at the scene it will be taken as evidence along with everything else. The argument you're posing should revolve around whether or not police do or should have the ability to secure evidence at a crime scene without a warrant. I think this is where probable cause comes into play, and the best indicator of a homicide is a dead body in your living room with a bunch of holes in it.

I guess what I'm saying is that the folks here that seem to think that 39-17-1351t is going to keep police from taking your weapon if you shoot someone need to understand that 39-17-1351t has nothing to do with how an investigation would be handled. One has nothing to do with the other.

[JayC]

JayC did you read the codes I posted about the TCA itself?

Don't you think that those mean that one sentence in on sub-part doesn't limit, change or apply all across the code?

I have tried to find codes on conficastion/seizure of evidence, so far nothing directly on point.

I must have missed that post Fallguy, can you link back to it?