Do the authorities take yours?

[Fallguy]

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

Post 61

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......

[MikePapa1]

Bye bye Sig. Get you some plastic

To be honest, if I'm charged in a homicide even my Sig will be a minor concern as I'll be far more concerned about a stay in TDOC.

[Steelharp]

Can everyone here please read post #96 by one of out esteemed attorney members? I believe that pretty much settles the bantering.

[Makiaveli]

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.

I think you have it backwards. If he isn't arrested, but he is a threat to others, then what? That "pesky AND word" means both conditions aren't met therefore.....

@TMF 18B I wasn't trying to imply it did. I was saying I think JayC is wrong in his interpretation that not being arrested would prevent disarming/confiscation/whatever.

[Makiaveli]

Can everyone here please read post #96 by one of out esteemed attorney members? I believe that pretty much settles the bantering.

Pretty much answers the question. I think the issue here is some of the law is being taken out of context. As I said a while back, many laws have provisions for not stepping on other laws. I suspect the HCP law is one of those.

[mikegideon]

To be honest, if I'm charged in a homicide even my Sig will be a minor concern as I'll be far more concerned about a stay in TDOC.

Charged? That would scare me to death.

[DaveTN]

I’m not too worried about going to prison; I don’t think that would happen. But even if acquitted, I would be paying off legal fees for the rest of my life. That’s why part of my plan involves not pizzing off the people that will be helping decide if I’m arrested or charged.

[Guest WyattEarp]

Can everyone here please read post #96 by one of out esteemed attorney members? I believe that pretty much settles the bantering.

just because that's what he said doesn't mean the People, should just accept that for what it is. To me it settles nothing, because i firmly believe it's a violation of my 4th Amendment rights.

the willingness to accept something when there is no legal precedence set by a judge, or set as law in the books, to me, is the same as allowing your freedoms to be stripped away without protest.

some might be content with that, or ok with that, but I'm not, nor will I ever be ok with just accepting it because it's some unwritten standard or rule or practice that is generally accepted by the general public,

because they're typical too scared, meek and feeble to challenge authority or an unconstitutional process.

Fallguy said he found nothing on the books regarding the seizure/confiscation of evidence on the books, so if there is nothing official, what makes it valid? What makes it legal? What makes it constitutional? because it's the Police? pffffffffft!

this is one of the reasons why this country is in the mess it's in, and the government continues to do what it wants at will, without any regard to the general public or the wishes and desires of the People who have

voted them there to begin with, because People are willing to throw in the towel, and say "well, that's just the way it is, nothing I can do about it" and then go back to their night of sitting on the couch, drinking their

beer, and vegging themselves out on their television, lost in lala land, while the foundations on which this country was built upon continue to erode away into the sea of political corruption.

When the People can no longer hold the government accountable for it's actions, they are no longer part of a free and democratic country, they're under the thumb of a government who will do is at it pleases, when it pleases

without regard to anyone or anything, and subject to the will of the government with or without reason, or explanation.

Edited December 8, 2011 by WyattEarp

[strickj]

just because that's what he said doesn't mean the People, should just accept that for what it is. To me it settles nothing, because i firmly believe it's a violation of my 4th Amendment rights.

he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures

I think most would say that it's perfectly reasonable to temporally "seize" a weapon used to kill another while an investigation is conducted.

YMMV

[TMF]

I think most would say that it's perfectly reasonable to temporally "seize" a weapon used to kill another while an investigation is conducted.

YMMV

That was my belief all along. The argument regarding HCP code is thrown out because the individual isn't being "disarmed", the weapon is being taken as evidence. In regards to the 4th Amendment, a dead body full of holes suggest that the person didn't die by natural causes. I know that some are playing the devil's advocate here and would fully cooperate with LE in this scenario, but let's be reasonable in regards to our rights:

1. You have freedom of speech but you can't go into a crowded movie theater and yell "BOMB", right?

2. The government can't seize personal property illegally or unreasonably, right? How do we define "legally" or "reasonable" here? I'm just not seeing the argument that a dead body full of bullet holes isn't enough to take evidence in a homicide investigation. And just to be clear, when there is a dead body a homicide has been committed whether it was justified or not. It is the responsibility of LE to investigate whether a crime has or hasn't been committed.

[Steelharp]

just because that's what he said doesn't mean the People, should just accept that for what it is. To me it settles nothing, because i firmly believe it's a violation of my 4th Amendment rights.

While I agree with ya, Wyatt... (seriously, though, try decaf... )... and it's certainly not a good thing for we, the People to just remain quiet... his statement is simply a FACT of what's GOING TO HAPPEN. Questionable, arguable, needs to be dealt with, absolutely. But pissing in a cop's face ain't the way that's gonna fix it.

[Fallguy]

Fallguy said he found nothing on the books regarding the seizure/confiscation of evidence on the books, so if there is nothing official, what makes it valid? What makes it legal? What makes it constitutional? because it's the Police? pffffffffft!

Well just to clarify a little... I didn't read every single statute.

Plus I've never found a statute that said it's ok to wear a red shirt or drive a chevy....but I'm pretty sure those things are legal to do.

[JayC]

just because that's what he said doesn't mean the People, should just accept that for what it is. To me it settles nothing, because i firmly believe it's a violation of my 4th Amendment rights.

the willingness to accept something when there is no legal precedence set by a judge, or set as law in the books, to me, is the same as allowing your freedoms to be stripped away without protest.

some might be content with that, or ok with that, but I'm not, nor will I ever be ok with just accepting it because it's some unwritten standard or rule or practice that is generally accepted by the general public,

because they're typical too scared, meek and feeble to challenge authority or an unconstitutional process.

Fallguy said he found nothing on the books regarding the seizure/confiscation of evidence on the books, so if there is nothing official, what makes it valid? What makes it legal? What makes it constitutional? because it's the Police? pffffffffft!

this is one of the reasons why this country is in the mess it's in, and the government continues to do what it wants at will, without any regard to the general public or the wishes and desires of the People who have

voted them there to begin with, because People are willing to throw in the towel, and say "well, that's just the way it is, nothing I can do about it" and then go back to their night of sitting on the couch, drinking their

beer, and vegging themselves out on their television, lost in lala land, while the foundations on which this country was built upon continue to erode away into the sea of political corruption.

When the People can no longer hold the government accountable for it's actions, they are no longer part of a free and democratic country, they're under the thumb of a government who will do is at it pleases, when it pleases

without regard to anyone or anything, and subject to the will of the government with or without reason, or explanation.

The 5th amendment is more of an issue in this case... a handgun is property and the 5th amendment says the government can not deny you of your property without the due process of law... Unless the police have a search warrant/court order they shouldn't be allowed to collect property without the owners consent... There should be almost no exceptions... Police can contain a crime scene and prevent destruction of evidence while waiting for a judge to sign off on the seizure.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I know that doesn't jive with current case law, but it's another example how our God given rights are being trampled on, how the Constitution is largely ignored, and how we live with more tyranny than our forefathers did under British rule who wrote the Constitution to protect us from abusive governments.

[JayC]

That was my belief all along. The argument regarding HCP code is thrown out because the individual isn't being "disarmed", the weapon is being taken as evidence. In regards to the 4th Amendment, a dead body full of holes suggest that the person didn't die by natural causes. I know that some are playing the devil's advocate here and would fully cooperate with LE in this scenario, but let's be reasonable in regards to our rights:

1. You have freedom of speech but you can't go into a crowded movie theater and yell "BOMB", right?

2. The government can't seize personal property illegally or unreasonably, right? How do we define "legally" or "reasonable" here? I'm just not seeing the argument that a dead body full of bullet holes isn't enough to take evidence in a homicide investigation. And just to be clear, when there is a dead body a homicide has been committed whether it was justified or not. It is the responsibility of LE to investigate whether a crime has or hasn't been committed.

I think we would define legally and reasonable as involving due process of law, ie a judge ruling on the seizure before it takes place.

[JayC]

Well just to clarify a little... I didn't read every single statute.

Plus I've never found a statute that said it's ok to wear a red shirt or drive a chevy....but I'm pretty sure those things are legal to do.

The difference there being 'the people' should be free unless otherwise defined in a statue... where as public servants performing their official duties should be completely restricted unless otherwise defined in statue.

[Fallguy]

The difference there being 'the people' should be free unless otherwise defined in a statue... where as public servants performing their official duties should be completely restricted unless otherwise defined in statue.

Well...can't argue with that...

[Guest WyattEarp]

it makes for an interesting debate that's for sure

[TMF]

I think we would define legally and reasonable as involving due process of law, ie a judge ruling on the seizure before it takes place.

If that was the case then police wouldn't be able to arrest someone who is standing over a dead body, holding a gun in their hand and saying they didn't do it until such point that they got a judge to issue a warrant. If there isn't a witness then there is no reason to take them into custody and no reason to take the weapon, right? Why not just take the shooter's word for it?

I think "reasonable" is decided in the courtroom anyway. At the time of seizure there is no arguing with police or putting up a stink. They're going to do what they do, and chances are if you find yourself in a courtroom arguing that the seizure of your personal items (weapon included) without a warrant was a violation of your Constitutional Rights it will be decided that the officers acted appropriately based on the circumstances (the dead body full of holes or claw hammer sticking out their head).

[JayC]

If that was the case then police wouldn't be able to arrest someone who is standing over a dead body, holding a gun in their hand and saying they didn't do it until such point that they got a judge to issue a warrant. If there isn't a witness then there is no reason to take them into custody and no reason to take the weapon, right? Why not just take the shooter's word for it?

I think "reasonable" is decided in the courtroom anyway. At the time of seizure there is no arguing with police or putting up a stink. They're going to do what they do, and chances are if you find yourself in a courtroom arguing that the seizure of your personal items (weapon included) without a warrant was a violation of your Constitutional Rights it will be decided that the officers acted appropriately based on the circumstances (the dead body full of holes or claw hammer sticking out their head).

Arresting somebody and bringing them before a judge who rules on whether to hold them or not... my understand that is what we do today. Taking their property into custody when you arrest them is fine... Although you shouldn't be able to hold that property if the judge orders them released without a court order to keep the property.

We're talking about when the police don't arrest anybody, they should be required to get a search warrant or court order to seize property owned by somebody who they're going to release. Apples and oranges between finding somebody you're going to arrest from probably cause that they have committed a crime, and not having probable cause to arrest anybody, but wanting to seize their property.

I'm not saying you're wrong that current case law allows the police to take things... but it's wrong in the respect that our God given rights prohibit that, and the Constitution protects those rights, and the current government (both state and federal) as well as the courts disregard both our God given rights and the Constitution.

[Guest Grubbah]

There is one passage in 39-17-1351(t) that I am curious about and how it would play into this discussion.

"...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..."

What is open for interpretation is whether or not the officer has determined that the permit holder is still a threat to himself, the officer, or other individuals.

Regardless as to what evidence collection laws may or may not apply, this does in my interpretation provide for a scenario where a LEO could retain a weapon without actually having to arrest the HCP holder. If the officer had any reason to believe that the shooter (even if fully justified in their actions) was unstable or for some other reason was still a threat, they are not required to return the weapon. There are documented cases of handguns being returned immediately after a SD shooting, but the officer could under the right circumstances keep the firearm according to the wording of 39-17-1351. For how long, who knows. Perhaps long enough to get a court order or warrant to officially seize it as evidence.

[MikePapa1]

In 28 years of practicing criminal law, I love the client who insists he "knows" his rights and wants to assert them regardless of either common sense or reality. It always allows me to double my normal retainer because I know that the case will have to be tried and that my client will alienate all of the law enforcement personnel from the police through the DA to the Judge.

If the gun is involved in a shooting it MUST be taken into evidence until a determination can be made whether a crime has been committed. Everything else is nonsense.

[Fallguy]

In 28 years of practicing criminal law, I love the client who insists he "knows" his rights and wants to assert them regardless of either common sense or reality. It always allows me to double my normal retainer because I know that the case will have to be tried and that my client will alienate all of the law enforcement personnel from the police through the DA to the Judge.

If the gun is involved in a shooting it MUST be taken into evidence until a determination can be made whether a crime has been committed. Everything else is nonsense.

Hmmmmm...

I have always said they could take it. But I wonder about the word "must" because I have heard of time that it wasn't.

Were those officers doing something wrong? Or are officers able to make the determination about a crime or not on the scene?

[Steelharp]

This is like watching a thread on the Steel Guitar Forum where Buddy Emmons gives his professional opinion on a matter, and a guy that plays one New Years party in Podunk says HE knows more... lol...

[Fallguy]

This is like watching a thread on the Steel Guitar Forum where Buddy Emmons gives his professional opinion on a matter, and a guy that plays one New Years party in Podunk says HE knows more... lol...

lol...Well I am by no means claming to know more. Just asking a question....

[Steelharp]

Understand. This has been a very spirited discussion, and I'm very glad I posed the question. Regardless of how many of us FEEL about the "abusive overreach of authority" (for lack of a better way to put it), I think MikePapa's years of experience tell us how it IS. If we feel the need to change this, then we should take the proper actions.