Do the authorities take yours?

[MikePapa1]

I think, Fall, if they didn't take it they were either wrong or had already determined that the owner committed no crime or they decided they simply weren't going top prosecute. Last year, here in Gallatin, a homeowner came home to find miscreants in his home and he chased them out followed them shooting at the car. There was a thread here with video on this incident. In that case I don't think the homeowner's weapon was taken into evidence because the lead detective determined on the scene that they were not going to file any charges against him. I talked to the detective and asked about it because it clearly went beyond self defense and clearly outside of the Castle Doctrine. The detective told me, in essence, that because the suspects were armed and because the homeowner's actions assisted in their capture "there's no way in Hell, we're going to charge him."

Technically, his gun should have been taken and awaited the DA or Grand Jury's determination, but the Gallatin PD exhibited common sense under the circumstances. Other locales might well differ under the exact same circumstances. If the weapon is not taken, as a defense attorney I can tell you that any charges against the shooter that might later be determined to be appropriate would be worthless because the State's evidence couldn't be secured to guarantee a conviction. If the weapon is returned there's no way to assure from an evidentiary standpoint that it wasn't altered to affect the results of testing. The State would have to subsequently get it by warrant and I'd be happy to argue that they couldn't prove anything beyond a reasonable doubt because they would be unable to establish a proper chain of custody.

I said must because I believe unless it is taken the State's ability to get a conviction later would be decidedly difficult. Evidence to be properly used must be immediately obtained and safeguarded so that a chain of custody can be established to rule out tampering. I stand by that regardless of statutory wording regarding HCP.

[Guest pfries]

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.

I was running under the presumption that even a self-defense shooting is a homicide. Homicide is a crime, therefore, the DA or grand jury would have to determine that it was justified in order to give you protection under the right to self-defense?

[MikePapa1]

I was running under the presumption that even a self-defense shooting is a homicide. Homicide is a crime, therefore, the DA or grand jury would have to determine that it was justified in order to give you protection under the right to self-defense?

Right on the money.

[Fallguy]

Thanks Mike

[Makiaveli]

Thanks Mike

What he said

[Guest WyattEarp]

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.

I understand you're a lawyer, and you've been doing it for a very long period of time, but I'd like to know why there is no legal statute on this procedure in the books?

I'm not questioning your knowledge or experience on the matter, I'm just questioning the legality and constitutional validity of the police being able to take your property without a warrant, and when no legal statute exists to allow such an action.

homicide may be a crime, but according to the justice system/the law justified homicide is not a crime.

so once again, just because it's a "commonly accepted practice, and no one in this country seems to have the backbone anymore to question authority or challenge the unlawful seizure of a person's property" just because "the police do it and have been doing it for years", DOESN'T MAKE IT RIGHT, LEGAL OR LAWFUL.

If it "MUST" be taken into evidence, please show me where it says that in the law books. You should know where to find that one, you've been practicing law for 28 years after all, not to mention the 3 years you went to law school.

Just because the police say so, doesn't hold any weight. Just because the D.A. says so, doesn't hold any weight. Just because no one's ever challenged it, or taken it to court, doesn't hold any weight.

I'm not attacking you, or your position as a lawyer of 28 years, just find it hard to believe people accept this for what it is, and no one can cite any legal statute to justify this practice.

Without any legal statute, it just seems to me that the police, and D.A. can make anything up and do as they please, as they go along, when they feel like it. If that's the case, we're in serious trouble as citizens, because if they're not held accountable on this, what else are they getting away with? What else have they gotten away with? What else will they try to get away with in the future? Where does it stop? How far will they go?

See where I'm going with this? See why I have a problem with it? See why I don't accept "just because that's the way they do it"? See why I don't think it's nonsense?

I'm not the guy who's willing to go quietly in the night. I'm not willing to turn my head the other way and pretend I didn't see or hear anything. I'm not the one willing to take something at face value just because someone with 28 years of experience says so, and I mean that in the most respectful way possible because this issue has nothing to do with you, it has to do with unconstitutional procedures being carried out by police departments and endorsed by district attorneys. I'm the guy who asks questions when no one else will, I'm the guy who will fight city hall even when i'm on the losing end and everyone's against me, but I know I'm right, been there before, and I won't sacrifice my beliefs, morals, or values for anyone or anything.

Those willing to sacrifice their freedoms, their rights guaranteed them under the Constitution, based on opinions and "generally accepted" practices in which no legal statute can be found or in which no legal precedence has been set, have already allowed the government to win.

When you don't protest, the government takes advantage of it. If they know they can get away with doing something and no one speaks out, no one challenges it or no questions it, they'll continue this into other areas with other practices as well. Whatever they can get away with, they will.

Our constitution was written to protect the People from the abuse and tyranny of the government, and I have a serious issue with the unlawful seizure of property without a warrant.

Now if the government were to run this through the national legislature (or the states did it separately), vote to pass it, and sign it into law, then I'd gladly shut the hell up and not say another word about it, because I'd have no ground to stand on. But until I see the law cited on this, I'm going to question it and disregard all other "opinions".

There should be no guesswork on matters like these. There should be a law, it should be on the books, and this should not even be a question or an issue.

Edited December 9, 2011 by WyattEarp

[Makiaveli]

Not disagreeing with you, but I think if you were his client, this is one of those times he would double his retainer

[Steelharp]

Not disagreeing with you, but I think if you were his client, this is one of those times he would double his retainer

[Guest WyattEarp]

Not disagreeing with you, but I think if you were his client, this is one of those times he would double his retainer

lol, i probably wouldn't hire him as an attorney then. Everyone seems to want to just find the easy way out, and take the path of least resistance but this is could be a serious issue in a criminal case that potentially lets a criminal walk free.

All it takes is someone with a lot of money to exploit a technicality such as this and open up a pandora's box, which allows convicted criminals to go free because of a practice that wasn't passed into law and put into the books as a law or accepted procedure.

I'm all for the practice, if it's legally done and it's written into law. I just have an issue with someone saying, oh well, we're taking your gun,because it's been done like this for X amount of years, and that's just the way it is, like it or not." and then they can't justify under what law or statute.

That's liking arresting someone and not charging them with a crime.

My purpose in saying what I'm saying, is to challenge people to think for themselves. Don't just accept something because someone says it, or because every police department "does it". How many times have the police done things over the last 100 years that they weren't supposed to, and then someone finally got tired of their **** and challenged it, and it turned out the police officer or police department was in the wrong? or a procedure they had practiced was unconstitutional?

[Guest pfries]

Although I usually agree with you, I have to take exceptionto this. The resolve in this would just result in them detaining or arresting you for the crime, (and homicide is a crime and not one I would like to be accused of), then allowing the DA and/or grandjury to decide if you are protected under your rights the right of self-defense. This is one of those matters that you need to let play out and then if you choose to take it to court. If you want, a statue shown homicide is a crime, by shooting the intruder you have committed homicide and they can arrest you for that. By not hauling your tail end off tojail in the first place, they have extended you a professional courtesy. The legality of this would need to be challenged post facto not on the scene.

I am with you but would probably choose to fight that after-the-fact not at the moment.

Edited December 9, 2011 by pfries

[Steelharp]

I think it's time to summon the powers of Leonard for a gig...

[TMF]

Technically, his gun should have been taken and awaited the DA or Grand Jury's determination, but the Gallatin PD exhibited common sense under the circumstances. Other locales might well differ under the exact same circumstances. If the weapon is not taken, as a defense attorney I can tell you that any charges against the shooter that might later be determined to be appropriate would be worthless because the State's evidence couldn't be secured to guarantee a conviction. If the weapon is returned there's no way to assure from an evidentiary standpoint that it wasn't altered to affect the results of testing. The State would have to subsequently get it by warrant and I'd be happy to argue that they couldn't prove anything beyond a reasonable doubt because they would be unable to establish a proper chain of custody.

This is what I was trying to get across, but being the knuckledragger that I am it was difficult to articulate; thank you for clearing that up for us.

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.

I think that is really the debate here, but it's not something that would be resolved on the scene. It would have to be done in a courtroom as a part of either a defense or a lawsuit once the dust has settled. To try and raise a stink from the beginning of the investigation, well, what he said.....

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.

[DaveTN]

I'm just questioning the legality and constitutional validity of the police being able to take your property without a warrant, and when no legal statute exists to allow such an action.

I'm all for the practice, if it's legally done and it's written into law. I just have an issue with someone saying, oh well, we're taking your gun,because it's been done like this for X amount of years, and that's just the way it is, like it or not." and then they can't justify under what law or statute.

That's liking arresting someone and not charging them with a crime.

The 4th amendment uses the word "Unreasonable". It doesn't require that someone sit down and make a list of everything that is reasonable; only that the courts will rule on what is unreasonable.

No one is doing this because "that's the way it has always been done". They do it because they are good investigators that know how to do their job.

This discussion reminds me of one have had with people many times...

Jailhouse lawyer: This will never make it to court; you didn't read me my rights.

Me: I'm not required to read you your rights.

Jailhouse lawyer: Yes you are; it's the law.

Me: If I read you your rights will you promise to remain silent?

My purpose in saying what I'm saying, is to challenge people to think for themselves. Don't just accept something because someone says it, or because every police department "does it". How many times have the police done things over the last 100 years that they weren't supposed to, and then someone finally got tired of their **** and challenged it, and it turned out the police officer or police department was in the wrong? or a procedure they had practiced was unconstitutional?

And you think that being uncooperative with the people that are deciding if you go to trial or not is a good idea? You have told us many times you don't have any money, that you are a poor college student. So you can't afford justice anyway. What do think is going to happen to you if you get charged? Why would someone want to pay off a trial the rest of their life (assuming they don't go to prison)?

Edited December 9, 2011 by DaveTN

[mikegideon]

Prison???

[TMF]

This discussion reminds me of one have had with people many times...

Jailhouse lawyer: This will never make it to court; you didn't read me my rights.

Me: I'm not required to read you your rights.

Jailhouse lawyer: Yes you are; it's the law.

Me: If I read you your rights will you promise to remain silent?

Those have to be the conversations that make all the pain of being a law enforcement officer worth it.

[MikePapa1]

Wyatt, I’m pressed for time before court and while I understand your points I don’t live in Utopia, I live in the real world. In the real world, as has already been noted here, homicide is a crime and self defense is an exception to that crime. If you shoot someone the default setting is it’s a crime.

Let me see if this analogy helps. You have a driver’s license and car registration for your car. If you hit and kill a pedestrian, the police are going to impound your car until they complete their investigation. This is to determine if your story matches the physical evidence. This isn’t an infringement of your Constitutional rights, merely proper investigation to determine whether you committed a crime.

Nothing about a firearm or having an HCP changes that. If you think that’s unreasonable, great. Organize your friends and elect people that agree with you and get it changed. Until then, that is the way it will be done.

On a personal note, I deal with cops all the time. Most are great people genuinely interested in serving and protecting you and your rights. Most cops are gun people as well, who have faced self defense situations. They are not going to act as jackbooted thugs out to destroy your rights. I see the attitude you’ve shown here and I’ll give you some free legal advice. I’ve seen FAR more people talk their way into jail than talk their way out. If you’ve genuinely done nothing wrong, having a chip on your shoulder, being belligerent and uncooperative make you look guilty and may well bring you far more scrutiny for your actions than being cooperative. There are times to pick a fight but after a homicide, justified or not, is hardly the time to pick a fight with the police.

[Makiaveli]

The 4th amendment uses the word "Unreasonable". It doesn't require that someone sit down and make a list of everything that is reasonable; only that the courts will rule on what is unreasonable.

If my brain was working, that is what I would have said. At least I like to think that I could have come up with that.

@Wyatt I completely agree with your apparent philosophy of if we all roll over, we will all get walked on. However, sometimes things are just done because it is the best way for ALL concerned. Sure if you only have one gun, then it's a hardship of sorts. But the alternative is either leaving a gun in the hands of a possible murderer with a good story, or codifying that the gun will be taken every single time no matter the circumstances, since once they start writing the law, I doubt they will leave a lot of discretionary powers for the police.

Another thing to consider, do you really want those people to write up MORE laws?!?

**EDIT** Oh yea, thanks again to MikePapa for your input.

[JayC]

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.

Mike, I know I'm tilting at wind mills here I know if they want the gun their going to get it, and if involved in a self defense shooting the location of the firearm is the least of my worries Time to ask for a lawyer is all I'm going to be worried about.

I'm just saying the plan reading of 39-17-1351t would seem to prohibit taking a handgun from an unarrested HCP holder by the police without some external court order or warrant, which lets be honest they'd hold you at the scene and go get with no problem before releasing the weapon to you.

I may argue points online, but I'm smart enough to know pissing the police off when their the one's talking to the DA about charging you isn't a good plan But it still doesn't make it right that the courts and our state and federal government corrupt and ignore our God given rights and the protections of those rights in the Constitution. But, average guys have little or no chance to change that, until our population is better educated by just how perverted our 'justice system' is

[JayC]

I think that is really the debate here, but it's not something that would be resolved on the scene. It would have to be done in a courtroom as a part of either a defense or a lawsuit once the dust has settled. To try and raise a stink from the beginning of the investigation, well, what he said.....

Bahh, don't let my libertarian leanings fool you, I know how messed up the courts are In the event that I'm in involved in a SD shooting, I'm going to do the same thing you would... I'm going to call a lawyer with 28 years of experience and do exactly what they tell me to do Because I know that is the cheapest and least risky move.

We're not going to change the court/legal system in our life time from within, it's taken about 120-150 years to mess it up to this point, and best case it's going to take 3+ generation to fix it from within. Our only hope of seeing real change with how poorly our government and the courts behave is going to be an external change that is likely to be more bloody than our second revolution.

[Steelharp]

I'm just saying the plan reading of 39-17-1351t would seem to, although doesn't, prohibit taking a handgun from an unarrested HCP holder by the police without some external court order or warrant, which lets be honest they'd hold you at the scene and go get with no problem before releasing the weapon to you.

FIFY...

[MikePapa1]

Well, JayC, I guess I read §39-17-1351(t) a bit differently than you do. I read it to say, in essence, that a permit holder cannot arbitrarily have his pistol taken by law enforcement. It does talk about arrest, yes, but it also talks about that it can be retained until the holder is determined not to be a threat to himself or others. If the police believe you committed an unjustified homicide or there is a question about its justification, it appears the statute specifically allows the police to retain the weapon until that determination is made. You don't read it to say that? Taking the weapon into evidence is part of the process by which LE would determine whether the permit holder is, or is not a threat to himself or others, don't you think?

Look, I'm a conservative and in most cases a libertarian and am only too familiar with the flaws in the criminal justice system. I do not consider it a flaw that the police keep a weapon involved in a homicide until they complete their investigation. To do otherwise, you are reading the statute to say, if we don't have enough evidence to charge you on the spot, but have reason to believe you've committed an unjustified homicide, they have to return the murder weapon to you. I'm sorry, but that makes no sense to me.

[JayC]

Well, JayC, I guess I read §39-17-1351(t) a bit differently than you do. I read it to say, in essence, that a permit holder cannot arbitrarily have his pistol taken by law enforcement. It does talk about arrest, yes, but it also talks about that it can be retained until the holder is determined not to be a threat to himself or others. If the police believe you committed an unjustified homicide or there is a question about its justification, it appears the statute specifically allows the police to retain the weapon until that determination is made. You don't read it to say that? Taking the weapon into evidence is part of the process by which LE would determine whether the permit holder is, or is not a threat to himself or others, don't you think?

Look, I'm a conservative and in most cases a libertarian and am only too familiar with the flaws in the criminal justice system. I do not consider it a flaw that the police keep a weapon involved in a homicide until they complete their investigation. To do otherwise, you are reading the statute to say, if we don't have enough evidence to charge you on the spot, but have reason to believe you've committed an unjustified homicide, they have to return the murder weapon to you. I'm sorry, but that makes no sense to me.

Well I'm basis my opinion in part of legislative intent, 1351t was modified after a number of police departments had used the 'officer safety' provision in the previous version to seize handguns for crimes which did not result in arrest (minor traffic violations, seat belt stops etc). The legislature came back and amended 1351t to add the arrest requirement language... I was at the time following second amendment legislation very closely and sat through some of the committee hearings for this act and clearly remember testimony from the sponsor that it would prevent officers from confiscating a handgun without arresting the HCP holder for a crime, before allowing them to leave the scene.

That combined with my reading of 1351t:

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.

As I read that statue, they may disarm you, but unless they have PC that you've violated a provision in 39-17-13xx or they arrest you, they are required to return your handgun when discharging you from the scene. Now, I don't think there is any case law on point, I'm almost certain there is no AG opinion letter on point, and frankly I don't want to be the test case

But, my understanding from sitting through those hearings, the legislative intent was to prohibit officer discretion in confiscating handguns from permit holders, forcing them to arrest or let the holder go with their handgun, and that jives with my laypersons reading of the statue as written. "The officer shall shall return the handgun to the permit holder before discharging the permit holder from the scene"

If you're correct (and you very likely are) then there is nothing preventing a police department from confiscating a HCP holders handgun at anytime because the officer believes you pose a threat to yourself, others or officer. If they can do it for a homicide what stops them from confiscating a handgun during a traffic stop for the exact same reason? What is the burden of proof on the officer to justify his concern that your a threat, but doesn't have probable cause for an arrest under any statue?

Now, with all of that said, lets be honest, this is a discussion over the number of angles on the head of a pin... until case law is found on point, none of us really know how any judge would rule on my logic but again I have no interest in being the test case either

In the case of a homicide investigation the police are going to do what they do, and if you start making a fuss, they're going to use their discretion to make your life hard. I think you'd agree with this... It's the fact that lawyers, judges, and the public in general accept this and turn a blind eye, which disgusts me, and convinces me that the problem is largely unfix-able within the current legal system and will require external forces to correct.

Mike is clearly the expert here, and he's right attempting to make a fuss is only going to cost you in a long run... the safe answer is to keep your head down and don't cause the system to hammer you down.

I just don't like the fact that I have to accept that sad state.

[MikePapa1]

JayC, I agree this is largely an argument surrounding angels on the head of a pin, and I'll defer to your expertise regarding legislative intent. Frankly, I rarely concern myself with legislative intent because if you look at the TCA you'll find many mutually contradictory provisions. It might, however, be interesting to speculate what the language might be if we weren't talking about arbitrary confiscations based upon a seat belt violation and those based upon homicide or aggravated assault. My guess is the language might be a tad different.

"If you're correct (and you very likely are) then there is nothing preventing a police department from confiscating a HCP holders handgun at anytime because the officer believes you pose a threat to yourself, others or officer. If they can do it for a homicide what stops them from confiscating a handgun during a traffic stop for the exact same reason? What is the burden of proof on the officer to justify his concern that your a threat, but doesn't have probable cause for an arrest under any statue?"

While I think you meant this as a rhetorical question, I feel compelled to answer it because I think it is the crux of the argument. Homicide is a world different than a traffic stop. As with many things in criminal law, and, frankly, in life in general, it comes down to reasonableness. If the officer confiscated the gun at a traffic stop, his burden of showing the reasonableness of his actions would be, well overwhelming. At the scene of a homicide, I think the reasonableness would be quite simple. To me a scene where someone has discharged a firearm and it's unclear whether or not the shooting was justified, it is very easy for me to believe the person who did the shooting poses a threat.

As a lawyer and someone who regularly sets as special judge on criminal cases and as someone who considers himself "gun friendly," I can assure you that the majority of lawyers and judges I know do not turn a blind eye to either Constitutional or statutory violations by the police. I will tell you that in a case of homicide, where it is unclear whether it was justified, I wouldn't hesitate to allow the officer to take the weapon as evidence. I don't believe that's a violation of the statute because it's clearly not arbitrary nor done out of malice. Frankly, I think it's perfectly reasonable, under the totality of the circumstances to do so. I would find it wholly irresponsible not to do so as if it were determined later that the shooting was unjustified failure to do so would lead to suppression of the weapon as evidence and make the case virtually impossible to prosecute. I find nothing in the statute or the 2nd Amendment which makes me see that as the least bit unreasonable.

Let me give you a fact situation which illustrates my belief. You are a home owner and call 911 to report that you've shot and killed an intruder. The law presumes, under those facts that such a shooting in justified. Based upon that the police don't take the weapon into evidence and it subsequently "disappears." Further investigation shows that the "intruder" had, in fact, been invited into your home under the ruse that you wanted to discuss repayment of the $10,000 you owe him. The police suspect, at that point, that you fibbed to them and decide the shooting is murder. They get their warrant and try to find the gun, which, as I said, has disappeared. Based upon the inability to find the gun, any prosecution of you for the murder would be seriously compromised. Is that the way our justice system ought to work? Here we'll assume that in addition to having your HCP, you had the Castle Doctrine presumption. Should the police really leave that weapon in your possession until they determine the facts? My answer would be that it's perfectly reasonable for them to take it as evidence and wholly unreasonable not to, regardless of the fact they didn't arrest you on the spot.

Other people are free to differ, but I don't find taking a weapon into evidence in a homicide investigation at all unreasonable.

[DaveTN]

I just don't like the fact that I have to accept that sad state.

JayC, you don't have to accept what you believe to be a sad fact. Should you ever be in situation like we are talking about you can tell the cops to charge you or give you your gun back. You can make it tough for the guys handling the investigation in any way you like.

However, most of us who have actually been though a shooting, the investigation of a shooting, or the trial in a shooting case, are offering advice to help the person not end up at trial.

I tested the system on carrying a gun in Illinois; I lost. I now am absolutely sure that I don't have a 2nd amendment right to carry in Illinois and I don't have one in Tennessee either. I had two attorneys that were smart enough to get me out of it without a conviction, but it cost me a lot. A criminal trial where your freedom is at risk is not a good way to test the law, and even if you win you will still be paying the bills.

Can the Police take a gun as evidence in a shooting if you have not yet been charged? Yes. Can you explain your interpretation of the law to them and ask to keep your gun? Yes, you can do and say anything you are ready to take responsibility for. But doing what you are suggesting would make you the poster child for why attorneys want you to keep your mouth shut until they arrive.

[Steelharp]

JayC, you don't have to accept what you believe to be a sad fact. Should you ever be in situation like we are talking about you can tell the cops to charge you or give you your gun back.

KWIK... calling KWIK to the scene! Your services are needed!!