NC - Man Surrenders Gun to Police After Accident, Can't Get it Back!

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Old Fluff said:
Many people buy a gun, load it, and then carry it. This used to be more common years ago when quality-brand pistols did actually work, out-of-the-box.
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Yeah, who cares about familiarizing themselves with their new pistol...or seeing how point of impact relates to point of aim. Sure, it's just dandy not even knowing what the trigger pull feels like since they just "load it and then carry it". In the days where pretty much everything was ball ammo, too. Never had any feeding issues at all back then, huh? :rolleyes:
 
stillaftermath said:
If you're just here to snipe, there's plenty of other threads you can do it in.
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And the "plenty of other threads" are okay and not this one? Because you started it and you no likey? :rolleyes:

His choice of "carry" is STILL relevant to this thread.
 
Yeah, who cares about familiarizing themselves with their new pistol...or seeing how point of impact relates to point of aim. Sure, it's just dandy not even knowing what the trigger pull feels like since they just "load it and then carry it". In the days where pretty much everything was ball ammo, too. Never had any feeding issues at all back then, huh?
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You still miss my point:

There is no legal statutory requirement that someone must try out a new handgun before they carry it. Many individuals think they should (you and one-time apparently being examples); but because you believe this everyone isn't obligated to do the same - and a fair number of folks don't.

The police did not confiscate the gun in question. So far as they knew it had not been involved in a crime. They had no evidence to suggest that it had. The owner turned it over to them only because he was being transported to a hospital where guns were prohibited. When he was told that they would have to fire it before they returned it, he ask them not to because it was new, and firing it would reduce the value. They said they would anyway, because it was a department policy, but they didn’t cite any statute that gave them the authority to do this, or mandated that they had to do it.

At this point the pistol was the owner’s private property. He wasn’t a prohibited person, nor was he illegally carrying the gun. He was not arrested or charged with anything.

What I said is that the policy may not have a legal basis, and if this ends up in court, and if the courts say he’s right, the gun owner may sue the city into the ground.

You are saying that the gun owner was wrong because he didn’t get some range time with the pistol first. But that’s nothing more then an opinion, because as I keep pointing out he was not obligated by law to do so, and it has nothing to do with the principal issues in the matter anyway.
 
scotthsi said:
And the "plenty of other threads" are okay and not this one? Because you started it and you no likey?
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The other threads are not in Legal, for one thing?

Changes in THR structure to facilitate those goals:

* Legal forum is now for legal issues only. When giving advice, please endeavor to provide links or references to original documents, laws and other relevant resources. Please keep the topics related to guns and RKBA.
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Are any of your replies about legal issues?

Would you start a thread in this subforum regarding reliability testing your EDC?

Your comments are irrelevant to the thread and unhelpful. That's why I "no likey."

There's a bazillion threads about EDC reliability testing, and you're welcome to PM me, but personally, I'm interested in the legal aspects of this case.
 
This is beginning to remind me of the guy in Shreveport LA that was disarmed at a traffic stop and questioned as to where he'd been, where he's headed and what he's going to do there. Long story short, he was told by the Mayor that "your rights are suspended when you are pulled over by the police."
 
Ok, the guy hands his gun to the police and then complains when they follow a statute?
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Really, WHICH "statute"?

POLICY is NOT law.

They could have a "policy" of requiring every woman stopped for speeding to have sex with all officers on the scene. If it's contrary to law or constitutional protections, it's both a crime and a civil tort for them to enforce.

Their "policy" has no more force of law than a self-created "policy" by me that Walmart has to give me a box of 147gr. 9mm JHPs on the 1st and 15th of every month.

If they don't return the gun UNtested, he needs to sue.
 
Dean you didn't read all my posts...take another look.

So much for a good "search and seizure" thread, it's headed off course like every other one that comes up...this is a waste of time.
 
I took the time to go back and read your posts. :)

Also re-read the opening post. I noticed that in the news account it says:

Police defend their decade-old policy of checking most handguns that come into their custody - no matter the reason - to see if they have been used in a crime. They say public safety outweighs any inconvenience to the owner.
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So apparently they don't test ALL handguns, which begs a question, "Why didn't they make an exception for this one considering the circumstances?

Police departments have all kinds of rules, procedures and policies, but usually they are based on a statute of some sort, or on case law derived from a law. Sometimes statutes or case law provide for specific exceptions, but when they don’t law enforcement agencies have been known to get into trouble when they have uneven enforcement of a policy, rule or procedure that isn’t specifically based on some law. This may or may not be the case here.

But if the news account represents a full disclosure of what happened, I think it would be wise for this police department to return the pistol unfired (if that’s still possible), then make a full review of the policy and the way it’s enforced, and then possibly ask the City Council to pass an ordinance specifically stating what can or can’t be done. I suspect that the ordinance will be challenged in the courts, but that’s another matter.

Last but not least, I don’t think it’s “cop-bashing” when one questions the actions of law enforcement officers that may be beyond the authority our laws and Constitution grant them. Allowing anything else is an open invitation for abuse. Ultimately it is not for us to decide what is or isn’t, but rather the court system.
 
Last but not least, I don’t think it’s “cop-bashing” when one questions the actions of law enforcement officers that may be beyond the authority our laws and Constitution grant them. Allowing anything else is an open invitation for abuse. Ultimately it is not for us to decide what is or isn’t, but rather the court system.
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Some would disagree. They would insist that you acquiesce in anything the police request or demand of you, regardless of legality, to include answering all questions without benefit of counsel and consenting to any search.
 
After all, the only thing that's important (as I hear on Glocktalk so often) is that the officer goes home safe to his family that day, right? Who gives a crap about citizens' rights or anything? It's ALWAYS about officer safety. :rolleyes:
 
Old Fuff said:
Allowing anything else is an open invitation for abuse. Ultimately it is not for us to decide what is or isn’t, but rather the court system.
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Would this hold true in this case? I wouldn't think a court would hear this case unless the balistic testing turned up evidence of a crime and he was charged, then he would have cause to raise an issue of the illegalities of the police policy.

Otherwise he would have no standing as he is not affected criminally by their policy. Am I thinking correctly on this?
 
What I don't get is the gun was purchased new (unfired) and only a month old. The sole owner was the Army Sergeant, who could prove that by simply showing the receipt. The dealer should still have the 4473, too. So, unless this guy went on some shooting rampage, it's pretty safe to say the gun is clean and the PD has no reason to see if it was used in a crime.
 
The Old Fuff is not an attorney... :uhoh:

I think he would have standing because it's his pistol that's involved, and the issue (if there was one) would be illegal seizure of property, potential damage to it, and violation of civil/constitutional rights. If the case goes to court (and that could be a big "if"), the city would have to convince a court that the policy was justified, even though it wasn't based on a specific statute - if indeed this is true. I think they might base a defense on a “public safety” basis, but I’m not sure that would hold water. There is no officer safety issue here, and no evidence that the pistol was in any way associated with a crime. But who knows what a court might say?
 
I think he would have standing because it's his pistol that's involved, and the issue (if there was one) would be illegal seizure of property, potential damage to it, and violation of civil/constitutional rights. If the case goes to court (and that could be a big "if"), the city would have to convince a court that the policy was justified, even though it wasn't based on a specific statute - if indeed this is true. I think they might base a defense on a “public safety” basis, but I’m not sure that would hold water. There is no officer safety issue here, and no evidence that the pistol was in any way associated with a crime. But who knows what a court might say?
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To put it more simply, he has as much standing as he'd have if the cop's used his lawn mower to cut the grass around the police station against his expressed wishes:

CONVERSION - Torts. The unlawful turning or applying the personal goods of another to the use of the taker, or of some other person than the owner; or the unlawful destroying or altering their nature.
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FYI - he wasn't carrying the gun, he was transporting it in his car. He had been planning to take it to the range to test it out.
 
IF it was NEW, and UNFIRED, shouldn't it have had cartridge cases with it in the box? Why can't he just give them one of them?
 
To everyone talking about him carrying an untested gun........Maybe he was driving home from the gun shop when he had the accident. maybe he was taking his new gun home.



"
Since 1999, the Police Department has sent most handguns taken into custody to the Cumberland County Sheriff's Office
"

"most" not all.
i wonder what criteria this retired SGT fit that some others dont.


anyone know what the "ibis criteria" is?
 
The problems getting the gun back reminds me-
There was a case a year or so back in NC where a guy had his rifle confiscated during a stop.*
He was told he could get it back when he provided proof of ownership.
WTH?
I can't provide proof of ownership on many of my guns or for that matter 99% of my stuff period.
Everything I have was acquired legally of course, I'm just not a big record keeper...I'm always losing receipts etc particularly when I never saw the need to retain if after say a warranty period.
Seems to me the burden of proof it isn't your legally acquired property should be on law enforcement shoulders, not mine to prove it isn't stolen.

IIRC the case involved a dispute (I'm thinking he wasn't in the dispute but was nearby) that got violent and the subject fired his AK (IIRC) into the ground to stop the dispute. Later he was tracked down and the weapon seized in a traffic stop. IIRC he wasn't charged for firing into the ground but he was told to provide proof of ownership to get his weapon back. If anyone has more details on this story and how it turned out I'd love to hear more. It was somewhere in western NC, an area I frequent and own property in.
We don't need to get into whether what he did was justified, point being, again IIRC, he wasn't charged but his weapon was seized pending the proof of ownership thing.
 
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-there is no initial "seizure"
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Perhaps not initially at the time of the accident, but there was indeed "seizure" when the police refused to return it to him after his hospital discharge. They "seized" it from him at least at that moment for their evidentiary desires, despite the lack of a crime. Had they tested it on their own while in their possession before he requested the return, they may have been able to duck out on it. But once they refused to return his property until they had tested it for evidence, it clearly became a case of "seizure" and open to a 4th Amendment debate.

Had they beforehand got his consent to a test, or informed him of it as a requirement of their custody service, they might have a reason to deny their was a "seizure." But after refusing to return it while testing it for evidence, they have walked into a questionable area.

Consisder the recent trend of the US Supreme Court about privacy and search - Arizona v. Grant was a real eye-opener about the limits of what you can do with someone's property even when in custody. This sounds like potentially a good case to roll back government invasions of privacy.

Decision text for Arizona v. Grant:

http://www.supremecourtus.gov/opinions/08pdf/07-542.pdf
 
stephenhyde said:
To everyone talking about him carrying an untested gun........Maybe he was driving home from the gun shop when he had the accident. maybe he was taking his new gun home.
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Sounds like he had it for a while.

Boggs complained to police supervisors that his new gun has never been fired. The ballistics test, he said, would diminish the value of the .45-caliber Taurus Millennium he bought last month for $399 at a local gun store.
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The article also said "he kept it in his car". Doesn't sound like a "one time driving home from the gun store" thing...

I also have never loaded up a brand new gun right at the gun store or in the parking lot immediately after buying it, either. Then again, I always have "something" else on duty anyway. ;)
 
mgkdrgn said:
IF it was NEW, and UNFIRED, shouldn't it have had cartridge cases with it in the box? Why can't he just give them one of them?
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Not all companies do that as it's not a federal requirement. Some states like CA, MD, NJ, etc do require a spent case to be submitted to whatever "database" and one comes with the gun. A manufacturer will only do that across the board with new guns if they want to be able to sell in every state. Same goes for some safety features, like a magazine disconnect. Not all states require that safety, but if they want to sell the gun in states that require it...that safety will be included in the design.

Also, every gun I've bought new only came with one fired case and not multiple ones, as you suggested.
 
The man was actually very smart to say that firing the gun would diminish it's value (it will, no matter slight) since otherwise the court would toss out his lawsuit saying that he has no standing.

Also the cartidge case is no good once it enters the customers hands - questionable chain of custody will get the evidence thrown own, since it could easily be manufactured by the customer.
 
What does the fact that he was "carrying" an "untested" firearm have to do with the original post???
 
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