Gun owner says police violating his rights

Fayetteville Observer:

**Gun owner says police violating his rights

**George Boggs thought he was doing police a favor last week when he handed over the firearm he kept in his car after he was in a wreck.
Boggs has a permit to carry a concealed weapon, and he wanted his handgun secured while he went to the hospital, he said. The permit requires him to notify police of his weapon.

On Monday, when he went to the Fayetteville Police Department to retrieve his gun, he couldn’t get it back. He was told that police first wanted to fire the gun to see if the spent shell casing and round would match data in a nationwide ballistics inventory used to solve crimes. The gun is scheduled to be test-fired today, he was told.
He said the city is violating his Fourth Amendment rights that protect him from unreasonable searches and seizures

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.
Boggs said he did nothing wrong. He was not arrested. The gun was not taken from a crime scene. The other driver in the Aug. 14 accident was cited, a police report says.
“If they can get away with this, then they can get away with other things,” he said.

Gee, why not let cops just take everybody’s fingerprints? I mean if you don’t have anything to hide you should be happy to help law enforcement. Right? /sarcasm

You need to check out the NRA web site.

www.nra.org

This is no different than if they were to get blood samples from anyone ever involved in a wreck and running DNA checks on it against their database. Just becuase something is “policy” doesn’t make it legal.

Police testing a gun turned over to them?

That’s not an unreasonable search or seizure.

*What’s the privacy expectation of something handed to the police?

*These things do have numbers and leave ballistics, right?

*The police do have a compelling state interest to discover the tools used in illegal acts, right?

The constitutional objections fail. As we have seen from recent court cases, the NRA has been wrong on occasion.

“A seizure of property occurs when there is meaningful interference by the government with an individual’s possessory interests, such as when police officers take personal property away from an owner to use as evidence.” Soldal v. Cook County, 506 U.S. 56, 61, 113 S.Ct. 538, 543 (1992)

“The Supreme Court ruled that some searches and seizures may violate the reasonableness requirement under the Fourth Amendment, even if a warrant is supported by probable cause and is limited in scope.” Warden v. Hayden, 387 U.S. 294 (1967)

There was no “seizure,” therefore they had no right to test the weapon to see if it had been involved in a crime. If there was reasonable suspiscion that it had, a warrant for forensic testing could have easily been obtained.

Even still, the police department doesn’t do this on every weapon. 7th paragraph:

Police defend their decade-old policy of checking most handguns that come into their custody

So why in this case did they feel they had a need to examine the weapon?

Also, by your reasoning, any car impounded is fair game to be torn apart to search for drugs, carpet samples can be extracted and the tires can have molds made of them in case any of those came up at a crime scene?

IIRC, the rifle used to kill MLK, Jr. was fired 18 times for ballistic matching in 1997 and no two looked the same.

You are making legal conclusions. There is reason for the police to search any weapon they hold to see if it had been used feloniously. It does not have to be the result of what you consider a ‘seizure’. What if they found it?

The constitution refers to ‘unreasonable seizures’. This one for sure was not.

The question is: “Where was the constitution violated?”

The police check the VIN of every car stopped. A gun is a known and frequent instrumentality of crime.

You kinda jumped over my post. I cited the legal standard.

Then what else can they serach just because they want to?

If an effort has been made to return it to the proper owner and no one has come forward in a prescribed time (say, 30 days), then the police can do whatever they wish with it.

Agreed; he gave the weapon to the police to hold b/c the hospital he was being transported to did not allow firearms. When the police refused to return the weapon until forensic testing had been performed, then an illegal seizure had taken place becuase the police had no probable cause to test the weapon. If they had, then they would have had a warrant.

That would be because that vehicle had been used in the suspected commission of a crime (i.e. speeding, driving wrecklessly, etc.). If the man’s firearms had been used in a suspected crime, then they would have had every reason to test it.

According to some people anyone who possesses a firearm is guilty of some crime - they just have to figure out which one.

It became a seizure when he asked for his gun back and they refused to give it to him because they were going to test it. And they acted in bad faith. This man was trying to be a good citizen, he turned his gun over to the police for a short time the limited purpose of safeguarding it. They intended to keep it as long as they needed for the purpose of testing it. That is dishonest. Sure, cops are allowed to deceive suspects to obtain confessions or evidence but it’s wrong to do that to citizens who are not suspected of anything.

And I don’t buy this “compelling state interest” **** either. There’s a compelling state interest in telling you to sit down, shut up and do what you’re told.
I shudder every time I hear the phrase “giving law-enforcement new tools” in the war on whatever. That translates as more weapons on the war on our rights.

That’s a legal conclusion.

Imagine if the gun had been used to kill someone and they gave it back! The police are not a storage agency.

Anything which may have been used in a crime or which may present a danger to their safety.

Why must they wait 30 days?

I don’t think you need probable cause to test a weapon in police custody.

Nope. They look at every stop. What’s the privacy expectation for numerals which can be read in the street?

Cart before the horse. Testing is to determine if it had been used in a crime.

That can include you and me. How about DNA sampling at all traffic stops and license checkpoints?

Just throwing out a number as an example.

Why?

There is no “nope” to it. Cops just can’t randomly run license plate numbers as they drive through traffic; at least that is illegal here in SC. If they run your plate in this state, they have to pull you over. And I never said they didn’t have a right to run it at a stop.

Absolutely not. That is not a legal. If I am in a wreck and taken to the hospital and I give the cop my wallet instead of fumbling through it for my license, do they have a right to check all of my credit cards in my wallet to see if they are really mine? How about checking the money in my wallet to see if the money is counterfeit?

You don’t know what you are talking about. If its ‘illegal’ that means it violates some statute. Well, it doesn’t. And it does not violate the constitution, either – no improper search or seizure. A gun handed over to the police is different than your wallet, like I showed previously, you have some privacy expectations about your wallet. That’s different than a lethal weapon which you turn over to the police.

You are just wrong on this one. Time to let it go.

That is some whacked “logic”. How about arrest and interrogation to see if a person was involved in any crime in general? Works in most police states.

The question was if the police needed a suspicion that a firearm in their custody had been used in a crime before they tested it. That’s cart before a horse. They should test it to see if it had been used in a crime.

How would they look if they had been providing safe harbor to a murder weapon?

So by this reasoning if I went into a police station with a question or to file a report they should do a cavity search because they need to take precautions and I’m in their custody.

That’s funny! I tell you what: Hang up your coat with what looks like to be a heavy object in the pocket in a police station and then leave quickly. See if they search it!

So now looks are cause for investigation? Seems like those that advocate a police state have great reasoning.

Yes, as a matter of fact that is the law. For their own protection the police are allowed to investigate odd bulges on a person. Now, if you are wondering how a police department would appear, think how you would feel if you had the instrumentality of and evidence of a murder within your grasp but you did not investigate it. Do you want to be in that position?

Isn’t that like the police officer who confronted Jeffrey Dahmer in the street (with a future victim) and let him go?

I’m sure you’ll welcome your new overlords with open arms.

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