Firearm Confiscation in the Event of a Self Defense Shooting

[blaisenguns]

Hi guys! I was discussing this with a friend and it came to my mind, under what legal standing is one required to surrender their weapon after a self defense altercation? If I understand our legal system a warrant is required to confiscate personal property correct? I suppose this would be best asked to an attorney, but I figured why not get some other thoughts.

 

[ClickClickD'oh]

If your firearm was used in a shooting, self defense or otherwise, it is evidence of a potential crime and can be seized as such. There are several mechanics as to how this could work, such as a police officer at the scene of the crime taking a firearm off of a suspect that was discovered during a search incident to their arrest, or a detective getting a search warrant for a crime scene or secondary locations during the investigation after the crime.

Chances are though, if you are talking about a situation where a firearm has been discharged and the police show up, the police are going to do a safety frisk of anyone they find at the scene that is likely to have been involved. If they discover a firearm during that search they will investigate to determine if the person with the firearm is likely to have been the shooter, at which time they may seize it as evidence if they determine that he/she was likely to have committed a crime.

 

[edwardware]

I believe there's a difference between surrendering a weapon, and having that weapon seized. Surrender is fundamentally voluntary, and seizure is involuntary.

While an officer may attempt to disguise the voluntary nature of a request for surrender as an order, I would expect seizure to be pretty explicit.

 

[Spats McGee]

Hi guys! I was discussing this with a friend and it came to my mind, under what legal standing is one required to surrender their weapon after a self defense altercation?. . . .

"Standing" is a particular, legal term of art related to whether a given party can bring an action. Be careful in its use. With that said, I think what you're trying to ask is "on what legal basis may the police require you to surrender a firearm after a self-defense shooting?" If it was merely an "altercation," and no shots were fired, that's a different scenario than if shots were fired, legally speaking.

First, it's a question of state law. Every state has statutes and rules that govern police contact, disarmament, seizure and return of firearms. I don't know what every state's laws say, so I won't try to dissect them here.

Second, some general principles apply. I will point out a couple of those.

In the event of an official police contact, the police can (probably) seize the firearm for a short period to ensure officer safety. This is particularly true if the officer arrives on scene and there's obviously been an altercation, tensions are running high, and drugs or alcohol are involved.

In the event that a shooting has taken place, the police can seize the firearm as (potential) evidence of a crime. Given that a person has been shot, a crime well have occurred, and one of the things the police do is collect evidence . . . like the gun used.

. . . . If I understand our legal system a warrant is required to confiscate personal property correct? I suppose this would be best asked to an attorney, but I figured why not get some other thoughts.

Not necessarily. State law will vary, but there are several ways that property can be "taken." The Fourth Amendment applies to seizures of property and generally requires a warrant, but there are exceptions.

 

[X-Rap]

Hard to imagine a situation in which a person was shot or a gun discharged inside city limits that wouldn't give LE the ability to seize the weapon in question. Same can be said of suspected poachers.
The chain of custody is pretty important and letting a gun used in a potential crime leave the scene would probably be a career ender.

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[Jeff H]

"Standing" is a particular, legal term of art related to whether a given party can bring an action. Be careful in its use. With that said, I think what you're trying to ask is "on what legal basis may the police require you to surrender a firearm after a self-defense shooting?" If it was merely an "altercation," and no shots were fired, that's a different scenario than if shots were fired, legally speaking.

First, it's a question of state law. Every state has statutes and rules that govern police contact, disarmament, seizure and return of firearms. I don't know what every state's laws say, so I won't try to dissect them here.

Second, some general principles apply. I will point out a couple of those.

In the event of an official police contact, the police can (probably) seize the firearm for a short period to ensure officer safety. This is particularly true if the officer arrives on scene and there's obviously been an altercation, tensions are running high, and drugs or alcohol are involved.

In the event that a shooting has taken place, the police can seize the firearm as (potential) evidence of a crime. Given that a person has been shot, a crime well have occurred, and one of the things the police do is collect evidence . . . like the gun used.


Not necessarily. State law will vary, but there are several ways that property can be "taken." The Fourth Amendment applies to seizures of property and generally requires a warrant, but there are exceptions.

Spats, correct me if I am wrong, but if someone was shot, it is my understanding that a crime has always been committed. Self defense is merely a justification or a defense as to why you committed the crime of shooting someone.

Under my (layman's) understanding, the police would always be justified in confiscating the weapon as evidence.

 

[blaisenguns]

Spats, correct me if I am wrong, but if someone was shot, it is my understanding that a crime has always been committed. Self defense is merely a justification or a defense as to why you committed the crime of shooting someone.

Under my (layman's) understanding, the police would always be justified in confiscating the weapon as evidence.

Justifiable Homicide?

 

[ClickClickD'oh]

Justifiable Homicide?

That's a distinction made by the courts, not the police. Even in the most seemingly clear cut case of self defense, the police are still going to fully investigate the event and collect all possible evidence. Even if a DA or Grand Jury decides not to immediately press charges, evidence may not be returned until the statue of limitation for the alleged crime has run out. The only "quick" way to get evidence back is to go to trial and be found not guilty, by either justifiable homicide or other reasons.

 

[WardenWolf]

It depends entirely on the locale and the individual police who respond. Sometimes it's the police that decide whether to charge an individual, and sometimes it's a prosecutor or grand jury. It all depends on the local laws. In areas where the police have the final say, they may immediately deem it justified self-defense, particularly if there are witnesses or surveillance cameras that back up your story. In this case, they may not take your gun. Sure there'll be additional paperwork once they get back to the office, but if there's solid evidence or eyewitness testimony to back you up, it rarely goes beyond that.

 

[X-Rap]

There are other crimes or violations that could cause your gun to be confiscated, pretty much anything that the law forbids the possession of a firearm while doing.
This could include open container, drugs, to name a few.

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[Spats McGee]

Spats, correct me if I am wrong, but if someone was shot, it is my understanding that a crime has always been committed. Self defense is merely a justification or a defense as to why you committed the crime of shooting someone.

Under my (layman's) understanding, the police would always be justified in confiscating the weapon as evidence.

That's probably a better way of looking at it. I said "a crime well have occurred," an error on my part. I think I meant to say "a crime may well have occurred," but probably should have said, "a crime has occurred." Perhaps it's even better to say that "one person shot another person."

It's still only "(potential) evidence" of that crime, though, at least until either: (a) the possessor of the firearm admits to firing the shot; or (b) a court decides that said possessor fired the shot. If the police saw you shoot someone, it's clearly evidence of a crime, and the shooter will likely have more pressing problems than to worry about whether the police have legal authority to seize the firearm. . .

 

[Frank Ettin]

...In areas where the police have the final say, they may immediately deem it justified self-defense, particularly if there are witnesses or surveillance cameras that back up your story.....

Exactly where do the police have the final say? Cite legal authority for your claim.

You are consistently wrong on legal issues.

 

[WardenWolf]

Exactly where do the police have the final say? Cite legal authority for your claim.

You are consistently wrong on legal issues.

And now ad hominem. If you are going to challenge my post, please use legal authority yourself.

 

[Spats McGee]

I think we'd have to start with what the "final say" means. The final say in whether to charge? Or whether to proceed to trial?

 

[MIL-DOT]

Though we're obviously splitting some hairs here, since we're already on the subject, I would disagree that a "crime" has automatically been commited in a SD shooting.
Of course, it's true that, "it is a crime to shoot another person", but that isn't the whole story. It's a crime to shoot someone.....'without justification', otherwise every time a cop shot a bad-guy, it would be a crime.
A SD shooting initially gets treated and investigated like a crime, but if it is later determined to have been justified, it was never a crime in the first place.

 

[Spats McGee]

Which is why I said:

. . . . Perhaps it's even better to say that "one person shot another person."

Arguing about whether shooting someone is a crime before a court convicts anyone is a little like arguing about whether there's any noise if nobody is around to hear it. ("If a tree falls in the forest. . . . "). It's just a leeetle on the academic side.

. . . .It's a crime to shoot someone.....'without justification', otherwise every time a cop shot a bad-guy, it would be a crime.

The identity of the shooter as a police officer does not really make a difference here. If the shooter, police or not, shoots someone without justification, it's still a crime.

 

[Dave P]

" If I understand our legal system a warrant is required to confiscate personal property correct?"

I think that legal system was dismantled decades ago. Very often property is seized because they ( the gov) can get away with it.

 

[WardenWolf]

Right, Mil-Dot. While it's not law, some of the most extreme liberals believe anyone who takes a human life is a murderer and should be treated as one, regardless of reason. Obviously, the legal system is much more sane than that. However, there are sometimes-subtle nuances in how such a situation is treated, and who has legal authority to decide whether someone is charged with a crime, arrested in the first place, or even has their firearm confiscated. And within that, there are cultural differences as well as the individual personalities of the officers.

Point being: the legal system is complex, and what happens to you depends upon a very large number of circumstances. George Zimmerman would never have been prosecuted if not for all the liberals demanding blood. He never should have been prosecuted; the evidence that it was self-defense was overwhelming. Instead, he was locked in jail for many months of his life on trumped up charges and likely now suffers from PTSD, if reports of his personality changes since then have been any indication. He lost his job, had to move, received death threats, and is now basically in hiding.

There's how the law should work, and how the law does work. You have to fully consider all possibilities, how any law could be deliberately misinterpreted and twisted against you.

THIS is why I give the warnings I do. Even though the likelihood is low, if there's any way to twist it, it CAN happen. And as certain states slip more and more into the detachment from reality and hostility to freedom that is extreme liberalism, it becomes more likely.

 

[ClickClickD'oh]

George Zimmerman would never have been prosecuted if not for all the liberals demanding blood. He never should have been prosecuted; the evidence that it was self-defense was overwhelming.

And yet, his firearm was seized and held as evidence... so, maybe not the best example for this thread.

 

[X-Rap]

I know a guy that lived in Western CO that offered to put up a couple hitchhikers for the night and got stabbed for his trouble, he let into them with a Ruger 44 as they sped of in his truck. I can't remember if he hit one or not but he told me that the MCSO confiscated the gun and that Ruger contacted him and had a replacement sent at no charge.
I don't know if the last is true but the rest matched the story in the paper and the Armed Citizen.
I think he's since moved to Oregon.

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[Frank Ettin]

Exactly where do the police have the final say? Cite legal authority for your claim.

You are consistently wrong on legal issues.

And now ad hominem. If you are going to challenge my post, please use legal authority yourself.

First, I made no claim. You made the claim that:

...It all depends on the local laws. In areas where the police have the final say,...

Second, you don't understand what "ad hominem" means. To point out that you are consistently wrong on legal issues is not an ad hominem argument. An ad hominem argument:

...is a general category of fallacies in which a claim or argument is rejected on the basis of some irrelevant fact about the author of or the person presenting the claim or argument....

First, asking someone to support a claim is never inappropriate. Second, pointing out that someone has a history of being wrong regarding certain types of issues is not irrelevant to a request that that person provide documentation to support a statement regarding an issue of that type.

 

[MIL-DOT]

The identity of the shooter as a police officer does not really make a difference here. If the shooter, police or not, shoots someone without justification, it's still a crime.

I already acknowledged that. I was refuting the earlier statements that any shooting is automatically a 'crime', until it is later proven to have been justified. My point was that if it is later proven justfied, then it was never a "crime" in the first place, despite being initially treated as such during the investigation.

 

[Jeff H]

I already acknowledged that. I was refuting the earlier statements that any shooting is automatically a 'crime', until it is later proven to have been justified. My point was that if it is later proven justfied, then it was never a "crime" in the first place, despite being initially treated as such during the investigation.

While that is true, it still doesn't change the fact that it was a crime that needed to be investigated and the seisure of the firearm was most likely justified.

 

[Spats McGee]

I already acknowledged that. I was refuting the earlier statements that any shooting is automatically a 'crime', until it is later proven to have been justified. My point was that if it is later proven justfied, then it was never a "crime" in the first place, despite being initially treated as such during the investigation.

Yeah, . . . no.

It was a crime, that was later found to be justified. If it hadn't been a crime, it wouldn't have needed justification to begin with.

 

[Sam1911]

Mil-Dot, I understand what you're trying to say, but I think you're slightly incorrect in how you're seeing/saying it.

One person assaulting and/or killing another person is a crime. Period. It is against the law for one person to do that to another.

The law (generally speaking to cover variances among the many different states), sets out that this is so. Then it goes on to offer a very few sets of circumstances which present an "affirmative defense" for that crime.

In other words, if the defendant (the guy who shot the other guy) can show/prove/convince a jury that the specific circumstances mentioned under that state's law were met, then the law instructs the jury that they may set aside the defendant's guilt for that crime.

That doesn't vacate the fact that a crime (assault or homicide) was committed, it merely says (paraphrasing), "because we and the law accept the necessity of that act under those circumstances, you will not bear the normal liability of guilt for having committed it."

The prosecuting authority (the District Attorney or equivalent, not the police) may decide that the evidence is very strong in support of that outcome and so it is not worth the State's time to prosecute the shooter, or it may have to go to a jury to have the facts tried out and the matter decided by 12 fair and impartial citizens.

But a crime has taken place.

And the firearm used in that shooting is absolutely, without question, material evidence in the case and can/will be secured by the investigators as such.