Police Run Roughshod Over Lawful Handgun Owner

[fightingquaker13]

Thanks, Bryan.

I wasn't trying to imply the gentleman did anything wrong, nor that anything he did was grounds for what the police did.  There were just a few details missing which you've provided.

I'm with him.   Wonder if there's anything an out-of-stater can do to help him?

Nothing anybody can do really, which makes it annoying. It sounds like the cops were folowing policy. He'd have been better off if they smacked him around a little, then he'd have a complaint that wouldn't cost more than it was worth to fix.
FQ13

[twyacht]

As one who made no assumptions, he will get his gun back, and probably will never have his pending case get to court.

The ballistics "test" is new as a former NC resident of over 20 years.

My S&W Model 411, was "impounded" by the Charlotte-Mecklenburg County Sheriff when I was pulled over for speeding. After disclosing to the officer I was in possession of a firearm, in my center console, he took it, even though I had a CCW license.

He told me I could pick it up at the station and I promptly did the very next day. The ammo was in a Ziploc bag, the 2 mags were in another, and the pistol was in another.

I later found out the young officer did not know how to interpret "direct" or "indirect" possession of a firearm, so he took it.

The ballistics test, may have been some yahoo's in LE just being pri*&%. But I believe he will get it back regardless, without going to court.

If they fired it, and he feels it lost value, than lawyers have a way of mucking it up....

Fourth Amendment to the United States Constitution
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The Bill of Rights in the National Archives.

The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures. It was ratified as a response to the abuse of the writ of assistance, which is a type of general search warrant, in the American Revolution. The amendment specifically requires search and arrest warrants be judicially sanctioned and supported by probable cause. Search and arrest should be limited in scope according to specific information supplied to the issuing court, usually by a law enforcement officer, who has sworn by it.

In Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court ruled that the Fourth Amendment applies to the states by way of the Due Process Clause of the Fourteenth Amendment. The Supreme Court has also ruled that certain searches and seizures violated the Fourth Amendment even when a warrant was properly granted.

All this is out the door, if he voluntarily agreed to have LE "hold it". Since that was never disclosed it is an important piece of the pie.

Just my unassuming .02 cents.

[Rastus]

Rastus,
I always try to post the facts on any 2a article I start a thread with or when adding to one.

I appreciate the compliment on my signature, I have found it to be very relevant even today, sad to say.

I'm thinking I should post that signature one more time.  We have brethren here who still need to read this,... again:

"If you love wealth more than liberty, the tranquility of servitude better than the animating contest of freedom, depart from us in peace. We ask not your counsel nor your arms. Crouch down and lick the hand that feeds you. May your chains rest lightly upon you and may posterity forget that you were our countrymen." --- Samuel Adams

[twyacht]

I'll throw in one more:

"There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws...you create a nation of law-breakers and then you cash in on guilt."
Ayn Rand

[tombogan03884]

http://volokh.com/archives/archive_2009_08_30-2009_09_05.shtml#1251850460

 From the [1]Fayetteville Observer:

     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. 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. 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.

   My tentative thinking is that any such policy of test-firing all guns
   that come into police custody, with no individualized suspicion that
   the gun had been used in any misconduct, violates the Fourth Amendment
   violation. It's a search, at least as much as moving the stereo
   equipment to see the serial number in [2]Arizona v. Hicks was a
   search. (Hicks was a Justice Scalia opinion, by the way.) And it's
   hard to justify this under the special needs / administrative search
   rationale, because it does seem to be aimed at serving the [3]general
   interest in law enforcement.

[Sponsor]

[Kid Shelleen]

In summation: The police acted within the law.................................................................and it's B.S.

[tombogan03884]

 No they didn't. 4th Amendment violation, no probable cause and no search warrant.

[Kid Shelleen]

No they didn't. 4th Amendment violation, no probable cause and no search warrant.

I don't think that they would need either if you freely gave them the gun.

[tombogan03884]

As I understand it that doesn't give them the right to test fire it unless they have reason to believe it was used in a crime, then they still need a warrant.

[Kid Shelleen]

As I understand it that doesn't give them the right to test fire it unless they have reason to believe it was used in a crime, then they still need a warrant.

You are probably right Tom. I don't have a clue as to the legalities, once that the gun is surrendered.