Legal Questions

D

David Scott

New member
Assume that you have been involved in an incident outside your home, in which you used your concealed weapon to kill a person committing a violent felony which threatened innocent lives. You have a valid CCW permit. You obeyed all laws and exercised proper judgement about when and how to use deadly force. The bad guy has a .45 caliber hole in his forehead, the innocent bystanders are unharmed, and the police arrive.

My questions:

May they legally take your weapon as "evidence" or for any other reason?

If they do, when and how do you get it back?

Will your CCW permit be suspended pending the investigation?

If so, when and how do you get it back?
 
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by David Scott:

My questions:

May they legally take your weapon as "evidence" or for any other reason?

If they do, when and how do you get it back?

Will your CCW permit be suspended pending the investigation?

If so, when and how do you get it back?[/quote]

The answers to these questions are HIGHLY dependent on which jurisdiction the events occur in. (Warning - I'm not an attorney, so I'm only going by what I learned in CHL class.)

They WILL take your gun, if for no other purpose than to run ballistic tests or a "hot gun" trace on the serial number. It WAS involved in connection with a crime - even if it wasn't used by the criminal - and that makes it potential evidence, and legally subject to seizure.

You may or may not get it back, depending on where you're at, who the local DA is, whether or not the chief LEO covets it himself, etc. You may have to sue for its return, even after you're cleared.

The CCW permit will be suspended for sure if they charge you with a crime. When, if, and for how long it's suspended depends on the local DA, whether or not there's a trial or indictment, how much publicity the local paper drums up, witness statements, etc.

So as I see it, the answer to your first question is "Yes" and the others are all "It Depends . . . "
 
Also, depending on if you are registered where you are, you can always claim the gun is a friends, fathers, brothers, etc., and supposedly the weapon has to be returned to them. If I'm wrong on this let me know, as it is my plan so far.

------------------
"Vote with a Bullet."
 
Politely ask for a reciept for the gun because yes, they'll need it for a bit. They'll also want to know exactly what ammo you were shooting.

They'll do a ballistics match to make sure your bullet was what did it, they'll match the powder on the victim (if the range is short) to the powder on your hands to the powder produced by the bullets you shoot to the powder on the gun, if they're being really thorough. If there's witnesses they may not bother but that's the "full monty".

Powder patterns on the deceased will give a clue as to the range involved, if they can lab-fire another similar round from your gun to see how the powder patterns. These range estimates are more accurate the closer the range is, and can be accurate to within 6" or so. This is critical where the guy is NOT armed with a gun, the range estimates can tell if a guy with a knife was within 21ft, or an unarmed individual was close enough to be grappling for your gun.

This is perhaps the best reason NOT to run handloads; with factory ammo, these range estimates are more accurate and can bail you out if your shoot was legit.

Jim
 
Not an attorney but a retired PO.

1: The pistol will taken into evidence, no doubt. All firearms at a shooting scene should be taken into evidence, for testing. Even those of a LEO who was involved in such an event.

2: When will you get it back? It should be returned when you are cleared of any crime. As others have said, you may have to sue to get it back. If there were 200 witnesses and the entire event was captured on video tape, the return should be quicker than if it was one on one in an alley, if you know what I mean.

3: Will your CCW be suspended during the investigation? Again, it depends on what the DA/Prosecuting Attorney wants and/or what the state law says to do. I know of cases where CCW's were not suspended, because of the events surrounding the shootings and I know of cases where CCW's were suspended because of political pressures due to the races of the parties involved.

DO NOT LIE ABOUT WHO OWNS THE $#%$#@#& GUN. ONE LIE AND YOUR ENTIRE STATEMENT IS A LIE and your next roommate will be asking if you want to be the wife or the husband.

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Ne Conjuge Nobiscum
"If there be treachery, let there be jehad!"

[This message has been edited by Jim V (edited June 27, 2000).]
 
1. Your gun will be seized as evidence of a potential crime and used for ballistics tests, as well as having a trace run. They'll also seize every other weapon on your person (i.e. backups, knives, etc) just in case. Demand a receipt at the time you surrender your weapon and get some ID from the cop who takes it. Weapons seized by police have a "habit" of disappearing (into cops' lockers, drawers, homes, holsters, etc.).

2. If you are cleared of a crime, then your weapon should be returned to you. You might have to get a writ from a court, though. And some police chiefs may go ahead and destroy it (or at least claim it's destroyed . . . see no. 1) and say to heck with the judge. Some jurisdictions also have no provision for returning weapons, even those whose owners have been cleared. That's why you should have two of your concealed carry pieces.

3. Your permit may or may not be suspended. Depends on the political climate, jurisdiction, facts immediately apparent (i.e. you shot a mugger versus a little ole' lady) and the cops' feel for the case.
 
In Calif., CCW's are issued by the Sheriff or the Police Chief in the jurisdiction. Under the law here, only that person has the authority to suspend or reinstate a CCW.

Also, here the handguns you may carry are specified on the face of the permit, and they must be registered to you and no one else. No reason to lie anyway on this, unless you want to be caught at it. You just killed a man, is getting one of your guns back going to be at the front of your mind?
 
Not sure about the legality of suspending the license during investigation - that will vary from state to state. But regarding seizing your gun as evidence, I can tell you that YES, in most all, if not all, jurisdictions, the police theoretically have a legal right to, and will in fact, take your gun during the course of the investigation, however long they think that is. This rule is fraught with abuse as you might suspect, and police and federal and state agencies come in like bandits all the time and seize stuff indefinitely (like computers and papers) just to make life miserable for you and shut down your business, without even charging you with anything. Your recourse is to SUE THEM to get your day in court and let a judge decide whether the police have had enough time to investigate - often this is what people have to do to get their stuff back (unfortunately - it's quite expensive to hire a lawyer). If you're charged criminally, then you'll already have a lawyer anyway though. If you get your day in court, you will try to show that the police have had plenty of time to do whatever it is they need to do to collect evidence from the gun (dna samples, ballistics test, whatever), or if they are going to charge you, then they need to either charge you now, or give the gun back. If they charge you, they will keep the gun as physical evidence itself for the trial. As you might expect, if you don't sue, you may never see your property again (police will essentially steal it from you, or more technically, embezzle it - happens all the time), but you do have a legal right to your property back when the investigation is concluded. If you are then charged with and then convicted of a crime, you STILL have a right to your stuff back absent some specific applicable forfeiture law.

[This message has been edited by Futo Inu (edited June 27, 2000).]
 
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