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Thread: "Plain view doctrine"

  1. #1
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    While attempting to suggest that running the serials from a firearm while conducting a 12031(e) check was entrapment I found this little gem...


    The plain view doctrine is a concept in criminal law that allows a law enforcement officer to make a search and seizure without obtaining a search warrant if evidence of criminal activity or the product of a crime can be seen without entry or search. Here is what you require to make the "plain view" argument

    REQUIREMENTS FOR SEIZURE OF EVIDENCE IN PLAIN VIEW:
    1. Law enforcement authority to seize.
    2. Law enforcement official must be in a place he/she has a right to be in.
    3. Discovery of the evidence must be inadvertent.
    4. It must be immediately apparent that what the official has discovered is evidence.
    (Above quote obtained here.)


    So my question, to those far wiser than me on these subjects, how much feet might this above requirements hold? Where is the case law that provides the guidance for such "Plain View Doctrine" and is this above information basically accurate?

    The reason for asking is that if there is a legal "test" I guess you would call it running the serial during a 12031(e) check is IN FACT not meeting the requirements of Plain View Doctrine.

    So?

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    Seems almost cyclical in it's validity.

    I think it would have to meet requirement #4:

    "4. It must be immediately apparent that what the official has discovered is evidence."

    Is a Serial # evidence? If a crime has been committed then the firearm would become evidence, allowing them to legally run the SN.

    IANAL though...
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    In later discovery the Sate of California took a case to the SCOTUS and subsequently got the #3 requirement expunged.

    Here then is the question. If we can form a legal argument that 12031(e) check being turned into a "check and running of serial numbers" is in fact not protected by the "Plain View Doctrine" than every OC'er that has had their numbers run can sue for a violation of their civil rights and not their 2nd!

    Further, it would also be my understanding that any law that is designed to provide authority to conduct a check in violation of an amendment that it is then unconstitutional and thus 12031(e) is in violation because it seeks to deprive us of due process and subjects us to unlawful search.

    This line of arguing might mean that, lets say in any hypothetical case. . .

    Police stop you for a 12031(e) check and find it unloaded. They further violate your 4A rights by running your serial number through the system. While they are violating your 4A rights by conducting an illegal search they deem that as part of a detainment they can now ask for ID and do so.

    After the check is run on your gun and a wants and warrants on you turns up nothing they let you go.

    I wonder how much of a long shot it would be to say that since the only means by which they have to identify YOU would have been through an already illegal detention subsequent to an illegal search of your person and property and thus is inadmissible.

    See where I am going with this anyone? Help me make the case people! I am only one man!

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    Theseus wrote:
    While attempting to suggest that running the serials from a firearm while conducting a 12031(e) check was entrapment I found this little gem...


    The plain view doctrine is a concept in criminal law that allows a law enforcement officer to make a search and seizure without obtaining a search warrant if evidence of criminal activity or the product of a crime can be seen without entry or search. Here is what you require to make the "plain view" argument

    REQUIREMENTS FOR SEIZURE OF EVIDENCE IN PLAIN VIEW:
    1. Law enforcement authority to seize.
    2. Law enforcement official must be in a place he/she has a right to be in.
    3. Discovery of the evidence must be inadvertent.
    4. It must be immediately apparent that what the official has discovered is evidence.
    (Above quote obtained here.)


    So my question, to those far wiser than me on these subjects, how much feet might this above requirements hold? Where is the case law that provides the guidance for such "Plain View Doctrine" and is this above information basically accurate?

    The reason for asking is that if there is a legal "test" I guess you would call it running the serial during a 12031(e) check is IN FACT not meeting the requirements of Plain View Doctrine.

    So?
    Plain view evidence sezure doctrine is not directly applicable in my opinion.

    If the serial number is readily apparent to the officer while conducting a Section 12031 load check, then there is nothing unconstitutional with him remembering it or writing it down as far as I can fugure - but removing tape to see the SN, or taking the gun apart to find the SN,would violate the Fourth Amendment under Arizona v. Hicks, and detaining a person beyond the time needed to conduct the load check would also be unlawful under the Fourth Amendment.

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    I don't believe it applies here either, but they are trying to argue that Plain View Doctrine GIVES them the authority to run the serial numbers and detain us and thus also demand ID.

    I am trying to find a way to make Plain View Doctrine not apply so that they can't argue and use it against us.

    And if you see...#4 might be a viable argument. In order to invoke the exemption they must have all the elements of the exemption. If they are lacking the elements they are not exempt from 4A Warrant requirements and thus are conducting an illegal search.

    I would be all for using tape, but on my XD the serial is on the slide, barrel and the frame. I can properly cover the serial on the frame, maybe the slide, but I can't afford a replacement barrel without the serial right now and I won't use tape that could cause a malfunction...

    I have no choice.

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    The plain view doctrine, essentially allows LEO's to see things. If a LEO has some reason to be in you house (for example he has a search warrant to seize a refrigerator) he is allowed to note down what he sees as he walks from your front door to the kitchen. If he sees a marijuana plant in a pot, he can grab it and arrest you on drug charges b/c the mj plant was in plain view of where the officer was allowed to be. Now, if the mj plant was in your bedroom and the officer had no reason to go into your bedroom while retrieving your refrigerator it is no longer in "plain view". The officer has arguable exceeded the scope of his search warrant and therefore conductd an illegal search of your house. Likewise, if while in the kitchen he looks through your closed cupboards. The officer already knows where the refrigerator is and the refrigerator can't fit inside the cupboard anyway. Therefore, the officer has no reason and no permission to search your cupboards. Therefore the bag of cocaine he found is the result of an illegal search.



    For the serial #, when the officer takes your weapon to check if it is loaded, the serial # would ordinarily be plainly visible. If the serial # is plainly visible, the police officer is not conducting any additional search by simply seeing it. So long as the police officer does not unreasonably extend the length or intensity of the search (originally to see if the gun is loaded) by noting the serial # then he has not conducted any illegal search. The problem arises when the officer takes your weapon and determines it is not loaded in 30 seconds, then takes your gun to his car and radios in or uses a laptop to check your serial # against some database and you have to wait 30 minutes.

    I think technically this would not be an illegal search. The officer could write down the serial # in 30 additional seconds and run the search AFTER he has handed your weapon back and allowed you to go on your way. That would not be a violation. The problem is that this turns what should be a very short encounter (1-2 minutes) into a 1/2 hour detention. I think this is better analyzed as an illegal/unreasonable detention or the person or seizure of the pistol. It is not the "search" of the serial numbers that is illegal it is the lengthy seizure of the gun and detention of the person that is problematic.

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    sjalterego wrote:
    The plain view doctrine, essentially allows LEO's to see things. If a LEO has some reason to be in you house (for example he has a search warrant to seize a refrigerator) he is allowed to note down what he sees as he walks from your front door to the kitchen. If he sees a marijuana plant in a pot, he can grab it and arrest you on drug charges b/c the mj plant was in plain view of where the officer was allowed to be. Now, if the mj plant was in your bedroom and the officer had no reason to go into your bedroom while retrieving your refrigerator it is no longer in "plain view". The officer has arguable exceeded the scope of his search warrant and therefore conductd an illegal search of your house. Likewise, if while in the kitchen he looks through your closed cupboards. The officer already knows where the refrigerator is and the refrigerator can't fit inside the cupboard anyway. Therefore, the officer has no reason and no permission to search your cupboards. Therefore the bag of cocaine he found is the result of an illegal search.


    For the serial #, when the officer takes your weapon to check if it is loaded, the serial # would ordinarily be plainly visible. If the serial # is plainly visible, the police officer is not conducting any additional search by simply seeing it. So long as the police officer does not unreasonably extend the length or intensity of the search (originally to see if the gun is loaded) by noting the serial # then he has not conducted any illegal search. The problem arises when the officer takes your weapon and determines it is not loaded in 30 seconds, then takes your gun to his car and radios in or uses a laptop to check your serial # against some database and you have to wait 30 minutes.

    I think technically this would not be an illegal search. The officer could write down the serial # in 30 additional seconds and run the search AFTER he has handed your weapon back and allowed you to go on your way. That would not be a violation. The problem is that this turns what should be a very short encounter (1-2 minutes) into a 1/2 hour detention. I think this is better analyzed as an illegal/unreasonable detention or the person or seizure of the pistol. It is not the "search" of the serial numbers that is illegal it is the lengthy seizure of the gun and detention of the person that is problematic.
    Right - turning an inspection into a long term seizure while peeking under tape is unconstitutional. Sue for damages and declaratory/injunctive relief if this happens.

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    So it sounds like Taping the Serial number is common practice among us? Nobody has been busted for "Covering or Hiding" the serial number?

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    But if the empty/loaded chamber indicator can be seen while still holstered,
    then there is no reason to remove the weapon and expose the numbers.
    So what is the probable cause to remove the weapon from holster except
    to violate plain view.

    Not that there is much chance of me ever being in kalifornia, maybe the
    border to watch it fall off into the sea, but not on that side.

    Well if they ever start enforcing the Constitution I might come join the
    celebration, but I don't see that happening in my lifetime.


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    SlackwareRobert wrote:
    But if the empty/loaded chamber indicator can be seen while still holstered,
    then there is no reason to remove the weapon and expose the numbers.
    So what is the probable cause to remove the weapon from holster except
    to violate plain view.

    ...
    In CA, it is illegal to have a rounds attached to the firearm via a magazine or clip. So a 12031(e) check could be performed to verify the magazine is empty.

    Even if the mag well were empty, I think your argument would fall short. It is possible the loaded chamber indicator has been tampered with. Further, gun safety and CA law (see procedures for DOJ Handgun Safety Certificate) train everybody to visually and physically inspect the chamber to make sure the gun is not loaded.

    The root cause of the problem is that 12031(e) essentially declares that it is exempt from Florida v J.L. and Terry v Ohio. It declares that the mere presence of a firearm is reason for suspicion that the firearm is loaded. No reasonable suspicion is needed to detain (seize) the person and search them.

    Even without Heller, 12031(e) should be an easily won 4A case. The state would be foolish to even waste any time/money trying to defend it. Once we have Heller, we should see the entire statute disappear.

    Once 12031(e) is repealed, LEOs simply won't be able to detain us at all. They'll have to start educating their dispatchers and the hoplophobes that might call them.
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    To my knowledge, the standing case law on this topic is Arizona v Hicks. In this case, the officers were inside his apartment for some legitimate reason. One officer decided the stereo equipment was too upscale for the rest of the residence, so he pulled it away from the wall to get the serial numbers to check if they were stolen.

    The court ruled that the serial numbers were not in plain view, and that the officer's manipulation of the property - pulling it away from the wall to view the serial number - constituted a seizure.

    Now, how does this bear on open carry?

    The officer is already manipulating and seizing your property to make sure the firearm is unloaded. If he can readily view the serial number while doing that, then Hicks doesn't apply. Now, if he decides to hold onto you or your gun while waiting for the serial number to be run, it would certainly be beyond the scope of 12031(e).
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    CA_Libertarian wrote:
    In CA, it is illegal to have a rounds attached to the firearm via a magazine or clip. So a 12031(e) check could be performed to verify the magazine is empty.
    You mean it is illegal to have a rounds attached to the firearm via a magazine in cities and any part of an unincorporated area where shooting is banned by the County.

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    The way around these load checks is to plan events in unincorporated areas where the County has not banned shooting, e.g., most or all of National Forest or BLM lands, and many other parts of California.

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    Mike wrote:
    CA_Libertarian wrote:
    In CA, it is illegal to have a rounds attached to the firearm via a magazine or clip. So a 12031(e) check could be performed to verify the magazine is empty.
    You mean it is illegal to have a rounds attached to the firearm via a magazine in cities and any part of an unincorporated area where shooting is banned by the County.
    Yes, thanks for the clarification.
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    Mike wrote:
    The way around these load checks is to plan events in unincorporated areas where the County has not banned shooting, e.g., most or all of National Forest or BLM lands, and many other parts of California.
    We need to find some venues that offer this, plus public exposure. However, I think the 'value' of the exposure generally declines the further you get from town.
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    Theseus wrote:
    REQUIREMENTS FOR SEIZURE OF EVIDENCE IN PLAIN VIEW:
    1. Law enforcement authority to seize.
    2. Law enforcement official must be in a place he/she has a right to be in.
    3. Discovery of the evidence must be inadvertent.
    4. It must be immediately apparent that what the official has discovered is evidence.
    I don't buy item #3 and possibly #4. In Hicks the Supreme Court ruled that the officer could have noted the serial number of the stereo if it was in plain view.

    From the decision of Hicks:
    As an initial matter, the State argues that Officer Nelson's actions constituted neither a "search" nor a "seizure" within the meaning of the Fourth Amendment. We agree that the mere recording of the serial numbers did not constitute a seizure. To be sure, that was the first step in a process by which respondent was eventually deprived of the stereo equipment. In and of itself, however, it did not "meaningfully interfere" with respondent's possessory interest in either the serial numbers or the equipment, and therefore did not amount to a seizure. See Maryland v. Macon, 472 U.S. 463, 469 (1985).

    Officer Nelson's moving of the equipment, however, did constitute a "search" separate and apart from the search for [480 U.S. 321, 325] the shooter, victims, and weapons that was the lawful objective of his entry into the apartment. Merely inspecting those parts of the turntable that came into view during the latter search would not have constituted an independent search, because it would have produced no additional invasion of respondent's privacy interest.
    Based on this, it would appear that item number 3, that the search must be inadvertent, doesn't hold from Hicks. In addition, Horton v. California holds that "The Fourth Amendment does not prohibit the warrantless seizure of evidence in plain view, even though the discovery of the evidence was not inadvertent."

    As far as item number 4 goes, that the item found is immediately apparent that it is evidence, I'm not sure how well that can be applied to 12031(e). I believe that the Supreme Court cases related to "plain view" have been about cases where an investigation was being conducted, and not when a suspect was simply being detained, as 12031(e) is defined as. The sticky bit of #4 is that no crime has been committed and no probable cause exists, so therefore there is no evidence which can be gathered since there is no crime.

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    bigtoe416 wrote:
    As far as item number 4 goes, that the item found is immediately apparent that it is evidence, I'm not sure how well that can be applied to 12031(e). I believe that the Supreme Court cases related to "plain view" have been about cases where an investigation was being conducted, and not when a suspect was simply being detained, as 12031(e) is defined as. The sticky bit of #4 is that no crime has been committed and no probable cause exists, so therefore there is no evidence which can be gathered since there is no crime.
    Let's consider this example:

    You're being detained for an "e" check. The officer knows someone was robbed last night, and knows a handgun was stolen. He can't remember the make/model. He could not reasonably argue that he believed your gun is the stolen property, as he can't articulate the facts that lead him to believe this.

    Now, let's say in the above situation, the officer has the report in hand and knows the stolen handgun was the same make/model as yours. He can now articulate facts that would lead a reasonable person to believe you may be carrying evidence. The officer now can search/seize you/your gun as part of the investigation. He could then peel back your tape and view your serial number to see if it matches the one in the report.
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    CA_Libertarian wrote:
    bigtoe416 wrote:
    As far as item number 4 goes, that the item found is immediately apparent that it is evidence, I'm not sure how well that can be applied to 12031(e). I believe that the Supreme Court cases related to "plain view" have been about cases where an investigation was being conducted, and not when a suspect was simply being detained, as 12031(e) is defined as. The sticky bit of #4 is that no crime has been committed and no probable cause exists, so therefore there is no evidence which can be gathered since there is no crime.
    Let's consider this example:

    You're being detained for an "e" check. The officer knows someone was robbed last night, and knows a handgun was stolen. He can't remember the make/model. He could not reasonably argue that he believed your gun is the stolen property, as he can't articulate the facts that lead him to believe this.

    Now, let's say in the above situation, the officer has the report in hand and knows the stolen handgun was the same make/model as yours. He can now articulate facts that would lead a reasonable person to believe you may be carrying evidence. The officer now can search/seize you/your gun as part of the investigation. He could then peel back your tape and view your serial number to see if it matches the one in the report.
    In this particular case, I believe he would only be justified in calling up that particular stoeln gun report to get the S/N of the stolen gun to verify that it didn't match your gun's S/N, and he would still NOT be justified in holding you for 30 minutes while he ran the gun against the entire database of stolen gun serial numbers.

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    Theseus wrote:
    While attempting to suggest that running the serials from a firearm while conducting a 12031(e) check was entrapment I found this little gem...


    The plain view doctrine is a concept in criminal law that allows a law enforcement officer to make a search and seizure without obtaining a search warrant if evidence of criminal activity or the product of a crime can be seen without entry or search. Here is what you require to make the "plain view" argument

    REQUIREMENTS FOR SEIZURE OF EVIDENCE IN PLAIN VIEW:
    1. Law enforcement authority to seize.
    2. Law enforcement official must be in a place he/she has a right to be in.
    3. Discovery of the evidence must be inadvertent.
    4. It must be immediately apparent that what the official has discovered is evidence.
    (Above quote obtained here.)


    So my question, to those far wiser than me on these subjects, how much feet might this above requirements hold? Where is the case law that provides the guidance for such "Plain View Doctrine" and is this above information basically accurate?

    The reason for asking is that if there is a legal "test" I guess you would call it running the serial during a 12031(e) check is IN FACT not meeting the requirements of Plain View Doctrine.

    So?
    Here is my take on things, don't know if it would hold water in court, but seems reasonable to me.

    To me the wording above in bold is the important part.... If someone is peaceably OC'ing there is no evidence of criminal activity, and the gun is NOT a product of a crime (no crime as been committed). If one of those two factors were met, then they would be able to seize evidence in plain view.

    Seems to me if an officer stops you to do an E check, and confirms the gun is unloaded, then no crime as been committed, and there is no evidence of a crime present (because we are within the law in the fashion we carry our unloaded weapons). I can almost guarantee that every time an officer does an e check they are going to clear the weapon first, once done and found to be unloaded is when they are going to happen to look at or maybe even run the serial number. But since the gun was unloaded we should be free from the "plain view doctrine" because there is no evidence of criminal activity and the gun is not a product of a crime.

    All that is backed up by the fact the officer performed the E check and found the gun to be in compliance with CA law.

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    So multiple layers of tape so he can peel off the first piece and get the last two
    numbers for a denial that they will not match without revealing entire number.

    It looks to me they are just trying to entrap you, remove the gun enough and it becaomes an illegal two tone model.


    Has anyone in CA thought to sue under the property rights laws when they
    drop your pistol from the approved list without paying you for the loss?


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    SlackwareRobert wrote:
    Has anyone in CA thought to sue under the property rights laws when they
    drop your pistol from the approved list without paying you for the loss?
    I'll take a stab at this, though I admit I'm confused by the wording.

    I sounds like you're implying that we somehow lose our pistol if it is taken off the approved list. This is not the case. In fact, you can still buy off-roster pistols from private parties. The roster only applies to new sales by FFLs in this state.

    If anything, having a pistol that's off the list increases its value in CA.
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    CA_Libertarian wrote:
    Now, let's say in the above situation, the officer has the report in hand and knows the stolen handgun was the same make/model as yours. He can now articulate facts that would lead a reasonable person to believe you may be carrying evidence. The officer now can search/seize you/your gun as part of the investigation. He could then peel back your tape and view your serial number to see if it matches the one in the report.
    By this logic a police officer can always check any firearm's serial number because surely every make/model of firearm has been involved in some criminal activity (whether being stolen or being used by a criminal).

    The fact that the handgun was stolen last night should have very little to do with the ability of a police officer to check the handgun as being stolen. In addition, the distance from the scene of the crime to the place of the detention would also have very little to do with the ability to do the serial number check. If the time and place are in any way involved here, then what is the required distance and time relationship? Surely there is no maximum distance or time where a piece of property cannot possibly be stolen (outside of the speed of light i suppose, but then how would the officer even know the gun was stolen?!).

    Applying this logic further would allow an officer to inspect everything on one's person which could be identified as being stolen. Your watch, your cell phone, your credit cards, your dollar bills, your gun, and whatever else might have a unique identifying number on it. I would argue that this borders on the absurd, since while police undoubtedly have a list of known stolen cash, watches, cell phones, credit cards, and guns, they surely would violate the fourth amendment by searching any detained person for all of their serial numbers they carry. It is unreasonable for a person who is not at least reasonably suspected of being tied to a given crime to be searched for evidence related to said crime.

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    I think, to me, that the question really lies in the fact that the serial number would not be in plain view until the police, under threat of arrest, demand the gun to conduct the 12031(e) check.

    This, to me, sounds like a form or entrapment. If I don't allow them to inspect the firearm they have PC to then arrest me and then run the serial anyway.

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    bigtoe416 wrote:
    CA_Libertarian wrote:
    Now, let's say in the above situation, the officer has the report in hand and knows the stolen handgun was the same make/model as yours. He can now articulate facts that would lead a reasonable person to believe you may be carrying evidence. The officer now can search/seize you/your gun as part of the investigation. He could then peel back your tape and view your serial number to see if it matches the one in the report.
    By this logic a police officer can always check any firearm's serial number because surely every make/model of firearm has been involved in some criminal activity (whether being stolen or being used by a criminal).
    Your argument relies on a straw man premise, as my analogy requires the officer to have articulable facts, not general facts. However, you did provoke enough thought to make me consider why I am indeed wrong.

    Let's say the gun stolen in my analogy was a Glock 19. Should the cops be allowed to stop every person with a Glock 19? Could they tell the difference between the 19 and many of the other Glock models made with the same size frame without stopping even more people? This would be something like pulling over every gray Honda Accord in town because that make/model was involved in a drive-by shooting.

    So, in addition to specific knowledge of a make/model stolen, the officer would also have to have some additional facts that lead him to believe the firearm you are carrying is the one actually stolen.
    Participant in the Free State Project - "Liberty in Our Lifetime" - www.freestateproject.org
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  25. #25
    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    CA_Libertarian wrote:
    So, in addition to specific knowledge of a make/model stolen, the officer would also have to have some additional facts that lead him to believe the firearm you are carrying is the one actually stolen.
    I would agree with this. Knowledge that you have received stolen property would at least somehow tie the carrier of the firearm to the crime itself. A detention to determine if the carrier had knowingly received stolen property would be reasonable in my opinion.

    Having said that, I would love it if the next person to have a 12031(e) performed on them would ask the officer if he'd want to run the serial numbers on all the cash he was currently carrying. I'd be curious if they would recognize the fallacy of the serial number check.

    Oh, and I thought your reference to a Straw Man premise was related to a straw man gun purchase. I didn't realize it was a logic term, very nice. http://en.wikipedia.org/wiki/Straw_man

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