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Thread: In a SD Situation - Rights Question

  1. #1
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    Hi, new member here - been lurking around for a bit - I don't open carry often (I would say I don't like the attention - but I really do admire those of you who do and I would expect as I get older I will care less what others think and hopefully open carry more often) - and I have come up with a question and I figure you guys probably know that answer!

    In a SD situation in my home, where the gun was discharged - why is it that the LEO's can take my gun?

    I know the rationale behind it, they suspect it could have been used in a crime, they feel the need to run the serial number, etc...however, I only have one handgun (I will buy another, but I am saving up to buy a nice fire rated safe first, so the handgun will have to wait) so if it was taken from me after a SD situation I would have no handgun until they decided to give it back! I would think they have no right to confiscate it based on:

    2nd Amendment - I have a right to own a gun
    4th Amendment - Illegal search and seizure - would they not have to get a warrant to get it from me? Which would require that a LEO would have to go on record stating that they think they situation was not SD, correct? I know if a search warrant was issued that I would have to give it up, but without that, why do they have a right to take a weapon? They would have no evidence that there was a crime committed - discharging a weapon in SD is not a crime. The only crime committed would be by the BG, breaking and entering, attempted assault, etc - and a handgun owned by me is not relevant to that at all.

    I hope to never use my weapon in SD, I am just curious about this, I would feel especially naked if I ever used my gun in SD and then had to sleep at night with no handgun next to me for the next month!

    Thanks and Hello to all!

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    Regular Member killchain's Avatar
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    I'm not quoting any laws or any personal experience on this, just thinking about it in a LEO perspective:

    I'm pretty sure it's for their safety and evidence gathering. When they arrive, you gotta understand that they don't know who the bad guy is, and if you killed the intruder, they may have to do ballistics and stuff.

    Simple solution: BUY MORE GUNS. That way you always have one.
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    I will as soon as I can!!!

    I am okay with them taking it while they are at my house (I understand that part), its the taking it with them when they leave that I am not okay with though - I would hope by they time they leave they would know I wasn't the BG.



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    donsk16 wrote:
    I will as soon as I can!!!

    I am okay with them taking it while they are at my house (I understand that part), its the taking it with them when they leave that I am not okay with though - I would hope by they time they leave they would know I wasn't the BG.

    You being the BG or not is up to the prosecutors office. The police are simply following protocol and gathering evidence and facts. One fact is that your gun was discharged, which in itself is a crime in most locales, and is now evidence to a possible crime.
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    Sometimes a shooting takes further investigation. Detectives, forensics etc. You might not be charged when they leave, but that doesn't mean that a few days later you could be charged.

    Autopsy's do not take place at your house. What if the coroner found evidence that conflicted to your story... ?? It's not a LEO's job to decide if the shoot was a justifiable shoot or not, it's their job to collect statements, evidence and secure the scene. Then those items get handed over to detectives who will then process the information and discuss it with the PA. The PA is the one who will decide, based upon the evidence if you were justified in your actions...or not.

    Once you are CLEARED of any wrongdoing and the Prosecuting Attorney's office declines to pursue charges, you will receive your firearm back.

    I know, I know... Innocent until proven guilty, but in some cases they need to prove your innocence too.

    It's easier for them to give you back the gun, after you were cleared, then it is to try and arrest you after the fact, knowing you are in possession of a firearm, and have proven that you will defend yourself with it.




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    Darn! Guess if a SD incident happens I will just have to get a bigger nightstand to hold my shotgun!

    Thanks for the replies...just wanted to check...

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    donsk16 wrote:
    I will as soon as I can!!!

    I am okay with them taking it while they are at my house (I understand that part), its the taking it with them when they leave that I am not okay with though - I would hope by they time they leave they would know I wasn't the BG.

    As others have said, buy more guns. You can still get a Hi-Point for under $200. Not trying to start another HP tangent here, but I think even the haters will agree it's better than nothing if your primary weapon were to be confiscated.
    It is very wise to not take a watermelon lightly.

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    Welcome to the forum donsk16. Hopefully you will never need to use it, but your smart to try and gather the knowledge first just in case. There are tons of threads throughout the board on this topic, and a wealth of info as well.

    Many good day to ya.

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    I suspect that if a SD discharge occurs any and all firearms within the home will be taken for "safe" keeping. Owning more firearms will just mean more firearms will be in police custody as they still have to determine if you are a BG or a GG. The only way to avoid this would be to store unregistered weapons at a friends house until after the police leave or just hope you never have a SD discharge. Come to think of it the police will most likely take your firearms whether a discharge has occurred or not as you used one to prevent a BG from doing what ever he wanted to do. The police will need to determine if you can legally possess firearms before they are returned. I know this really sucks but I believe this is the reallity of the situation.

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    Virgil,

    Why on earth would you think that?


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    I think it would just be the firearm used in the "altercation". For good reasons. Always have back up.
    I am not anti Cop I am just pro Citizen.

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    I'm a little disappointed. The OPer is asking about why police maytake his gunin the context of rights.

    One answer actually references protocol (police-made policy), another discusses investigation.

    None reference rights, except the OPer himself in the OP where heactually mentions the 4A.

    What are his rights? What gives the government authority to seize personal property in seeming violation of the Warrant Clause?

    So, your ever-humble poster endowed with divine wisdom hitherto unimagined by mere mortals will take a crack at it.

    DonsK16,

    The first step is to read the 4th Amendment, word-by-word. You will find apesky little word in the first sentence:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (emphasis added by Citizen)

    You are only protected against unreasonable searches and seizures. Not reasonable ones.

    There is case law (court opinion) about whether a warrantless search or seizureis presumptively unreasonable.

    There is case law about what sorts of things are "warrant exceptions", meaning what things are reasonable searches or seizures done without a warrant.

    There are court cases about "probable cause" and whether a reasonable search or seizure still requires probable cause, even if the searching or seizing is done without a warrant.

    Unfortunately, I've only got divine wisdom. Not divine memory. I can't recall the names of the court cases. So, I won't violate Forum Rule number 7 and tell you what the cases say--since I can't actually name the case to you.

    Let me suggest you google/wiki some legal terms

    • Probable cause.
    • Warrant Exception (you should find a list of categories of police activies)

    That should get you on the road to understanding whether thepolice can legally seize your gun after a self-defense shooting.

    Oh, a couple moretidbits. I learned them from The Virginia Gun Owner's Guide.

    1. When somebody is shot, the justice system automatically knows a crime has been committed. Either the shooter committed a crime, for example, murder, manslaughter, etc. Or, the bullet-stopper committed a crime, for example, attempted robbery, rape, etc. At the outset, the law doesn't know who committed a crime; but they know for sure one was committed.

    2. The statement, "I shot that man in self-defense," begins with "I shot". So, in justifying your actions to the police, you also incriminate yourself as the shooter. I'm not saying you shouldn't tell the police a very brief statement that includes that you shot the deceasedin self-defense. I am saying that by doing so you hand the police a sort of confession that the dead body got that way by your own hand. Keep in mind the police have no idea whether you are telling the truth. They just know somebody committed a crime.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Metalhead47 wrote:
    donsk16 wrote:
    I will as soon as I can!!!

    I am okay with them taking it while they are at my house (I understand that part), its the taking it with them when they leave that I am not okay with though - I would hope by they time they leave they would know I wasn't the BG.

    As others have said, buy more guns. You can still get a Hi-Point for under $200. Not trying to start another HP tangent here, but I think even the haters will agree it's better than nothing if your primary weapon were to be confiscated.
    No disagreement from me. I love my Highpoint. Very nice to shoot, very accurate. And if you run out of ammo, its heavy enough you could throw it at em. Plus lifetime no questions asked warranty.
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    Citizen wrote:
    The first step is to read the 4th Amendment, word-by-word. You will find apesky little word in the first sentence:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (emphasis added by Citizen)

    You are only protected against unreasonable searches and seizures. Not reasonable ones.

    There is case law (court opinion) about whether a warrantless search or seizureis presumptively unreasonable.

    There is case law about what sorts of things are "warrant exceptions", meaning what things are reasonable searches or seizures done without a warrant.

    There are court cases about "probable cause" and whether a reasonable search or seizure still requires probable cause, even if the searching or seizing is done without a warrant.

    Unfortunately, I've only got divine wisdom. Not divine memory. I can't recall the names of the court cases. So, I won't violate Forum Rule number 7 and tell you what the cases say--since I can't actually name the case to you.

    Let me suggest you google/wiki some legal terms
    • Probable cause.
    • Warrant Exception (you should find a list of categories of police activies)
    That should get you on the road to understanding whether thepolice can legally seize your gun after a self-defense shooting.

    Oh, a couple moretidbits. I learned them from The Virginia Gun Owner's Guide.

    1. When somebody is shot, the justice system automatically knows a crime has been committed. Either the shooter committed a crime, for example, murder, manslaughter, etc. Or, the bullet-stopper committed a crime, for example, attempted robbery, rape, etc. At the outset, the law doesn't know who committed a crime; but they know for sure one was committed.

    2. The statement, "I shot that man in self-defense," begins with "I shot". So, in justifying your actions to the police, you also incriminate yourself as the shooter. I'm not saying you shouldn't tell the police a very brief statement that includes that you shot the deceasedin self-defense. I am saying that by doing so you hand the police a sort of confession that the dead body got that way by your own hand. Keep in mind the police have no idea whether you are telling the truth. They just know somebody committed a crime.
    Thanks for the info - I have googled around a bit on this - and I have had a poor understanding of the unreasonable search and seizure part - its not much better (I still don't get some of the "what ifs" of a situation - but I will have to look around some more this weekend to try to figure out when LEOs can and can't take my gun after a SD situations (such as, discharged and hit BG, discharged and missed BG, no discharge and held criminal at bay, no discharge and BG escapes...etc.) I will post here as I find more info on those issues! Although I would suspect the results would vary by city, and if a LEO wants your gun, there is not much you can do about it at that moment!

    In reference to your statement number 2: When the LEO's interview you that night/day- simply saying "Tonight I was the the victim of a crime, and what I can tell you is they broke and entered and attempted to harm my family and I am pretty shook up from the whole experience, so I would like to go through the details with you at a future time when my mind is in a better state" be best? You are giving them a brief statement and you are cooperating, but doesn't say too much?



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    If you are just talking with an officer about a situation, you're being interviewed.

    Once he/she suspects you of a crime, then you get your Miranda rights and you are being interrogated.
    "War is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and patriotic feeling which thinks that nothing is worth war is much worse. The person who has nothing for which he is willing to fight, nothing which is more important than his own personal safety, is a miserable creature and has no chance of being free unless made and kept so by the exertions of better men than himself." -John Stuart Mill

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    The Fourth Amendment protects against unreasonable searches, and the Supreme Court has concluded that warrantless searches, even if probable cause is present, “are per se unreasonable (Katz v. United States, 1967). Still, most commentators agree that searches under warrant have played a relatively minor part in law enforcement because of the number and breadth of exceptions to this requirement. Exceptions occur when it is impractical to secure a warrant or when there is explicit or implied consent to the search. Also, warrants may not be required when facts and circumstances preclude any reasonable expectation of privacy. Exceptions to the warrant rule include but are not limited to: searches incident to a lawful arrest or required to ensure safety, such as “stop and frisk” procedures; inspections by customs, border, and airport officials; searches made with the suspect's consent; searches made in compliance with lawful government actions, such as health inspections; searches of items in plain view; and searches of student belongings. The same probable cause standard applies to all searches, under warrant or not (Brinegar v. United States, 1949.)"

    http://www.answers.com/topic/excepti...-warrant-rules


    Please let me know if I’mreading into the above wrong! I would say LE/Investigatorsare SOL and cannot search and seize additional property, unless for"safety" and then would have to returnpropertybefore departing. Unless you’re being arrested,charged and taking a trip downtown in cuffs?
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    killchain wrote:
    If you are just talking with an officer about a situation, you're being interviewed.

    Once he/she suspects you of a crime, then you get your Miranda rights and you are being interrogated.
    Huh!?!

    There is no distinction between the information you voluntarily give an LEO prior to a Miranda Warning and the information you give after a Miranda Warning. It can all be used against you.

    Heck, police even call the post-Miranda Warning interrogation an "interview" because it seems less dangerous. See the Talk to Police video linked above. This datum comes from the Detective's talk in the second half of the video.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  18. #18
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    Citizen wrote:
    killchain wrote:
    If you are just talking with an officer about a situation, you're being interviewed.

    Once he/she suspects you of a crime, then you get your Miranda rights and you are being interrogated.
    Huh!?!

    There is no distinction between the information you voluntarily give an LEO prior to a Miranda Warning and the information you give after a Miranda Warning. It can all be used against you.

    Heck, police even call the post-Miranda Warning interrogation an "interview" because it seems less dangerous. See the Talk to Police video linked above. This datum comes from the Detective's talk in the second half of the video.
    Actually, there is.

    And it's happened quite often that statements and evidence collected prior to Miranda readings have been thrown out in court.

    Hence the MIRANDA RULING.

    WHERE IT HAPPENED.

    http://www.usconstitution.net/miranda.html

    Man, you guys just can't stop fighting about anything, can you?
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    donsk16 wrote:
    Citizen wrote:
    SNIP The first step is to read the 4th Amendment...
    SNIP Thanks for the info - I have googled around a bit on this - and I have had a poor understanding of the unreasonable search and seizure part..

    That's probably partly my fault for not laying it out in a logical sequence for you.

    JBone's post just above, quoting a web source, seems to cover it pretty well in a general way.

    The breakdown goes something like below. Its just that in following Forum Rule #7, I cannot make definitive statements about the law without providing a citation to the court case. So, I have to present it as questions suggesting what research to do:

    4A itself. Only unreasonable searches and seizuresare prohibited.

    Are anywarrantless searches or seizures bereasonable?

    What is probable cause and where does it figure into the scheme of things with regard to warrantless searches or seizures?

    If any warrantless searches or seizures were reasonable, would the circumstances that justify them be calledwarrant exceptions?

    Would something like "felony committed in the presence of an LEO" be a warrant exception where the LEO could seize the felon without a warrant? That is arrest him without a warrant?

    Would something like "contraband in plain view of a police officer" be a warrant exception--reasonable without a warrant? If it was, wouldlooking into, say car windows during a traffic stop, be called a plain view search?

    If a plain view search showed contraband thatwas illegal,say recreational drugs, would the contrabandprovide probable cause foranimmediate arrest--a warrantless seizure of the person?

    Would something like "the suspect the cop saw possessing drugs just ran in the house and is maybe flushing the drugs down thetoilet" bea situation where LEOs have no time to get a warrant and must actto preserve evidence,thus being a bit of an emergency situation listed as a warrant exception?

    Would other situations with exingent circumstances constitute a class of warrant exceptions--situations where it wasreasonable to search or seize without awarrant?

    Would a situation where someone was possibly hurt and needing medical assistance inside a home be a community caretaking function of police, totally divorced from law-enforcement function, be a reasonable reason to enter the house without a warrant--a warrant exception?


    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    donsk16 wrote:
    SNIP (I still don't get some of the "what ifs" of a situation - but I will have to look around some more this weekend to try to figure out when LEOs can and can't take my gun after a SD situations (such as, discharged and hit BG, discharged and missed BG, no discharge and held criminal at bay, no discharge and BG escapes...etc.)
    Part of what is making it tricky to figure out is that the warrantless gun seizure might be authorized by different court opinions.

    For example, shooting atsomeone might be prohibited under a law against discharging a firearm.And, at the same timebe prohibited by a law against assault. OK,the cop knowsby your statement thatyou fired the gun.

    Holding someone at bay (I take you to mean"held at gunpoint for the police") might come under the headingof false imprisonment or kidnapping or something. OK, the cop shows up and sees you pointing a gun at someone. He doesn't know which of you is the criminal, but he knows for sure oneof you is the criminal.

    Undercertain circumstances copscan temporarily seize guns for theirown safety and the safety of others. This would include thesafety of the guy you are pointing your gun at to holdhim forpolice. I am thinking that to the policeofficer he comes under the heading of "safety of others" until the cop sortsout whois the criminaland who is the victim. Remember, the cop doesn't know who the criminal is, but he knows for sure that at leastone of the people present is a criminal. See Terry vs Ohio,linked above for some of the circumstances that allow LEOs to seize firearms without a warrant.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    killchain wrote:
    SNIP It's happened quite often that statements and evidence collected prior to Miranda readings have been thrown out in court.

    Hence the MIRANDA RULING.

    WHERE IT HAPPENED.

    http://www.usconstitution.net/miranda.html

    Man, you guys just can't stop fighting about anything, can you?
    Thank you for linking to a source.

    While helpful, I think that information, while not incorrect, is sufficiently incomplete to leave a mistaken impression.

    I've read numerous court opinions where the suspects pre-Miranda comments ended up in evidence.

    Miranda is clear. Policeare only required to give the Miranda Warning prior to questioning that occurs after a custodial seizure--an arrest. There have been plenty of cases where the questioning occurred in situations outside of a police interrogation room--cases where the court was deciding whether some other location or situation besides an interrogation room was "custodial" enough to be equivalent, thus triggering the Miranda Warning requirement. Was the small room off the airport concourse, surrounded by officers, while in hand-cuffs, but not yet told under arrest, sufficiently "custodial" in nature that a person should have been Mirandized? That sort of thing.

    But, Miranda does not say that all questioning without the warning is unconstitutional. Nor does it say that all pre-warning statements and comments are inadmissable. Nor does Miranda require the warning during the questioning during a Terry detention. Not that I recall anyway.

    Terry permits investigative questions, both during a consensual encounter and a detention. Although thesuspected citizendoes not have to answer, if the answers provide probable cause, is the person not subject to arrest? Arepolice during a Terry Stop/detention asking questions in order to either 1) dispel suspicion or 2) aquire from answers or evidence probable cause? (I know the answer, I just can't cite, thus cannot declare the law, thus I have to ask it as a question.)



    Miranda: (this is a long opinion, but it is easy to read--little legalese or latin--and is well worth reading. It is very educational.)

    http://www.law.cornell.edu/supct/htm...4_0436_ZO.html

    Terry:

    http://www.law.cornell.edu/supct/htm...2_0001_ZO.html
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    donsk16 wrote:
    SNIP In reference to your statement number 2: When the LEO's interview you that night/day- simply saying "Tonight I was the the victim of a crime, and what I can tell you is they broke and entered and attempted to harm my family and I am pretty shook up from the whole experience, so I would like to go through the details with you at a future time when my mind is in a better state" be best? You are giving them a brief statement and you are cooperating, but doesn't say too much?
    Whew! You ask meaty questions. I'm wearing out my keyboard. But, they are good questions!

    You are now asking for legal advice. I am not a lawyer.

    There is a fair amount of advice on this point available on the web. For myself, I plan to follow the advice of a fella with lots of courtroom experience and years as a cop--Massad Ayoob. He has a column in a couple gun magazines.

    He suggests a simple declaration along the lines of:

    "Officer, that man there (pointing) attacked me with that knife there (pointing) putting me in fear of my life. I shot him in self-defense. I will gladly sign a complaint. We all know this is a very serious situation. I will make a complete statement within 48 hours after having talked to my attorneys."

    He also recommends pointing out evidence to the police so it doesn't get missed. My examples:

    "See his footprints, where he came at me from those bushes right there."

    "See my brass in a nice pattern here beside where I was standing."

    "His accomplice ran back through those bushes. There may be blood on them."

    "My defensive shooting happened right here; but I saw him run that way, and saw him ditch something, his knife maybe, in that storm drain over there."

    Then shut the heck up. Politely. But shut up.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  23. #23
    Regular Member
    Join Date
    Aug 2009
    Location
    Everett, Washington, USA
    Posts
    144

    Post imported post

    Why would they need to take your handgun for any sort of forensics or evidence if you admit, yea, I shot the guy, he broke into my house and assaulted me.

    I don't see a need for them to take your gun and prove it was you when you clearly stated that you shot the guy.

  24. #24
    Founder's Club Member
    Join Date
    Nov 2006
    Location
    Fairfax Co., VA
    Posts
    18,766

    Post imported post

    0V3RC10CK3D wrote:
    Why would they need to take your handgun for any sort of forensics or evidence if you admit, yea, I shot the guy, he broke into my house and assaulted me.

    I don't see a need for them to take your gun and prove it was you when you clearly stated that you shot the guy.
    Because there is always the remote possibility that you might recant and there won't be any dishonest cops available to make up evidence against you?


    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  25. #25
    Regular Member
    Join Date
    Dec 2006
    Location
    Everett, Washington, USA
    Posts
    3,339

    Post imported post

    0V3RC10CK3D wrote:
    Why would they need to take your handgun for any sort of forensics or evidence if you admit, yea, I shot the guy, he broke into my house and assaulted me.

    I don't see a need for them to take your gun and prove it was you when you clearly stated that you shot the guy.
    Because if the prosecutor decides to file murder/manslaughter charges against you they want it as evidence. They have the authority to seize everything and anything that may be connected to a potential crime they are investigating.
    "A fear of weapons is a sign of retarded sexual and emotional maturity."

    "though I walk through the valley in the shadow of death, I fear no evil, for I know that you are by my side" Glock 23:40

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