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Thread: Does anyone know this SCOTUS case?

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    Regular Member xmanhockey7's Avatar
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    Does anyone know this SCOTUS case?

    I have heard from more than one LEO (both from different parts of the country and yes I know don't take legal advice from them) that if someone tries to grab your gun it is presumed that they will use it against you and you are allowed to use deadly force. They both used almost the same wording in how they told it to me and one said there was a SCOTUS case that covered that same situation. Does anyone know if this is true that SCOTUS did cover that? I have found the Tennessee v. Garner case but couldn't find where trying to grab the gun comes into play.

    And on a side note I already know what I would do if someone seriously tried to grab my gun.
    "No state shall convert a liberty to a privilege, license it, and charge a fee therefor.- Murdock vs Pennsylvania 319 US 105

    ...If the state converts a right into a privelege, the citizen can ignore the license and fee and engage in the right... with impunity.
    - Shuttleworth vs City of Birmingham, Alabama 317 US 262

    Where rights secured by the Constitution are involved, there can be no legislation which would abrogate them.
    - Miranda vs Arizona 384 US 436

  2. #2
    Anti-Saldana Freedom Fighter Venator's Avatar
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    Quote Originally Posted by xmanhockey7 View Post
    I have heard from more than one LEO (both from different parts of the country and yes I know don't take legal advice from them) that if someone tries to grab your gun it is presumed that they will use it against you and you are allowed to use deadly force. They both used almost the same wording in how they told it to me and one said there was a SCOTUS case that covered that same situation. Does anyone know if this is true that SCOTUS did cover that? I have found the Tennessee v. Garner case but couldn't find where trying to grab the gun comes into play.

    And on a side note I already know what I would do if someone seriously tried to grab my gun.
    I'm not aware of it, but I wonder, if true, it was a case involving LEOs only.
    An Amazon best seller "MY PARENTS OPEN CARRY" http://www.myparentsopencarry.com/

    *The information contained above is not meant to be legal advice, but is solely intended as a starting point for further research. These are my opinions, if you have further questions it is advisable to seek out an attorney that is well versed in firearm law.

  3. #3
    Michigan Moderator DrTodd's Avatar
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    There was a case in the Ninth Circuit of the United States Court of Appeals. http://law.justia.com/cases/federal/...39/857/603379/

    The problem, though, is that cases that would apply to a police officer serving as an agent of the state would probably be different than what could be applied applied to you as a private person. In their role as an agent of the government, there is the concern of constitutional rights, police department policy, and state law. Any time a law enforcement officer uses deadly force, the likelihood that a lawsuit will follow is almost a certainty. Most of these lawsuits are brought in the federal courts as civil rights claims based upon the Fourth Amendment to the United States Constitution. These actions are brought under a federal statute, 42 U.S.C. 1983 which creates civil liability when a person, acting under color of law, violates federally protected rights of another, causing damage.

    As a private individual, the best model to follow would be to follow state law... specifically PA 309of 2006, 310 of 2006, and 311 of 2006

    http://legislature.mi.gov/doc.aspx?mcl-Act-309-of-2006
    http://legislature.mi.gov/doc.aspx?mcl-Act-310-of-2006
    http://legislature.mi.gov/doc.aspx?mcl-Act-311-of-2006


    Last edited by DrTodd; 08-05-2011 at 03:01 PM.
    Giving up our liberties for safety is the one sure way to let the violent among us win.

    "Though defensive violence will always be a 'sad necessity' in the eyes of men of principle, it would be still more unfortunate if wrongdoers should dominate just men." -Saint Augustine

    Disclaimer I am not a lawyer! Please do not consider anything you read from me to be legal advice.

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    Regular Member xmanhockey7's Avatar
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    Thanks guys. As far as I'm concerned if someone is trying to take my gun then I'm going to presume that they are going to use it against me and/or someone else and will use any necessary force including deadly to stop them.
    "No state shall convert a liberty to a privilege, license it, and charge a fee therefor.- Murdock vs Pennsylvania 319 US 105

    ...If the state converts a right into a privelege, the citizen can ignore the license and fee and engage in the right... with impunity.
    - Shuttleworth vs City of Birmingham, Alabama 317 US 262

    Where rights secured by the Constitution are involved, there can be no legislation which would abrogate them.
    - Miranda vs Arizona 384 US 436

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    Michigan Moderator DrTodd's Avatar
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    Quote Originally Posted by xmanhockey7 View Post
    Thanks guys. As far as I'm concerned if someone is trying to take my gun then I'm going to presume that they are going to use it against me and/or someone else and will use any necessary force including deadly to stop them.
    The only time I've heard of that on OCDO is when a LEO grabs for a gun... it happened to me in Grand Rapids at the last New Year's Eve Celebration downtown. Would you still use deadly force??
    Giving up our liberties for safety is the one sure way to let the violent among us win.

    "Though defensive violence will always be a 'sad necessity' in the eyes of men of principle, it would be still more unfortunate if wrongdoers should dominate just men." -Saint Augustine

    Disclaimer I am not a lawyer! Please do not consider anything you read from me to be legal advice.

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    Regular Member xmanhockey7's Avatar
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    Quote Originally Posted by DrTodd View Post
    The only time I've heard of that on OCDO is when a LEO grabs for a gun... it happened to me in Grand Rapids at the last New Year's Eve Celebration downtown. Would you still use deadly force??
    If it was clearly a LEO or a child or something no I would not but if I'm in Steak n Shake and someone attacks me going for my gun they had better hope they get to it before I do.
    "No state shall convert a liberty to a privilege, license it, and charge a fee therefor.- Murdock vs Pennsylvania 319 US 105

    ...If the state converts a right into a privelege, the citizen can ignore the license and fee and engage in the right... with impunity.
    - Shuttleworth vs City of Birmingham, Alabama 317 US 262

    Where rights secured by the Constitution are involved, there can be no legislation which would abrogate them.
    - Miranda vs Arizona 384 US 436

  7. #7
    Michigan Moderator DrTodd's Avatar
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    Quote Originally Posted by xmanhockey7 View Post
    If it was clearly a LEO or a child or something no I would not but if I'm in Steak n Shake and someone attacks me going for my gun they had better hope they get to it before I do.
    The reason I asked was that it really was offensive that the GRPD officer kept trying to grab my pistol during our conversation on New Year's Eve. I told him that trying to yank my pistol out of the holster was not only pure stupidity as it was totally unnecessary but, if I was not aware that it was a police officer, it could have resulted in him getting shot. At that point he started to imply I was threatening him; his partner interrupted him by saying he needed to stop trying to pull it out. He yanked at least a half dozen times. Thankfully, he did not know to hit the release tab... although his trying to yank it out kind of hurt. After he stopped yanking, he then rested his hand on it while we talked for a very few minutes.
    I complained to GRPD and they assured me that all officers would be reminded that trying to forcibly remove a legally carried pistol from a holster could have very dire consequences. Hopefully, this reminder actually took place because the next carrier on whom he attempts the maneuver may not be so friendly.
    Giving up our liberties for safety is the one sure way to let the violent among us win.

    "Though defensive violence will always be a 'sad necessity' in the eyes of men of principle, it would be still more unfortunate if wrongdoers should dominate just men." -Saint Augustine

    Disclaimer I am not a lawyer! Please do not consider anything you read from me to be legal advice.

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    i didn't see this

    Did you post this encounter somewhere else? I'd like to read the full context of it. If you weren't being detained, could that possibly be grounds for an assault charge against that officer?

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    Anti-Saldana Freedom Fighter Venator's Avatar
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    Quote Originally Posted by xarmy9 View Post
    Did you post this encounter somewhere else? I'd like to read the full context of it. If you weren't being detained, could that possibly be grounds for an assault charge against that officer?
    Not in NM as their supreme court rules LEO can grab guns. http://www.thenewspaper.com/news/34/3494.asp

    I also believe most courts would rule the same. Unfortunate

    New Mexico Supreme Court Lets Cops Grab Guns During Stops
    Supreme Court allows police to take all firearms from law-abiding motorists during traffic stops.

    Police officers in New Mexico can take guns away from drivers who pose no threat. The state supreme court ruled on May 20 that "officer safety" is more important than any constitutional rights a gun-owning motorist might have. The ruling was handed down in deciding the fate of Gregory Ketelson who was a passenger in a vehicle pulled over on November 13, 2008.

    Read more at link above.
    An Amazon best seller "MY PARENTS OPEN CARRY" http://www.myparentsopencarry.com/

    *The information contained above is not meant to be legal advice, but is solely intended as a starting point for further research. These are my opinions, if you have further questions it is advisable to seek out an attorney that is well versed in firearm law.

  10. #10
    Michigan Moderator DrTodd's Avatar
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    Quote Originally Posted by xarmy9 View Post
    Did you post this encounter somewhere else? I'd like to read the full context of it. If you weren't being detained, could that possibly be grounds for an assault charge against that officer?
    Yes, it was posted... and because of a number of factors, I chose to pursue it very informally. As I told the person in the department with whom I spoke, I'm only willing to do so one time and, if it happens again, my response will reflect that I attempted to be reasonable the first time.
    Giving up our liberties for safety is the one sure way to let the violent among us win.

    "Though defensive violence will always be a 'sad necessity' in the eyes of men of principle, it would be still more unfortunate if wrongdoers should dominate just men." -Saint Augustine

    Disclaimer I am not a lawyer! Please do not consider anything you read from me to be legal advice.

  11. #11
    Regular Member xmanhockey7's Avatar
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    Quote Originally Posted by Venator View Post
    Not in NM as their supreme court rules LEO can grab guns. http://www.thenewspaper.com/news/34/3494.asp

    I also believe most courts would rule the same. Unfortunate

    New Mexico Supreme Court Lets Cops Grab Guns During Stops
    Supreme Court allows police to take all firearms from law-abiding motorists during traffic stops.

    Police officers in New Mexico can take guns away from drivers who pose no threat. The state supreme court ruled on May 20 that "officer safety" is more important than any constitutional rights a gun-owning motorist might have. The ruling was handed down in deciding the fate of Gregory Ketelson who was a passenger in a vehicle pulled over on November 13, 2008.

    Read more at link above.
    Yeah who cares about the constitution really?
    "No state shall convert a liberty to a privilege, license it, and charge a fee therefor.- Murdock vs Pennsylvania 319 US 105

    ...If the state converts a right into a privelege, the citizen can ignore the license and fee and engage in the right... with impunity.
    - Shuttleworth vs City of Birmingham, Alabama 317 US 262

    Where rights secured by the Constitution are involved, there can be no legislation which would abrogate them.
    - Miranda vs Arizona 384 US 436

  12. #12
    Michigan Moderator DrTodd's Avatar
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    Quote Originally Posted by xmanhockey7 View Post
    Yeah who cares about the constitution really?
    The constitution mentions "unreasonable", which implies that not all searches/seizures are constitutional violations. In theory, I have no problem that if an officer honestly feels threatened, then they can seize the firearm for a few moments. The issue I had was that he forcibly tried to seize it without identifying himself or asking, and that his behavior alone actually made the situation much more dangerous. To me it was a very quick indication that this officer had no knowledge of firearm safety. It scares me that someone with such little concern that he feels free to place not only himself but approximately 50-60 people in the immediate area in danger of dying. If he could have gotten the pistol free and hit the trigger, my Glock 23 would have done what it was designed to do.
    Giving up our liberties for safety is the one sure way to let the violent among us win.

    "Though defensive violence will always be a 'sad necessity' in the eyes of men of principle, it would be still more unfortunate if wrongdoers should dominate just men." -Saint Augustine

    Disclaimer I am not a lawyer! Please do not consider anything you read from me to be legal advice.

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    Regular Member xmanhockey7's Avatar
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    Quote Originally Posted by DrTodd View Post
    The constitution mentions "unreasonable", which implies that not all searches/seizures are constitutional violations. In theory, I have no problem that if an officer honestly feels threatened, then they can seize the firearm for a few moments. The issue I had was that he forcibly tried to seize it without identifying himself or asking, and that his behavior alone actually made the situation much more dangerous. To me it was a very quick indication that this officer had no knowledge of firearm safety. It scares me that someone with such little concern that he feels free to place not only himself but approximately 50-60 people in the immediate area in danger of dying. If he could have gotten the pistol free and hit the trigger, my Glock 23 would have done what it was designed to do.
    I saw a video of a police officer in Cali doing that stupid unloaded check. When he took it out to see if it was unloaded he had the gun pointed right at the guy who was carrying it. Then as the officer was checking to see if it was unloaded the carrier asked the officer to not point the gun at him to which the officer said something along the lines of "Well you know it's not loaded" then laughed.
    "No state shall convert a liberty to a privilege, license it, and charge a fee therefor.- Murdock vs Pennsylvania 319 US 105

    ...If the state converts a right into a privelege, the citizen can ignore the license and fee and engage in the right... with impunity.
    - Shuttleworth vs City of Birmingham, Alabama 317 US 262

    Where rights secured by the Constitution are involved, there can be no legislation which would abrogate them.
    - Miranda vs Arizona 384 US 436

  14. #14
    Michigan Moderator DrTodd's Avatar
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    Quote Originally Posted by xmanhockey7 View Post
    I saw a video of a police officer in Cali doing that stupid unloaded check. When he took it out to see if it was unloaded he had the gun pointed right at the guy who was carrying it. Then as the officer was checking to see if it was unloaded the carrier asked the officer to not point the gun at him to which the officer said something along the lines of "Well you know it's not loaded" then laughed.
    Exactly my point... if it weren't so alarming I would find it humerous. It surprises me: they preach how dangerous arms are in the hand of civilians and then do things like that. Yeah, the "only ones who should he permitted to carry". Sad, very sad.
    Giving up our liberties for safety is the one sure way to let the violent among us win.

    "Though defensive violence will always be a 'sad necessity' in the eyes of men of principle, it would be still more unfortunate if wrongdoers should dominate just men." -Saint Augustine

    Disclaimer I am not a lawyer! Please do not consider anything you read from me to be legal advice.

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    my point wasn't about the officer being legally allowed to take possession of the firearm during a lawful stop/detention, but the manner in how they do it. Grabbing at it like someone trying to steal it isn't really an appropriate method of doing that, nor is it very smart, especially if you don't know they're law enforcement. I'm trying to find where this was posted so I can read the actual encounter.

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    Quote Originally Posted by xarmy9 View Post
    my point wasn't about the officer being legally allowed to take possession of the firearm during a lawful stop/detention, but the manner in how they do it. Grabbing at it like someone trying to steal it isn't really an appropriate method of doing that, nor is it very smart, especially if you don't know they're law enforcement. I'm trying to find where this was posted so I can read the actual encounter.
    This also happened to a member in Grayling about 3 years ago. Search for Grayling. The officer came up behind the guy in a gas station and tried to grab the gun out of the holster (I think to teach him a lesson), the problem was it was a retention holster so all the cop could do was tug on it. The member then asked him what he wanted and the cop pulled him outside by the gun/holster, never letting his hand off the gun during the stop.
    An Amazon best seller "MY PARENTS OPEN CARRY" http://www.myparentsopencarry.com/

    *The information contained above is not meant to be legal advice, but is solely intended as a starting point for further research. These are my opinions, if you have further questions it is advisable to seek out an attorney that is well versed in firearm law.

  17. #17
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    Provided that no injuries occurred as the result of the cops arrogance, negligence, irresponsibility, recklessness, and so on, the best thing that could happen in a cop gun grab, is a negligent discharge. It would be better if the cop popped himself in the foot, but whatever.

  18. #18
    Michigan Moderator Shadow Bear's Avatar
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    Quote Originally Posted by Venator View Post
    This also happened to a member in Grayling about 3 years ago. Search for Grayling. The officer came up behind the guy in a gas station and tried to grab the gun out of the holster (I think to teach him a lesson), the problem was it was a retention holster so all the cop could do was tug on it. The member then asked him what he wanted and the cop pulled him outside by the gun/holster, never letting his hand off the gun during the stop.
    The police are allowed to assault law abiding citizens with no reason? Crap!

    I'm gonna get me some of those little rear view mirrors that bicyclists use, so I can keep an eye on my six.

    I think I'd call MSP and report the assault, and swear out a complaint.
    Last edited by Shadow Bear; 08-07-2011 at 12:26 PM.
    'If the people are not ready for the exercise of the non-violence of the brave, they must be ready for the use of force in self defense. There should be no camouflage.....it must never be secret.' MK Gandhi II-146 (Gandhi on Non-Violence)-- Gandhi supports open carry!

    'There is nothing more demoralizing than the fake non-violence of the weak and impotent.' MK Gandhi II-153 (Gandhi on Non-Violence)

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    Just dont swear on the complaint, that might not be too good.

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    Michigan Moderator Shadow Bear's Avatar
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    Quote Originally Posted by stainless1911 View Post
    Just dont swear on the complaint, that might not be too good.
    I've sworn AT some....
    'If the people are not ready for the exercise of the non-violence of the brave, they must be ready for the use of force in self defense. There should be no camouflage.....it must never be secret.' MK Gandhi II-146 (Gandhi on Non-Violence)-- Gandhi supports open carry!

    'There is nothing more demoralizing than the fake non-violence of the weak and impotent.' MK Gandhi II-153 (Gandhi on Non-Violence)

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    Quote Originally Posted by DrTodd View Post
    The constitution mentions "unreasonable", which implies that not all searches/seizures are constitutional violations. In theory, I have no problem that if an officer honestly feels threatened, then they can seize the firearm for a few moments. The issue I had was that he forcibly tried to seize it without identifying himself or asking, and that his behavior alone actually made the situation much more dangerous.
    If an officer honestly feels threatened by a lawfully-carried firearm in a holster (and, at least in the states I normally frequent, it is presumed to be lawfully-carried), then he should find other employment. I thought police were the brave defenders of civilization who go out there and put there lives on the line to protect us...

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