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Thread: Possible Rights Infringment?

  1. #1
    Regular Member Tony4310's Avatar
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    Possible Rights Infringment?

    http://www.kmov.com/news/local/Coupl...133570318.html


    Thoughts? The police chief admits the weapons were clean and wants to move on as if it never happened. I see it as rights infringement of a lawful firearm owner by the police. That is how I see it. I could be wrong.

  2. #2
    Regular Member hermannr's Avatar
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    Yes, that Police Chief hopes they will move on...and not sue him and his department in Federal court.

    If it was me, I would lawyer up. It is possible to get a settlement $$$ (that should include retaining his officers) without actually filing a suit...if you have a good lawyer.

  3. #3
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    I'm not a lawyer.

    But, I don't see a rights violation from the viewpoint of the law.

    News reports are always suspect as to full facts and no misrepresentation, intentional or otherwise. But, lets approach this on the assumption that the news report is accurate and complete, knowing it still might be wrong.

    Facts:

    The husband and wife consensually answered questions.

    They opened their door, or more importantly did not close it when cops showed up.

    The police asked the husband to hold out his hands and he consented.

    The police found an old spent shell casing on the back porch. Without a report from the homeowner that he refused consent to the police going back there without a warrant, lets assume the husband consented to a request to "look around."


    Analysis:

    The police arrived for a knock-and-talk (consensual encounter). The homeowners, by answering questions and letting cops look around, consensually may have given the police probable cause (shell casing, ballistic evidence on hands). If that "probable cause" is supported by the courts, then seizing the guns might well be legal since they are instruments of an offense and evidence.

    As far as the police not checking the gun barrels for temperature, smell, or residue, I'm not so sure they are required to check. I've read cases where police were not required to exclude innocent explanations before moving forward with their suspicions--this in terms of reasonable suspicion during a Terry detention. If some version of that rationale carries over into probable cause, the gun seizures may well be judged legal by a court.


    Observation:

    Don't talk to police. Don't talk to police. Don't talk to police!!

    The cops violated their rights. Maybe not those few remaining rights the gunverment is reluctantly willing to recognize, but the rights they deserve. How the heck can you see ballistic residue on someone's hands, unless he was shooting a revolver, and more than a few rounds? A shell casing on the back porch? Really? A shell casing when shots were reported?

    And, then not actually checking to see if any of the guns were fired very recently? Come on. Anybody with half a lick of experience with a gun can tell the difference between the sharp, distinct odor of a freshly fired barrel, and one that was shot yesterday or earlier. If the cops had one lick of decency, they would have checked. These cops were anti-gun or looking to add to their job stats.

    I do find a couple problems in the report.

    First, the police said they did not harass or intimidate the couple. Yet, the couple clearly report the police threatening to arrest the husband. Huh!?! Why would a cop threaten to arrest someone? The cop either has probable cause for an arrest or he doesn't. If a threat is made, it is clearly intended to intimidate.

    Lastly, the report puts the threat to arrest right in front of the request to hold out hands. If the husband was threatened with arrest and the request to hold out hands was immediately after that, then I would say the hand gesture was not consensual, but the product of fear. I'm not so sure the police can legally do that without probable cause. I'm thinking such an inspection would be a search. Think about it for a moment. If the so-called residue supplied the final point of probable cause for an arrest or gun seizure, and the cops gained that info by intimidation, such would be manifestly unfair.
    Last edited by Citizen; 11-10-2011 at 01:01 AM.

  4. #4
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    Quote Originally Posted by Citizen View Post
    I'm not a lawyer.

    But, I don't see a rights violation from the viewpoint of the law.
    I like your evaluation and tend to agree.

    On a side note, officers will often ASK "can we step inside and talk?" according to my lawyer the answer to that question is ALWAYS no, even in the rain or snow.

    Consent to enter is consent to search. No he can not automatically open drawers etc, but everything he see's or hears is to be used AGAINST you.

    Politely decline to speak with them and close your door, call your lawyer and follow his directions which are HIGHLY likely to be to keep your mouth shut until he/she is present.

    NEVER allow in or bother stepping out, say no thank you and close the door.
    John C. Eastman Associate Dean of Chapman University’s School of Law "the Second Amendment, like its sister amendments, does not confer a right but rather recognizes a natural right inherent in our humanity."

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    Quote Originally Posted by LMTD View Post
    I like your evaluation and tend to agree.

    On a side note, officers will often ASK "can we step inside and talk?" according to my lawyer the answer to that question is ALWAYS no, even in the rain or snow.

    Consent to enter is consent to search. No he can not automatically open drawers etc, but everything he see's or hears is to be used AGAINST you.

    Politely decline to speak with them and close your door, call your lawyer and follow his directions which are HIGHLY likely to be to keep your mouth shut until he/she is present.

    NEVER allow in or bother stepping out, say no thank you and close the door.
    An emphatic amen. Assert your rights at all times, even when you know you have done nothing wrong. It is about protecting yourself ESPECIALLY when you are innocent. I know I am often tempted to "chat" with congenial police officers. I recently was asked to leave Walmart. The KCPD officer was VERY nice and started to chat me up. He asked if I had my CCW. I was tempted to respond that it was not required. Instead I asked "Am I being detained?" He said no so I said "OK, thanks" and turned and left. Every word that came out of my mouth during the incident from first approach by the gorilla they sent to talk to me while accompanied by FOUR large men including the officer and manager, was a QUESTION. I never made a single statement. I asked "Did corporate policy change?", "Have I broken a law?", "Am I being detained?" Can't make a false statement that way and puts you iin charge of the conversation. AND I kept it polite.
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  6. #6
    Regular Member Fallschirmjäger's Avatar
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    "...“They asked me to hold out my hands, shined a flashlight on it and said ‘we see evidence of ballistics on your hand,’” Sam said..."
    Umm..... really? What sorts of "ballistics" are evident with a common flashlight?



    "Out, damned spot! out, I say!… who would have thought the old man to have had so much blood in him? …What, will these hands ne’er be clean?…Here’s the smell of the blood still; all the perfumes of Arabia will not sweeten this little hand. Oh, oh, oh!"
    Last edited by Fallschirmjäger; 11-10-2011 at 11:54 PM.

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    Quote Originally Posted by Fallschirmjäger View Post
    Umm..... really? What sorts of "ballistics" are evident with a common flashlight?



    "Out, damned spot! out, I say!… who would have thought the old man to have had so much blood in him? …What, will these hands ne’er be clean?…Here’s the smell of the blood still; all the perfumes of Arabia will not sweeten this little hand. Oh, oh, oh!"
    Have you ever seen unburned powder pieces or obvious powder residue on your hands before? I certainly have seen such things on my own hands.

    (not a lawyer) That said, if there was evidence of "ballistics" the LEO should have had a powder residue test conducted if the LEO thought there was enough cause to seize those firearms. Unlawful seizure of those firearms occurred...that is a law violation.

    Now to make things worse there's a report on the matter and these folks will play heck getting that report yanked without a lawyer. They need to lawyer up on this one, even in the PD isn't pursuing the matter any further.

    Any intelligent lawyer would take the use of the word "ballistics" by that LEO and rip his career to shreds. First question: Define "ballistics". (It's a science based word) Second question: Are you a forensic scientist? Third question: Do you hold any science based training or degrees illustrating you have the skills and authorization to make such a determination that "ballistics" evidence is present? This could keep going until that LEO is completely discredited and then it just shifts to everyone else in the department all the way to the Chief.
    Last edited by REALteach4u; 11-11-2011 at 11:31 PM.

  8. #8
    Campaign Veteran Schlitz's Avatar
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    it would appear from the story given that much of the interaction with LEO was consensual.

    He appears to have answered the door to the police, let them search his property (backyard where the shell casing was), and he brought his guns to the police. From what I have seen so far, this could have been avoided. You'd think being an MP he would know his way around a police officer. Apparently not.
    “The claim and exercise of a constitutional right cannot be converted into a crime.”
    [Miller vs. U.S., 230 F. Supp. 486, 489 (1956)]
    “There can be no sanction or penalty imposed upon one because of his exercise of constitutional rights.”
    [Sherar vs. Cullen, 481 F2d. 946 (1973)]

  9. #9
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    Quote Originally Posted by Tony4310 View Post
    http://www.kmov.com/news/local/Coupl...133570318.html


    Thoughts? The police chief admits the weapons were clean and wants to move on as if it never happened. I see it as rights infringement of a lawful firearm owner by the police. That is how I see it. I could be wrong.
    that's really scary. I just finished watching the video on this webpage about "opencarry handbook" When i click on it there was a video/ youtube about saying "no" to the police and taking the 5th admendment. I watched the entire 48 minute speech and it was truthful but scary. I was thinking, maybe when i got pulled over yesterday, when the cop was asking what I carry... was he trying to see if I had an ilegal handgun? Or even making notes on the system to report what type of gun I am known to carry? Thank GOD I didn't tell him about my two new .45cals.

    But this is was worries me... its like a double standard... To be upright citizens and to aviod police interactions.... it seems when we want to do our part and be helpful with the police, there are there to pin any case to anyone who "fits the bill". What if that guy in the report just came from the range? How many of us collect shells to give to someone who likes to reload? Even now, I have a 50 round case in my car of spent shells that I plan to give to anyone who wants them. I go to the range about once a week and I normally run into a person or two want wants them to reload.

    I think they can sue...but you have to ask... why was there spent shells around the person's house? Lazy, careless, or just living in a bad area. I use to live in the city (Baden area), and before I even own a gun, you would find shells at times in my yard. Thugs are everywhere.

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