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Thread: Need help finding RCW or local code

  1. #1
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    Need help finding RCW or local code

    I am trying to find anything that gives a Police Officer the right to take a gun after a self defence shoot. This is pertaining to the Medical Lake Burglery shoot. http://www.khq.com/story/16353104/medicallakeintruder

    Thanks

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    A friend of mine, a Medical Lk. cop, Ret., said it is in the RCW but he could not remember where. It is not a city of Medical Lk. code. The cops need it for ballistics.

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    Campaign Veteran slapmonkay's Avatar
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    I have not found too much in the RCW. They may be treating it as a crime which allows them to hold it under RCW 9.41.098 (1) (d)/(i). Once its been determined not a violation they are ordered to give it back.

    (1) The superior courts and the courts of limited jurisdiction of the state may order forfeiture of a firearm which is proven to be:

    (d) In the possession or under the control of a person at the time the person committed or was arrested for committing a felony or committing a nonfelony crime in which a firearm was used or displayed;

    ...

    (i) Used in the commission of a felony or of a nonfelony crime in which a firearm was used or displayed.

    ...

    (3) The court shall order the firearm returned to the owner upon a showing that there is no probable cause to believe a violation of subsection (1) of this section existed or the firearm was stolen from the owner or the owner neither had knowledge of nor consented to the act or omission involving the firearm which resulted in its forfeiture.
    I Am Not A Lawyer, verify all facts presented independently.

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    State Researcher Bill Starks's Avatar
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    <edit> Look at the following RCW's
    http://apps.leg.wa.gov/rcw/default.a...A.16&full=true


    Let's look at this this way... if you shoot someone and they die, you have committed homicide, a crime in itself. But there are circumstances that make it lawful, excusable and justifiable.(9A.16.040) Since you committed a crime, that firearm would be seized as evidence till you were cleared.
    Last edited by Bill Starks; 12-19-2011 at 06:40 PM.

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    State Researcher Bill Starks's Avatar
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    The man has provided a statement to detectives, but there was evidence in and around the home that still needed to be collected. Both teen suspects have provided statements to investigators, but as of 9:30 Monday morning, no arrests had been made.
    Prosecutors in Seattle and Tacoma have said as long as it is a justifiable shoot, they are not going to prosecute but they do have to look at all the evidence.

  6. #6
    Regular Member hermannr's Avatar
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    Quote Originally Posted by Semper Paratus View Post
    I am trying to find anything that gives a Police Officer the right to take a gun after a self defence shoot. This is pertaining to the Medical Lake Burglery shoot. http://www.khq.com/story/16353104/medicallakeintruder

    Thanks
    I find it hard to understand the way the reporter wrote her story the way she did, almost like you were/are suspected of being the criminal.

    I am of the opinion that they can seize the weapon IF they think there was a crime committed (by you).

    Look at RCW 9.41.098 and 9.41.800

    IMHO, they could not legally sieze you weapon, as you had committed no crime by protecting your home and property. I would go to the PD and demand my pistol back, or charge me with a crime...if they do that you have a nice malicious procecution case. They have no reason to hold YOUR weapon...you are the victim, not the criminal.

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    Here is my thoughts and post on the shooting

    JOHN
    This guy is in the right. IAW RCW (RCW 9A.52.020-.030) burglary is a felony. And IAW RCW ( RCW 9A.16.050) you have the right to use Deadly force In the actual resistance of an attempt to commit a felony upon the slayer, in his or her presence, or upon or in a dwelling, or other place of abode, in which he or she is

    Thank you for helping me sift through the RCW's

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    Quote Originally Posted by Semper Paratus View Post
    Here is my thoughts and post on the shooting

    JOHN
    This guy is in the right. IAW RCW (RCW 9A.52.020-.030) burglary is a felony. And IAW RCW ( RCW 9A.16.050) you have the right to use Deadly force In the actual resistance of an attempt to commit a felony upon the slayer, in his or her presence, or upon or in a dwelling, or other place of abode, in which he or she is

    Thank you for helping me sift through the RCW's
    The key is right here (upon or in a dwelling, or other place of abode) If the shooting occured in the back yard, as indicated in the article, then it did not happen upon or in a dwelling, or other place of abode. The yard is part of the curtilege but in WA is not an abode.
    The gun, then, would be held as evidence until the shooter is cleared.

  9. #9
    Opt-Out Members BigDave's Avatar
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    Trigger Dr. all I can say is your comment is spot on, a place of abode is the home which includes attached decks or garages and not out buildings or backyard even if it is fenced.

    The weapons being taken for evidence is not a surprise and will be held likely until such time prosecution concludes it was a good shoot or completion of a trial.

    Claiming Self Defense places the State to prove beyond a reasonable doubt that he did not act in self defense thus the importance for evidence for the home owner or the state but I feel it will not return the weapon any sooner.

    It is good to see the homeowner was not arrested or any charges as of yet.

    When it comes to the perp not being charged yet may be a sign of a new move that some cities and counties are employing. Where if the perp is not a current threat and has wounds or high medical bills as this shooting they with hold arresting so the city or county does not have to foot the medical bills and likely will push the cost to the State paying the bill. This does not mean they will not arrest him when he is released medically.

    From what I can take of this story I feel the homeowner did really well except not reporting an earlier break in.
    He setup an alarm to protect his property, responded in decisive manner while the wife called 911.

    It is also noted that the homeowner did give a statement and apparently did so effectively.
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  10. #10
    Regular Member Lammo's Avatar
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    Assume, for the sake of argument, that this statement from the KHQ story, "Spokane County Sheriff's investigators say they believe the incident may be drug related." means that there was a marijuana grow in the house and that the grow was the target of the burglary on both occasions. If that is the case, then the officers were likely justified in retaining the homeowner's firearm, even if the homeowner possesses a valid medical marijuana authorization.

    It's an open question under Federal law whether a medical marijuana user can still lawfully possess firearms (no thread hijack intended - - I believe that issue has been debated on another thread). So, there may be more facts here than in the avereage homeowner shoots burglar situation (not that I have access to any more facts than the average bear; well, I have that kind of access but I haven't used it in this case [but I did hear some of my colleagues talking . . . ] ).

    It will be very interesting if that is how this plays out because it would be the second incident of firearms being used to defend a marijuana grow in Spokane County in the past few months. Here's a short article about the first one: http://www.spokesman.com/blogs/siren...ef-shot-woman/

    UPDATE: Looks like this is in fact number two: http://www.spokesman.com/stories/201...-had-marijuan/
    Last edited by Lammo; 12-21-2011 at 03:45 AM. Reason: Update
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  11. #11
    Regular Member hermannr's Avatar
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    OP and everyone, especially lawers

    this is from MO but it is federal appeals 8th district:

    http://momunicipallaw.wordpress.com/...ocess-hearing/

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    The absolute LAST thing the homeowner should be worried about is getting his gun back. He should be worried entirely about staying out of prison.
    The article is woefully lacking in detail so this is just based on ONLY what is in the article, and is only my opinion:

    If absolutely everything in the article is correct, and there are no other significant facts not mentioned, then the homeowner is probably in big trouble. Burglarly is indeed a felony and so a shoot while someone is committing burglary would likely be legal. However, the second the attempted burglary stops, unless there is another attempted felony taking place, you can NOT SHOOT. So if the homeowner was holding one or more of the burglars at gunpoint outside his home after confronting them, and they had dropped all weapons, then unless they were trying to run away with $1000 or more of his property (felony theft) he couldn't legally use deadly force. As a criminal the best response in such a situation is to drop everything, hold your hands above your head, turn around, and walk slowly away until out of sight around a corner, then run like hell. Very few people will be stupid enough to shoot an unarmed man in the back. As a homeowner, shoot them while they are inside, or if they are outside tell them they have 10 seconds to get out of your sight, and that you will kill them if you ever see them again. You do not want to be stuck holding a gun on them for 10 minutes waiting for the police to arrive, then having to deal with the police late at night when they are tired and nervous and you have a gun in your hand.

    That being said, what really matters is whether the local prosecutor has an election coming up and whether he feels coming down hard on this guy will get him more votes or less. Sadly, almost all self-defense shootings that aren't definitely 100% good end up being prosecuted more based on politics than what is right.

    In this case, honestly I don't know what happened and don't know whether the homeowner should be prosecuted or not. I feel bad for him that he had to be in this situation at all, and if he is prosecuted I hope it is for the lightest charge they can get away with, but sadly he may still be prosecuted if the kid was just trying to run away or something.

  13. #13
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    Quote Originally Posted by hermannr View Post
    this is from MO but it is federal appeals 8th district:

    http://momunicipallaw.wordpress.com/...ocess-hearing/
    Good read, except this does not fit with the OP's post. He was asking about the legality of the police seizing a firearm that had been used in a shooting. They can and will confiscate it as evidence, not contraband. If it is ruled by the PA/DA to be a self defense shooting and the firearm not returned promptly then this ruling would come into play. Police do not determine if the shooting was self defense they simply gather evidence and facts and turn them over to the PA/DA to make the decision.
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  14. #14
    Regular Member Lammo's Avatar
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  15. #15
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    If the newspaper account is even close to accurate, who knows, this guy is in deep doo doo.

  16. #16
    Regular Member hermannr's Avatar
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    The Spokesman Review is not known for it's unbiased reporting, but that one didn't seem too bad. So, we have a person who HAD had a MMJ card, and had MJ stolen in the past. It sounds like he no longer had a valid card, or any MMJ. The report says the young man that was shot "in the back" but sources the statement to no valid person, entity, that could make that determination, so coming from the SR that statement is in question, though not necessarily wrong.

    The young men (yes, young MEN, I was 6'1" when I was 14) had baseball bats as weapons, they broke into his abode looking for more MJ, the owner says he shot once at dark figures on his enclosed porch (part of his Abode) and they ran...(It is possible that one of the BGs back was turned, or he turned after the owner entered the porch, if in fact the BG was actually shot in the back before he ran off the porch.) They did not say where the baseball bats were recovered from, porch or yard???

    1: The police have not arrested the owner so there must be some question in his favor that it was a "Good shot". If there was blood on the porch it would back up the owners story and IMHO seal the deal.

    2: That he had MMJ before, and been robbed by one of the BGs before gives the motive for the attempted robbery, and validity to the owner's statements so far.

    I don't think the owner is out of the woods yet, but I don't think things are all that bad for him. I think the kids will be in juvy though. If they had tried to use those baseball bats they might have ended up in adult court...I think that is why the one that was shot changed his age from 14 to 13????you thnk?

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