[?] Can officer take your firearm?

DanielMyst777 · Jul 12, 2013

Let's say you get stopped by an officer while OC'ing and he/she asks for your ID and you say you are not obligated to give them your ID unless they are investigating a crime, issuing a summons, or detaining me at this time. The officer then asks your name (address), etc. You give it to them.

Here's the tricky part. What do you do if they ask for your firearm? Can you say no? Can they forcefully take it from you? What can they do with your firearm once they have it?

Any help on this would be helpful.

Thanks.

peter nap · Jul 12, 2013

DanielMyst777 said:
Let's say you get stopped by an officer while OC'ing and he/she asks for your ID and you say you are not obligated to give them your ID unless they are investigating a crime, issuing a summons, or detaining me at this time. The officer then asks your name (address), etc. You give it to them.

Here's the tricky part. What do you do if they ask for your firearm? Can you say no? Can they forcefully take it from you? What can they do with your firearm once they have it?

Any help on this would be helpful.

Thanks.

Stopped in a vehicle or while walking and I'll assume walking.

Ask if you're free to leave or are you being detained.

If he says Detained, yeah...he can take your gun for his safety:uhoh:

If he says free to leave....leave!

DanielMyst777 · Jul 12, 2013

Alright that helps out a bit. I'm sorry. I should have been clearer. I was just thinking about it happening while out of a vehicle on private/public property.

So the only way they can "ask" for you firearm is if you are being detained by an officer? They can't say I'd like to see if you have an "appropriate" weapon for open carrying and hassle you that way?

WalkingWolf · Jul 12, 2013

Whether he has legal ground to take it does not matter, not at that moment in time. If he wants to take it, he will one way or another. Survive the stop, and take action in court if need be.

peter nap · Jul 12, 2013

DanielMyst777 said:
Alright that helps out a bit. I'm sorry. I should have been clearer. I was just thinking about it happening while out of a vehicle on private/public property.

So the only way they can "ask" for you firearm is if you are being detained by an officer? They can't say I'd like to see if you have an "appropriate" weapon for open carrying and hassle you that way?

They can say nearly anything but unless you're being detained, they can't demand it.

Just say goodbye and walk away.
It's hard to do the first time or two but you get used to it.

Citizen · Jul 12, 2013

peter nap said:
Stopped in a vehicle or while walking and I'll assume walking.

Ask if you're free to leave or are you being detained.

If he says Detained, yeah...he can take your gun for his safety:uhoh:

If he says free to leave....leave!

Nap, you know better.

Cite, please.

peter nap · Jul 12, 2013

Citizen said:
Nap, you know better.

Cite, please.

Cite what? Officer Safety or walking away.

Citizen · Jul 12, 2013

peter nap said:
Cite what? Officer Safety or walking away.

Cite, please.

(You've been here for years. You know exactly what we're talking about--officer temporarily seizing a weapon.)

Daniel,

Don't accept legal information from posters unless they cite the applicable law and you verify it yourself. We've had a forum rule requiring posters to provide cites since the early days of OCDO.

(5) CITE TO AUTHORITY: If you state a rule of law, it is incumbent upon you to try to cite, as best you can, to authority. Citing to authority, using links when available,is what makes OCDO so successful. An authority is a published source of law that can back your claim up - statute, ordinance, court case, newspaper article covering a legal issue, etc.

http://forum.opencarry.org/forums/misc.php?do=showrules

peter nap · Jul 12, 2013

Citizen said:
Cite, please.

(You've been here for years. You know exactly what we're talking about--officer temporarily seizing a weapon.)

Daniel,

Don't accept legal information from posters unless they cite the applicable law and you verify it yourself. We've had a forum rule requiring posters to provide cites since the early days of OCDO.

(5) CITE TO AUTHORITY: If you state a rule of law, it is incumbent upon you to try to cite, as best you can, to authority. Citing to authority, using links when available,is what makes OCDO so successful. An authority is a published source of law that can back your claim up - statute, ordinance, court case, newspaper article covering a legal issue, etc.

http://forum.opencarry.org/forums/misc.php?do=showrules

Yes, I know the rule:lol:

Since this is one of those "Are we here yet" questions, I'll let him read EVERYONE's take on Officer Safety, including yours.:
http://forum.opencarry.org/forums/s...O-take-my-weapon-for-quot-officer-safety-quot

davidmcbeth · Jul 12, 2013

I find it odd that we have the right to keep and bear to protect ourselves from gov't & gov't officials .... and they can just walk up and take our guns .. hmmmm lalalala :uhoh::uhoh: seems...not right upon first glance

peter nap · Jul 12, 2013

Citizen said:
Daniel,

Don't accept legal information from posters unless they cite the applicable law and you verify it yourself. We've had a forum rule requiring posters to provide cites since the early days of OCDO.

Just to carry that a litter further Daniel...Never accept legal advice from the internet, period. What you get here is a starting place, nothing more. We do have Lawyers on the site and they're always happy to discuss a particular issue.

The question you asked has been asked many times here and debated over and over and over. The cites shown on the link I gave are just that. Drab Cases that may or may not apply in your situation.

HearseGuy · Jul 12, 2013

You know, Daniel brings up a good point that I haven't really thought of until here recently while gathering info to educate a local LEO.

Daniel asks if an LEO can check to see if you are carrying an "appropriate" open carry firearm. Virginia Beach for instance, states that without a CHP it is unlawful to carry a center fire firearm with a magazine capable of holding over 20 rounds.

§ 18.2-287.4. Carrying loaded firearms in public areas prohibited; penalty.

It shall be unlawful for any person to carry a loaded (a) semi-automatic center-fire rifle or pistol that expels single or multiple projectiles by action of an explosion of a combustible material and is equipped at the time of the offense with a magazine that will hold more than 20 rounds of ammunition or designed by the manufacturer to accommodate a silencer or equipped with a folding stock or (b) shotgun with a magazine that will hold more than seven rounds of the longest ammunition for which it is chambered on or about his person on any public street, road, alley, sidewalk, public right-of-way, or in any public park or any other place of whatever nature that is open to the public in the Cities of Alexandria, Chesapeake, Fairfax, Falls Church, Newport News, Norfolk, Richmond, or Virginia Beach or in the Counties of Arlington, Fairfax, Henrico, Loudoun, or Prince William.

I'm not sure I've seen an instance of this, or if it has been discussed but theoretically, could a VB LEO stop and sieze your firearm to ensure your weapon is in compliance with this code?

peter nap · Jul 12, 2013

HearseGuy said:
You know, Daniel brings up a good point that I haven't really thought of until here recently while gathering info to educate a local LEO.

Daniel asks if an LEO can check to see if you are carrying an "appropriate" open carry firearm. Virginia Beach for instance, states that without a CHP it is unlawful to carry a center fire firearm with a magazine capable of holding over 20 rounds.

§ 18.2-287.4. Carrying loaded firearms in public areas prohibited; penalty.

It shall be unlawful for any person to carry a loaded (a) semi-automatic center-fire rifle or pistol that expels single or multiple projectiles by action of an explosion of a combustible material and is equipped at the time of the offense with a magazine that will hold more than 20 rounds of ammunition or designed by the manufacturer to accommodate a silencer or equipped with a folding stock or (b) shotgun with a magazine that will hold more than seven rounds of the longest ammunition for which it is chambered on or about his person on any public street, road, alley, sidewalk, public right-of-way, or in any public park or any other place of whatever nature that is open to the public in the Cities of Alexandria, Chesapeake, Fairfax, Falls Church, Newport News, Norfolk, Richmond, or Virginia Beach or in the Counties of Arlington, Fairfax, Henrico, Loudoun, or Prince William.

I'm not sure I've seen an instance of this, or if it has been discussed but theoretically, could a VB LEO stop and sieze your firearm to ensure your weapon is in compliance with this code?

There are really two questions there.

Can he legally stop you to check your magazine? Unless you're loaded with a 33 round mag or one that can be readily identified as larger than 20 rounds, I don't see any way he can do that anymore than seizing the gun to run the serial number to see if it's stolen.

Can he do it and get away with it anyway.....we've all seen it happen. Just say no!

There's an ongoing case in Central Va now where the cop did just that. Took the gun from a resident to see if it was stolen with no reason to think it was...and didn't give it back. No it wasn't stolen.

2a4all · Jul 12, 2013

HearseGuy said:
You know, Daniel brings up a good point that I haven't really thought of until here recently while gathering info to educate a local LEO.

Daniel asks if an LEO can check to see if you are carrying an "appropriate" open carry firearm. Virginia Beach for instance, states that without a CHP it is unlawful to carry a center fire firearm with a magazine capable of holding over 20 rounds.

§ 18.2-287.4. Carrying loaded firearms in public areas prohibited; penalty.

It shall be unlawful for any person to carry a loaded (a) semi-automatic center-fire rifle or pistol that expels single or multiple projectiles by action of an explosion of a combustible material and is equipped at the time of the offense with a magazine that will hold more than 20 rounds of ammunition or designed by the manufacturer to accommodate a silencer or equipped with a folding stock or (b) shotgun with a magazine that will hold more than seven rounds of the longest ammunition for which it is chambered on or about his person on any public street, road, alley, sidewalk, public right-of-way, or in any public park or any other place of whatever nature that is open to the public in the Cities of Alexandria, Chesapeake, Fairfax, Falls Church, Newport News, Norfolk, Richmond, or Virginia Beach or in the Counties of Arlington, Fairfax, Henrico, Loudoun, or Prince William.

I'm not sure I've seen an instance of this, or if it has been discussed but theoretically, could a VB LEO stop and sieze your firearm to ensure your weapon is in compliance with this code?

That's not a VB ordinance (which would violate preemption), it's state law.

skidmark · Jul 13, 2013

2a4all said:
That's not a VB ordinance (which would violate preemption), it's state law.

But you still need at lesst Reasonable Articulatable Suspicion to initiate a Terry stop (Hey, Citizen - do I actually need to give the SCOTUS docket number to malke it a valid cite?) to look at your magazine. Looking at your magazine while it is outside your handgun may or may not develop into Probable Cause to arrest you for violation of § 18.2-287.4.

So if you have one of those +1 extensions on the end of your magazine, does that reasonably suggest that it may hold more than 20 rounds? If you have a bottom-feeder in Euro-wenie caliber how much longer does your "normal capacity" 17-round double stack magazine need to be to hold another 4 rounds? And supposing the cop could articulate that at trial - his "expertise" could be impeached by asking him to identify the capacity of other common items based on only a cursory visual inspection from a distance. (And this banana, officer? How long would you say it is? Now what about this zuccinni? And based on your training and experience, how long is the average banana and the average zuccini?)

stay safe.

amtilton17 · Jul 13, 2013

Traffic Stop

Are you required to surrender your firearm upon request during a routine traffic stop?

skidmark · Jul 14, 2013

amtilton17 said:
Are you required to surrender your firearm upon request during a routine traffic stop?

Since you have been detained (a form of custodial arrest), then "Yes". Even if you are not stopped for an actual motor vehicle law violation - as in the cop wants to check your registration card because your tags "look" altered or some such, "Yes" because it qualifies because he can claim a Terry stop.

The operative part of your inruiry are the words upon request. We are hearing/reading fewer reports of folks being disarmed during "routine" traffic stops.

Just remember, it's not a good idea to bring up the subject of being armed - let the cop start that conversation. Might also be a good idea not to whip it out as he gets up to your window even if all you intended to do was hand it to him. If the cop wants your firearm tell him you are going to step out of the vehicle to allow him to safely remove it from your holster. (Or if you are like me and use a paddle holster, tell him to remove the holster with the handgun still in it.)

stay safe.

PS - Hey, Citizen. I mentioned Terry Stop but did not provide the SCOTUS docket number. Is that good enough?

Citizen · Jul 14, 2013

skidmark said:
But you still need at lesst Reasonable Articulatable Suspicion to initiate a Terry stop (Hey, Citizen - do I actually need to give the SCOTUS docket number to malke it a valid cite?) to look at your magazine. Looking at your magazine while it is outside your handgun may or may not develop into Probable Cause to arrest you for violation of § 18.2-287.4.

So if you have one of those +1 extensions on the end of your magazine, does that reasonably suggest that it may hold more than 20 rounds? If you have a bottom-feeder in Euro-wenie caliber how much longer does your "normal capacity" 17-round double stack magazine need to be to hold another 4 rounds? And supposing the cop could articulate that at trial - his "expertise" could be impeached by asking him to identify the capacity of other common items based on only a cursory visual inspection from a distance. (And this banana, officer? How long would you say it is? Now what about this zuccinni? And based on your training and experience, how long is the average banana and the average zuccini?)

stay safe.

Why ask me? What do the rules say?

For myself, when the thread includes new members, I would be especially careful to cite so the new readers can check it out themselves and learn. Depending on the situation, I would even provide links. So, using your sentence above, here is how I might write it:

"[But, according to Terry vs Ohio, the officer still needs reasonable articulable suspicion (RAS) to initiate a detention/Terry Stop/stop.]"

I agree that a judge might go along with a detention founded on a visual observation of an obviously long magazine.

skidmark · Jul 14, 2013

Citizen said:
Why ask me? What do the rules say?

....

Because of late you have become the enforcer and arbiter of that rule.

stay safe.

Citizen · Jul 14, 2013

skidmark said:
Because of late you have become the enforcer and arbiter of that rule.

stay safe.

OH, jeezus effing chryst. We are all the arbiters and enforcers of the rules--we make the house we live in. While we do have moderators, this forum is still largely self-moderated.

And, stop with the enforcer BS. The only people who can enforce any rules around here are the mods and admin.

And, I know you know the value of that rule. You've been here for ages. Don't try to tell me you don't fully understand the value of that rule. And, don't try that lately business. You know I've hammered that rule for years. Furthermore, I know you know this would be a better forum if everybody followed that rule religiously every time.

For other readers who weren't around in the early days, here are some of the reasons for it, in no particular order:

1. It prevents arguments about the law which, if you've ever read other forums, can go round in circles for pages.

2. It educates everybody, especially new readers, especially when links are included so everybody can go and read the law for himself.

You can either cite the exact law, or you're just spouting to sound important, or just plain lazy. It takes absolutely no effort at all to just keep your yap shut if you can't remember the cite. I know--I've done it hundreds of times.

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