GuyRelford
Master
I think many of the posts above are right in their assessments, but now we need to address a very pragmatic question: if indeed we're right, and an officer searching our vehicle to find our firearm - or requiring us to surrender it to him/her during the stop (after we've produced a valid LTCH) is "illegal" under Washington - what is our remedy? In other words, what do we do about it?
We definitely can't physically resist the search or seizure - that's a crime. And because the officer already knows there's a gun in the car, very bad things could happen very quickly.
So if an officer illegally "seizes" our handgun during a traffic stop, but then gives it back at the end of the stop, and that's illegal - what happens next?
The effect of the illegal search in Washington was that the drugs found during the search were inadmissible and the drug charges were dismissed. But we're just talking about our guns being seized in our hypothetical - we're never arrested. So we don't have any charges against us to have dismissed - but we've had our rights violated.
We can certainly file a civil lawsuit, and there are a lot of examples out there of individuals recovering significant judgments against municipalities and their police departments when the individual's rights are violated. But we have a big hurdle to get over: specifically, what is our damage? We have had our property illegally seized, but only for a few minutes (hypothetically), then it was returned. That's not like being handcuffed on the curb as we discussed earlier. Or being taken to jail. Or being physically restrained or injured as we're being arrested or detained. Those situations may very likely warrant a lawsuit. We just sat in our cars for a while without our gun, then it was returned and we were sent on our way.
In some civil rights cases, damages are presumed. And I suppose if we could prove that the act was "intentionally" illegal or performed "maliciously," then punitive damages might be available, but I think that's a hard sell - because the courts have repeatedly ruled that officer safety is a paramount concern, and the officer would undoubtedly testify that he/she only took the gun for a few minutes to protect himself/herself. And I think most juries would certainly believe that doing so was not intentionally "malicious" - despite being technically illegal under Washington. So I think punitive damages in those circumstances would be a reach. So if we get our gun back and we're sent on our way - what are we suing for; i.e., how have we been damaged?
I think that's a very tough question.
Personally, if this happened to me, I think the only thing I would do is to write a very professional letter to the officer and his/her superiors, explaining why his/her actions were illegal - not trying to get anyone reprimanded or suspended, but in hopes of respectfully educating that police department about the current state of Indiana law on this issue.
I know that's not a very satisfying answer and may generate more questions than it anwers, but my $.02 on the issues that have been raised since my last post.
Guy
We definitely can't physically resist the search or seizure - that's a crime. And because the officer already knows there's a gun in the car, very bad things could happen very quickly.
So if an officer illegally "seizes" our handgun during a traffic stop, but then gives it back at the end of the stop, and that's illegal - what happens next?
The effect of the illegal search in Washington was that the drugs found during the search were inadmissible and the drug charges were dismissed. But we're just talking about our guns being seized in our hypothetical - we're never arrested. So we don't have any charges against us to have dismissed - but we've had our rights violated.
We can certainly file a civil lawsuit, and there are a lot of examples out there of individuals recovering significant judgments against municipalities and their police departments when the individual's rights are violated. But we have a big hurdle to get over: specifically, what is our damage? We have had our property illegally seized, but only for a few minutes (hypothetically), then it was returned. That's not like being handcuffed on the curb as we discussed earlier. Or being taken to jail. Or being physically restrained or injured as we're being arrested or detained. Those situations may very likely warrant a lawsuit. We just sat in our cars for a while without our gun, then it was returned and we were sent on our way.
In some civil rights cases, damages are presumed. And I suppose if we could prove that the act was "intentionally" illegal or performed "maliciously," then punitive damages might be available, but I think that's a hard sell - because the courts have repeatedly ruled that officer safety is a paramount concern, and the officer would undoubtedly testify that he/she only took the gun for a few minutes to protect himself/herself. And I think most juries would certainly believe that doing so was not intentionally "malicious" - despite being technically illegal under Washington. So I think punitive damages in those circumstances would be a reach. So if we get our gun back and we're sent on our way - what are we suing for; i.e., how have we been damaged?
I think that's a very tough question.
Personally, if this happened to me, I think the only thing I would do is to write a very professional letter to the officer and his/her superiors, explaining why his/her actions were illegal - not trying to get anyone reprimanded or suspended, but in hopes of respectfully educating that police department about the current state of Indiana law on this issue.
I know that's not a very satisfying answer and may generate more questions than it anwers, but my $.02 on the issues that have been raised since my last post.
Guy
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+1!!
He is no longer with us
If that's possible?? HA HA.
..Bill. PS:He also reminded my passenger to wear his seat belt! HA..
True
