Was there a court decision about temporarily seizing gun during a traffic stop?

[BehindBlueI's]

"Bust and service", the SquirrelnutZ motto.

[video=youtube;hVEIotzy3_A]https://www.youtube.com/watch?v=hVEIotzy3_A[/video]

 

[Sticky]

IIRC. I believe I once saw somewhere that, "An Officer needs an articulable fact, known to him, that would lead a prudent person to believe that a suspect meets Indiana's legal definition of a "dangerous person"; before seizing/taking a gun during a traffic stop." Hunches, profiling, etc. don't count.

The IN definition of "dangerous person" can probably be found with some google-fu.

The above may have simply been one LE Department's policy.

IIdon'tRC, maybe I just made it all up.

 

[Ddillard]

I am a staunch supporter of the police, yet it is all in how they approach each situation. If approached in the right manner and explained (in a correct manner). There are some officers that have the almighty "I know every law there is, and you are in violation...". Although many officers are out being what they really are, public servants.

Awaiting the storm to come...

 

[Brickmandan]

When was it ever one or the other? I bust robbers and enforce the law against robbery to protect the community from robbers, which is the service a robbery detective offers.

If we look at a few court opinions, we can see that the premise of what we know as the police’s function in society has seriously eroded from what it was originally intended for. For example, the recent SCOTUS case, Kentucky vs. King, ruling allows police to break into your home if they “think” you are destroying or hiding evidence, of course, without a warrant. The vague, looseness of this ruling sets the legal precedence for police to gain entry to your home by force, violate your Fourth Amendment right, and search your premises and detain you with no warrant.
Question: If the police can circumvent your Constitutional right because they “think” something might be happening, then what is the point of the Fourth Amendment? What is the point of the Constitution if your rights are easily trampled on by the police at their whim?
A quick look into Warren vs. District of Columbia (444 A.2d. 1, D.C. Ct. of Ap. 1981), we see that the Appeals Court stated that, “official police personnel and the government employing them are not generally liable to victims of criminal acts for a failure to provide adequate police protection.” This calls into question a few general points.
If the police are not liable or can not be held responsible for a lack of duty or not providing protection, then who is responsible to provide protection?
If it is their job to “serve and protect”, why are the courts saying that they are not responsible for protection of the citizenry, in as much as not being held responsible for failing to provide protection?
It is with this ruling, the argument, “to serve and protect”, is made null and void. In the real world if a doctor fails to render aid to someone in need of care, they can be charged with criminal neglect and loose their license and career; however, in law enforcement there is no level of repercussions that come from a failure to do one’s job or uphold an oath once taken. Nice work if this makes sense to you.
Another look into another court opinion, Riss v. City of New York, 22 N.Y. 2d (1968), brings forth a major question in regards to the police and their ability to be held responsible for neglectful actions.
“Is a municipality liable for failure to provide special police protection to a member of the public who was repeatedly threatened with personal harm and eventually suffered injuries for lack of protection? ”
Of course, the courts stated “No” and upheld the appeals court ruling on the matter. Here we can see, that again the courts affirmed, that the people have no “right” to be protected. The dissenting opinion on this case brought up a very valid point that, “…officials can either improve public administration or accept the cost of paying damages to injured people”. However, the courts ruled against this concept, thus allowing ineptitude of public officials to be able to exist unchecked in a court of law. In essence, the police can fail to protect you and continue to fail with no repercussions.
It is also fair to note that both the Warren and Riss cases took place in municipalities that prohibit or restrict handgun ownership. So this then draws into question another point, made by the dissenting justice in the Riss v. NYC case:

“What makes the city’s position particularly difficult to understand is that, in conformity to the dictates of the law, Linda did not carry any weapon for self-defense (former Penal Law, § 1897). Thus, by a rather bitter irony she was required to rely for protection on the City of New York which now denies all responsibility to her. “
​

Here we see that even the judge noticed the fallacy and breakdown of a government responsibility that prevents her from possessing a weapon for self-defense, yet isn’t responsible to provide her protection. This only provides more proof that there is a massive misappropriation of power the “state” has taken from the individual.
Lastly, we look at the horrendous case of Castle Rock v. Gonzales, 545 U.S. 748 (2005). I end on this because the case involved a law abiding citizen doing as the court ordered her to do; call the police when there was a violation of a restraining order by her abusive ex-husband. Because of police lack of action and refusal to uphold the court order for protection, the ex-husband kidnapped their three children, murdered them, and commenced to have a shoot out with police when he walked into the police station. (If there has ever been a more tragic case involving police neglect and apathy, I have not seen it.)
Here, the SCOTUS upheld the original dismissal of the case, thus overturning the appeals court ruling. In this event, the Supreme Court ruled that the police have no obligation to protect your right to due process (Fifth Amendment) by enforcing existing restraining orders and that the court order did not provide her special treatment under the law. This premises states that only people in custody of the government or in mental institutions are afforded unquestionable protection from law enforcement personnel.
Furthermore, the Supreme Court upheld that the police officers that did not provide her court ordered protection were protected from prosecution for violating her Constitutional rights under the “qualified immunity” doctrine that removes personal liability of government officials for violations of other’s Constitutional rights.
Let me state this again.
The police officers could not be individually prosecuted under civil or criminal law because police officers are given immunity from acts that violate one’s Constitutional rights under the “qualified immunity” doctrine.
Time after time, the state and federal courts have ruled in favor of the police and have allowed law enforcement agencies a “Get Out Of Jail Free” card when it comes to being responsible for the protection of the citizenry. Be it the badge, or the car, or the trite oaths taken “To Serve And Protect”, we see that these are just words with no apparent legal meaning.
So, if the police, that we entrust for our protection of body and property, are no longer responsible for protecting us, we must question their purpose and role in our society. What purpose do they serve on the backs of the tax payer? What has once be heralded as a truly selfless calling, has been trivialized to simple thuggery protected by the legislation and the courts. Now we have seen an evolution from selfless service to what they are now; a revenue stream for local, state, and federal governments. It is now safe to dispose of, “To Serve and Protect”, and call it what it really is.
“To Enforce and Collect” seems much more fitting.

 

[gregr]

The state bears the burden in every seizure absent a warrant. People don't have to articulate crap. What you describe is what's called an "unparticularized hunch", something explicitly addressed in Terry.

There are those who seem to bear little regard for the Constitution, in that, they support and approve of every theoretical reason under the sun why government may choose to illegally and unconstitutionally assault a citizens rights, simply because they are government/LEO. Nosir, I do not have to just accept the. so called, fact, that an office may disarm anyone for any reason. Absent firm evidence that a citizen has committed a crime, a citizen may not be disarmed, period. I respect police. I admire police. But I do not have to cower down to police, nor, allow my rights to be trampled. I distrust those who so quickly and easily rescind their rights to law enforcement, it shows a distinct lack of character and backbone.

 

[gregr]

When was it ever one or the other? I bust robbers and enforce the law against robbery to protect the community from robbers, which is the service a robbery detective offers.

This is the rub, isn`t it? It`s how one perceives the intent. "Busting robbers" is fine, and is the intent. Doing so by trampling constitutional rights, because it`s in the interest of public safety, is not acceptable. And before you go there, I`ll say, I understand you didn`t say that you did, or would trample rights to do the job, but it`s what the discussion is about.

 

[Ddillard]

I totally agree with the refusal to rescinding of constitutional rights. I did not say that I would rescind. I would however, possibly the manner in which I was approached and the situation accordingly. The choir is well heard and the Constitution is well recognized and abided by me and mine.

 

[Ddillard]

I agree with you, gregr

 

[SSGSAD]

I think people should be able to articulate why it is "unreasonable" for an officer to disarm a person who is suspected of being in violation a law or ordinance. So if I was to articulate it, I would say "Judge, I disarmed this person because they were in violation of XYZ. I would not have disarmed this person if they were not suspected of violating XYZ. In my experience and many others that serve in LE, people whom I make contact with due to suspicion of violating XYZ, are far more likely to pose a risk to myself than those who have not violated XYZ, hence why that person was disarmed."

We are still AMERICA, and I am INNOCENT, until PROVEN guilty .....

Kut, I have to DISAGREE ..... MY rights, TRUMPS EVERYTHING ......

I am a tax paying LAW ABIDING CITIZEN .....

You know that when you pull me over, and run my plate .....

When my plate comes back to the vehicle I am driving,

YOU KNOW, the vehicle is MINE .....

When you have my DL., you run a check, and you KNOW ANY violations,

I have had ..... JMHO, the possession of a firearm, should NOT even enter the conversation,

AT THAT POINT .....

Before that, well I D K .....

 

[gregr]

I`ll just say this, then I`m finished with this thread. I admire police. I have a great respect for police. At least, the vast majority of professionals who wear the badge. There are those, and the media has done an over the top job of pointing them out, who are sneaky, untrustworthy, and in some instances, even criminal, in their conduct. Being openly, and vocally against those officers, does not make me anti-police. No more than not being willing to tolerate war crimes makes me anti-military. I am protected against certain heavy handed situations by the United States Constitution, period. No apologies, or explanations needed, nor forthcoming. We are supposed to be a land of laws, and the United States Constitution is the supreme law of the land. You may not break the law under the guise of supposedly enforcing it. You may not violate a law-abiding citizens rights because it may make your job easier, or in your mind, safer, period. Police are sworn to protect and serve, and we`re not being protected and served, as law-abiding citizens, by having our lawfully owned and carried weapons disassembled and thrown back to us. Nor by being cuffed and disarmed, when no evidence exists to validate such action. Police have an incredibly difficult job, and those who honor the Constitution have an even tougher job. But I won`t surrender my rights to make law enforcement feel better.

 

[Ddillard]

The Constitution is clear in its intent, yet isn't it odd that so many view it different from another's.

 

[Kutnupe14]

We are still AMERICA, and I am INNOCENT, until PROVEN guilty .....

Kut, I have to DISAGREE ..... MY rights, TRUMPS EVERYTHING ......

I am a tax paying LAW ABIDING CITIZEN .....

You know that when you pull me over, and run my plate .....

When my plate comes back to the vehicle I am driving,

YOU KNOW, the vehicle is MINE .....

When you have my DL., you run a check, and you KNOW ANY violations,

I have had ..... JMHO, the possession of a firearm, should NOT even enter the conversation,

AT THAT POINT .....

Before that, well I D K .....

Im not talking about consensual encounters. I'm talking about legal contacts when a person is in violation of the law or an ordinance. I mentioned, as a habit, I very rarely disarmed people... But as I said earlier with some people things didn't feel right, and they were disarmed. My personal belief is that officers have to ability to disarm anyone they come into contact with for the violations I mentioned above... And given that no one has challenged the Constitutionality of such, and the 4th amendment stating specifically "unreasonable," with unreasonable undefined, I see no basis for legal opposition until it's brought before the courts.

 

[SSGSAD]

Im not talking about consensual encounters. I'm talking about legal contacts when a person is in violation of the law or an ordinance. I mentioned, as a habit, I very rarely disarmed people... But as I said earlier with some people things didn't feel right, and they were disarmed. My personal belief is that officers have to ability to disarm anyone they come into contact with for the violations I mentioned above... And given that no one has challenged the Constitutionality of such, and the 4th amendment stating specifically "unreasonable," with unreasonable undefined, I see no basis for legal opposition until it's brought before the courts.

OK, I might have misread, wouldn't be the first time .....


CARRY ON !!!!!

 

[gregr]

Im not talking about consensual encounters. I'm talking about legal contacts when a person is in violation of the law or an ordinance. I mentioned, as a habit, I very rarely disarmed people... But as I said earlier with some people things didn't feel right, and they were disarmed. My personal belief is that officers have to ability to disarm anyone they come into contact with for the violations I mentioned above... And given that no one has challenged the Constitutionality of such, and the 4th amendment stating specifically "unreasonable," with unreasonable undefined, I see no basis for legal opposition until it's brought before the courts.

Because "something doesn`t feel right", is clearly not a legal basis for assaulting rights...

 

[BehindBlueI's]

If we look at a few court opinions, we can see that the premise of what we know as the police’s function in society has seriously eroded from what it was originally intended for. For example, the recent SCOTUS case, Kentucky vs. King, ruling allows police to break into your home if they “think” you are destroying or hiding evidence, of course, without a warrant. The vague, looseness of this ruling sets the legal precedence for police to gain entry to your home by force, violate your Fourth Amendment right, and search your premises and detain you with no warrant.
Question: If the police can circumvent your Constitutional right because they “think” something might be happening, then what is the point of the Fourth Amendment? What is the point of the Constitution if your rights are easily trampled on by the police at their whim?.

Exigent circumstances is nothing new. Kentucky v King neither created nor expanded any exigent circumstance exemption. You have a fundamental misunderstanding of what the case was about. You also seem to confuse "thinking" with "have probable cause.

Also replace "think" with "have probable cause".

I'm not sure where you cut and pasted that from, but there's certainly an agenda. Perhaps read the relevant cases yourself and see what they say vs what you're being told they say.

 

[Kutnupe14]

Because "something doesn`t feel right", is clearly not a legal basis for assaulting rights...

Ok, one more time. If I have made legal contact contact with someone due to them committing some sort of violation.... AT THAT TIME believe I have the authority to relieve them of their firearm. As a course of habit, I would not. But if something didn't "feel right," I would exercise what I was already able to do in the first place, and disarm them.

 

[Brickmandan]

I have nothing but respect for law obeying police officers that are actually serving the community and making the world a better place. The police I don't care for are the ones that think people should obey their every whim even if it goes against our constitutional rights as an American citizen.

 

[Kutnupe14]

I have nothing but respect for law obeying police officers that are actually serving the community and making the world a better place. The police I don't care for are the ones that think people should obey their every whim even if it goes against our constitutional rights as an American citizen.

I share that sentiment.... but in the context of this thread, it's a moot point, as no constitutional rights have been infringed.

 

[gregr]

I share that sentiment.... but in the context of this thread, it's a moot point, as no constitutional rights have been infringed.

We disagree...

 

[Fargo]

Ok, one more time. If I have made legal contact contact with someone due to them committing some sort of violation.... AT THAT TIME believe I have the authority to relieve them of their firearm. As a course of habit, I would not. But if something didn't "feel right," I would exercise what I was already able to do in the first place, and disarm them.

Would you PLEASE read WASHINGTON.

In the present case, prior to the search for the handgun, Officer Reynolds did not express any concerns for officer safety. He had initiated a traffic stop on Washingtonbecause one of Washington’s headlights was not working. Officer Reynolds approached thedriver’s side of the car to speak with Washington. As a matter of his own practice, theofficer inquired as to whether Washington had any weapons or guns in the car, andWashington replied that he had a handgun, which was located underneath the driver’s seat.Washington also informed Officer Reynolds that he had a valid permit for the handgun.Although Washington admitted that a handgun was present inside of the car, he was at alltimes totally cooperative with Officer Reynolds. The testimony at the suppression hearing indicated that, during the traffic stop, Washington made no furtive movements, answered theofficer’s questions, and showed no disrespect to the officer. At the time he searched for thehandgun, Officer Reynolds had no information that any crime or violation of law had been orwas about to be committed, except for the inoperable headlight infraction. Further, at thesuppression hearing, Officer Reynolds did not testify that he had any specific concern forofficer safety during his traffic stop of Washington. He merely testified that, as a matter ofgeneral practice, he inquired as to whether Washington had any weapons, and whenWashington stated he had a handgun, Officer Reynolds searched under the driver’s seat toretrieve it. As in Malone, we conclude that in the absence of an articulable basis that eitherthere was a legitimate concern for officer safety or a belief that a crime had been or wasbeing committed, the search of Washington’s car for a handgun was not justified. Here,because neither of these conditions was satisfied, the search was illegal, and the trial courtshould have suppressed the evidence.

The courts have addressed this type of seizure on infractions stops, and contrary to what you "feel", they are not constitutional.