A citizen is pulled over in a traffic stop. A legally owned firearm is discovered by the officer in the course of conducting the traffic stop. The officer takes the gun from the citizen, and asks if the citizen has a receipt for the gun. When the answer is no, the gun is seized, and the citizen is informed if he will show up at a specific precinct with proof of ownership, he can have the gun back.
I spoke with two separate practicing attorneys - one is also a commissioned law-enforcement officer. Both stated if the police were taking guns from motorists during any sort of investigation, and the gun was legally owned and not germane to the investigation, the seizure amounted to theft.
"Armed robbery by cop," one said.
A recent gentleman caller on a New Orleans radio talk show described having his personal handgun seized from him during a traffic stop. This gun was being legally transported in his vehicle at the time. It had passed down through his family, and he wanted it back. He stated he had placed numerous calls to different divisions within the department, and had been unable to get any information on the whereabouts of his gun.
Another gentleman described to this writer how he was stopped for a traffic violation. When he told the female officer he had a .25 semi-automatic in his glove box on top of his registration and insurance papers, she opened the glove box and removed the gun.
After issuing him a citation, she indicated she was keeping the gun. When he asked for a receipt, her comment was: "The way I look at it, I didn't know you had it, and you don't know I got it."
Apparently the lawsuit by the Second Amendment Foundation and the National Rifle Association seeking return of the guns seized by law enforcement in the aftermath of Hurricane Katrina has had little effect on some of the NOPD. If the stories we're hearing are truthful, some police officers are still illegally confiscating guns from law-abiding citizens.
All of this got me to thinking about how a citizen is supposed to handle such an incident in an encounter that might occur anywhere in any jurisdiction. Rogue cops are not peculiar to New Orleans. They are, thankfully, pretty rare in most departments. But whenever a citizen comes up against such an officer, the circumstances can be uncomfortable and costly.
To clarify this issue, a law-enforcement officer in any investigation has the right to conduct visual searches of what is in plain view in a vehicle, and conduct pat-down searches on any individual's outer garments to determine if he is armed.
The courts have held a law-enforcement officer has the right to take reasonable actions to ensure his safety while conducting an investigation. This extends to the right to secure a firearm or other weapon from a vehicle while issuing a traffic citation - to keep the person receiving the citation from grabbing the gun and using it against the officer.
But if the crime is a traffic violation, the officer has no legal right to keep a gun found in the course of the investigation - in other words, while issuing a citation. At the end of the investigation (i.e. the issuance of the citation), the officer should return the gun. If he does not, he has committed an illegal act.
In all cases of seizure of evidence, there are procedures followed to maintain a record of it. If the evidence is not drugs, most departments have procedures by which seized evidence is logged in to the evidence room, and recorded in the event of a court case. In other words, if an officer seizes a gun, it should be turned in to evidence, not used to supplement his own personal firearm collection.
Most people are unfamiliar with the laws pertaining to ownership of firearms. That lack of knowledge, coupled with the intimidation most feel in any encounter with police, allows unscrupulous officers to make off with guns they cannot turn in to evidence. To do so would be falsifying evidence and injuring public records, a serious pair of charges not likely to be risked by any police officer.
It is difficult to address the various legal ways to transport firearms in different states because the laws vary so widely. In many states, the gun either has to be unloaded and the bullets separately stored and not accessible, or the gun itself should be kept in plain view and not concealed. Some states consider the vehicle an extension of the home, and allow unrestricted carry in a personal vehicle - loaded or unloaded, concealed or in plain view.
But we can address some broad legal parameters that have been determined by the courts to be appropriate for law enforcement in their conduct of investigations and interrogations.
The courts have held that a law-enforcement officer has the right to conduct a visual search of a vehicle during a traffic stop to look for contraband or dangerous instrumentalities in plain view. If he sees a firearm, he has the right to secure that weapon while conducting his interrogation and investigation. If the gun is legally owned and transported, he cannot legally keep the gun once the investigation is concluded.
In all cases dealing with the police, we should all be professional, polite, and cordial - in the same manner as most police officers conduct their investigations with the general public. It's a tough job they do, and a little politeness goes a long way with any cop.
According to the two attorneys with whom I consulted, if a police officer attempts to keep your firearm after issuing you a citation for a misdemeanor crime or a traffic citation, and you think he is doing so illegally, protest and demand he return your gun. If he attempts to bully you or refuses to give the gun back, politely and firmly demand a supervisor be called to the scene.
If the officer refuses to do so and leaves with your gun, try to get his unit number. One of the attorneys suggested you place an immediate phone call to the dispatcher of the department, and ask to speak to a supervisor, detailing the situation and what happened. This makes your complaint an official record.
If you have been issued a citation, it will be a written record of the traffic stop, but no proof you had a gun seized - thus the need to make your complaint official as quickly as possible. In all such cases, they advised you contact an attorney, and let him handle the complaint.
If you have any questions as to your state statutes regarding carrying firearms in your vehicle, call your local district attorney or the state attorney general.
When I related these tales to the two attorneys and stated some police were asking citizens if they had a receipt for their guns, one of them responded, "I don't have a receipt for any of the guns I carry in my car. I don't have a receipt for my cell phone either - and it's the same thing."
Gordon Hutchinson's newest book, The Great New Orleans Gun Grab, written with Todd Masson, editor of this magazine, is an expose' of the gun-confiscation scandal in New Orleans after Hurricane Katrina. Thousands of guns were illegally seized from private citizens trying only to protect their personal property. You can read about the book at www.neworleansgungrab.com.
Hutchinson's first book, The Quest and the Quarry, is a generational tale that parallels the lives of a line of trophy bucks and the youth of a farming family that hunts them. It was chosen as a Book of the Year by the Southeastern Outdoor Press Association. It is a must-read for anyone interested in the quest for a trophy buck. You can read about it at www.thequestandthequarry.com. Both books can be ordered on-line or by calling (800) 538-4355.
Both books can be ordered on-line or by calling (800) 538-4355.