Monday, December 01, 2008

Police Spare A Car But Not A Guy's Guns

A report in today's online Star recounts efforts by Indianapolis police to avoid potentially costly damages to a man's red Ferrari, who was stopped for speeding and eluding police. A more docile dog was dispatched to the scene because police feared the drug-sniffing dog already at the scene might cause damage to the car valued at a quarter of a million dollars. As it turned out, the driver of the car was rushing to Community South Hospital to treat chest pains he was experiencing. "A quick-thinking Indianapolis police officer worked to simultaneously protect public safety and taxpayer dollars Sunday when police on the Southeastside searched a red Ferrari for drugs," the story says.

Indianapolis police did not appear to be as quick-thinking and concerned about taxpayer dollars in another case where they mistakenly searched the wrong home for a suspect and seized guns belonging to the home's owner. According to a lawsuit filed in the federal district court in Indianapolis by attorney Paul Ogden, police obtained a search warrant to search the Winfield Avenue home of Grady Scott on November 30, 2006 for a man known as "Bang" based upon bad information the police had obtained from an informant. Scott's complaint alleges that he arrived at his home to find it surrounded by police cars and several police officers already in his home. Police instructed Scott to be seated when he entered his home while they conducted their search, but when he asked for a copy of their search warrant, police refused to show him one. After police told him they were looking for "Bang", he explained to them that a person who went by that name possibly lived elsewhere in his neighborhood. The complaint alleges that police seized two firearms which Scott claimed to lawfully possess during their search of his home. When he later attempted to retrieve the guns, police told him he would have to complete a form and agree to be fingerprinted before the guns would be returned to him pursuant to department policy.

Scott's complaint charges that Indianapolis police violated his right to due process under the Fourth and Fourteenth Amendments by seizing his guns and depriving him of their possession. The complaint further charges that IMPD's policy of requiring Scott to complete a form and submit to fingerprinting, acts not required under Indiana law, violated his Second Amendment right to bear arms. The complaint states that Indiana law did not require Scott to obtain a permit or be fingerprinted in order to possess the firearms in his home. Scott's complaint is based on the U.S. Constitution, but it could have asserted claims under the Indiana Constitution as well. Section 32 of Indiana's Bill of Rights makes possession of arms a fundamental right. It reads: "The people shall have a right to bear arms, for the defense of themselves and the State." The Indiana Supreme Court, relying on Section 32, struck down administrative efforts by the City of Gary to deprive its citizens from obtaining a license to carry a firearm in Kellogg v. City of Gary in 1990. The Supreme Court held that the protected right is an interest in both liberty and property.

If police made a mistake in seizing firearms they otherwise weren't entitled to seize in Scott's home, it would seem the prudent thing to do would be to admit to the error and return the guns. Instead, the City now faces a lawsuit for which it must expend money to defend. I guess a guy's guns aren't as valuable as a guy's Ferrari; otherwise, the police would have simply returned Scott's guns, unless there are salient facts that Scott's complaint omits.


roger61611 said...

At every turn, in every age, government seeks to rob the people of their rights, always beginning with the right to possess weapons with which an individual might resist government violence.

The limitations on voting inflicted on black people from 1965-1964 were preceded by limitations on gun ownership.

All forms of government become, as they run their course, totalitarian. The US is is in the latter stages of this evolution - witness the planned 20,000 American troops to be deployed inside this country's borders, reminiscent of the "advisers" sent to Viet Nam in the early 60's.

roger61611 said...

typo - 1865-1964

Anonymous said...

I know a similar case, where a court order was issued, and yet the gun was still no returned in a timely manner. That case may also result in a lawsuit. This seems to be the status quo of law enforcement, at all levels. There were also posts on an Indiana gun owners forum that said you can't get a carry permit in Carmel unless you have a face to face meeting with the Chief. Of course the complaints were that when you call, there are only a handful of days the Chief is available. If this is true, folks need to start filing lawsuits. It is now customary to ask for lawyer fees anyway, so it likely will cost you nothing. Hopefully our police agencies will just follow the law and do these things in a timely manner instead of bumming around wasting time.

On a side note, one would be wise to obtain a very cheap pocket recorder and keep it near them at all times. This way, if you end up in a similar situation, all your lawyer has to do is get the officers to lie/make wrongfully claims during depositions. I think the case would be open and shut if that were to happen.

artfuggins said...

Why would any law abiding legal gun owner object to providing fingerprints to have his guns returned???

Paul K. Ogden said...

Art, if the law says people can legally have guns in their house without filling out forms and being fingerprinted, why do you think it's okay for government to impose those additional requirements when government wrongfully confiscates their guns?

I guess then you wouldn't have a problem with your house being searched without probable cause. Hey, what the heck, if you're not guilty why would you object?

Jason said...

The fingerprinting doesn't apply to that individual's right to carry guns, merely to have THOSE guns released. Often when cars are towed or money is confiscated a credit/background check is done for liens and/or garnishes. Even if forfeiture doesn't end up statutorily being able to take the property, it can still be confiscated to settle the debts in question, normally child support.

Yes, guns are regulated just like cars, laser printers, and many other things. However, I would argue this is more of a PROPERTY rights issue, NOT a 2nd amendment issue. If someone was told they could never buy another handgun ever again until they were fingerprinted then I could say where everybody's argument is coming from. The fingerprinting is in regard to having property released, not restoring any rights. By that logic is it unconstitutional for someone to have to sign to have those guns released? If fingerprinting is an infringement on someone's rights, couldn't you say the same for having to 'utter' anything at all to get them back, even showing ID for that matter?

Wes said...

Cam & Co. on NRA News just played an interview with the Attorney for the citizen who's home and rights were violated. He said the city actually destroyed the two guns that were wrongfully taken from the lawful owner. What a travesty.
This kind of overreaching by political entities and government organizations is exactly why I am a supporter of the NRA.