Firearm confiscation legality in summary offenses or non-violent misdemeanors

[pex]

When is an officer allowed to go beyond Terry in the course of citation or detainment, confiscating the firearm for some period of time, where:

1) The event is a summary offense where a firearm plays no part in the offense but is somehow discovered through Terry or otherwise
2) The event is a summary offense such as disorderly conduct where the firearm is the object of the criminal act but is not a cause or potential cause of harm but only of public nuisance
3) The disorderly conduct is upgraded to misdemeanor if it persists, for example, during legal OC where one refuses to bow to illegal demands
4) Reckless endangerment alleged in a legal OC which is simply a misdemeanor

Further, in all of these situations, if a firearm is confiscated legally, given the nature of the crimes, may the firearm be subject to testing to the state or municipality's contentment?

Of course, for me, due process always comes to mind, and such afterthoughts as preventions against illegal seizures. Simply that one is cited with a summary offense does not give the Man leeway to search your house and car without scrutiny, or perhaps even your person, or to interrogate you or your family and friends under penalty of perjury or unsworn falsification...that any specific allegation of a crime is not a forever and freely opened door into your life.

I am out of touch with reality, however, so I'd prefer if someone could suggest where due process and seizure legalities begin and end.

[Philadelphia]

Originally Posted by pex

When is an officer allowed to go beyond Terry in the course of citation or detainment, confiscating the firearm for some period of time, where:

1) The event is a summary offense where a firearm plays no part in the offense but is somehow discovered through Terry or otherwise
2) The event is a summary offense such as disorderly conduct where the firearm is the object of the criminal act but is not a cause or potential cause of harm but only of public nuisance
3) The disorderly conduct is upgraded to misdemeanor if it persists, for example, during legal OC where one refuses to bow to illegal demands
4) Reckless endangerment alleged in a legal OC which is simply a misdemeanor

Further, in all of these situations, if a firearm is confiscated legally, given the nature of the crimes, may the firearm be subject to testing to the state or municipality's contentment?

Of course, for me, due process always comes to mind, and such afterthoughts as preventions against illegal seizures. Simply that one is cited with a summary offense does not give the Man leeway to search your house and car without scrutiny, or perhaps even your person, or to interrogate you or your family and friends under penalty of perjury or unsworn falsification...that any specific allegation of a crime is not a forever and freely opened door into your life.

I am out of touch with reality, however, so I'd prefer if someone could suggest where due process and seizure legalities begin and end.

I think your question is too broad.

Give a hypothetical situation (or a real one) and we can go from there.

For example, you mention a Terry stop where the cops discover a gun. Was it a good stop?, etc. Was it lawfully carried, etc. What exactly was the offense (it will make a big difference if it was a simple assault in, say a bar argument that got a little heated versus something else -- I'm not sure if I were a cop I'd hand the gun back to some guy who was just involved in an altercation and maybe passions remain high in the combatants -- same with, say, public drinking or drunkedness; would you hand the gun back to the drunk? Let him come down to the station for it when he sobers up -- that sort of thing).

[Karl/PA]

I believe the cop probably could make a case for removing any possible threat to his own person while performing an investigation.

[angus]

The event is a summary offense where a firearm plays no part in the offense but is somehow discovered through Terry or otherwise

If the firearm is carried legally (and there is no further reason to believe that the citizen committed a crime after stop and frisk), why would the LEO detain the weapon at all beyond the duration of the stop?

[pex]

Originally Posted by angus

If the firearm is carried legally (and there is no further reason to believe that the citizen committed a crime after stop and frisk), why would the LEO detain the weapon at all beyond the duration of the stop?

That's obviously both the problem and the question.

I believe the cop probably could make a case for removing any possible threat to his own person while performing an investigation.

A short term detainment of person and firearm is not the same as the seizure I suggest, especially for circumstances under items 1 and 2. No investigation is needed beyond what is probably a 'stop, view, and cite' situation.

I think your question is too broad. [...] (it will make a big difference if it was a simple assault in, say a bar argument that got a little heated versus something else -- I'm not sure if I were a cop I'd hand the gun back to some guy who was just involved in an altercation and maybe passions remain high in the combatants -- same with, say, public drinking or drunkedness; would you hand the gun back to the drunk? Let him come down to the station for it when he sobers up -- that sort of thing).

Simple assault is never a summary offense and does not fall under the 4 items.

If it is possible to seize the firearm in situations where 1) it is not part of some investigation of due process in relation to the specific crime, 2) the firearm is discovered through legal means, and 3) there is an apparent and articulable risk that returning the firearm could allow immediate harm to self or others, what due process allows anything to be performed on the gun EXCEPT minimal documentation needed for storage and remittance? (as the crime has not changed regardless of the seizure)

Specifically in summary cases,
http://www.pacode.com/secure/data/23.../chap4toc.html (Committee Introduction to Chapter 4

The procedures set out in the following rules governing summary cases (as defined in Rule 103) recognize the importance of prompt notice that a summary offense is being alleged, while also taking account of the minor nature of summary offenses. Although the law recognizes the possibility of an arrest in some summary cases, it is intended under these rules that a citation will be issued to the defendant except in exceptional circumstances (such as those involving violence, or the imminent threat of violence, or those involving a danger that the defendant will flee).

Experience with citation procedures indicates that most defendants will obey summary process in summary cases. The rule procedures here, therefore, are generally designed to favor the least intrusive means of instituting a summary proceeding. The general scheme laid out in these rules is that normally summary cases will be instituted not by arrest, but by a law enforcement officer (as defined in Rule 103) handing a citation to the defendant at the time the offense is committed. There may, however, be situations when it is not feasible to immediately issue a citation to the defendant; in these situations, the law enforcement officer would file a citation with the district justice. In the situations when the affiant is not a law enforcement officer, the affiant would file a complaint with the district justice. When either a citation or a complaint is filed with the district justice, the district justice is expected thereafter to issue a summons to the defendant. Following issuance of process, the rules contemplate that the defendant will respond to the process by either pleading not guilty, after which a summary trial is conducted, or pleading guilty and paying the fine and costs. Unless otherwise provided in Chapter 4 or elsewhere in the Rules of Criminal Procedure, the court case rules are not intended to apply to summary cases.

Item 1 is intended to be in regard to any summary offense where any searches or requests for handovers are either legal or are otherwise denied, and are without any misdemeanor or felony offenses alongside, and no particular exceptional circumstances, or, if they exist, to what extent is seizure allowed. A firearm could be concealed or unconcealed but plays no part in the issuance of citations or releated arrest under exceptional circumstances.

Items 2,3,4 should be read suggestive of a public scenario during a legal and unthreatening OC where there would be no consent to searches and seizures beyond any Terry stopping which we'll assume here is legal Terry. Again these are alongside no other crimes and should be read without any particular exceptional cirumstances -- in fact, they should be read perhaps as needless attempts at harassing or prosecuting OCers, however it is not the harassment we analyze but specifically the power of the executive in relation to the firearm throughout the course of the particular offense or crime.

[angus]

That's obviously both the problem and the question.

Got that, but wasn't a premise in your OP that the firearm was "confiscated legally"? I guess I'm wondering how it was a legal confiscation, given my post. If it was not a legal confiscation, then an initial premise of the post is rejected. Or am I missing the point here?

[pex]

What we're to presume here is that there may or may not be a possibility of a legal temporary detainment of a firearm, according the the immediate need of the officer to 'feel safe' and only for as long as the detainment of the person is enacted, whether or not we agree that there can ever be a situation where a confiscation of a firearm for any period of time, is legally sound. The idea here is that we should assume any temporary detainment of a firearm here would be, for the purposes of these scenarios, legally sound; it is not supposed to be within the scope of what I'm trying to determine.

The question from there is:
in what of those 4 situations would it be legally sound to retain ... that is, seizure beyond the legal temporary detainment ... the firearm? If a seizure is warranted, in what of those situations, if any, is law enforcement given allowance to call it 'evidence' or perform acts on it beyond the simple storage needed to prevent the immediate potential for harm to self/others, suspected use in a crime, or a potential for fleeing (which is where arrests are allowed in specific situations with those extenuating circumstances)?

I do not want to define specific scenarios as I imagine there are describable categories that determine whether to move to indefinite seizure from temporary detainment.

As I said before, I conceive the ideas of due process as disallowing the random and arbitrary acts of law enforcement to do as they wish because of any specific crime -- that the actions must be germane to reaching justice only for that crime.

In the course of receiving a traffic ticket for "Driving at Unsafe Speed", for example, what part of justice is met for someone carrying a valid PA CCW by checking their firearm for any reason? The crime has nothing to do with a firearm, the carrier, who for whatever reason exposed or declared a firearm, or was thought with some probably cause to be carrying, allowing the request for his CCW.

I am looking at the same here: what are the powers of law enforcement given the situations above, and from what do they derive those powers (what suggests when they may use them)?

[Jackal]

This seems more to be a statement or essay rather than a question. A valid point none the less. I suppose by now you have come to see the quality of things as of late, specifically the size of the divergence between what happens and what is 'legal.' It would seem that legal is just what some people agree upon in a theoretical place and time, what sense or legitimacy does that agreement hold if no one is responsible or held to its standards?

When sense and law are two different concepts, which ideology does one follow?