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July 22nd, 2010, 11:20 AM #1Junior Member
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- Jul 2010
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Robinson Township,
Pennsylvania
(Allegheny County) - Posts
- 3
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Violation of gun rights by Allegheny County
On March 31st of this year, my Step-father was at my home, took my LEGALLY registered firearm from my drawer, and committed suicide; I was at work at the time and found him when I got home.
The local Police were dispatched, as well as County Homocide. The 2 detectives took the gun for testing, without a receipt. A Coroner's report was issued and death certificate to me (within 2 days). On both, it was listed as a "self-inflicted" gunshot wound. I was told it could take 6-8 weeks; 3-4 months, and now, up to year to get it back. The gun is currently at the County Coroner's office which houses the County test facility. The gun is ready to be released back to County Homocide. Sit back and listen to what I have to do too get it back:
1--Go to the clerk of courts and fill out paperwork requesting "MY" firearm back.
2--Then a court order will be issued for me to appear in front of a Judge.
3--It will be up to his discretion as to whether I will get the firearm back.
I am a law abiding citizen and a responsible gun owner. I do not see why I have to incur costs and time to retrieve something that is rightfully mine and legally owned. I should point out, there is a real possibility I will never get it back. This case is closed and the evidence no longer needed, and the gun WAS NOT used in the commission of a crime.
I need help....I have gotten nothing but the runaround from the County.
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July 22nd, 2010, 11:23 AM #2Banned
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- Oct 2008
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Pittsburgh Area,
Pennsylvania
(Allegheny County) - Posts
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Re: Violation of gun rights by Allegheny County
That really sucks, man. But I must say, after I read the first paragraph, I was expecting you to say that they charged you with something because the gun was where he could get it. Everyone gets the runaround you described; I'm glad it wasn't even worse.
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July 22nd, 2010, 11:41 AM #3Grand Member
- Join Date
- Dec 2006
- Location
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Philadelphia,
Pennsylvania
(Philadelphia County) - Posts
- 1,337
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Re: Violation of gun rights by Allegheny County
Unless it was a very expensive gun (worth more than the lawyers will cost), or you really want to fight it on moral grounds, let it go and buy a replacement.
My gun was confiscated by PPD based on an unfounded allegation by a bitter ex-gf that was eventually thrown out of court. They refused to return it after it was resolved, and my only option would have been to hire a lawyer to appeal their decision. I chose to just replace it.
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July 22nd, 2010, 12:08 PM #4Banned
- Join Date
- Nov 2009
- Location
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Harrisburg,
Pennsylvania
(Dauphin County) - Posts
- 1,889
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Re: Violation of gun rights by Allegheny County
18 Pa.C.S. 6105(f)(4)(i):
The owner of any seized or confiscated firearms or of any firearms ordered relinquished under 23 Pa.C.S. § 6108 shall be provided with a signed and dated written receipt by the appropriate law enforcement agency. This receipt shall include, but not limited to, a detailed identifying description indicating the serial number and condition of the firearm. In addition, the appropriate law enforcement agency shall be liable to the lawful owner of said confiscated, seized or relinquished firearm for any loss, damage or substantial decrease in value of said firearm that is a direct result of a lack of reasonable care by the appropriate law enforcement agency.
18 Pa.C.S. 6111.1(b)(4):
The Pennsylvania State Police and any local law enforcement agency shall make all reasonable efforts to determine the lawful owner of any firearm confiscated or recovered by the Pennsylvania State Police or any local law enforcement agency and return said firearm to its lawful owner if the owner is not otherwise prohibited from possessing the firearm. When a court of law has determined that the Pennsylvania State Police or any local law enforcement agency have failed to exercise the duty under this subsection, reasonable attorney fees shall be awarded to any lawful owner of said firearm who has sought judicial enforcement of this subsection.
Sit back and listen to what I have to do too get it back:
1--Go to the clerk of courts and fill out paperwork requesting "MY" firearm back.
2--Then a court order will be issued for me to appear in front of a Judge.
3--It will be up to his discretion as to whether I will get the firearm back.
Pa.R.Crim.P., Rule 588. Motion for Return of Property.
(A) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he or she is entitled to lawful possession thereof. Such motion shall be filed in the court of common pleas for the judicial district in which the property was seized.
(B) The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.
* * *
The only burden of persuasion placed on a petitioner, seeking to secure the return of property seized by police as alleged contraband, is entitlement to lawful possession or ownership of the subject property, and in fact, a mere allegation of entitlement meets this burden; however, a failure to meet even this minimal burden is fatal to a petition for return of property. Com. v. Johnson, 931 A.2d 781 , Cmwlth.2007.
Once the moving party on a motion for return of property meets the initial burden of establishing entitlement to lawful possession of the property, the Commonwealth must prove by a preponderance of evidence that property is contraband or derivative contraband. Com. v. Howard, 931 A.2d 129 , Cmwlth.2007.
To meet its burden to defeat the motion for return of seized property, the Commonwealth must make out more than simply demonstrating that the property was in the possession of someone who has engaged in criminal conduct; it must establish a specific nexus between the property and the criminal activity. Singleton v. Johnson, 929 A.2d 1224 , Cmwlth.2007, appeal granted 938 A.2d 982, 595 Pa. 395, appeal dismissed as improvidently granted 944 A.2d 754, 596 Pa. 467.
The Commonwealth may not permanently acquire derivative contraband which it has initially seized unconstitutionally. Com. v. McJett, 811 A.2d 104 , Cmwlth.2002, appeal denied 829 A.2d 1158, 574 Pa. 749.
Proceedings for return of property seized by police as alleged contraband are distinct from a forfeiture proceeding. Com. v. Johnson, 931 A.2d 781 , Cmwlth.2007.
Forfeiture does not automatically ensue when motion for return of property is denied. Com. v. Mosley, 702 A.2d 857, 549 Pa. 627 , Sup.1997.
Even if court denies motion to return the property to person claiming ownership following search or seizure, it is not automatically forfeited to Commonwealth until Commonwealth files petition to forfeit, either orally or in writing. In re One 1988 Toyota Corolla (Blue Two-Door Sedan) Pa. License TPV 291, 675 A.2d 1290 , Cmwlth.1996.
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July 22nd, 2010, 12:11 PM #5
Re: Violation of gun rights by Allegheny County
file theft charges against the police. also pa has no gun registry, i do hope you get you gun back and I disagree with philykev, fight to get your gun back. the police are not above the law
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July 22nd, 2010, 12:16 PM #6Grand Member
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- Dec 2006
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Philadelphia,
Pennsylvania
(Philadelphia County) - Posts
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Re: Violation of gun rights by Allegheny County
You're not disagreeing with me at all. I said that if he wants to fight it on moral grounds, go for it. Just making him aware that the expense of that may very well exceed the cost of a replacement.
If by my fighting what the PPD did to me would make a difference in their policy at all and help prevent it from happenign to anyone else, I would have pursued it no matter the expense. But the reality is, their policy wouldn't change, I may have gotten it back after considerable time and expense, and they would continue doing what they do to the next person. In my personal cost benefit analysis, it just didn't pan out.
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July 22nd, 2010, 12:18 PM #7
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July 22nd, 2010, 12:30 PM #8
Re: Violation of gun rights by Allegheny County
im not sure i would want it back after something like that was done with it.
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July 22nd, 2010, 12:31 PM #9
Re: Violation of gun rights by Allegheny County
It takes someone standing up for their rights for the process of change to start. If the ppd or any PD gets away with breaking the law they will keep doing it because no one puts up and resistance against them.
Think of all the people here in PA that started to OC and were unfairly targeted and harassed and even arrested for doing nothing illegal. If they didn't stand up for their rights where would the OC scene be today?
It has to start somewhere, someone has to stand up and refuse to be silenced for something to change. Think of the civil rights movement. What would have happened if none of the (now famous) African American people stood up and demanded that their rights be returned?
ETA: All of the people I mentioned paid somehow. Whether it was with their time and/or money, dignity or even as much as their life. If having rights is worth it then it doesn't matter the price you always fight for them. I understand that is hard but it has to start somewhere even if it is a small step.Last edited by Himni; July 22nd, 2010 at 12:36 PM.
"Personally, I carry a gun because I'm too young to die and too old to take an ass whoopin'" -unknown
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July 22nd, 2010, 12:38 PM #10Grand Member
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- Dec 2006
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Philadelphia,
Pennsylvania
(Philadelphia County) - Posts
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Re: Violation of gun rights by Allegheny County
I wrote to attorneys seeing if any would take the case pro-bono and/or be interested in starting up a class action. I wrote to newspapers to see if any would pick up the story and bring publicity to the issue. Nothing.
You only know about the now famous African American people who stood up for their rights because other non-AA people cared about their rights and they got media attention. The sad truth is, no one but gun owners (and not even all of them) care about the issue of police making you hire lawyers and go to court to get your property back.
The sad truth is, it would have been nothing more than a blip on the docket sheet for the day. It wouldn't have started any change.
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