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September 1st, 2009, 08:24 PM #1
4th Amendment violation in Fayetteville NC - Police test fire all guns without RAS
Posted by Eugene Volokh:
Fourth Amendment Violation in Police Policy of Test-Firing All Guns They Get, Even With No Individualized Suspicion?
http://volokh.com/archives/archive_2...tml#1251850460
From the [1]Fayetteville Observer:
George Boggs thought he was doing police a favor last week when he
handed over the firearm he kept in his car after he was in a wreck.
Boggs has a permit to carry a concealed weapon, and he wanted his
handgun secured while he went to the hospital, he said. The permit
requires him to notify police of his weapon. On Monday, when he
went to the Fayetteville Police Department to retrieve his gun, he
couldn't get it back. He was told that police first wanted to fire
the gun to see if the spent shell casing and round would match data
in a nationwide ballistics inventory used to solve crimes. The gun
is scheduled to be test-fired today, he was told. Boggs complained
to police supervisors that his new gun has never been fired. The
ballistics test, he said, would diminish the value of the
.45-caliber Taurus Millennium he bought last month for $399 at a
local gun store. He said the city is violating his Fourth Amendment
rights that protect him from unreasonable searches and seizures.
Police defend their decade-old policy of checking most handguns
that come into their custody - no matter the reason - to see if
they have been used in a crime. They say public safety outweighs
any inconvenience to the owner.
My tentative thinking is that any such policy of test-firing all guns
that come into police custody, with no individualized suspicion that
the gun had been used in any misconduct, violates the Fourth Amendment
violation. It's a search, at least as much as moving the stereo
equipment to see the serial number in [2]Arizona v. Hicks was a
search. (Hicks was a Justice Scalia opinion, by the way.) And it's
hard to justify this under the special needs / administrative search
rationale, because it does seem to be aimed at serving the [3]general
interest in law enforcement.
To be sure, this search is much less intrusive than many other
searches, and it doesn't outrage me (though note that I'm generally
far from a privacy maximalist). Still, it seems to be prohibited by
standard Fourth Amendment doctrine. Or am I missing something?
References
1. http://www.fayobserver.com/Articles/2009/08/21/925616
2. http://caselaw.lp.findlaw.com/script...=480&invol=321
3. http://www.law.cornell.edu/supct/html/99-936.ZO.html
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