LTCF holder's weapon illegally seized "for tests" Help Requested

[gfanikf]

So long story short I'm at the Neshaminy Walmart last night and I'm buying a bunch of ammo. Like normal it's deserted, a kind employee however goes to get the key and waits on me and another gentleman. We talk guns and I mention how a friend his coming from the PRNJ/DPRNJ to shoot with me on Friday. We talk about how much better the law is in PA. He then mentions a recent incident where he was getting pizza (I forget the area, but it wasn't Philly and it was in PA) and he had a concealed weapon inside his shirt. He's also a PA LTCF holder. He's in the store and a cop goes what the hell are you doing with a gun, frisks him, does the whole nine yards, which sucks,...and THEN the cop takes his gun saying he has to run tests on it to make sure it wasn't used in a crime. The man has proof of ownership, an LTCF, everything. He now has to go to court next Tuesday with a lawyer (which costs him $600) to try and get the gun back. He was NOT arrested.

I'm absolutely incensed hearing this. He said if he doesn't get the gun back he was going to file a lawsuit. I say he should file one regardless for the cost involved and something that reeks of unlawful seizure (beyond my own suspicions of some other violations because the person was "C.W.B"). I told him he should call the NRA and see what they can do, mentioned the actions they took to get gun owners their property back after Katrina. He appreciated the advice I gave him, which I admitted was extremely meager, I didn't even think to mention that the officer should have a complaint filed against him, as I practice law in NY, not PA and I didn't want to give him legal advice (for both ethical and practical reasons). I did want to help point him in the right direction. He definitely wants help in the matter.

Now as I walk out of the store (it was closing), I thought why did I not give him this forum address. I was wondering if other members here might be able to help track him down and put him in touch with groups that might be able to help him or at least point him in the right direction. I checked my receipt, but Walmart doesn't list the associates name, it does list an employee number (of course my receipt is at home), but I could easily give a description of him. Guy was really nice and hearing him describe such a horrific violation of his constitutional rights just pissed me the hell off.

Am I missing something that allows for a LEO in PA to take a firearm from it's lawful owner, legally carrying it, to run "tests" with no specific proof or evidence it was involved in a crime (and that's of course without a warrant). I do not know if the man may have accidentally consented of free will, but I doubt it

Sorry for the long post. I'm just so mad about this and I want to help the guy out and I figured this was the place to post.

[HiredGoon]

... I say he should file one regardless for the cost involved and something that reeks of unlawful seizure (beyond my own suspicions of some other violations because the person was "C.W.B"). .

what is "C.W.B"

[gfanikf]

what is "C.W.B"

Carrying While Black

[mollymayhem82]

Carrying While Black

Ha! My boyfriend has been stopped for CWH (Carrying While Hispanic), a lot, in the Scranton area.

[capitolcop]

Would that be the same Scranton where they have only one black cop out of 135?

[mollymayhem82]

Would that be the same Scranton where they have only one black cop out of 135?

They have black cops?

[GunLawyer001]

Sounds like a Section 1983 case to me, his rights were violated, mostly his 4th Amendment rights against unreasonable search & seizure.

I know that at one time, possibly still today, some departments believed that they had the right to subject every firearm in their possession to ballistic testing, even the minty, unfired collector's pieces. This would be fine for guns taken from suspected bank robbers, but it's outrageous when the gun should never have been seized in the first place.

Unfortunately, a cop who would seize his gun is a cop who would perjure himself about the circumstances. So proof is going to be the main hurdle.

I hope that this gentleman's lawyer is familiar with the UFA and the fee-shifting provisions.

[MDJschool]

This would be fine for guns taken from suspected bank robbers, but it's outrageous when the gun should never have been seized in the first place.

It's not fine if we're talking about Terry; it would be just as outrageous. Seizure and custody is not a free-for-all, if we want constitutional and statutory protections to mean anything.

If the event described in OP was more like a search incident to arrest than a Terry seizure, a warrant is still required to create a scope of seizure that allows for the firearm to be tested. This should be readily apparent if we are to believe that government seizures are an exception rather than a rule of our society, and then from there that exceptions to the rule requiring warrants are circumscribed by their exigencies.

We are in peace time with a fully formed and 'well-functioning' government where there is not much excuse NOT to have a warrant to maintain each scope, given our communications infrastructure and that the warrant standard is basically RAS rather than PC, and the Terry seizure standard is mere (occasionally articulable) suspicion rather than RAS. Roll in the receipt requirement from 18 Pa.C.S. 6105 but remember that the claim that only RAS is needed to perform ballistics tests under 6105 is meaningless in the face of Art. I, Sec. 8 but in any case necessarily would have to follow a warrant and require the RAS on top of it.

[GunLawyer001]

It's not fine if we're talking about Terry; it would be just as outrageous. Seizure and custody is not a free-for-all, if we want constitutional and statutory protections to mean anything.

If the event described in OP was more like a search incident to arrest than a Terry seizure, a warrant is still required to create a scope of seizure that allows for the firearm to be tested. This should be readily apparent if we are to believe that government seizures are an exception rather than a rule of our society, and then from there that exceptions to the rule requiring warrants are circumscribed by their exigencies.

We are in peace time with a fully formed and 'well-functioning' government where there is not much excuse NOT to have a warrant to maintain each scope, given our communications infrastructure and that the warrant standard is basically RAS rather than PC, and the Terry seizure standard is mere (occasionally articulable) suspicion rather than RAS. Roll in the receipt requirement from 18 Pa.C.S. 6105 but remember that the claim that only RAS is needed to perform ballistics tests under 6105 is meaningless in the face of Art. I, Sec. 8 but in any case necessarily would have to follow a warrant and require the RAS on top of it.

Didja miss the phrase "suspected bank robbers"?

[MDJschool]

Didja miss the phrase "suspected bank robbers"?

What do we call the subjects of Terry stops? Suspected maybe-criminals-or-something-or-others-generally? I'm pretty sure even a court issuing an opinion where the defendants are the suspected bank robbers will call them, in the context of the Terry stop, 'suspected bank robbers' and in the context of an arrest, 'suspected bank robbers'. If there's not even legal precision to delineate them, why would PAFOA posters reasonably believe that you meant other-than-a-Terry-stop?

However, my post addresses an issue that is without regard to whether you meant subjects of the Terry stop or subjects of arrest...or even defendants held for court by a prima facie case, and even defendants found guilty of the crime: we cannot and should not summarily subject firearms to ballistic testings simply because we have suspected criminals and a firearm in hand; a warrant must issue, even in the case of suspected bank robbers.

It was juxtaposition that should not be repeated.