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When Should a Police Officer Confiscate Your Firearm?


By Chris Wagoner:

The recent shooting of a suspect, who was attacking a Florida Deputy, occurred when a law abiding, lawfully carrying, outstanding citizen shot and killed the attacker, quite possibly saving the deputy’s life. While no one wants to have to shoot someone, that is what happened.

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The difference between this shooting and most self-defense shootings is the fact that it was witnessed (to some even directed by) the deputy. There is no question as to the justifiability of this shooting. By Florida law it’s a clear-cut case of self-defense and defense of another. Florida law permits you to not only defend yourself but also others if they are being attacked and you think they may be killed or suffer great bodily harm. (F.S.S. 776.012 Use or threatened use of force in defense of person.)

That said, there is no doubt that it was a lawful shooting. It was surprising when I saw another article which stated a local gun shop had to provide the citizen with another firearm to carry because his was taken into custody by the police. This was the point where I started to think as a cop. I am on the scene of a shooting that I know for a fact is not a crime because no criminal act was committed by the citizen. So I am looking at this particular case and wondered to myself, “What justification would I have to take the shooters firearm into evidence if I was there at the scene?” I know there are certain restrictions on taking property from people, protected by the Fourth Amendment. The courts are very restrictive on law enforcement’s right to take things from citizens. In looking at this case, the shooter was not arrested, and is not even a suspect of a crime. None of the usual reasons for taking a firearm into custody apply to this case. I don’t have a crime so I don’t need evidence to prove anything or disprove anything. The shooters firearm no doubt fired the bullets that struck and killed the suspect. No questions there.

What reasons can I, as a law enforcement officer (LEO), take someone’s property from them? From all my years as a cop, and teaching “search and seizure” to police recruits for many years, I thought I knew the rules on this, but just to be sure I called my local go to guy for legal things at the State Attorney’s office. Just as I thought would be the case, they agreed with me. There is one very specific thing that must occur in order to take someone’s property into custody as evidence. The property in question must have been “used in a crime” or are “fruits of the crime”. In the specific case in question, remember no crime was committed by the shooter. He was well within the legal rights to do what he did, no question about it.

Let’s make this very clear, I am not by any stretch of the imagination anti-cop. Having been one for all my adult life, and now a full-time instructor to police recruits, I love police work and all of those involved in it (except for the bad apples of course), but I am also a stickler for following procedures and the law. Having taken literally thousands of things into custody as evidence, including firearms, I can say I know how and when to do it, but in this very special case, I cannot justify taking the firearm into evidence. I don’t have a crime, and don’t even expect to have a crime against the shooter, so why did the police take his firearm from him? He already showed that he needed it to save a life, and by taking it from him, we are depriving him of that ability as he leaves the scene of this incident. So should we take it from him? Can we legally take it from him? The answer is that I know of no case law that says we can take it, and I know of no Florida State Statute that says we can as well. Of those I can find relating to evidence and custodial seizure, all refer to evidence of a crime or fruits of a crime, and remember we have neither in this case. Even the State Attorney can’t find anything in writing that says this incident would meet any of the normal requirements.

So how did they end up taking his firearm from him? The only way that we (the State Attorney and myself) can think such an action could legally occur would be to ask his permission to take it into custody for possible testing if needed. If they asked for his permission and he gave it to them, that makes all of the other issues a moot point. But if they did not ask for his permission, and simply told him they were taking it into custody for evidence, then that might be a problem. Taking someone’s property without reason is the very reason for the Fourth Amendment and illegal for anyone to do so.

To make the issue even more important, think of when a cop stops you for a traffic violation and you are a lawfully licensed concealed firearms carrier. I have heard that a lot of officers tell the citizen that they want to “take” the firearm into “safe keeping” during the stop, disarming the citizen by placing the firearm on their patrol unit. After the stop, they return the firearm to the citizen in various states, disassembled, emptied of rounds, placed in the trunk and so on. Again, this goes back to the idea that under what legal justification may an officer disarm someone who is not committing a crime and who is not a threat to the officer? A law abiding concealed carry citizen is not a threat to the officer just because he is carrying a firearm. So why disarm them during a traffic stop? There is no justification for it, and as such, several law enforcement agencies changed their procedures and do not want their officers taking firearms from people on the side of the road if they have a CWL. The fewer times we handle firearms unnecessarily the less likely we are to have any kind of accident, and less likely to have anyone harmed.

Lucky for the standup citizen that helped the deputy out, a local gun shop gave him a replacement firearm to carry while his was in police custody. Hopefully he will get it back very soon, and I hope that it was taken with his permission. I would hate for us as LEO’s to get a black eye by taking a firearm from a guy, illegally and improperly, right after he just saved the life of one of my brothers in blue. We have to follow the law as much as we enforce it. I have seen several posts in different social media groups asking why help out if they are going to take your firearm from you and leave you without a firearm? I wonder that myself!

How could we make this better for future events of this type? Maybe law enforcement agencies could work out some type of deal with local gun shops like Shoot Straight in Florida (the gun shop that gave the guy a gun to carry since his was taken) that if you are involved in a self-defense shooting and your firearm needs to be taken into custody they will provide you a free one to use until you get yours back. That would be a great public relation’s boost for the law enforcement (LE) agency and for the gun shop partnered with them. Just an idea. Hopefully this issue will work itself out and we will find out that it was a voluntary turn in and not an illegal confiscation.

Chris Wagoner is an OpsLens Contributor and U.S. Army Veteran . He has been in law enforcement the last 35+ years. He specializes in LE Firearms Instruction, and is in charge of a large Police Academy in North Florida. In his spare time Chris is a free-lance Military Reporter and owner/founder of the Largest Military Videos Channel on YouTube “3rdID8487”.

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