Friday, March 06, 2009

Due Process and Confiscated Firearms

First off I need to give a tip of the hat to Say Uncle for putting a link up which led to yet another blog site with an interesting name, Ride Fast and Shoot Straight , Eventually the path led to Inside Bay Area dot Com’s blog where the original story had been posted; I’d feel bad not giving credit for each step along the way, especially since a key word involved is the word “process”.

The long and short of it had to do with police officers confiscating an entire collection of firearms under the guise of protecting a community. I read the little bit that was offered in the articles and came away with a few bullet points, none of which add up to the end result; the 9th Circus Court of Appeals leaving a citizen without his gun collection which had either been destroyed and/or sold off at auction.

There were at least two people living under one roof, a father and a son; both owned guns either in joint ownership or individually.

The son was Bi-Polar, had not been taking the prescribed medication and had acted in such a way as to be a danger to his father and others in the community through threats along with the ability to carry out those threats by virtue of having weapons readily available; however, as was included in the article, the son was arrested, outside the house by police and had no weapon on him at the time.

The police conducted a “protective sweep” of the house, after the arrest had been made, and confiscated every weapon in the house. Please explain the definition of a protective sweep; make sure the language meets recognized legal standards. If the break down of events is accurate, where’s the court order to enter the house, to confiscate any weapon, much less every weapon, and upon what lawful basis would such a court order come?

According to the report, officers proceeded to search the house using “search incident to arrest” as their justification. I may have been retired for quite some time now; but the laws covering “search incident to arrest” are fairly direct and limited.

Search incident to arrest applied only to the immediate area of control by a suspect being arrested, that which was on his/her person or within reach and could be used as a weapon against the arresting officers. If a glove box was locked and within reach of a suspect, then anything inside the glove box was not considered within the scope “search incident to arrest”, nor would anything in the trunk of the car; it had to be within reach, as in under the seat, between the seat or over the sun visor.

If an arrest was made at the front porch of a house nothing inside that house fell within the immediate control of the arrested suspect and so nothing inside that house could be searched without a signed search warrant which would require all aspects of probable cause.

Even if the suspect was completely irrational and a danger to society, nothing inside the house was within his ability to use and once he was under control and handcuffed he no longer posed any threat to the officers or the community. The father, while his age was listed as 82, was in control of his faculties and no mention was made as to his being a danger, either to himself, the police officers or the community. Without such a finding neither the police nor the courts would have a legal leg to stand on for removing property from the house “incidental to an arrest” of his son.

The son was taken to jail, convicted of crimes, not enumerated specifically in the article; but which included at least one charge of possession of a firearm by a convicted felon. He then served approximately 7 months before being released.

Without further information, facts not included in the article, it would be nearly impossible to explain how a conviction would be gained for the offense “possession of a firearm by a convicted felon” since he had no weapon on him at the time of arrest. The only weapons of interest were those either referred to on recorded telephone conversations or through self admission; in any case, pretty thin evidence and certainly nothing to justify confiscation of property outside his immediate control.

Some weapons were destroyed by the police department; again, what court order gave anyone the authority to destroy any weapon, presumably as part of a specific related crime? If the weapons destroyed were evidence used in court to gain a conviction then and only then would the court have authority to dispose of such a weapon. Police departments do not have the authority to destroy or auction off weapons without a court’s written authority when such weapons are the property of an identified individual; property rights are all inclusive.

This is not the same as destroying weapons which have ended up in the police property room over a long period of time, weapons for which ownership can not be verified and which would never be claimed by a rightful owner. In cases where ownership is disputed and ongoing there is no lawful justification to either destroy or auction property, to include weapons. The rest of the weapons were sold at auction; where’s the original court order to confiscate property and auction that property?

A portion of the auction revenue was given to the son as recompense for property taken. So, read that last paragraph and explain how that works; can’t be done, can it? Even with a wide application of the 5th Amendment, 10% of the property’s actual value would hardly be considered “just compensation” for items seized by the government, even had these items been seized within the limited and rigid parameters of our laws, that which sustain us as a nation ruled by law.

The father requested the return of weapons and then filed a formal complaint to have them returned and was denied by local law enforcement and then the courts. The moment the request to return the property was made is that same moment when destruction of the property and/or auctioning off of that property became illegal. There is no room for violation of property rights, even when that property falls under the classification of being a weapon.

The courts sided with the police department for not returning the property even though the son was not permitted to live under the same roof after having completed the court’s sentence; the son would not have had access to any of the weapons unless he entered the house without permission. Apparently the courts see any house with firearms as a threat to the community because anyone can break in and obtain a weapon, is this the reasoning the 9th Circus Court used; their reasoning is not explained sufficiently and therefore is unacceptable.

There was never any reference to the possibility of join ownership or implied ownership of each item should the son be declared incompetent, or unable to have ownership of firearms by virtue of his being a convicted felon. Even if the son owned every single item confiscated, property rights would naturally flow to a member of the family and not automatically to the discretion of either the police department, the city or even the courts.

“…the Ninth Circuit Court of Appeals ruled against him. "The district court correctly determined that Barsch's Fourth Amendment rights were not violated when police officers entered his house in conducting a protective sweep based on reports of multiple guns on this premises in the possession of Barsch's bipolar son, who reportedly was not taking his medication, making death threats, and saying that he had stabbed someone the night before," said a court memorandum filed Monday. "The district court also correctly determined that Barsch's Fourteenth Amendment due process rights were not violated by the sale/destruction of the weapons found in his house."

Go read the 4th Amendment, add the 5th Amendment while you’re at it since they both include the idea of Due Process, something the 9th Circus Court may never have done. The search of Barsch’s house most definitely was not within the limits placed on government, the police department being the defined representative of government at the time. There was no probable cause to believe the arrested suspect could obtain control of anything within reach, certainly nothing inside the house. There was no written search warrant and no judge following the strict rules of probable cause would have a legal reason to search for anything other than a dead body, any other lawful items being outside the lawful interpretation of any search warrant.

If an officer, while searching for an injured party without the aid of a search warrant, under the attitude of such a search going past the need for obtaining a warrant, finds a bag full of opium in plain view, opium being listed as an illegal substance, then that may be taken as evidence of a crime; however, a weapon within a house is not in and of itself evidence of a crime since weapons are legal to own and more than one person lived under the roof of that particular house.

A police officer must obtain a warrant if he believes he’s searching for a body; not the same as an officer’s search for an injured person whose life hangs in the balance and for which immediate action might determine life or death and for which waiting for a court signed document might jeopardize the outcome. Laws are written to protect the rights of each citizen, to include 82 year old men who just happen to be the fathers of Bi-Polar children living under the same roof. 82 year old men have the same right to own weapons as do any other citizen unless a court has ruled them incompetent.

The 14th Amendment was written to secure individual rights to former slaves and is one place where the phrase “due process of law” is found. Due process of law goes all the way back to the Magna Carta as a means of defining individual rights and protecting individuals from indiscriminate abuses by tyrannical leaders and governments. It has been a part of civilized society, in whole or in part ever since King John of England signed off, admitting that even kings had no right to abuse citizen’s lives and property.

Apparently the 9th Circus Court has never read any of the history which lead up to the Magna Carta, and certainly has no idea how to interpret the 14th Amendment given their rather wide paint brush of supposed authority which they have granted to the police department and the city of Hayward. I feel sorry for anyone living under the abuses imposed by the 9th Circus Court, under the pretence of justice and the American way of life.

The opinions expressed here are mine and I’m just a plain run of the mill ignorant citizen with no clue as to the intricacies of the laws of the land, rights of citizens, the constitution or anything of real importance. The only information I get comes from MSNBC, CNN and Time Magazine. I never listen to extremists like Rush or Hannity and the last thing I’d ever do is read a book, much less one that didn’t have lots of pretty pictures to entertain me.

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