You don’t lose gun rights in traffic stop

Gordon Hutchinson

January 29, 2008 at 1:28 pm  | Mobile Reader | Pring this storyPrint 

If you’re legally carrying your firearm, law-enforcement authorities have no right to seize it during a traffic stop.
Photo by GORDON HUTCHINSON
If you’re legally carrying your firearm, law-enforcement authorities have no right to seize it during a traffic stop.
“Do I look like a thug?”

The gentleman who asked this question was dressed casually and stylishly. He looked like a middle-class male, about 40 years of age. No obvious tattoos, he had short-cropped hair. Tall, average weight, well-spoken, to my eyes he looked like anything but a street criminal, and I said so.

“I travel to New Orleans most days of the week on business,” he said. “There is a certain corner I take every day. I know the intersection is ‘No Left Turn’ from 7 to 9 a.m. each weekday. I know this. I turned left one morning at a quarter to nine, and was instantly pulled over by a marked NOPD unit.

“The female officer got out and walked up to my car, and I told her, ‘I’m sorry. I know better. I simply wasn’t paying attention when I made that left turn.’

“When she asked for my driver’s license, insurance and registration, I told her there was a gun in the glove box, just to warn her. She walked around to the other side of the car, opened the door, opened the glove box and took the gun out. It was a little .25 automatic. It wasn’t even loaded.

“She proceeded to write me the ticket. When she gave me the ticket, she made some sort of quick spiel about where I could come to get the gun back if I brought a receipt for it. I didn’t follow what she was telling me, but she kept the gun.

“When I asked her if she was going to give me a receipt, she told me: ‘The way I look at it, I didn’t know you had it, and you don’t know I’ve got it.’ She left with the gun.”

To condense the rest of the story from the gentleman’s tale, he called a friend in the department who spoke an expletive, and asked for the ticket number on the traffic citation that had been issued.

The gentleman was told his friend ran into the officer about a week later, and recognized her by the name tag on her uniform. When he asked about the .25 automatic, she responded she still had it — she was unfamiliar with the procedures for turning in a seized firearm.

The gentleman informed me he got his gun back. He never found out if any punishment or reprimand was issued to the officer that illegally seized his gun. He never pursued the issue any further — unfortunately. This incident occurred more than a year after Hurricane Katrina.

In the course of research for our book on the confiscation of firearms in the aftermath of the hurricane, we heard a number of similar stories. They all followed the same vein: A citizen is pulled over in a traffic stop. The NOPD officer takes a gun from the citizen, and asks if the citizen has a receipt for the gun. When the answer is no, the gun is seized, and the citizen is informed if they will show up at a specific precinct with proof of ownership, they can have the gun back.

A recent gentleman caller on a New Orleans radio talk show described having a personal handgun seized during a traffic stop. This particular gun was passed down through his family — it was an heirloom — and he wanted it back. This gentleman stated he had placed numerous calls to different divisions within the department, and had been unable to get any information on the whereabouts of his gun.

A local gun store informed me they have had numerous citizens buy guns, only to return and beg for a copy of their receipt to get the gun back after it had been seized during a traffic stop in New Orleans.

Apparently the impending lawsuit by the Second Amendment Foundation and the National Rifle Association seeking redress and return of the guns seized by law enforcement in the aftermath of Hurricane Katrina has had little effect on the NOPD. If the stories we’re hearing are truthful, the police are still illegally confiscating guns from law-abiding citizens.

I spoke with two separate practicing attorneys — one works for the state of Louisiana and the other is also a commissioned law-enforcement officer. Both stated if the police were taking possession of guns from motorists during any sort of investigation, and the gun was not germane to the investigation, the seizure amounted to theft.

“Armed robbery by cop,” one said.

When I asked a good friend, a retired NOPD officer, about the practice, he stated it was a fairly common practice to take guns from motorists before the hurricane. He said he thought the practice had died out since the hurricane, however.

When I stuttered outrage over this practice, and told him it was illegal, his reply was: “Gordon, I didn’t say it was legal. I said they did it.”

To clarify this issue, a law-enforcement officer in any investigation has the right to conduct visual searches of what is in plain view in a vehicle, and conduct pat-down searches on any individual’s outer garments to determine if he is armed. If an individual has a concealed-carry permit, the officer has the right to secure the handgun — at least in Louisiana — from the individual and return it at the end of the investigation.

The courts have held a law-enforcement officer has the right to take reasonable actions to ensure his safety while conducting an investigation. This extends to the right to secure a firearm or other weapon from a vehicle while issuing a traffic citation — to keep the person receiving the citation from grabbing the gun and using it against the officer.

But if the crime is a traffic violation, the officer has no legal right to keep a gun found in the course of the investigation. In other words, while issuing a citation. At the end of the investigation (i.e. the issuance of the citation), the officer should return the gun. If he does not, he has committed an illegal act.

In all cases of seizure of any evidence, there are certain procedures to be followed to maintain a record of that evidence. In the course of narcotics, the drugs are logged in with the crime lab. If the evidence is not contraband such as drugs, most departments have procedures by which it is logged in to their evidence-holding facility, and recorded for future withdrawal in the event of a court case. In other words, if an officer seizes a gun, it should be turned in to evidence, not used to supplement his own personal firearms collection.

Most people are unfamiliar with the laws pertaining to ownership of firearms. That lack of knowledge, coupled with the intimidation most people feel in any encounter with police, allows unscrupulous officers to make off with guns they cannot turn in to evidence. To do so would be falsifying evidence and injuring public records, a serious pair of charges to be lodged against any police officer.

Here’s a quick primer on carrying guns in vehicles in Louisiana: You may have a gun. You may carry it in your vehicle. You may have it concealed, in the open, on the dash, on the seat, under the seat, in the glove box or hanging from the rear-view mirror.

Possession of a gun in your vehicle is perfectly legal in Louisiana as the vehicle is considered an extension of your home (As it is worded in LRS 14:95.2: “Any constitutionally protected activity which cannot be regulated by the state, such as a firearm contained entirely within a motor vehicle.”)

Therefore, if stopped by a law-enforcement officer for a traffic violation, it is a good practice to tell him if you have a gun in the glove box on top of the papers he is requesting. If it is not in such an awkward place, where the cop might understandably get excited if he witnesses you fumbling around for records while putting your hands on a gun, you do not need to tell him of the gun — there is no violation of the law in having the gun in your car.

If you have a concealed-carry permit, however, you are required by law to inform an officer conducting an official investigation that you have a permit, and whether you are in possession of a handgun. If the officer requests, you are required by law to surrender the gun to him while he is conducting the investigation.

And there is no reason for any law-enforcement officer to take your firearm if it is not evidence in the commission of a crime, unless you are being arrested and incarcerated— then all your possessions must be inventoried, recorded and stored.

In all cases dealing with the police, we should all be professional, polite and cordial — in the same manner as most police officers conduct their investigations with the general public. It’s a tough job they do, and a little politeness goes a long way with any cop.

According to the two attorneys with whom I consulted, if a police officer attempts to keep your firearm after issuing you a citation for a misdemeanor crime or a traffic citation, and you think he is doing so illegally, protest and demand he return your gun, then politely and firmly demand a supervisor be called to the scene.

If the officer refuses to do so, and leaves with your gun, try to get his/her unit number. One of the attorneys suggested you place an immediate phone call to the dispatcher of the department, and ask to speak to a supervisor, detailing the situation and what has happened. This makes your complaint an official record.

Of course, if you have been issued a citation, the department will have that on record. In all such cases, they advised you contact an attorney immediately, and let him handle it.

When I related these tales to the two attorneys, and stated the police were asking citizens if they had a receipt for their guns, one of them responded, “I don’t have a receipt for any of the guns I carry in my car. I don’t have a receipt for my cell phone either — and it’s the same thing.”

Gordon Hutchinson’s newest book, The Great New Orleans Gun Grab, written with Todd Masson, editor of this magazine, is an expose’ of the gun-confiscation scandal in New Orleans after Hurricane Katrina. Thousands of guns were illegally seized from private citizens trying only to protect their personal property. You can read about the book at www.neworleansgungrab.com.

Hutchinson’s first book, The Quest and the Quarry, is a generational tale that parallels the lives of a line of trophy bucks and the youth of a farming family that hunts them. It was chosen as a Book of the Year by the Southeastern Outdoor Press Association. It is a must-read for anyone interested in the quest for a trophy buck. You can read about it at www.thequestandthequarry.com.

Both books can be ordered on-line or by calling (800) 538-4355.




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