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FayObserver.com -

Gun owner says police violating his rights
By Andrew Barksdale
Staff writer

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.

Boggs said he did nothing wrong. He was not arrested. The gun was not taken from a crime scene. The other driver in the Aug. 14 accident was cited, a police report says.

"If they can get away with this, then they can get away with other things," he said.

Boggs, 70, is a retired Army sergeant first class who is running for City Council this fall against incumbent Robert Massey in District 3. He said his fight over the police policy is not politically motivated.

Sgt. John Somerindyke said in situations such as this, police can't assume a weapon has never been used.

"We have to be consistent with our policy," he said. "We have had some hits doing this."

Somerindyke said that since 2003, the ballistics tests have identified 32 guns that were used in crimes in Cumberland County.

Since 1999, the Police Department has sent most handguns taken into custody to the Cumberland County Sheriff's Office, where the ballistics examination is done free for law enforcement agencies. The information is entered into the Integrated Ballistics Identification System, which is like a database of fingerprints for guns. Shell casings recovered at crime scenes can be matched with guns previously entered into the database.

Since January, the police agency has sent 331 guns and 315 shell casings and rounds to the Sheriff's Office for testing.

Boggs said he is talking with officials at the National Rifle Association about his situation. A representative of the NRA could not be reached for comment this week.

Tiffanie Sneed, the Police Department's lawyer, said the gun-testing policy helps make the community safer. People sometimes buy guns not knowing they have been used in crimes. The weapons are returned to their owners if the tests show they were not used in crimes, she said.

"Due to the gravity of the subject matter, we don't deviate from this policy, as long as the weapon meets the IBIS criteria," she said.

Boggs said others with concealed-weapon permits could be less likely to tell police they have a gun, for fear of it being taken and tested.

According to Debbie Tanna, a Sheriff's Office spokeswoman, all firearms are tested at the factory before being sent to dealers. Bernard Barr, who helps manage Guns Plus in Spring Lake, said he doesn't believe that's true. Some manufacturers don't test weapons before shipping them, he said. That includes the Taurus Millennium model that Boggs bought, he said.

Barr said firing a new weapon for ballistics doesn't necessarily lower its value.

Barr said he personally has no qualms with the police testing weapons seized as evidence - but not guns voluntarily surrendered for safe-keeping.

"It's like taking DNA from every citizen," he said. "Why investigate something that is not a crime? It just doesn't make sense."

Staff writer Andrew Barksdale can be reached at [email protected] or 486-3565.
 

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....."It's like taking DNA from every citizen," he said. "Why investigate something that is not a crime? It just doesn't make sense.".....
I'm with the gun owner on this one! What's going to happen when it comes back 'clean'? The data is still going to be kept on file for future use.......
 

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I do see a Fourth Amendment case to be made here.

While I'm not an attorney, I do see time and time again, people who think a "good intentioned policy" can trump the Constitution!
 

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I see two serious problems here...

First - carrying a gun for defense that has never been fired. I bought a Taurus and carried it around in the car for a week before making it to the range to try it out. Didn't even get every shot off in the cylinder before the dual action trigger mechanism and cylinder advance bar jammed up.

And besides that fact, I agree that it sounds like a 4th ammendment case.
 

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So hypothetically , If I'm going on vacation and have no way to secure my guns and I give them to the P. D. for safe keeping until I return - not that I'd ever do that; that allows them to test fire them to see if they've ever been used in a crime?

I understand where the P. D's. interest lies in this, but I gotta' go with the gun owner on this one.
 

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Laws and policies like this almost always turn into major violations of the constitution... and yet they keep getting passed to 'protect us'...seems to be becoming quite a trend
 

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There is an issue here... but it isnt 4th amendment. Not sure where it falls, but it aint there. I agree with the gun owner, but I got to think about this for a bit.

Diminish the value of his Taurus? :rofl: Come on now...thats grasping at straws.

And like usual, paramedics title is very misleading.
 

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Um...I'm still stuck on the fact that his EDC Personal Protection firearm has NEVER BEEN FIRED. How on earth does he practice with it, then? Oh wait, he doesn't? So when SHTF, how on earth will he be any good with his firearm and make sure he not only DOES hit the bad guy, but DOESN'T hit any innocents?

While we're on a nitpicking tear, I HATE HATE HATE HATE it when people refer to their FIREARM as a "weapon." Heck, a ball-point pen in my purse is a "weapon." In fact, I have a t-shirt I proudly wear that says "Don't frisk me, I am the weapon."

It's a firearm, it's a gun, it's a Taurus Millenium, etc. When we have the Scouts out doing NRA Basic Rifle classes, we're not going to let a bunch of 12 year old boys "pick up their weapons." Love how the media just uses escalation-semantics. Argh! //end rant.

Sorry, back to topic...how is the ballistics test going to lower the value of his gun? If he wants it in mint condition, he should bronze it and keep it in a hermetically sealed chamber. Not use it as his EDC.
 

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No question violates the 4th and likely the 5th as it deprives the citizen of his property without due process.


Cheers,
 

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Ok so let me see here.

What they are saying is consistency makes it right. So if we consistently violate the constitution we are right? So two (or three or four... ) wrongs DO make a right!

Its as if they think the difference between right and wrong is always "but we do it to everyone". Like its a racial thing or something. And therefore if we do something wrong to everyone then no one should complain...

Got it.
 

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Not only does this violate his 4th amendment rights, this violates his 2nd amendment rights as well.

How's this: You are stopped for tail light out, you notify the LEO of your carry status and the LEO "secures" your gun. When the stop is completed, the cop says to you "we have to check every gun in our possession against our data base"

I certainly hope the NRA takes up this case. Two of this guys constitutional rights are being denied because of a "policy" not a law.
 

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What they are saying is consistency makes it right. So if we consistently violate the constitution we are right? So two (or three or four... ) wrongs DO make a right!
Uh uh uh uh. Careful. They aren't even consistent.

"Police defend their decade-old policy of checking most handguns that come into their custody"
 

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paramedic said:
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.
I see it a a Fourth Amendment violation also.
Though the seizure was voluntary, it was limited to a request to securing the handgun. NOT a search of the property.
There was no reasonable suspicion, no probable cause, and no authority other than a department policy.
Mr. George Boggs has a reasonable expectation of privacy that his handgun was only going to be secured for him.
My opinion is, this officer may be in trouble.
 

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Sounds to me like he has a case, and I agree with Sixto, the thread title was very misleading!
 

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a. Nothing was stolen.
b. Short of melting it down, they're not going to diminish the value of that particular gun.
c. Since he voluntarily gave them the weapon, I'm not sure that they're be violating his rights by examining it while it's in their possession.
d. The guy's an idiot for carrying a weapon that he's never even fired.
 

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A call to the NRA Legal Team might/should get him all the Pro-Bono help he could ask for. North Carolina?!? This sounds more like Illinois or Massachusetts. Heck, even I could successfully argue this case!
 

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I've often wondered about this,. What do you do if you have an accident and have to go to the hospital? Is giving up your weapon the only thing to do? Weapons are not allowed in the hospital unless your a LEO..

I'm still stuck on the carrying a un-tested weapon,.. WOW.. Not cool.. At least we all agree on this..
 

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a. Nothing was stolen.
b. Short of melting it down, they're not going to diminish the value of that particular gun.
c. Since he voluntarily gave them the weapon, I'm not sure that they're be violating his rights by examining it while it's in their possession.
d. The guy's an idiot for carrying a weapon that he's never even fired.
a. Yes it was stolen.
b. agreed...he's grasping...wouldn't you?
c. no, if you hand someone something to hold on to at an accident scene due to the nature of the issue, and that person refuses to return said item...its THEFT. That gun was stolen. Their reasons do not matter.
d. agreed.
 

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I'm still pondering this, but here is why I say its not a 4th issue.

First, nothing was seized. It was voluntarly given up for safe keeping.
Second, nothing is being deprived. The item is to be returned within a reasonable amount of time. What reasonable is is left up for debate. The PD is under to obligation to return the pistol on demand.

Third, nothing is being searched. This is the sticky point for me. Yes, the PD is doing wrong here. But, I'm not so sure they are operating outside of their scope. There is a certain implied consent for property inspection or "search" for a lack of a better term. If I am in care of your pistol, you are giving me implied consent to chamber check it to make sure it is stored in a safe manner. Or even use the gun at the range. That is not a search. It is also expected that I make sure the item is not stolen to the best of my ability. Shooting the gun to check against the "database"... I dunno. I have a fundemental problem with that, however, I don't see the courts ruling in the citizens favor on this one. I hope I'm wrong, but I don't think I am.
 
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