IMPD being sued for improper seizure of firearms

[DadOfFour]

There is more than one variable in that statute.

You forgot the rest of it:

IC 35-33-1-1.5
Crime involving domestic or family violence; duties of law enforcement officers; confiscation of firearm, ammunition, or deadly weapon
Sec. 1.5. (a) A law enforcement officer responding to the scene of an alleged crime involving domestic or family violence shall use all reasonable means to prevent further violence, including the following:
SNIP
(b) A law enforcement officer may confiscate and remove a firearm, ammunition, or a deadly weapon from the scene if the law enforcement officer has:
(1) probable cause to believe that a crime involving domestic or family violence has occurred;
(2) a reasonable belief that the firearm, ammunition, or deadly weapon:
(A) exposes the victim to an immediate risk of serious bodily injury; or
(B) was an instrumentality of the crime involving domestic or family violence; and
(3) observed the firearm, ammunition, or deadly weapon at the scene during the response.

Doesn't matter if there's PC of a DV crime, doesn't matter if the Officer thinks a gun could endanger the victim, doesn't matter if the Officer thinks a gun was used in the crime. That little word AND means that the Officer MUST have observed the weapon at the scene during the response. Unless the guy had 9 guns on him, or just laying around the house out in the open where they could be observed, then the seizure violates the law.

Now, all that being said, if the guy DID beat his wife, well then, he deserves a nice long stay in a State facility, in which case he won't need his guns....

 

[hrearden]

Cop on Cop. Interesting.

Agreed. Not too often seen.

 

[Jake46184]

The officer must have "(3) observed the firearm, ammunition, or deadly weapon at the scene during the response."

Did the guy have 9 firearms laying around...or were they taken from his safe? I would bet the latter in which case the guy should win.

It does not say MUST HAVE. It's just one of the conditions under which the LEO can remove the firearms. If he sees them, they're fair game. The LEO can still take them, even if he has not seen them, if the other conditions apply.

 

[Fargo]

It does not say MUST HAVE. It's just one of the conditions under which the LEO can remove the firearms. If he sees them, they're fair game. The LEO can still take them, even if he has not seen them, if the other conditions apply.

How do you explain the "and" that dadoffour pointed out? Remember, when reading IC subheadings, normally little letter control numbers and numbers control big letters.

Joe

 

[pftraining_in]

How do you explain the "and" that dadoffour pointed out? Remember, when reading IC subheadings, normally little letter control numbers and numbers control big letters.

Joe

The "and" only applies to section B and directs you to subsection 3, it does not apply to the rest of the statute.

(B) was an instrumentality of the crime involving domestic or family violence; and
(3) observed the firearm, ammunition, or deadly weapon at the scene during the response.

The statue advises the grounds that a firearm may be taken, it does not say all points must be met.

One must remember that we are only seeing one side of the argument. We are not prevalent to the statements made by the parties at the scene. If the wife was concerned that further violence would occur or was concerned by the fact that firearms were present after the argument and police had responded, the criteria was met. She may change her statements at a later date or even claim that she never even made them, but the statements made at time of the response are what matter.

If they were not removed and something happened, everyone here would be claiming they protected their own and cops are above the law. When they follow the law they are accused of violating his rights and everyone claims they are jackboots. You are Monday morning quarterbacking and were not there to experience the statements made and the evidence present at the scene.

 

[Ted]

You forgot the rest of it:

Doesn't matter if there's PC of a DV crime, doesn't matter if the Officer thinks a gun could endanger the victim, doesn't matter if the Officer thinks a gun was used in the crime. That little word AND means that the Officer MUST have observed the weapon at the scene during the response. Unless the guy had 9 guns on him, or just laying around the house out in the open where they could be observed, then the seizure violates the law.

Now, all that being said, if the guy DID beat his wife, well then, he deserves a nice long stay in a State facility, in which case he won't need his guns....

I've highlighted the applicable word in the statute for you.

(2) a reasonable belief that the firearm, ammunition, or deadly weapon:
(A) exposes the victim to an immediate risk of serious bodily injury; or

 

[Timjoebillybob]

I've highlighted the applicable word in the statute for you.

Actually that word applies to a and b not 3. So the officer has to have either RAS of a or b, along with probable cause that domestic or family violence has occurred.

Actually there is another section of code that would also apply.
IC 35-47-14
Chapter 14. Proceedings for the Seizure and Retention of a Firearm

I

C 35-47-14-1
"Dangerous"
Sec. 1. (a) For the purposes of this chapter, an individual is "dangerous" if:
(1) the individual presents an imminent risk of personal injury to the individual or to another individual; or
(2) the individual may present a risk of personal injury to the individual or to another individual in the future and the individual:
(A) has a mental illness (as defined in IC 12-7-2-130) that may be controlled by medication, and has not demonstrated a pattern of voluntarily and consistently taking the individual's medication while not under supervision; or
(B) is the subject of documented evidence that would give rise to a reasonable belief that the individual has a propensity for violent or emotionally unstable conduct.
(b) The fact that an individual has been released from a mental health facility or has a mental illness that is currently controlled by medication does not establish that the individual is dangerous for the

IC 35-47-14-3
Warrantless seizure of firearm from individual believed to be dangerous
Sec. 3. (a) If a law enforcement officer seizes a firearm from an individual whom the law enforcement officer believes to be dangerous without obtaining a warrant, the law enforcement officer shall submit to the circuit or superior court having jurisdiction over the individual believed to be dangerous a written statement under oath or affirmation describing the basis for the law enforcement officer's belief that the individual is dangerous.
(b) The court shall review the written statement submitted under subsection (a). If the court finds that probable cause exists to believe that the individual is dangerous, the court shall order the law enforcement agency having custody of the firearm to retain the firearm. If the court finds that there is no probable cause to believe that the individual is dangerous, the court shall order the law enforcement agency having custody of the firearm to return the firearm to the individual.
(c) This section does not authorize a law enforcement officer to perform a warrantless search or seizure if a warrant would otherwise be required.
As added by P.L.1-2006, SEC.537.

See section c. That along with the and you are dismissing pretty much blows your theory out of the water.

 

[DadOfFour]

The "and" only applies to section B and directs you to subsection 3, it does not apply to the rest of the statute.

(B) was an instrumentality of the crime involving domestic or family violence; and
(3) observed the firearm, ammunition, or deadly weapon at the scene during the response.

The statue advises the grounds that a firearm may be taken, it does not say all points must be met.

One must remember that we are only seeing one side of the argument. We are not prevalent to the statements made by the parties at the scene. If the wife was concerned that further violence would occur or was concerned by the fact that firearms were present after the argument and police had responded, the criteria was met. She may change her statements at a later date or even claim that she never even made them, but the statements made at time of the response are what matter.

If they were not removed and something happened, everyone here would be claiming they protected their own and cops are above the law. When they follow the law they are accused of violating his rights and everyone claims they are jackboots. You are Monday morning quarterbacking and were not there to experience the statements made and the evidence present at the scene.

So, you're saying the that word "and" doesn't apply to that which comes immediately after it? You think the rules of the English language cease to be in effect when used in ICs?
And is inclusive, or is not inclusive, the language of the IC is therefore inclusive, that means you must have subsection 1, either 2A or (thus the use of the word or at the end of 2A) 2B AND 3 in order for the seizure to be permitted under the IC.

 

[Ted]

Actually that word applies to a and b not 3. So the officer has to have either RAS of a or b, along with probable cause that domestic or family violence has occurred.

Actually there is another section of code that would also apply.
IC 35-47-14
Chapter 14. Proceedings for the Seizure and Retention of a Firearm

ISee section c. That along with the and you are dismissing pretty much blows your theory out of the water.

For the sake of brevity, I needn't think it necessary to quote more of that particular IC.

Secondly, cooperation, exigent circumstances, or plain view could be of mitigation to the necessity a warrant.

 

[Timjoebillybob]

For the sake of brevity, I needn't think it necessary to quote more of that particular IC.

Secondly, cooperation, exigent circumstances, or plain view could be of mitigation to the necessity a warrant.

Cooperation, I'm assuming you mean the person consents to a search. Then of course no warrant is needed. Plain view is what we have been stating they need to seize the firearm this entire time, as it's spelled out in the IC. Remember this part "(3) observed the firearm, ammunition, or deadly weapon at the scene during the response."

Exigent circumstance? If the guy is running into another room the officer can give chase to apprehend. What evidence does the officer think is going to be destroyed? And if the officer is there and armed, the spouse should be safe. Also he should be transporting them to a counselor or arranging transport, not searching the house. Wouldn't the best way to make sure they were safe is to get them away from the suspected abuser? Again as spelled out in the code.

 

[turnerdye1]

Looks like there will be some job openings.... Good for me!!

 

[Ted]

Cooperation, I'm assuming you mean the person consents to a search. Then of course no warrant is needed. Plain view is what we have been stating they need to seize the firearm this entire time, as it's spelled out in the IC. Remember this part "(3) observed the firearm, ammunition, or deadly weapon at the scene during the response."

Exigent circumstance? If the guy is running into another room the officer can give chase to apprehend. What evidence does the officer think is going to be destroyed? And if the officer is there and armed, the spouse should be safe. Also he should be transporting them to a counselor or arranging transport, not searching the house. Wouldn't the best way to make sure they were safe is to get them away from the suspected abuser? Again as spelled out in the code.

Seeing as nobody here knows how the firearms were actually seized.....its all speculation anyway. All I'm stating is that it makes little sense to make a determination without the facts.

Its going to be up to the courts to make the final determination if they were improperly seized....or anything else for that matter.

 

[Enkrypter]

The jury trial request was a smart idea. Getting reasonable people (peer) to determine what "reasonable" is will make or break his case. If I was him, I'd seek a change of venue to a rural county court, on the grounds of local political bias or influence. There his jury would be more likely to be comprised of sympathetic gun owners, republican farmers, and other former service men and women who value the 2nd. it might be a stretch, but I think a good lawyer could do it.

IC 34-35-1-1
Application; causes
Sec. 1. The court or the judge shall change the venue of any civil action upon the application of either party, made upon affidavit showing one (1) or more of the following causes:
(3) The opposite party has an undue influence over the citizens of the county, or an odium attaches to the applicant or to the applicant's cause of action or defense, on account of local prejudice.

I see no mention of an aggravated assault charge or any mention of anything to indicate the officers should have taken his weapons. Although, the news source is less than reputable.

 

[Fargo]

The "and" only applies to section B and directs you to subsection 3, it does not apply to the rest of the statute.

(B) was an instrumentality of the crime involving domestic or family violence; and
(3) observed the firearm, ammunition, or deadly weapon at the scene during the response.

The statue advises the grounds that a firearm may be taken, it does not say all points must be met.

Nope, in statutory construction, "and" always applies to following subheading of a section and to subheads of the same value. You are mixing subheads of different values. The "and" in this statutes applies NOT to (B) directly, but rather to (1) (2) and (3). It only applies to (B) indirectly insofar as (B) is encompassed by (2).

Whenever you see "and", look forward to the next subhead value and you then know that all previous subheads of that value are included back to the beginning of the section or until you run into an "or" controlling that same value.

Best,

Joe

 

[Indy317]

That "and" is very important. Unless some court ruled otherwise, all three would be needed to confiscate a firearm. That ; is the key.

The law should be read as:

Sec. 1.5. (a) A law enforcement officer responding to the scene of an alleged crime involving domestic or family violence shall use all reasonable means to prevent further violence, including the following: Transporting or obtaining transportation for the alleged victim and each child to a designated safe place to meet with a domestic violence counselor, local family member, or friend and assisting the alleged victim in removing toiletries, medication, and necessary clothing and giving the alleged victim immediate and written notice of the rights under IC 35-40.

A law enforcement officer may confiscate and remove a firearm, ammunition, or a deadly weapon from the scene if the law enforcement officer has probable cause to believe that a crime involving domestic or family violence has occurred AND a reasonable belief that the firearm, ammunition, or deadly weapon that exposes the victim to an immediate risk of serious bodily injury or was an instrumentality of the crime involving domestic or family violence AND observed the firearm, ammunition, or deadly weapon at the scene during the response.

You need all three to confiscate the firearms. This is the first I'm aware of this. Maybe I blanked out in training, but I was under the impression that an LEO can and should take any firearms in the home. If the state wanted an officer to only need one of the three, they would have used the word "or." The word "or" is used as such in various places in the IC.

This guy's attorney used to defend the government, specifically the state of Indiana. I find it hard to believe someone who used to be on the other side, defending government, would file such a lawsuit if the law was followed as written. Most of these lawsuits are based on the attorney getting paid only if damages are awarded. Maybe this guy is paying his lawyer, but that isn't likely. I think it only cost .10/page to read a lawsuit on-line. Maybe I will check it out and see what the arguements are. I think the word "and" will play a big part in the argument.

 

[CX1]

if the law enforcement officer has probable cause to believe that a crime involving domestic or family violence has occurred AND a reasonable belief that the firearm, ammunition, or deadly weapon that exposes the victim to an immediate risk of serious bodily injury or was an instrumentality of the crime involving domestic or family violence AND observed the firearm, ammunition, or deadly weapon at the scene during the response.

So if I am reading this correctly then in this scenario:

Neighbor calls in a DV report that a man shouting at his wife while chasing her in and out of the house while waving around a firearm.
By the time unit arrives on scene the man and woman are in the house still fighting.
Upon hearing the officers approach the house the man stuffs the gun under a couch cushion.
Officer enters the house to investigate.
Since the gun is under a couch cushion (and can't be seen by the officer) the officer is not allowed to secure it even though the woman is telling him where it is?
Somehow that just doesn't sound right to me. Seems to me he would be allowed to secure/seize the weapon as part of the investigation even if he didn't see it when he arrived. Wouldn't the neighbor's phone call and the woman's statement be enough for RAS or PC to look under the cushion and take the weapon from there?

 

[Denny347]

OMG, this is the same guy that wrote his ex wife a parking ticket when she dropped off their kids to his house. There was something about a shot being fired through the ceiling of his house during a disturbance (maybe the one that got his guns removed in the first place). I could go on and on about the countless stupidity, improper actions, and abuse of power by him. He should have been FIRED a long time ago but like so many others, they just keep them around. He deserved what he got and we are better off without him. Based solely on his **** poor track record and his questionable honesty, I don't believe ANYTHING that comes out of his mouth.

 

[vitamink]

They didn't call him "jack rubberdildo" for nothing. Or so i'm told.

By the way Denny, every time he was on the edge of getting in trouble, he would amazingly activate himself and leave indiana until the heat was off Which is why it took so long for him to get fired/pushed out. Yeah it says 6 year veteran but really only about 3 years doing the job...poorly.

*I am not an LEO nor have i ever met the guy. Just relaying stories from some cops i know.

 

[Enkrypter]

OMG, this is the same guy that wrote his ex wife a parking ticket when she dropped off their kids to his house. There was something about a shot being fired through the ceiling of his house during a disturbance (maybe the one that got his guns removed in the first place). I could go on and on about the countless stupidity, improper actions, and abuse of power by him. He should have been FIRED a long time ago but like so many others, they just keep them around. He deserved what he got and we are better off without him. Based solely on his **** poor track record and his questionable honesty, I don't believe ANYTHING that comes out of his mouth.

Like I said, the original FOX news source was less than reputable. Now why couldn't they have said all that in the article. I wouldn't have wasted the time getting all fired up.

 

[Denny347]

Because our dept isn't talking so the material is coming from Jack's attorney. He's not going to bring that up. I cannot imagine how much money his stupidity has cost this City. You will not see a single person on the PD that is surprised or sorry he is gone. No one wanted to work with him because of his questionable actions. He has BIG BALLS to then come back and sue the city. He quit before they were going to finally fire him.