abuse of power???

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Posted: 1/25/2006 5:38:12 PM EDT

A coworker of mine was arrested about six months ago on a DWI. He told me last night that his Colt mustang .380 was taken at that time. He has a CWP so here is the shit, the judge refused to give him back his gun. He said good I got another gun off the streets. If he didn't like it he could hire a lawyer to fight it. What the F..., who do you write to complain about this kind of abuse?

Posted: 1/25/2006 5:44:25 PM EDT

[#1]

Quoted:
A coworker of mine was arrested about six months ago on a DWI. He told me last night that his Colt mustang .380 was taken at that time. He has a CWP so here is the shit, the judge refused to give him back his gun. He said good I got another gun off the streets. If he didn't like it he could hire a lawyer to fight it. What the F..., who do you write to complain about this kind of abuse?

He had no lawyer for a DUI?!

Posted: 1/25/2006 5:51:38 PM EDT

[#2]

RCW 9.41.098
Forfeiture of firearms — Disposition — Confiscation.

(1) The superior courts and the courts of limited jurisdiction of the state may order forfeiture of a firearm which is proven to be:

(a) Found concealed on a person not authorized by RCW 9.41.060 or 9.41.070 to carry a concealed pistol: PROVIDED, That it is an absolute defense to forfeiture if the person possessed a valid Washington concealed pistol license within the preceding two years and has not become ineligible for a concealed pistol license in the interim. Before the firearm may be returned, the person must pay the past due renewal fee and the current renewal fee;

(b) Commercially sold to any person without an application as required by RCW 9.41.090;

(c) In the possession of a person prohibited from possessing the firearm under RCW 9.41.040 or 9.41.045;

(d) In the possession or under the control of a person at the time the person committed or was arrested for committing a felony or committing a nonfelony crime in which a firearm was used or displayed;

(e) In the possession of a person who is in any place in which a concealed pistol license is required, and who is under the influence of any drug or under the influence of intoxicating liquor, as defined in chapter 46.61 RCW;

(f) In the possession of a person free on bail or personal recognizance pending trial, appeal, or sentencing for a felony or for a nonfelony crime in which a firearm was used or displayed, except that violations of Title 77 RCW shall not result in forfeiture under this section;

(g) In the possession of a person found to have been mentally incompetent while in possession of a firearm when apprehended or who is thereafter committed pursuant to chapter 10.77 or 71.05 RCW;

(h) Used or displayed by a person in the violation of a proper written order of a court of general jurisdiction; or

(i) Used in the commission of a felony or of a nonfelony crime in which a firearm was used or displayed.

(2) Upon order of forfeiture, the court in its discretion may order destruction of any forfeited firearm. A court may temporarily retain forfeited firearms needed for evidence.

(a) Except as provided in (b), (c), and (d) of this subsection, firearms that are: (i) Judicially forfeited and no longer needed for evidence; or (ii) forfeited due to a failure to make a claim under RCW 63.32.010 or 63.40.010; may be disposed of in any manner determined by the local legislative authority. Any proceeds of an auction or trade may be retained by the legislative authority. This subsection (2)(a) applies only to firearms that come into the possession of the law enforcement agency after June 30, 1993.

By midnight, June 30, 1993, every law enforcement agency shall prepare an inventory, under oath, of every firearm that has been judicially forfeited, has been seized and may be subject to judicial forfeiture, or that has been, or may be, forfeited due to a failure to make a claim under RCW 63.32.010 or 63.40.010.

(b) Except as provided in (c) of this subsection, of the inventoried firearms a law enforcement agency shall destroy illegal firearms, may retain a maximum of ten percent of legal forfeited firearms for agency use, and shall either:

(i) Comply with the provisions for the auction of firearms in RCW 9.41.098 that were in effect immediately preceding May 7, 1993; or

(ii) Trade, auction, or arrange for the auction of, rifles and shotguns. In addition, the law enforcement agency shall either trade, auction, or arrange for the auction of, short firearms, or shall pay a fee of twenty-five dollars to the state treasurer for every short firearm neither auctioned nor traded, to a maximum of fifty thousand dollars. The fees shall be accompanied by an inventory, under oath, of every short firearm listed in the inventory required by (a) of this subsection, that has been neither traded nor auctioned. The state treasurer shall credit the fees to the firearms range account established in RCW 79A.25.210. All trades or auctions of firearms under this subsection shall be to licensed dealers. Proceeds of any auction less costs, including actual costs of storage and sale, shall be forwarded to the firearms range account established in RCW 79A.25.210.

(c) Antique firearms and firearms recognized as curios, relics, and firearms of particular historical significance by the United States treasury department *bureau of alcohol, tobacco, and firearms are exempt from destruction and shall be disposed of by auction or trade to licensed dealers.

(d) Firearms in the possession of the Washington state patrol on or after May 7, 1993, that are judicially forfeited and no longer needed for evidence, or forfeited due to a failure to make a claim under RCW 63.35.020, must be disposed of as follows: (i) Firearms illegal for any person to possess must be destroyed; (ii) the Washington state patrol may retain a maximum of ten percent of legal firearms for agency use; and (iii) all other legal firearms must be auctioned or traded to licensed dealers. The Washington state patrol may retain any proceeds of an auction or trade.

(3) The court shall order the firearm returned to the owner upon a showing that there is no probable cause to believe a violation of subsection (1) of this section existed or the firearm was stolen from the owner or the owner neither had knowledge of nor consented to the act or omission involving the firearm which resulted in its forfeiture.

(4) A law enforcement officer of the state or of any county or municipality may confiscate a firearm found to be in the possession of a person under circumstances specified in subsection (1) of this section. After confiscation, the firearm shall not be surrendered except: (a) To the prosecuting attorney for use in subsequent legal proceedings; (b) for disposition according to an order of a court having jurisdiction as provided in subsection (1) of this section; or (c) to the owner if the proceedings are dismissed or as directed in subsection (3) of this section.

[2003 c 39 § 5; 1996 c 295 § 10; 1994 sp.s. c 7 § 414; 1993 c 243 § 1; 1989 c 222 § 8; 1988 c 223 § 2. Prior: 1987 c 506 § 91; 1987 c 373 § 7; 1986 c 153 § 1; 1983 c 232 § 6.]

Notes:
*Reviser's note: The bureau of alcohol, tobacco and firearms of the department of the treasury was transferred to the department of justice on November 25, 2002. See 6 U.S.C. Sec. 531, Public Law 107-296. The "bureau of alcohol, tobacco and firearms" was renamed the "bureau of alcohol, tobacco, firearms and explosives."

RCW 9.41.050
Carrying firearms.

(1)(a) Except in the person's place of abode or fixed place of business, a person shall not carry a pistol concealed on his or her person without a license to carry a concealed pistol.

(b) Every licensee shall have his or her concealed pistol license in his or her immediate possession at all times that he or she is required by this section to have a concealed pistol license and shall display the same upon demand to any police officer or to any other person when and if required by law to do so. Any violation of this subsection (1)(b) shall be a class 1 civil infraction under chapter 7.80 RCW and shall be punished accordingly pursuant to chapter 7.80 RCW and the infraction rules for courts of limited jurisdiction.

(2)(a) A person shall not carry or place a loaded pistol in any vehicle unless the person has a license to carry a concealed pistol and: (i) The pistol is on the licensee's person, (ii) the licensee is within the vehicle at all times that the pistol is there, or (iii) the licensee is away from the vehicle and the pistol is locked within the vehicle and concealed from view from outside the vehicle.

(b) A violation of this subsection is a misdemeanor.

(3)(a) A person at least eighteen years of age who is in possession of an unloaded pistol shall not leave the unloaded pistol in a vehicle unless the unloaded pistol is locked within the vehicle and concealed from view from outside the vehicle.

(b) A violation of this subsection is a misdemeanor.

(4) Nothing in this section permits the possession of firearms illegal to possess under state or federal law.

And I'll add:

RCW 9.41.075
Concealed pistol license -- Revocation.

(1) The license shall be revoked by the license-issuing authority immediately upon:

(a) Discovery by the issuing authority that the person was ineligible under RCW 9.41.070 for a concealed pistol license when applying for the license or license renewal;

(b) Conviction of the licensee, or the licensee being found not guilty by reason of insanity, of an offense, or commitment of the licensee for mental health treatment, that makes a person ineligible under RCW 9.41.040 to possess a firearm;

(c) Conviction of the licensee for a third violation of this chapter within five calendar years; or

(d) An order that the licensee forfeit a firearm under RCW 9.41.098(1)(d).

(2)(a) Unless the person may lawfully possess a pistol without a concealed pistol license, an ineligible person to whom a concealed pistol license was issued shall, within fourteen days of license revocation, lawfully transfer ownership of any pistol acquired while the person was in possession of the license.

(b) Upon discovering a person issued a concealed pistol license was ineligible for the license, the issuing authority shall contact the department of licensing to determine whether the person purchased a pistol while in possession of the license. If the person did purchase a pistol while in possession of the concealed pistol license, if the person may not lawfully possess a pistol without a concealed pistol license, the issuing authority shall require the person to present satisfactory evidence of having lawfully transferred ownership of the pistol. The issuing authority shall require the person to produce the evidence within fifteen days of the revocation of the license.

(3) When a licensee is ordered to forfeit a firearm under RCW 9.41.098(1)(d), the issuing authority shall:

(a) On the first forfeiture, revoke the license for one year;

(b) On the second forfeiture, revoke the license for two years; or

(c) On the third or subsequent forfeiture, revoke the license for five years.

Any person whose license is revoked as a result of a forfeiture of a firearm under RCW 9.41.098(1)(d) may not reapply for a new license until the end of the revocation period.

(4) The issuing authority shall notify, in writing, the department of licensing of the revocation of a license. The department of licensing shall record the revocation.

Posted: 1/25/2006 6:06:58 PM EDT

[#3]

Quoted:
RCW 9.41.098
Forfeiture of firearms — Disposition — Confiscation.

<<SNIPPITY SNIP SNIP>>

If I'm reading that correctly, I think yer buddy is screwed.

Posted: 1/25/2006 7:53:42 PM EDT

[#4]

Quoted:
What the F..., who do you write to complain about this kind of abuse?

I would write a letter to my coworkers parents and tell them they raised an imbecile.

I'm not a fan of taking guns, but lets call it like it is, he is still an imbecile. I guess the lesson is not to get a DUI while you are packing.....

Posted: 1/25/2006 8:35:24 PM EDT

[#5]

Stick

Are you a law man?

I don't drink myself so I agree. But the weopon was not used to commit a crime and he was legal to carry. Just doen't seem right thats all.

Posted: 1/25/2006 11:30:24 PM EDT

[#6]

Even though it pains me to hear a perfectly good firearm is going to be destroyed, I've gotta agree with stickman on this one, your co-worker made a bad decision. if ya plan on drinking don't plan on packing. even if you do find yourself in a deadly force situation your probably not going to make a good shoot/no shoot choice, and even if you did, the beer or whatever will effect your speed/aim/etc. and even if its just 'ONE' beer, some lawyer will find a way to hang you for it even if it otherwise was a justifiable shooting. and then your co-worker becomes another statistic for the anti-gun lobby to use.

My condolences for that poor Colt 380.

and nope, I'm just a civilian.

Posted: 1/25/2006 11:36:24 PM EDT

[#7]

Another good firearm taken off the street, through no fault of it's own.

Your coworker is a dumbass.

Posted: 1/25/2006 11:59:18 PM EDT

[#8]

Quoted:
Stick

Are you a law man?

I don't drink myself so I agree. But the weopon was not used to commit a crime and he was legal to carry. Just doen't seem right thats all.

That's the problem. He wasn't legal to carry if he was "under the influence of intoxicating liquor".

Posted: 1/26/2006 9:53:28 AM EDT

[#9]

Quoted:
Quoted:
Stick

Are you a law man?

I don't drink myself so I agree. But the weopon was not used to commit a crime and he was legal to carry. Just doen't seem right thats all.

That's the problem. He wasn't legal to carry if he was "under the influence of intoxicating liquor".

yup

Posted: 1/26/2006 1:23:02 PM EDT

[#10]

Quoted:
Quoted:
Stick

Are you a law man?

I don't drink myself so I agree. But the weopon was not used to commit a crime and he was legal to carry. Just doen't seem right thats all.

That's the problem. He wasn't legal to carry if he was "under the influence of intoxicating liquor".

I agree that he screwed himself (assuming he flunked a breathalyzer) but there is still a -lot- wrong with this law. For instance, not that long ago, these guns were auctioned to raise funds for law enforcement. A few years ago some of the statists in King County decided that "if it saves one life"(tm) then keeping all these evil guns off the street by destroying them would be "worth it". This of course is a truckload of brown steamy and it needs to be excised from our laws like a cancer.

Thing is we can't do this until the powerbase in Olympia swings away from the party whose platform is routinely riddled with anti gun planks. And... that means we have to overcome some pretty serious barriers. I see that as 1- Gunny inertia (forces with the power of a black hole keeping gunny backsides stapled to their couches during elections) and 2- Voting systems that were "reformed" by increasing the systems that caused problems last time, like mailed in ballots. Some stuff needs fixing and you can bet our leaders aren't gonna do it.

Posted: 1/26/2006 2:05:56 PM EDT

[#11]

I have to go with the majority on this too. Your friend is a dumbass and a stupid one at that. In spite of the 2nd amendment anyone who carries concealed needs to be morally responsible. That includes not drinking and packing.

As far as DUI is concerned they should bring back flogging for it. Three lashes for the first offense, five the second and so on.

Posted: 1/26/2006 2:20:12 PM EDT

[#12]

Just another on the long list of reasons to not be drunk and driving, drunk and fighting with a woman, drunk taking medication and fighting with the familty unit or in any way intoxicated and interacting with law enforcement. He could ask the lawyer who represented him at sentencing if this portion of the case is worth appealing or asking the judge to reconsider. He needs to write a nice contrite statement to accompany the appeal.

Posted: 1/26/2006 2:40:23 PM EDT

[#13]

Quoted:
Stick

Are you a law man?

I don't drink myself so I agree. But the weopon was not used to commit a crime and he was legal to carry. Just doen't seem right thats all.

Yes.

In most areas, DUI is a mandatory booking. It is going to be rather hard for an officer to let someone keep a weapon while they are going to jail. The jail staff frowns on that.....

If he wasn't being booked into jail for some odd reason, giving a drunk guy back a weapon usually isn't on the top ten list of great ideas.

Lastly, as already pointed out, he was in violaion of the law by carrying intoxicated (weak, but true).

I am not a fan of taking away weapons from the public, and I have berated other officers more than once when I felt something was inappropriate and I later learned of it. If I'm taking a weapon, there is usually a robbery, drive by, or dead body around.

Posted: 1/26/2006 8:57:47 PM EDT

[#14]

It is my opinion that the statute reads, not it is illegal to carry if you're intoxicated, but that it is illegal to carry if you are found guilty of a crime while being intoxicated.

If he had beat the DUI, a misdemeanor in this here state and in my jurisdiction an offense that is only booked for if the person fails the attitude test of has no way of getting home otherwise, he would not be subject to losing his firearm.

I would have put it into evidence under "safekeeping/known owner" and he could have got it back the next business day.

Posted: 1/26/2006 9:39:58 PM EDT

[#15]

Quoted:
RCW 9.41.098
Forfeiture of firearms — Disposition — Confiscation.

(1) The superior courts and the courts of limited jurisdiction of the state may order forfeiture of a firearm which is proven to be:

(e) In the possession of a person who is in any place in which a concealed pistol license is required, and who is under the influence of any drug or under the influence of intoxicating liquor, as defined in chapter 46.61 RCW;

The statute seems pretty clear actually.

A vehicle is a place in which a CPL is required if you have a loaded gun with you. There is no other requirement for a violation of law in order to confiscate and place within the jurisdiction of the court, except that he be under the influence of intoxicating liquor, as defined by law.

It is more in the vein of a civil seizure and forfeiture than a criminal one. I don't believe a charge even need be brought. Sort of like a seizure under the RICO Act, which doesn't require the actual filing of criminal charges in order for the feds to seize money or property. The burden is upon the owner to file a claim for the return of the property.

ETA: That is not to say that officer and court discretion wouldn't allow them to handle it as described above.

Posted: 1/27/2006 9:25:29 AM EDT

[#16]

Quoted:
Quoted:
RCW 9.41.098
Forfeiture of firearms — Disposition — Confiscation.

(1) The superior courts and the courts of limited jurisdiction of the state may order forfeiture of a firearm which is proven to be:

(e) In the possession of a person who is in any place in which a concealed pistol license is required, and who is under the influence of any drug or under the influence of intoxicating liquor, as defined in chapter 46.61 RCW;

The statute seems pretty clear actually.

A vehicle is a place in which a CPL is required if you have a loaded gun with you. There is no other requirement for a violation of law in order to confiscate and place within the jurisdiction of the court, except that he be under the influence of intoxicating liquor, as defined by law.

It is more in the vein of a civil seizure and forfeiture than a criminal one. I don't believe a charge even need be brought. Sort of like a seizure under the RICO Act, which doesn't require the actual filing of criminal charges in order for the feds to seize money or property. The burden is upon the owner to file a claim for the return of the property.

ETA: That is not to say that officer and court discretion wouldn't allow them to handle it as described above.

As I re-read it I see I read it incorrectly the first time. It would still take a crime to make it happen in my jurisdiction, as you'd have to go before a judge for some reason to cause this to happen.

In the scenario I laid out, where I took a pistol into evidence for safekeeping/known owner, it would not be an element of the crime and would not be evidence in the case. So if I got a guy for trespassing (refusing to leave a pizza hut) then found a pistol on him subsequent to arrest I would not put it into "evidence" as part of the crime unless one of two things happened.

1. He made threat that could have been carried out by having the gun on him.

or

2. He is a total ass and I wanted to screw him.

Discretion can be a bitch or your friend.

Posted: 1/27/2006 10:59:08 AM EDT

[#17]

I'm glad he got arrested for DUI and glad his Colt got confiscated during that arrest, I hope he gets his license suspended as well. He's lucky he didn't get killed or killed anyone for being DUI, I'm not happy that the court will not return his Colt. But he deserves the punishment. He can go get another one. Anyone with a CPL knows about not packing when alcohol is involved.

There's too many deaths caused by DUIs and yes other causes, I am a strong supporter of the DUI laws and I hope that if anyone get caught they get the worst punishment. US has one of the most lenient punishment when it comes to this. You kill someone while drving intoxicated, you should also get punishment by being the test dummy in a car crash test. Then, if you survive, you should spend 20 years or more in jail, solitary that is.

Posted: 1/27/2006 12:10:40 PM EDT

[#18]

When in the course of drinking God own goodness of beer no one shall remove a firearm from any one person imbibing in such.
May the army of the unopressed rise up and strike fear in the Godless souls of those who do not partake.

Some drunk at Pioneer Square

Posted: 1/27/2006 12:18:19 PM EDT

[#19]

Boy I have the whole LE community chiming in cool.
Yes he's a dumb ass, what got me was the judges comment about getting another gun off the street. Sounds like some anti gun nitwit hiding behind the robe.

Posted: 1/28/2006 3:30:03 AM EDT

[#20]

convicted of a DUI, you really don't have to assume that he failed a breathalyzer.

glad the gun was taken, i would deserve the same if i was carrying while drinking or drunk... and driving.

but then again, i'm really not that stupid.

the judge was not abusing any power, just exposing his lazy and airy opinion of firearms.

i hope the judge gets mugged, just because he sounds like an a-hole.

Posted: 1/28/2006 3:52:09 AM EDT

[#21]

Quoted:
I have to go with the majority on this too. Your friend is a dumbass and a stupid one at that. In spite of the 2nd amendment anyone who carries concealed needs to be morally responsible. That includes not drinking and packing.

As far as DUI is concerned they should bring back flogging for it. Three lashes for the first offense, five the second and so on.

Floggin isn't enough. The drunk could kill someone I love. You gotta take away their license for a time. That hurts way more than the lash.

Posted: 1/28/2006 4:21:52 AM EDT

[#22]

Quoted:

Yes he's a dumb ass, what got me was the judges comment about getting another gun off the street. Sounds like some anti gun nitwit hiding behind the robe.

Agreed.